President’s Page ...... John M. Ryan 2

Limitations of Actions In Virginia: Do Too Many Clocks Spoil the Broth? ...... J. R. Zepkin 4

The Employment-At-Will Rule in Virginia: Miller v. SEVAMP, Inc ...... Carol D. Rasnic 13

Court Costs in Virginia ...... W. H. Bryson 19

23

25 THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

President . ~. President-Elect Past President , John M. Ryan Thomas T. Lawson R. Gordon Smith 500 World T~ade Center P.O. Box 720 One James Center Norfolk, Virgin.ia 23510 Roanoke, Virginia 24004 Suite 800 Richmond, Virginia 23219

Chairman, ¯ Chair-Elect " Secretary-Treasurer Young L~wyers Section Young Lawyers Section Robert C. Wood, III Peggy O’Neal Haines David G. Shuford P.O. Box 958 P.O. Box 2009 P.O. Box 1122 Lynchburg, Virginia 24505 Bristol, Virginia 24203 Richmond, Virginia 23208

Executive Committee

F. Claiborne Johnston, Jr., Chairman Howard W. Martin, Jr. Thomas C. Brown, Jr. P.O. Box 1122 1640 Sovran Center 8280 Greensboro Drive Richmond, Virginia 23208 Norfolk, Virginia 23510 Suite 900 McLean, Virginia 22102

John E. Donaldson John H. Roberts, Jr. George H. Heilig,°Jr. School of Law 90 North Main Street .15 Stony Point Center College of William and Mary Harrisonburg, Virginia 22801 700 Newtown Road Williamsburg, Virginia 23185 Norfolk, Virginia 23502

Allen C. Gooslby, III Thomas G. Hodges P.O. Box 1535 340 W. Monroe Street Richmond,.Virginia 23212 Wytheville, Virginia 24382

Executive Director Director, Committee Activities Sue Gift Sanders Emerson G. Spies Suite 1515, 7th & Franklin Streets ’ School of Law 701 E. Franklin Street University of Virginia Richmond, Virginia 23219 Charlottesville, Virginia 22901

Articles and Other Contributions Subscription Information Membership Inquiries, Applications and Address Changes Contributions are welcome, but the right Subscription inquiries from libraries and is reserved to select material to be pub- out-of-state individuals should be directed Membership dues include the cost of lished. Publication of any article or state- to: one subscription to each member of the ment is not to be deemed an endorsement Association. Bess Wendell, Associate Editor of the views expressed therein by the The Virginia Bar Association Journal Inquiries about and applications for Association. 3849 W. Weyburn Road Association membership and changes of Material submitted for publication in Richmond, Virginia 23235 address should be sent to: the Journal should be sent to: The Virginia Bar Association Charles E. Friend, Editor Suite 1515, 7th & Franklin Bldg. The Virginia Bar Association Journal 701 E. Franklin Street Post Office Drawer H F Richmond, Virginia 23219 Williamsburg, Virginia 23187 The ldrginia Bardssociation..Journal

Volume XIV Spring 1988 Number 2

CONTENTS

President’s Page ...... " ...... EDITORIAL BOARD John M. Ryan

Appointed Members Limitations of Actions In Virginia: Do Too Many Clocks Spoil the Broth? ...... David W.’Parrish, Jr. J. R. Zepkin Chairman Charlottesville The Employment-At-Will Rule in Virginia: Vernon M. Geddy, Jr. Miller v. SEVAMP, Inc ...... 13 Williamsburg Carol D. Rasnic John L. Walker, Jr. Roanoke Court Costs in Vi}ginia ...... John F. Kay, Jr. W. H. Bryson Richmond Book Reviews : ...... 23.

Ex-Officio Members Bar Association Proceedings ...... 25, John M. Ryan The Winter Meeting ...... ’ ...... President Norfolk YLS News ...... : Thomas T. Lawson Announcements ...... 32: President-Elect Sponsors ...... , ...... Roanoke Patrons ...... 34 Sue Gift Sanders Newly Admitted Members ...... ¯ ...... 35 Executive Director Richmond YLS Chairman’s Report ...... 38

Peggy O’Neal Haines Committee Reports ..... : ...... 41 Chairman, Young Memorials ...... 49 Lawyers Section Bristol

The Virginia Bar Association Journal (ISSN 0360-3857) is published Editorial Staff quarterly for $20.00 per year by The Virginia Bar Association, Suite 1515, 7th Charles E. Friend & Franklin Building, 701 E. Franklin Street, Richmond, Virginia 23219, as a service to the profession. Second-class postage paid at Richmond, Virginia, Editor 23232. Bess Castle Wendell POSTMASTER: Send address changes to the above address. Associate Editor Membership dues include the cost of one subscription to each member of the Robert E. Spicer, Jr. Association. Subscription price to others, $20.00 per year; single copies $5.00. Editor, Young Lawyers Contributions @1988 The Virginia Bar Association JOHN M. RYAN

IN, the coming months lawyers across the Common- ument to Marshall’s determination to preserve America wealth will be asked to contribute to a particularly as a nation of laws, not of men. Mr. Justice Carrico worthwhile endeavor. The John Marshall Foundation stated: is seeking contributions totalling one million dollars The simple truth is that .while James Mad- to restore the John Marshall House, to permanently ison, with his authorship, may have given endow its operation and maintenance and to preserve the Constitution a body, and George Mason, its collection and artifacts. with his insistence upon a Bill of Rights, This year, The Virginia Bar Association is celebrat- may have given it a heart, John Marshall, ing its Centennial while the nation continues to cele- with the use of his brilliant analytical mind, brate the Bicentennial of the United States Constitu- gave it a soul and made it the greatest politi- tion. The Virginia Bar Association has chosen to cal document the world has ever known. commemorate these events in a practical yet inspira- Few Americans, however, and too few Virginians, are tional manner by assuming a leading role in raising aware of John Marshall’s contribution to his country the funds necessary to meet the Foundation’s needs. and our Commonwealth beyond his service on the It is a sad fact that John Marshall’s residence, a highest court. The house we seek to preserve is more significant building in itself, has fallen on hard times. than a memorial to our greatest Chief Justice. The roof is in bad condition and the building is Born in Fauquier County, Virginia in 1755, Mar- plagued with moisture problems. Its wooden portions shall first served his country in the American Revolu- are in immediate need of restoration and its furnish- tion where he commanded a company at the Battle of ings, carpeting and garden areas need to be restored Great Bridge, wintered at Valley Forge with George or replaced. Implied in the physical decline of the Washington in 1777-78 and again fought the British house is a parallel decline in today’s level of respect at Monmouth, New Jersey. After the war he studied for John Marshall, the man. Virginia’s lawyers, first law under George Wythe at William and Mary and and foremost, should not let this happen. married a young lady from Yorktown, Polly Ambler. Participation in a fund raising effort is a unique He became a member of the Richmond Bar, a member venture for this association. We have not done so for of the House of Delegates and, 200 years ago, served the past 100 years and we may not do it for another as a Delegate to the Virginia Convention which rati- century. It is my purpose on this page to tell you, the fied the United States Constitution adopted a year Virginia lawyer, why such an unusual step is entirely earlier in Philadelphia. appropriate. , John Marshall was then called to national service. Chief Justice Carrico in a recent address commem- President John Adams selected Marshall as one of orating the Bicentennial of the United States Consti- his Ministers to France following that nation’s revo- tution chose to link the enduring strength of the doc- lution. "At George Washington’s urging, John Mar- shall next successfully ran for Congress. President Adams thereafter chose him for the post of Secretary of War but, after a month in that position, he became Secretary of State. Less than a year later, at age 45, John Marshall took his seat as Chief Justice of the Supreme Court of the United States. I recount these highlights in the life of John Mar- shall before he assumed the position on the Supreme Court to emphasize his role in the very fabric of Vir- ginia’s history. Two hundred years ago John Mar- shall, debating Patrick Henry, successfully urged Virginia’s ratification of our Constitution; thirteen years later he began the task of bringing the docu- ment to its dominant position in the nation’s history. As Virginia lawyers we honor one of our own when we act to preserve the residence of John Marshall. Seldom in the history of our profession have lawyers suffered from a more unhappy public image than they enjoy today. From Watergate to Wedtech, the public’s perception of a lawyer in today’s society is far closer to "L.A. Law" than it is to reality. At such a time it seems particularly worthwhile to remind ourselves as well as nonlawyers that public service is a legal tradi- tion and that among the finest exemplars of that tra- John lYl. Ryan is a partner in the Norfolk, Vir- dition stands John Marshall, a Virginia Lawyer. ginia firm of Vandeventer, Black, Meredith & With these thoughts in mind I urge all members of Martin. He has been in the private practice of The Virginia Bar Association and their firms to lend law in the Tidewater Virginia area since 1963, is substantial financial support to the John Marshall a graduate of Dartmouth College and received Foundation when you are contacted as to a contribu- his LLB from the University of Virginia. tion. John Marshall gave us a great deal; quoting Mr. Ryan has been active in civic, professional again from Chief Justice Carrico’s remarks, "To and bar related activities for many years. For ten years he taught a seminar at the Marshall- gauge the extent of John Marshall’s legacy, one need Wythe School of Law at the College of William only guess what this country would have become & Mary. His practice is primarily in the field of without him. That we are a nation governed by a rule labor and employment law, litigation, and of law because he lived, there can be no doubt." We in admiralty. In 1975, Mr. Ryan co-authored a book turn should undertake that which is necessary to pre- titled "The Teenager and the Law" with Albert serve the memory of John Marshall and to insure that L. Ayars, former Superintendent of the Norfolk the standards established by this Virginia lawyer School system. and Justice are not forgotten.

3 J. R. ZEPKIN Limitations of Actions In Virginia: Do Too Many Clocks.Spoil. the Broth?

PART II

When the Statute Begins to Run chased an auto from the defendant in 1964. Unknown 1. Personal Injury Claims to her the vehicle had a defect in the steering mecha- Prior to October 1, 1977 the statute of limitation nism. As a result of this, the car crashed in 1967 and began to run on a personal injury claim at the point in plaintiff was injured. It was held that the period of time that the plaintiff suffered some injury. This was limitation on plaintiffs personal injury claim did not codified by §8.01-230. However, the law has been modi- begin to run until the date of her injury.~1 A similar fied both by case decisions and statutory enactment. result was reached by a federal court in Sides v. The present mixture of special rules for particular types Richard Machine Works, Inc.~2 when plaintiff was of injury presents a plaintiff with a confusing array of injured as a result of the negligent design and con- possible starting dates. struction of a locomotive. tin Street v. Consumers Min. CorpW the plaintiff sued for damages for his suffering from silicosis. He had last A. Continuing Negligence in worked in defendant’s mine in September of 1936. Personal Iniury Claims X-rays in 1940 showed silicosis and a physician testi- The first major niche in the armor of this harsh rule fied that the plaintiff had been suffering from the dis- as to personal injury claims’ came in 1979 in two cases, ease for 10-15 years. There was no evidence offered to Farley v. Goode~3 and Fenton v. Danaceau~4. Both show the point in time that the plaintiff actually con- cases involved causes that had accrued prior to the tracted the disease. effective date of Title 8.01, October 1, 1977 and the court In concluding that the plaintiffs claim was time did not have to deal with the language of §8.01-230: barred, the court held that any injury, however slight, In Farley, plaintiff sued for medical malpractice at resulting from another’s wrongful or negligent act, is the hands of a general dentist alleged to have failed to provided a remedy by the law at that time and the diagnose and treat a periodontal disease. The facts statute of limitation begins to run then. It does not showed a long professional relationship between plain- matter that all of the damages resulting from that act tiff and defendant beginning around 1966. Plaintiff have not happened at that point.4s was treated by defendant at different times through The other case often cited for the general rule is August of 1976, though at least one interval between Hawks v. DeHart.49 In this case, a physician was visits was greater than two years. An expert witness alleged to have negligently left a surgical needle in the. dentist testified that the periodontal disease should throat of the plaintiff ~hile conducting an operation in have been diagnosed as early as 1971. Suit was not 1946. Suit was not brought until 1963 when plaintiff filed until November 1976. testified she had discovered the needle. It was held that An application of the Hawks rule would of course the injury occurred when the needle was left in her have resulted in the plaintiffs claim being time barred. throat, which would have been 1946 and the statute However, the court held that started running then, not when it was discovered. "when malpractice is claimed to have occurred Plaintiff’s claim was time barred. during a continuous and substantially unin- In Caudill v. Wise Rambler~o the court had a chance terrupted course of examination and treat- to further refine the point that the statute of limitation ment in which a particular illness or condi- in personal injury claims begins to run from the date of tion should have been diagnosed in the injury, not the date of the wrong. Plaintiff had pur- exercise of reasonable care, the date of the injury occurs, the cause of action for that malpractice accrues and the statute of limita- EDITOR’S NOTE: This is the conclusion of a two-part article by Judge Zepkin. The first portion of the arti- tion commences to run when the improper cle appea~’ed in the Winter, 1988 issue of The Journal. course of examination, and treatment if any, for the particular malady terminates.’’~

4 Many questions were left unanswered in Farley as to the exact point in time the statute would start to run.~6 Fenton, which followed shortly after Farley involved a claim against a physician for negligently performing two operations, the second being performed to correct the problems from the first. Counsel in Fenton stipu- lated that plaintiff had one cause of action involving both procedures. While commenting on the existence of the stipulation, the Court did not explain whether it had any effect on the decision. The Farley rule was applied so that the period of limitation for claims from both procedures did not begin to run until completion of operation number two. The plaintiff in Large v. Bucyrus-Erie Co.57 urged the trial court to apply the Farley rule in a personal injury case that did not involve claims against physicians or dentists. The issue of the applicability of the rule in cases other than medical malpractice claims was not discussed or apparently raised. The court did hold the principle inapplicable on the facts. Plaintiff in Large sued for damages for bilateral hearing loss, silicosis, industrial bronchitis and asbes- tosis. He alleged a continuing tort up to the last day he worked in 1978. He had been exposed to dust and noise The Honorable J. R. Zepkin is General Dis- since 1962, but only two weeks of exposure had taken trict Court Judge of the Ninth Judicial District. place within two years of the date of filing suit. The He received a B. A. degree from the College of medical evidence was that all of his respiratory ail- William and Mary and a J. D. from the ments occurred more than two years prior to filing suit Marshall-Wythe School of Law of the College of and that the hearing loss had been experienced since at William and Mary, where he continues to be a least 1977 and that the hearing impairment had not lecturer. worsened since 1977. The court held that all of the Judge Zepkin has been a contributor to the injuries had occurred and were complete more than two Journal and his most recent article, "Service in Suits for Divorce or Annulment: The Peat Bog of years prior to filing suit and that plaintiffs claim was Process," appeared in the Summer 1986 issue. time barred.5~

B. Statutory Change Effective 7-1-87 covered. However, if a pacemaker was improperly For certain causes of action accruing on or after July implanted and did not function, or properly installed, 1, 1987~9 the Hawks rule was changed by amending but defective and did not function, would the object §8.01-243 to include a new subsection that reads: have no therapeutic effect? The statute does not specify C. The two year period of limitations speci- whether it is the intended purpose of the object or its fied in subsection A shall be extended in actual beneficial function that controls. actions for malpractice against a health care Another question about the amendment is how do provider as follows: you compute the additional time. There are two possi- 1. In cases arising out of a foreign object hav- ble constructions from the language: ing no therapeutic or diagnostic effect being 1. A plaintiff will have no less than one year from left in a patient’s body, for a period of one year from the date the object is discovered or rea- the date of discovery or when the wrongful act or omis- sonably should have been discovered; and sion should have reasonably been discovered. Thus, if there is more than one year left on the original two year period from the date of the wrongful act, the plaintiff This amendment does not appear to cover any device would have the greater time period; or that is implanted for treatment purposes such as a 2. The two year period does not begin to run until pacemaker, IUD, hip replacement etc. Only items such one year after discovery or when it should have rea- as the Hawks needle or missing sponges would be sonably been discovered. This means a three year

5 period of limitation after discovery. covery rule as to asbestos exposure cases only. The Since the statute speaks of the two year limitations statute reads: period as being extended for one year, it would seem §8.01-249. When cause of action shall be that the latter interpretation is the sounder. deemed to accrue in certain personal actions. -- The cause of action in the actions herein listed shall be deemed to accrue as follows: C. Exposure to Hazardous Substances: " 1. [omitted] the Locke Case 2. [omitted] In 1981 the Virginia Supreme Court had a fresh 3. [omitted] 4. In actions for injury to the person resulting chance to deal with the problem of exposure to hazard- from exposure to asbestos or products con- ous substances and the commencement of the period of taining asbestos, when a diagnosis of asbes- limitations. Application of the Hawks rule would have tosis, interstitial fibrosis, mesothelioma or resulted in a very harsh result and it is obvious that the other disabling asbestos-related injury or dis- court wanted to avoid this. On the other hand, the court ease is first communicated to the person or his has been very sensitive to avoiding a judicial adoption agent by a physician. However, no action may be brought more than two years after the of a discovery rule.6° death of such person;65 In Locke v. Johns-Manville Corp.~ the plaintiff sued 5. [omitted] in July of I978 for the injury of malignant mesotheli- oma caused by the inhalation of asbestos fibers during Locke will still be the rule in exposure cases that do the period of 1948-1972. Plaintiff was in apparent good not involve asbestos. It is important to remember that h~alth until November 1, 1977 when he started having the Locke court determined that no injury resulted at trouble breathing. X-rays in April of 1978 were normal, the time of exposure to asbestos and no injury occurred but a month later in May an abnormality was re- at the time of inhalation.66 In analyzing any exposure vealed. He had surgery in June of 1978 and the meso- case, this will be a threshold issue. If any injury takes thelioma was diagnosed. place on exposure, then presumably the statute will The Court recognized that this was a medical condi- begin to run on the date of ~xposure. This was the issue tion that does not arise at a specific time such as a in Joyce v. A.C. and S., Inc.67, which was a post Locke broken bone; it develops over a period of time. From and preamendment case dealing with asbestos expo- this, the court concluded that the inhalation of the fiber sure. The analysis is illustrative of the point. alone was not an injury.~2 The plaintiff had been employed by the defendant While denying it was adopting any discovery rule, through 1982. He had been exposed to asbestos from the court held the time of injury was 1952 to 1955 and from 1964 to 1972. As early as 1970 he suffered pleural thickening in one lung. This condition "..to be established from available competent evidence, produced by a plaintiff or a defend- remained stable until 1981. In 1981 the doctor told him ant, that pinpoints the precise date of injury he had mild pleural asbestosis. This condition wor- with a reasonable degree of medical cer- sened, followed by surgery. The medical evidence was tainty."63 that he developed pleural effusion between January 13, 1981 and July of 1981 and developed parenchymal The court was careful to state that this point in time asbestosis sometime after September 2, 1981. It was was not the date the diagnosis was communicated to agreed that both of these diseases were separate and the plaintiff or was actually made. The result was fair distinct from the initial pleural thickening. Suit was to claimants. Since the burden is on the defendant to fried on January 10, 1983. plead and prove that a claim is barred by the statute of The Court held that Locke did not apply because the limitations, the defendant would at least initially have plaintiff did in fact suffer some personal injury in 1970 to produce medical testimony that the disease was from the asbestos exposure when he had the initial diagnosible on a date more than two years prior to pleural thickening. Where any personal injury is filing suit. This would have been a difficult burden. The caused by the defendant’s wrongful act, the statute Locke decision has been subject to editorial comment, starts running, even though the plaintiff suffers addi- one article suggesting that it was almost the adoption tional personal injury at a later time from the same of discovery rule in disguisefi4 wrongful act. Plaintiff had a single indivisible cause of action.6s The Locke rule may also apply to other types of 1. Legislative Changes effectiv~e July 1, 1985 exposure cases such as pollution. Claims for personal The 1985 General Assembly adopted a modified dis- injury resulting from disease contracted as a result of

6 pollution of the air, water or ground may fall under this her person. The court further commented that this holding. Other areas that may potentially be involved holding was not contrary to Housing Authority v. La- with Locke could be transmission of bacteria, viruses burnum Corp., and in fact was consistent. Here there or other substances that may remain in the system was no personal injury until the accident. In La- without causing any disease or illness for years. burnum, plaintiff suffered some property injury upon In summary, the period of limitation for some per- installation. The court further commented that in this sonal injury claims will begin to run at the time of the case, the claim for breach of warranty accrued and the actual injury. In others, where there is a continuing statute commenced running on the date of delivery of course of negligence by the potential defendant, the the vehicle to the plaintiff, not the date of the crash?~ commencement might be deferred. With some exposure More recently, in First Va. Bank-Colonial v. Baker72 cases, the time of communication of the disease to the the same issue was before the court. All of the circum- patient will start the clock running, while for others it stances took place prior to October 1, 1977, the effective will be the date that the disease is first diagnosible, date of Title 8.01. This was an action against a circuit whether in fact diagnosed or not in time for the plain- court clerk for damages resulting from the improper tiff to timely sue. indexing of a lien on real estate. As a result of the This type of uncertainty does not serve any of the mistake, the plaintiff bank wound up as a third lienor, participants well and is illogical. A uniform rule for the instead of second as it believed from the record exami- commencement of all periods of limitation would serve nation. The issue was whether the statute of limita- the public much better. tions commenced running when the indexing error was committed, when the bank issued its loan or when it 2. Injury to Property & Breach of Contract had to pay the second lien holder its debt. Claims The Court concluded that the bank suffered no injury until its deed of trust was recorded. At that point it Until recently, development of the law as to accrual "suffered substantial injury to the integrity of its secur- of a cause of action for breach of contract and injury to ity, a valuable asset.’’Ta The court did not discuss what property has tracked that of personal injury claims. the damages.would be, that is, what would the bank One of the principal cases standing for the rule has have alleged as its damages had it filed suit at that been Housing Authority v. Laburnum Corp.69 Plaintiff point in time. sued to recover damages for the destruction of one of its In a footnote in First Va. Bank-Colonial it was com- housing units from an explosion. The explosion was mented that the right of action accrued at some point alleged to have been cauged by a defective union in a prior to October 1, 1977 and that §8.01-230 did not gas pipe installed by defendant’s subcontractor. The apply.74 A caveat was issued that for cases falling pipe leaked, resulting in the explosion. The pipe was under the new code section, a different result might be installed no later than 2/26/43 and suit was filed required. 1/28/49, within five years from the explosion, but more than five years from the installation of the pipe. A. Va. Code §8.01-230 & its Impact It was held that the cause of action accrued when the work was done, not when the explosion occurred or the §8.01-230 reads in part defect was discovered. The rationale was that plaintiff "the prescribed limitation period shall begin was first damaged when it parted with its money in to run.., when the breach of contract or duty payment for the work on the defendant’s certificate occurs in the case of damage to property and that the job was properly done. Plaintiff could have not when the resulting damage is discovered." brought suit at that point, having suffered some dam- age. The fact that the quantum and nature of the dam- The first case to address the new statute directly was ages became much greater at a later time did not defer Harbour Gate Owners’ Association v. Berg.75 This case the commencement of the running of the statute of lim- involved warranty claims by purchasers of condomin- itations. ium units. Some owners had bought prior to October 1, The Virginia Supreme Court reaffirmed this analy- 1977 and others after that date. The case involved sev- sis, by way of dicta, in Caudill v. Wise Rambler.7° eral issues, but in applying §8.01-230 to the post Plaintiff had purchased a motor vechicle with a defect October 1, 1977 purchases, the court held that the date in the steering mechanism. When the defect later of breach of warranty was the date of commencement caused an ~ccident and she was injured, she. sued for of the period of limitations. In construing the Condo the personal injuries. The court held that her injury minium Act, §55-79.39 et seq., the court held that the claim did not accrue until she suffered some injury to period of warranty commenced, on the facts of this

7 case, on March 22, 1976. On that date, since the defect period of limitation and the same section required the alleged would have been pre-existing, there was a period to begin to run on the date of tender of delivery. breach of warranty and under §8,01-230 the statute As to the negligence claim, the Court held that the commenced running. What is alarming is that as to statute of lfmitations for injury to property would not post October 1, 1977 purchasers, they may be time begin to run until the injury was sustained, the date of barred immediately upon purchase of their units, the fire. In a footnote, the court emphasized that the depending on the actual date of purchase. Yet they Plaintiffs did not sue to recover damages to the product would have no standing to sue until they made the itself [the refrigerator],s~ While at first this seems con- purchase. The Court expressed it as: sistent with the cases discussed earlier, closer analysis In the case now before us, it is apparent that raises serious questions. any unit owner whose deed was delivered First, without comment, the court proceeds to treat as before October 1, 1977, was entitled to the separate causes of action, for purposes of the statute of benefit of the rule in Baker: his right of action limitations, the warranty claim and the negligence did not accrue until his property rights were claim. While there is one 1974 U.S. District Court case injured. He had no property rights until he from the Western District of Virginia permitting thiss2, became an owner, and therefore his right of there appears to be no other case law in Virginia sup- action accrued when his deed was delivered, if within the warranty period. On the other porting this. In fact, two years later, the U.S. District hand, a purchaser whose deed was delivered Court for the Eastern District of Virginia reached the on or after October 1, 1977 was affected by opposite conclusion on similar facts,s3 If one can split a Code §8.01-230. The statute of limitations claim in this manner, can it be done in separate suits began to run as to his claim "when the breach and would a loss in one action or claim bar the plaintiff of contract or duty occur[red]." That event, as from proceeding in the other. This approach i~s incon- noted above, took place on March 22, 1976.76 sistent with the holding in Friedman v. Peoples Drug The Court, in a footnote, did comment that it was Store84 that it is the object of the action, not its form unlikely that this harsh result was intended, but the that determines which perio~d of. limitation applies. clear language of .the section requires it. It further The second issue raised by this case is whether one noted that if a change was to be made, it was appro- can now split a claim for damage to property into sub- priate for the General Assembly to do it, not the court.77 parts. The effect of the holding in Ethan Allen is to In a later case, one member of the court noted in a permit, the plaintiff to separate the claim for the defec- dissenting opinion that if this analysis is correct, that tive refrigerator from the claim for the damage to the the statute, to the extent it "bars a cause of action home. For example, if the fire had occurred the day before any damage has occurred, its application would after delivery of the refrigerator would the plaintiffs be deprive a person of property without due process of law permitted to file two separate actions, one for the in violation of the Federal and Virginia constitutions.7s repair/replacement cost of the refrigerator and one for the repair/replacement cost of the house? The holding in this case strongly suggests this could be done. If so, B. Questions Raiged by Stone v. Ethan Allen, this would be inconsistent with a line of holdings Inc. beginning with Carter v. Hinkle.s6 This case adhered to In November of 1986, the Virginia Supreme Court the common law rule that a single cause of action can decided Stone v. Ethan Allen, Inc.79 which has the not be split into several claims and separate actions potential to cause a major change in the procedural law maintained on each. Virginia does adhere to the rule in Virginia. The facts were simple. Plaintiffs pur- that damages to person and property resulting from chased a refrigerator from the Defendant in 1975. In the same wrongful act give rise to two different causes July of 1977s° their home was damaged by fire, which of action. The holding was reaffirmed in Caudill v. tl~ey claimed was the result of a defect in the refrigera- Wise Rambler.ss tor. Suit was filed in 1981 only for the fire damage to In Street v. Consumers Min. Corp.s7 plaintiff had the home. Damages for the defective refrigerator wer~ sued for personal injuries. He had been diagnosed’ as not claimed. Plaintiffs alleged breach of warranty and having silicosis for the prior 10-15 years. There was no negligence. The trial court held that all the claims were evidence to show when the disease was contracted. In time barred. holding plaintiffs claim time barred, the court ruled The Virginia Supreme Court held that the breach of that when an injury, though slight, is sustained as a warranty claim was barred by the statute of limitation. result of a wrongful act, the statute commences run- The case was decided under pre-Title 8.01 law and the ning. It does not matter that all the damages resulting court opined that §8.2-725 applied, setting a four year from the act have not happened at that point in time.ss In Ethan Allen, plaintiff suffered some property dam- the same result in other types of cases. age when the defective refrigerator was delivered and Where there is an ongoing business relationship his money was paid, just as the owner of the building between parties that contemplates a continuation of had done when the gas pipe was installed in Housing services, the statute of limitations does not begin to run Authority v. Laburnum Corp.s9 More damages resulted until the undertaking or enterprise is terminated.9~ If in both cases from the defect at a later time. there exists an open account relationship between the Several federal cases, applying Virginia law, have parties, the period of limitation will not commence to followed this same principle. In Joyce v. A.C. and S., run until a date is determined that the debt is due. The Inc.9° plaintiff had sued for several lung ailments trier of fact would have to consider the dealings alleged to have been caused by exposure to asbestos. between the parties.97 The illnesses occurred at .different intervals. Even McCormick v. Romans v. Gunn9s involved a suit though both’ sides agreed that the illnesses were separ- again.st a law firm. Plaintiff alleged that the Defendant ate and distinct, the court held that the plaintiff had a had undertaken to handle real estate closings for her single personal injury claim, not divisible, that accrued and that the money was to be used to pay the expenses with the occurrence of the first illness and that a new and then the balance held for her account. She ¯further period of limitation did not begin with each succeeding alleged that when demand was made for an account- illness. Plaintiff could not split his initial injm’y from ing and payment of the balance, the defendant refused. the consequential injuries.91 This is exactly what was It was held that the period of limitations commenced to permitted in Ethan Allen. run when the relationship was terminated after refusal Splitting .a cause of action was also prohibited in to account for the funds. "Where there is an undertak- Granahan v. Pearson92 where plaintiff alleged that the ing which requires a continuation of services, the sta- defendant’s failure to timely remove an IUD when she tute of limitations does not begin to run until the ter- showed signs of Pelvic Inflammatory Disease caused a mination of the undertaking.’’99 succession of health problems. A suit by an attorney for legal fees was involved in In Burke-Parsons-Bowlby Corporation v. E. D. Etnyre Wood v. Carwile.100 The attorney had represented the & Co. and A. E. Finley & Associates9a plaintiff sued for defendants on a series of real estate and business mat~ only the costs of cleaning up a cargo spill when its ters over a period of years. While there were several trailer overturned. It alleged negligence and breach of parcels of real estate involved, matters of financing, express and implied warranties [just as in Ethan record keeping, tax planning and other matters pro Allen] in that a defect in the trailer caused the leak. It vided a nexus among the transactions. The Court held was held that theperiod of limitation began to run on that the statute of limitations did not commence run- the date of sale, not the date of the spill. ning until the agency was terminated. In Irvin v. Burton94 plaintiff sued for negligence in The client brought suit in Keller v. Denny10~ for the performance of a laparoscopic tubal causation. damages for the attorney’s alleged malpractice. The ¯ Plaintiff became pregnant 3 1/2 years later. The Uni- Court recognized that in the Wood case it had used the ted States District Court held that the statute of limita- time of termination of the agency or agreed time for tions commenced when the procedure was performed payment as thb commencement point for the running since some injury was suffered at the time. "... the of the statute of limitations and it had used the time of statute of limitations in Virginia does not accrue termination of the particular negligent undertaking in separately for each set of damages resulting from a the malpractice actions against attorneys and health wrongful act...-95 care providers.102 The Court in Ethan Allen does not make any men- The Court held this to ,be an appropriate distinction tion of this body of law. Only subsequent decisions will between malpractice claims and open account type of perhaps disclose whether this case represents a major relationships. Reasoning that the rationale supporting departure from prior law. the use of the continuing negligent treatment rule in physician-patient cases is equally applicable to at- C. Concept of Continuing Wrong ih Non-Medical torney~lient ones, the court held: Malpractice Cases "... when malpractice is claimed to have As pointed out earlier in this Article, the Virginia occurred during the representation of a client by an attorney with respect to a particular Supreme Court has applied a concept of continuing undertaking or transaction, the breach of con- wrong in medical malpractice cases to defer the com- tract or duty occurs and the statute of limita- mencement of the running of the period of limitationsl tions begins to run when the attorney’s servi- This ~ame approach has been used in order to achieve ces rendered in connection with the particular

9 undertaking or transaction have terminated, The giving of notice of a claim pursuant to notwithstanding the continuation of a gene- ~8.01-581.2 shall toll the applicable statute of ral attorney-client relationship, and irrespec- limitations for and including a period o~ 120 tive of the attorney’s work on other undertak- days from the date such statute of limitations ings or transactions for the same client.’’1°3 would otherwise run, or 60 days following issuanceof any opinion by the medical review In effect, by deferring the date of the breach of con- panel, whichever is later .... tract to a later date determined ~by the termination of the undertaking, the Court avoids a conflict with the A literal reading of this statute might permit, in cer- clear language of ~8.01-230 which may have applied to tain circumstances, more than a four year period before this case. Remember that the statute sets the date of a claimant would be time barred. One must keep in breach of contract or duty as the date for commence- mind the holding in Baker v. Zirkle~°s and Dye.v. Sta- ment of the statute of limitations.., whether or not /ey.~°9 While both of these cases were decided under a any injury has occurred at that point. prior version of ~8.01-581.9, to the extent the cases construe the meaning of the word "toll" as used in the statute, ’they should still be good law. The subsequent amendment of the statute did not alter the way the Va. Code §8.01-24911] provides that the cause of word "toll" is used. These cases held that the word action in suits for fraud shall accrue upon discovery of "toll" means halt or suspend the running of the statute the fraud or when by the exercise of due diligence it of limitations.’ i 0 reasonably should have been. discovered. This statute Assume a claimant gives notice 30 days after an applies to constructive fraud as well as actual fraud.TM injury from medical malpractice. There are two ap- As mentioned earlier in this Article, the statute of proaches that can be used in Computing the operation limitations is two years for all actions accruing after of §8.01-581.9. July 1, 1987 for damages resulting from fraud.’°~ FIRST: The term "toll" means that the giving of notice halts or suspends on the date of giving notice, E. The Discovery Rule the running of the statute of limitations. One then compares the date the statute would have otherwise There has been a reluctance on the part of the General Assembly to adopt a discovery rule. Such a run, plus 120 days, with a date 60 days after any opin- law would provide that the commencement date of the ion, if a hearing is requested, and on the later of these running of the statute of limitations for .any action two dates, the statute resumes running again. Thus in would be the date the cause or wrong was discovered, this example, if no hearing was requested, the statute or should have been discovered by the use of reasona- of limitations would have otherwise run 2 years from the date of the wrongful act. On that date plus 120 days ble diligence. There have been repeated comments in the opinions of the Virginia Supreme Court that it it would resume running, with 23 months remaining leaves it to the General Assembly to debate the merits within which to file suit. The:plaintiff~ last date to file and demerits of such a rule.1°6 in its report to the would be approximately 51 months after the wrongful General Assembly, the Virginia Code Commission, in act. recommending the revision of the procedure code in SECOND: The term "toll" is read with the language 1977, suggested a discovery rule in sOme cases.~°7 The "for and including" and this means that the running of legislature did not follow the recommendation when the statute is halted or suspended only for 120 days. Title 8.01 was adopted. after it would otherwise run or 60 days after any opin- The present status includes legislative acts providing ion..In effect,, the statute would function to simply for a discovery rule in some instances, but not others extend the time to file suit for ~ither 120 day or 60 day periods. A ~laintiff would have at least the later of and case law that defers the commencement date of the running of the statute of limitations in so’me instances these two periods within which to file. but not others. As stated earlier, wouldn’t all be better While the second interpretation makes more sense, served by a uniform rule as to when a statute of limita- the strict reading of the language favors the first tion commences running? approach. The crucial qu.estion is when does the toll- ing, or suspension become operative, upon giving notice, or upon the occurrence of the two occasions, 3. A Special Problem Area... when the statute would otherwise run or the issuance The Medical Malpractice Act of an opinion. Va. Code §8.01-581.9 of the Medical Malpractice To further compound the problem of figuring out Review legislation reads in part: what the period of limitation is for a medical malprac- tice action, three other statutes must be considered. 4. Conclusion Under Virginia’s Tort Claims Act, §8.01-195.1 et seq., Hopefully by now, the argument for legislative relief it is provided in §8.01-195.6: is persuasive. The interest of potential claimants, Claims against the Commonwealth involving defendants and their insurance carriers, and members medical malpractice shall be subject to the of both the plaintiffs ~ind defense bars all suffer from provisions of this article and to the provisions the present morass. Certainty in the law in the area of of Chapter 21.1 (~8.01-581.1 et seq.) of this title. limitations of actions is vital. The Virginia Supreme Court has made it clear that it The Tort Claims Act has its own notice requirements feels that issues involving changes in the law regard- and periods of limitation for bringing an action.TM ing limitations of actions should be accomplished by Which period of limitation will prevail, the one set the legislative branch of government.112 To this end, under the Tort Claims Act, or the personal injury one the General Assembly should either create a joint under ~8.01-243? Do the tolling provisions of ~8.01-581.9 study committee or refer the matter to the Virginia apply to whichever period of limitation controls? Code Commission with a charge to review the entire If this is not enough to intimidate the .practitioner, body of law in Virginia dealing with limitations of consider the 1987 amendment to §8.01-243, which pro- actions. The following inquiries should be made: vides: 1. Isit time for Virginia to adopt a discovery rule? If C. The two-year limitations period specified in not, then can a uniform rule for when the period of subsection A shall be extended in actions for limitation commences be adopted, for all actions and malpractide against a health care provider as circumstances. follows: 2. Should the various notice and tolling provisions of 1. In cases arising out of a foreign object hav- statutes such as the Medical Malpractice Review Act ing no therapeutic or diagnostic effect being and the Torts Claims Act be moved to the Chapter on left in a patient’s body, for a period of one year from the date the object is discovered or rea- Limitations on Actions and amended to provide a con- sonably should have been discovered;... sistent methodology? 3. Should a uniform period of limitations be adopted Lastly, think also about the effect of newly adopted for all personal actions, or in the alternative one for all ~8.01-243.1, which reads: personal injury actions and one for all injury or loss of Notwithstanding the provisions of §8.01-229 property actions? If the alternative approach is taken, A and except as provided in subsection C of then a better definition of what is personal injury and §8.01-243, any cause of action accruing on or what is property injury would be needed. after July 1, 1987, on behalf of a person who 4. If a discovery rule is to be adopted, then should a was a minor at the time the cause of action accrued for personal injury or death against a statute of repose, establishing an outside limit, mea- health care provider pursuant to Chapter 21.1 sured, from the breach or wrong, be also enacted? ~The (§8.01-581.1 et seq) shall be commenced within reason suggested for these types statutes is to avoid two years of the date of the last act or omis- a person’s never knowing when all claims for a certain sion giving rise to the cause of action except time period will have expired. An example of a statute that if the minor was less than eight years of of repose already in existence is Va. Code ~8.01-250. age at the time of the occurrence of the mal- None of these inquiries will have easy answers. practice, he shall have until his tenth birth- There are obviously competing interests involved. Yet, day to commence an action. Any minor who is ten years of age or older on or before July 1, considering that all perspectives suffer from the pres- 1987, shall have no less than two years from ent state of the law, it is evident that all interests will that date within which to commence such an have something to gain by negotiating ~ompromises in action. these areas that would permit uniformity and certainty Imagine being faced with a cli.ent who is a 9 year old in the law. child and had a surgical procedure performed at a

State hospital where a needle was left in his throat. FOOTNOTES The family did not discover, and reasonably could not 47. 185 Va. 561, 39 S.E.2d 271 [1946]. have discovered, it for 18 months. How could one ever 48. Id. at 566, 39 S.E:2d at 272. figure out with any certainty what the period of limita- 49. 206 Va. 810, 146 S.E.2d 187 [1966]. tions is, what act" or acts will toll its running and for 50. 210 Va. 11,168 S.E.2d 257 [1969]. 51. Id. at 14, 168 S.E.2d at 259; Note the discussion later ¯ how long? There must be a better way to deal with regarding property damage claims which requires a different these multiple statutes. starting point for the statute of limitations.

11 52. 406 F.2d 445 [4th Cir. 1969]. 80. This meant that pre-Title 8.01 law was applied 53. 219 Va. 969, 252 S.E:2d 594 [1979]. 81. Id. at 369, 350 S.E.2d at 632. 54. 220 Va. 1,255 S.E.2d 349 [1979]. 82. Insurance Co. of No. America v. General Electric Co. 376 55. 219 Va. 969; 976, 252 S.E.2d 594, 599. F. Supp. 638 [DC Va. 1974]. The opinion does not discuss the issue 56. See: Zepkin, Virginia’s Continuing Negligent Treatment of splitting a single cause of action for property damage. Rule: Farley v. Goode and Fenton v. Danaceau 15 UI Rich. L. Rev. 83. Smithfield Packing Co., Inc; v. DunhamoBush, Inc. 416 F. 231 [1981]. Supp. 1156 [DC Va. 1976]. The Court commented it thought INA 57. 707 F.2d 94 [4th Cir. 1983]. v. GE wrongly decided. 58. In a well reasoned dissent, it is argued that the Farley rule 84. 208 Va. 700, 703, 160 S.E.2d 563, 565 [1968]i should be applied. In Farley the injury was complete much more 85. 189 Va. 1, 52 S.E.2d 135 [1949]; Gary Steel Corp. v. Kitchin " than two years prior to filing suit. It was the continuing wrong of 197 Va. 471, 90 S.E.2d 120 [1955]. See also: 1 Am Jur 2d Actions the defendant that kept the statute from starting to run. In this §146 - §150; 62 A.L.R.2d 997. case, the continued exposure should be analagous to the failure to 86. 210 Va. 11, 13, 168 S.E.2d 257, 259 [1969]. diagnose in Farley. 707 F2d 94, 97. 87. 185 Va. 561, 39 S.E.2d 271 [1946]. 59. Comments to 1987 amendments to ~8.01-243, Code of Viro 88. Id. at 566, 39 S.E.2d at 272. ginia 1987 Cumulative Supplement. 89. 195 Va. 827, 80 S.E.2d 574. 60. There is a later discussion of the discovery rule and the 90. 785 F.2d 1200 [4th Cir. 1986]. Virginia Supreme Court’s r~fusal to judically adopt one, while 91. Id. at 33. continually making subtle suggestions for the legislature to con- 92. 782 F.2d 30 [4th Cir. 1985]. sider it. See note 106. 93.. 585 F. Supp. 620 [DC Va. 1984]. 61. 221 Va. 951,275 S.E.2d 900 [1981]. 94. 635 F. Supp. 366, [DC Va. 1986]. 62. Id. at 958, 275 S.E.2d at 905. 95. Id. at 368. 63. Id. at 959, 275 S.E.2d at 905. 96. Beale v. Moore 183 Va. 519, 32 S.E.2d 696 [1945]. Suit by an 64. Combs, Statutes of Limitations in Occupational Disease attorney for his fee. Cases:, Is Lock v. Johns-Manville a Viable Alternative to the Dis- 97. Columbia Heights v. Griffith-Consumers 205 Va. 43, 135 cov.ery Rule? 39 Wash. & Lee L. Rev. 263 [1982]; See also: Steven- S.E.2d 116 [1964]. Suit on fuel oil account. son, Products Liability and the Virginia Statute of Limitations-- 98. 214 Va. 144, 198 S.E.2d 65’1 [1973]. A Call for the Legislative Rescue Squad 16 U. Rich. L. Rev. 323 99. Id. at 148, 198 S.E.2d at 654, citing Wilson v. Miller 104 Va. [1982]. 446, 448, 51 S.E. 837, 838 [1905]. 65. Note that inconsistent terms are used. This section uses 100. 231 Va. 320, 343 S.E.2d 346 [1986]. injury to the person, while ~8.01-243A which establishes the .101. 232 Va. 512, 352 S.E.2d 327 [1987]. period of limitation for this type of injury, uses personal injury. 102. Id. at 516, 352 S.E.2d at 3~9. Arguably, the use of both terms in connected statutes suggests 103. Id. at 518, 352 S.E.2d at 330. they were intended to have th.e same meaning. 104. Excalibur v. Speller & Ermlich 220 Va. 304, 257 S.E.2d 848 66. 221 Va. 951,958, 275 S.E.2d 900, 905. [1979]. 67. 785 F.2d 1200 [4th Cir. 1986]. 105. Va. Code ~8.01-243[A]. 68~ Id. at 1203. The question of division of causes of action is 106. Stone v. Ethan Allen 232 Va. 365, 370, 350 S.E.2d 629, 632. discussed later in this article. Note 4; First Virginia Bank-Colonial v. Baker 225, Va 72, 83, 301 69. 195 Va. 827, 80 S.E.2d 574 [1954]. S.E.2d 8, 14. Note 7; Locke v. Johns-Manville Corp. 221 Va. 951, 70. 210 Va. 11,168 S.E.2d 257 [1969]. 959, 275 S.E.2d 900, 905; Farley v. Goode 219 Va. 969, 980, 252 71. Id. at 13, 168 S.E.2d at 259. S.E.2d 594, 601; Virginia Military Institute v. King 217 Va. 751, 72. 225 Va. 72, 301 S.E.2d 8 [1983].. 760, 232 S.E.2d 895, 900. 73. Id. at 83~ 301 S.E.2d at 14. 107. Report of the Virginia Code Commission to the Governor 74. Id. at 83, 301 S.E.2d at 14. Note 7. See also: Stone v. Ethan and The General Assembly of Virginia, Revisions of Title 8 of the Allen 232 VA. 365, 370,~350 S.E.2d 629, 632 [1986]. Note 4. Code of Virginia, House Document 14, 1977, pages 158-159. 75. 232 Va. 98, 348 S.E.2d 252 [1986]. 108. 226 Va. 7, 307 S.E.2d 234 [1983]. 76. Id. at 107, 348 S.E.2d at 258. 109. 226 Va. 15, 307 S.E.2d 237[1983]. 77. Id. at 107, 348 S.E.2d at 258. Note 3. 110. 226 Va. 7, 11,307 S.E.2d 234, 237. See also: Horn v. Aber- 78. Keller v. Denny 232 Va. 512, 520, 352 S.E.2d 327, 331 nathy 231 Va. 228, 343 S.E.2d 318 [1986]~ [1987]. Dissenting opinion by Justice Stephenson. 111. ~8.01-195.7 79. 232 Va. 365, 350 S.E.2d 629 [1986]. 112. See note 106.

12 CAROL D. RASNIC

The Employment-At-Will Rule in Virginia: Miller v. SEVAMP, Inc.

TAKING a characteristically conservative stance, the achieved considerable salary increases. Her most re- Supreme Court of Virginia on November 25, 1987, once cent job evaluation had been quite favorable, but had again has affirmed the Virginia line of cases following indicated that she had reached the limit Of any possible the common law rule of employment-at~will. This doc- future promotions unless she took some college courses. trine holds that an employment contract of uncertain The travel required by her job in sales, however, pre- duration is presumed to be one at will, permitting either vented her from doing so. Thus, when ~her earlier posi- employer or employee to terminate the employment at tion as teletype operator became vacant, she decided to any time, upon giving the other reasonable notice. The apply for it, since it .would provid.e her with time for decision, Miller v. SEVAMP, Inc.,’ is particularly further schooling.(e~ien though it would mean accept- instructive, since the plaintiff-employee’s motion for ing a temporary demotion). Three managerial agents judgment alleged both a breach of employment con- of the employer--her" present supervisor, the individual tract and the tort of wrongful discharge. She lost on who would be her new supervisor if transferred, and both counts, not even having been granted a jury trial.2 the person who ultimately ~would approve any such transfer--all assured her that the lower job would be hers, provided she formally resign from the sales job. Virginia’s Previous Views on Breach of So advised, she resigned, only then to be told that she Employment Contract Cases was "overqualified" for the teletype operator position, Thus far, those holdings in Virginia allowing recov- which was offered to another applicant. She then ery for breach of a con_tract of employment, other than endured the supreme injustice of having to train her for those discharges expressly prohibited by legisla- replacement for the job from which she had resigned. tion,3 have been relatively few when contrasted with She, like the plaintiff in SEVAMP, sued on bSth con- comparative positions taken in other states, The tract and tort theories, and the jury’s general verdict of employment-at-will doctri~, e has indeed lost much of its $125,000 was sustained by the Court. Holding that a ~arlier pstency in those states where the courts are not verdict on either theory would not have been error, the disposed to judicial restraint. Most exemplary is Cali- "contract" the Court viewed as having been breached fornia, whose courts not only recognized the first "pub- was neither the first employment contract .(as sales lic policy" exceptions to the rule,4 giving rise to a tort representative) nor the second (as teletype operator), cause of action, but also now imply a covenant of good but, rather, the promise to employ her in the second faith in all employment contracts,5 both without any position, which the Court viewed ~as ’,separate and legislative directive. It is in the tort area--the mount- apart from any contract covering [a] ... particular ing variations of public policy exceptions, whether position.’’1° In a classic turnaround, the Court used based upon statutory dictates of what constitutes pub- against the defendant one of the cases it had cited, Tow lic policy6 or simply judicial pronouncement of such~- v. Miners Memorial Hospital Association, Inc.n Al- which has made the greatest impact upon the formerly though Tow had in fact held that the relinquishing of inviolate "at-will" doctrine. The latest two Virginia one position incident to the acceptance of a new posi- holdings establishing exceptions to the general rule are tion does not constitute consideration, the Court point- Sea-Land Services, Inc. v. O’Neals and Bowman v. ed out that the federal district court in Tow had State Bank of Keysville.9 expressly applied West Virginia law and had cautioned In Sea-Land, the plaintiff had begun her employ- that "the rule in Virginia is otherwise.’’’2 !t is interest- ment with the defendant as a messenger-teletype oper- ing to observe that, had the defendant in Sea-Land, so ator and had been promoted various times until she obviously desirous of ridding itself of plaintiff as an reached the position of sales representative~ having employee, simply transferred her to the second posi-

13 The Court held that the railroad was free to terminate because the contract calling for the rendition of servi- ces was "so incomplete that the period of its intended duration cannot be determined by a fair inference from its provisions.’’16 The Court continued to reaffirm that a contract for an indefinite term may be terminated at the will of either employee or employer in Hoffman Specialty Co. v. Pelouzee,17 Title Insurance Co. v. Howell,’s Plaskitt v. Black Diamond Trailer Co.,~9 and Wards Co. v. Lewis & Dobrow, Inc.2° In those few cases where Virginia plaintiffs have prevailed, distinguishing facts have been shown. In Norfolk Southern Railway Co. v. Harris,~ the employ- er’s promise to dismiss only for just cause was con- tained in a collective bargaining agreement of fixed duration. The provision had been a bargaining quid- pro-quo for the union’s agreement to include a no-strike clause, and, as such, was enforceable under federal law. In Twohy v. Harris,2’~ although not a discharge case, the plaintiff presented evidence that his employer had promised to transfer to him stock in defendant’s company at the plaintiffs termination of employment, if he would remain. The plaintiffs having refrained Carol D. Rasnic received a B.A. from the Uni- from exercising his legal right to leave his employment versity of Kentucky and her law degree from Vanderbilt University. She is licensed to practice at any time, in exchange for his employer’s promise in Tennessee and Virginia and has practiced in later to transfer the stock, was held to be consideration both states. Ms. Rasnic is presently Associate which bound the employer. Professor of Labor Law and Personnel Law at Virginia Commonwealth University. Virginia Federal Courts’ Treatment of Wrongful Discharge Litigation t-ion, it might then have summarily dismissed her with The federal courts in Virginia have recently been or without cause, since the Court deemed that position more inclined to find those circumstances that would to be one terminable at will.13 rebut the at-will presumption, at least with respect to The two plaintiffs in Bowman were successful in breach of contract charges.23 Although the federal having the Court remand their case for trial after the judge in Griffith v. Electrolux Corp.~ refused to tread circuit court had sustained defendant’s demurrer. Rely- onto the state courts’ domain by accepting the plain- ing on the tort theory, the Court held that the plaintiffs tiffs challenge to apply "what Virginia courts would had stated a cause of action by pleading that their do today rather than to apply mechanically the rules having voted their shares of stock in employer-bank in heretofore followed,’’25 later decisions have taken a a manner contrary to the bank’s instructions was the more liberalized view of the status of the rule in Virgin- reason for their discharges. Since shareholders are ia. In Frazier v. Colonial Williamsburg Foundation,~6 vested with a statutory right to vote corporate shares the federal district court, while recognizing that Virgin- according to their own volition,14 any retaliation such ia law presumes an employment contract with no deft- as discharge would be unlawful. nite term to be terminable at will, nonetheless held that The earliest explicit holding in Virginia that the an employer might orally bind himself by a provision general rule is that an employment contract for an to discharge only for cause. The plaintiffs allegations indefinite term is one at-will was Stonega Coal & Coke that such assurances had in fact been made and the Co. v. L & N Railroad.~ Here, the plaintiffs assignor defendant’s denial were held to have presented a tria- had agreed to build a railroad line from its mines to the ble issue of fact so as to make summary judgment for railroad yard in exchange for free rail services from the defendant improper. Then, in Barger v. General defendant. Later, however, the defendant-railroad noti- Electric Co.,~ the federal trial court viewed Virginia’s fied plaintiff that it would not continue the services. at-will doctrine as a rebuttable presumption, rather

14 than a substantive rule of law. While conceding that Nevada, New Jersey, New Mexico, New York, South the Supreme Court of Virginia had not yet expressly Dakota, and Wyoming.~5 decided whether employee handbook provisions re- In McMillion v. Appalachian Power Co.~6 the concept garding layoffs might be contractual and would rebut that such handbooks, if they are to be regarded as this presumption, the court relied on the Frazier court’s binding on the employer, also must be binding on the rationale that the binding nature of such employee employee worked against an employe~plaintiff who handbooks is an issue of fact to be decided by a jury. had failed to exhaust the handbook’s four-step griev- Finally, in Thompson v. American Motor Inns, Inc.,2s a ance procedure. He was held thereby to have waived federal district court held such a handbook’s provision any rights against his employer for any alleged wrong- to be unequivocally binding on hn employer. The court ful discharge. concluded that the inclusion of procedural’ steps to be Not all jurisdictions which have confronted the followed prior to the imposition of any disciplinary handbook issue agree that any provisions contained in measure had assured the employee that these steps such a manual are contractually binding on the em- would be taken, failure to do so being a breach of the ployer for a discharge-only-for~ause contract from any employment contract. Further, the court found his provisions contained in the manual. Employee manu- employment to have been one impliedly terminable als have been held not to have constituted contracts by only for cause because of.the handbook’s listing of acts courts in Alabama, Delaware, Indiana, Kansas, North that would suffice as cause for termination. The ¯ Carolina, Tennessee, Texas and Wisconsin.~7 Vermont Thompson court, then, projected itself so as to take a has held the issue of whether or not an employee man- fairly liberal view of what the Supreme Court of Virgi- ual and its procedure constitute a. contract of employ- nia would do if confronted with the employer hand- ment to be a jury question.~s The courts in Ohio and book issued after its lengthy analysis of other s*ates’~ Pennsylvania are split on the status of employee views on such manuals,2s handbooks. An Ohio’court in Medrick Center for Com- A cursory review of judicial conceptions in general as prehensive Alcoholism Treatment~ held the provisions to the enforceability of employee handbooks, however, to be binding on the employer, but the Ohio Court of indicates that there is essentially no consensus as to Appeals construed an employee manual to be non- their obligatory characteristics. The watershed case contractual in West v. Roadway Express, Inc.~° And a declaring such manuals to be contractually binding on federal district court, applying its understanding of employers was Toussaint v. Blue Cross and Blue Shield Pennsylvania law, held an employee handbook and and its companion case Ebling v. Masco Corporation.3o other personnel policy statements not to be contractual Some courts which have-held these manuals to be in nature in Wells v. Thomas,4~ while the Third Circuit enforceable have nonetheless been more restrictive Court of Appeals, also applying what it stated as being than was the Michigan court in Toussaint, requiring at the law in Pennsylvania, viewed the same documents least some showing of mutual assent on the part of as contractually binding in Novasel v. Nationwide Ins. both parties. The Arizona courts hold a personnel pol- Co.42 ~ icy manual to be contractual only if the plaintiff pre- sents evidence that the employer encouraged his The SEVAMP Decision reliance on it.31 Similarly, the highest court in Montana has held an employee handbook which was handed out The plaintiff in SEVAMP had been appointed in two years after hire not to constitute a contract since it 1975 to serve as Director of Retired Senior Volunteer was not actually bargained for.3~ An Oregon court in Programs for. the Southeastern Virginia Areawide Speciale v. Tektronix, Inc.3~ held a handbook to be con- Model Program (SEVAMP), which administered feder- tractual provided the employee had been aware of the ally financed programs. After her October 1982 dis- provision which was the basis of his lawsuit at the time charge, the employee charged, first, that her termina- of hire. tion was a breach of the employer’s contract. She A Washington court held in Thompson v. St- Regis stated that she had been assured by the employer’s Paper Co.~4 that an employee handbook’can create an executive director at the time of her hire that she would atmosphere of job security and fair treatment and remain in her position as long as there "continued to be promise specific treatment in given situations, induc- adequate federal funding.’’43 In fact, federal funding ing the employee to remain in that position and not to had been received by defendant to cover the plaintiffs seek alternate employment. Other jurisdictions which position for the fiscal year October. 1, 1982, through have held personnel policy manuals or employee September 30, 1983. Secondly, she claimed that her dis- handbooks to be binding and enforceable against the charge was retaliatory and motivated by her having employer include Colorado, Massachusetts, Missouri, appeared as a witness before a grievance panel hearing

15 on a complaint filed by a fellow employee just two An imaginative counsel for discharged employees weeks before her sudden discharge. Her termination surely would prefer that the Court had been faced with notice stated as the reason "unsatisfactory perfor- a factual situation where a handbook contained the mance as SEVAMP RSVP Director." discharge-only-for~ause provision without the fateful The Court dealt with the contract count by constru- disclaimer which absolved the SEVAMP defendant ing the alleged verbal promise made to her as one to from any enforceable duty to honor the commitment to protect the employer, rather than the employee-i.e., it terminate only for cause. Whether the Virginia Court provided the employer with a "hedge against a contin- would view such a provision, absent the disclaimer gency beyond the control of both employer and em- language, as contractual~ remains an unaddressed ployee-the possible future failure of ’adequate federal issue. The SEVAMP decision surely would encourage funds.’’44 Indeed, this statement did not vest the plain- any employer who has such a manual to include the tiff with any right whatever, in the Court’s opinion, but disclaimer provision. it in fact did just the opposite--it "bespoke indefinite- Although some commentators consider ’handbook ness,’’45 allowing the employer to advise her of an language.expressly stating that employment is at-will uncertain future possibility. The Court perceived the actually to work to the employer’s disadvantage,5° the statement as n~tification to the plaintiff that cessation gener.al view is that an employer might use such a of funding would automatically extinguish her employ- provision positively, communicating intelligibly and ment, but not,as any presumed notification that the unambiguously to the employee the at-will nature~ of employer was thereby waiving its right to terminate his employment.~ her for any other reason, or for no reason whatever. ~Regarding the contention that her termination had Conclusion been a retaliatory interference with her "right" to tes- tify before a grievance panel, which the plaintiff There were some predictions before the SEVAMP equated with the plaintiffs right in Bowman, the Court holding that the Virginia Court had begun in Sea- distinguished between a statutorily grant right, inter- Land and Bowman a trend toward recognizing an ference with which is actionable, and a private right expanded view of public policy exceptions to the granted by the employer’s own internal regulations general at-will rule, .one Virginia attorney having (right to file a grievance and to testify at hearing), upon designated the tort of wrongful discharge as the "tort which the employer may impinge wth impunity. of the 80’s.’’~2 Indeed, those who view the at-will doc- At first blush, it appeared that the facts in SEVAMP trine as inevitably doomed have speculated as to the presented the Court with the opportunity at last to most appropriate avenue to effectively demolish it, determine the enforcability of employee handbook pro- application of a public policy exception approach, or visions in Virginia. It is germane that SEVAMP, too, the implication of the covenant of good faith and fair had a personnel manual, containing two provisions dealing.~3.Others propose strict adherence to. the rule, relevant to this suit: (1) one stating the organization’s absent any bilateral agreement to the contrary.~ policy as retention of "conscientious and loyal work- It is apparent from the SEVAMP decision,, notwith- ers’," but dismissal of "those who are guilty of serious standing any federal court constructio.n of a Virginia law breaches of discipline or infractions of rules" and (2) a as favoring an erosion of the employment-at-will rule to disclaimer, reading that "(a)n employee may be dis- the contrary, that the Supreme Court of Virginia will missed at the discretion of the Executive Director and recognize only very limited exceptions to the common will be given, at the time or [sic] dismissal, orally or in law rule, those being under aberrant conditions. Virgin- writing, the reason(s) for the action.’’46 The Court ia employers surely will find SEVAMP to be both addressed only the latter provision, finding it disposi- enlightening and cau~onary, a reminder for them to .tive in creating an at-will employment and preemptive include the disclaimer clause in any employee hand- of any efficacy of the first provision. book they might distribute.~5 The SEVAMP Court recognized three exceptions to Although the unique facts of Sea-Land allowed a the general rule that employment contracts in Virginia handsome recovery for the plaintiff, they were unusual are presumed to be at, will: (1) those contemplating per- enough that they are not likely to recur. And Bowman formance for a fixed period of time;~v (2) those in which merely protects an employee from retaliation for hav- the employer had expressly promised the employee ing exercised a right guaranteed by statute. Clearly, that he would be discharged only for cause;~s and (3) SEVAMP requires any such "right" to be one legisla- those in which the plaintiff-employee had given the tively granted and dispenses with any illusion that vio- employer consideration in addition to the performance lation by an employer of any lesser claimed "right" will of services.~9 provide a basis for recovery. The Virginia courts thus

16 remain conservative in regard to formulating public 20. 210 Va. 751,173 S.E.2d 861 (1971). policy outside of that announced by the General 21. 190 Va. 966, 59 S.E.2d 110 (1950). Assembly. 22. 194 Va. 69, 72 S.E.2d 329 (1952). 23. See Marshall and Wicker, "The Status of the At-Will Doc- trine in Virginia after Bowman v. State Bank of Keysville," 20 U. Rich. L. Rev. 267 (winter, 1986). FOOTNOTES 24. 454 F. Supp. 29 (E.D. Va. 1978). 1. 4 VLR.1309, 234 Va. ~1987). 25. Id. at 31. 2. The Supreme Court of Virginia unanimously affirmed the 26. 574 F. Supp. 318 (E.D. Va. 1983). trial court’s decision sustaining demurrers by both defendants, 27. 599 F. Supp. 1154 (W.D. Va. 1984). the employer and the employer’s executive" director whose deci- 28. 623 F. Supp. 409(W.D. Va. 1985). sion it was to terminate the plaintiff. The plaintiff had assigned 29. Id. at 412-17. error only to the ruling regarding the employer. 4 VLR.1309 note 30. 292 N.W.2d 880 (Mich. 1980). The court in Toussaint held 1. the provisions binding on the employer even if the employee had 3. See, e.g., the National Labor Relations Act, 29 U.S.C. ~151- not been aware of them at the time of his hire, and even if thdre 169 (1982); Occupation Safety and Health Act, 29 U.S.C. ~651-78 had been no pre-employment references to the manual’s state- (1982); Railway Labor Act, 45 U.S.C. §151-162 (1982); Employees’ ment of policy. Retirement Income Security Act, 29 U.S.C. §101-1381 (1982); and 31. See Leikvold v. Valley Community Hospital, 688 P.2d (Ariz. Title VII of the Civil Rights Act, 42 U.S.C. §2000e-17 (1982). See 1984). also Va. Code §18.2-465.1 (i981), which makes discharge of a per- 32. See Gates v. Life of Montana Ins. Co., 638 P.2d 1063 (Mont. son who has been summoned to jury service and who has given 1982). his employer reasonable notice of such, a misdemeanor punisha- 33. 590 P.2d 734 (Ore. 1979). ble by fine up to $100; and Va. Code ~65.1-40.1 (1982) which makes 34. 685 P.2d 1081 (Wash. 1984). discrimination (including discharge) against one who has filed a 35. Keenanv. Continental Airlines, 1~ COLO. ~-,~W 561,_ workers’ compensation claim illegal. P.2d __ (1987); Garritz v. Valley View Nursing Home, Inc. 406 4. See Petermann v. International Brotherhood of Teamsters, N.E.2d 423 (Mass. 1980); Arie v. Interthern, Inc,, 648 S.W.2d. 142 174 Cal. App.2d 184, 344 P.2d 25 (1981), where a anion business (Mo. Ct. App. 1983); Southwest Gas Corp. v. Ahmad, 668 P.2d agent prevailed in his action for wrongful discharge motivated by (Nev. 1983); Forrester v. Parker, 93 N.M. 781,606 P.2d 191 (1980); his refusal to obey his former employer’s order to perjure himself Woolley v. Hoffman-LaRoche, Inc., 491 A.2d 1257 (N.J. 1985); before a legislative committee. The court reasoned that, since per- Weiner v. McGraw-Hill, 57 N.Y.2d 458, 457 N.Y.S.2d 195 (1982), jury was a crime under California statute, any requirement that which held that a job application form and employee handbook one commit perjury as a condition of employment was so abhor- can give rise to a contract not to fire without good cause (here, the rent as to be against public policy. employee had signed a form specifying that the handbook provi- 5. See Communale v. Traders General Insurance Co., 328 P.2d sion constituted his employment contract); Osterkamp v. Alkota 198 (Cal. 1958). Mfg. Co, 332 N.W.2d (S.D.1983), which held an employer to be 6. See, e.g., Bowman v. State Bank of Keysville, infra note 9. obligated to follow disciplinary measures in a handbook; Motil 7. See, e.g., Wagenseller v. Scottsdale Memorial Hospital, Coal Producing, Inc. v. Parks, 704, P.2d 702 (Wyo. 1985) (See also surely one of the more interesting of the "public policy" cases. Alexander v. Phillips Oil Co., Wyoming Supreme Court, 103 L.C., Here, the Arizona Supreme Court held that the plaintiffs dis- Sec. 55, 531). charge because she refused to bare her buttocks and "moon" the 36. 701 F.2d 166 (4th Cir. 1983). audience at a stage production with her supervisor and co- 37. White v. Chelsea Industires, Inc., 425 So.2d 1090 (Ala. 1983) workers present and to participate in certain immoral activities at and Chastain v. Kelly-Springfield Tire Co. 733 F.2d 1479 (llth a company public outing violated public policy. Cir. 1984); Heidick v. Kent General Hospital, Inc., 446 A.2d 1095 8. 297 S.E.2d 647 (Va. 1982). (Del. 1982); Shaw v. S.S. Kresge Co., 328 N.E.2d 775 (Ind. 1975) 9. 331 S.E.2d 797 (Va. 1985). and Rice v. Grant Co. Bd. of Comm’rs, 472 N.E.2d 213 (Ind. 1984); 10. 297 S.E.2d at 650. Johnson v. National Meat Packing Co., 551 P.2d 779 (Kan. 1976), 11. 199 F. Supp. 926 (S.C.W.Va. 1969), all’d, 305 F.2d 73 (4th Cir. where a company manual was held to be only a unilateral 1962). expression of policy, nota contract; Troutman v. Travenal Labor- 12. 297 S.E.2d at 650, quoting from Tow. atories, Inc., 120 S.E.2d 441 (N.C. 1984); Whittaker v. Care-More, 13. Carrying this postulation to its logical conclusion, one must Inc., 621 S.W.2d 395 (Tenn. App. 1981) and Graves v. Anchor Wire query the propriety of any damage award, since the plaintiff Corp., 692 S.W.2d 420 (Tenm 1985); Molder v. Southwestern Bell would have had no cause of action for any discharge from the Tel. Co., 665 S.W.2d 175 (Tex. 1983); Ferraro v. Koelsch, 150 N.W.2d second position. 735 (Wisc. 1984). 14. Va. Code §13.1-32. 38. Sherman v. Rutland Hospital, Inc., No. 83-509, Vt. Sup. Ct., 15. 106 Va. 223, 55 S.E. 551 (1906). August 9, 1985. 16. Id. at 226, 55 S.E. at 552. 39. 454 N.E.2d 1343 (Ohio 1982). 17. 158 Va. 586, 164 S.E. 397 (1932), where the plaintiff ansuc- 40. No. 10263 (Ohio Ct: of App., 9th Dist., Summit County, cessfully contended that, since his pay statement reflected his 4/21/82); reh. den., Ohio S. Ct., 9/16/82; cert. den., 103 S. Ct. 1192 compensation to be $2400 annually, his contract should be (1983). construed to be for a definite term, i.e., one year, and thus, termi- 41. 169 F. Supp. 426 (E.D. Pa. 1983). nable only for cause. 42. 721 F.2d 894 (3rd Cir. 1983). 18. 158 Va. 713, 164 S.E. 387 (1932), decided the same day as 43. 4 VLR at 1309. Hoffman. 44. Id. at 1314. 19. 209 Va. 460, 164 S.E.2d 645 (1968). The plaintiff in Plashitt 45. Id. prevailed upon the Court to overrule Stonega, but the Court 46. Id. at 1310. The manual then lists several examples of such declined, holding that the absence of a specific duration made the infractions, but none are stated in the opinion. contract terminable at will. 47. Id. at 1312, citing Buchanan & Sons v. Ewell, 148 Va. 762,

17 772, 139 S.E. 483, 486 (1927)~ and Conrad v. Ellison-Harvey Co., adverse impact on employee productivity and morale, resulting in 120 Va. 458, 466, 91 S.E. 763, 766 (1917). greater turnover. 48. Id.at 1313, citing Norfolk Southern Ry. Co. v. Harris, supra 51. See e.g., Coombe, "Employee Handbooks: Asset or Liabil- note 21. Note that the plaintiff in SEVAMP had unsuccessfully ity?", 12 EMP. REL. L.J. 4 (summer 1986), Hartsfield; "Avoiding made this contention. Wrongful Discharge Claims (with Forms)," 31 PRACT. LAWYER 49. Id. at 1313, citing Sea-Land, supra note 8, in which the 13 (summer, 1985), and Meyerowitz, "Save Your Business Client employee was promised a new position if she resigned her present from a Wrongful Discharge Suit," 71 AMER. BAR ASSOC. J. 55 job, and Twohy v. Harris, supra note 22, in which an employee (August, 1985). was promised a bonus measured by the value of stock if employee 52. Perritt, "Wrongful Dismissal in Virginia," Va. Bar News, remained on the job rather than exercise his option to leave. Dec. 1985. 50. See Steiner and Dabrow, "The Questionable Value of the 53. See Daughtrey, "Another Exception to the Employment-at- Inclusion of Language confirming Employment-at-Will Status in Will Doctrine: Bowman v. State Bank, 24 AM. BUS. I~ J. 243 Personnel Documents," 37 LAB L. J. 639 (summer, 1986). These (summer, 1986). This writer deplores the public policy exception authors feel such statements are not recommended because they route, since the courts are not in agreement as to what is estab- are ineffectual on claims that public policy or a statutory right lished "public policy." He advocates the implied covenant as emi- has been violated, or that any other express or implied promises nently fair, focusing solely on the employer-employee relationship from the employer have been breached. The SEVAMP Court, and avoiding any futile search for the nebulous "public policy." however, on the latter position, considered the disclaimer provi- 54. See Larson, "Why We Should not Abandon the Presump- sion to have taken precedence over any other promises the tion that Employment is Terminable-at-Will," 23 IDAHO L. REV. employer might have made. 219 (1986-7), These writers also feel th.at, as adhesion contracts, such dis- 55. One commentary on SEVAMP does not anticipate that it claimers are to be strictly construed against an employer; they will encourage arbitrary action on behalf of management. McEl- emphasize an employer’s negative side to juries ~ready sympa- ligott, "Virginia Supreme Court Reaffu~ns Employment-at-Will," thetic to discharged employees; they compound a company’s Human Resources Section, Richmond Business Journal, week of vulnerability to union attempts to organize; and they have an December 14, 1987, p. 9, col. 1-4.

18 W. H. BRYSON

Court Costs in Virginia

~,.~OSTS are certain official expenses of litigation that 6. Indemnity Bonds the court orders the losing party to pay to the prevail- Premiums for indemnifying bonds payable by judg- ing party. They are not a part of the judgment but are ment creditors are includable as court costs.7 appurtenant to it. 7. Orders of Reference A. Items Included The fees of commissioners in chancery and the 1. Appellate Brief and Appendix expenses of orders of reference are taxable as costs.8 Court costs include, the filing fee and the actual expenses of printing or reproducing appellate briefs 8. Medical Malpractice Review Panels filed in the Virginia Supreme Court, but only up to $200 The expenses of conducting th~ review procedure are can be taxed. The actual expenses of reproducing the to be proportioned in the discretion of the chairman.9 appendix containing the record are also included. However, the Supreme Court for good cause shown 9. Views by Juries may direct that a lesser sum be recovered.1 The party The expenses of the jury and the officers of the court who is entitled to receive costs must file with the clerk in taking a view of evidence out of the courtroom are of the appellate court an itemized and verified bill of costs within ten days after the decision of the court.2 taxable as court costs.|°

2. Witness Fees 10. Other Matters Taxable witness fees are limited, to statutory fees The court has the discretion to tax as court costs "any other matter" and "every further sum. which the only, i.e. the witnesses’ daily mileage and tolls to and court may deem reasonable and direct to be taxed for from court. The court may refuse to allow the fees of an depositions taken out of the state."11 unnecessary witness to be included in the costs.3 (This element of court costs is rarely assessed in practice.) 11. Attorney’s Fees "

3. Taxes on Process The code provides a schedule of taxable attorney’s All taxes on process are included in court costs pur- fees: for a case of the Commonwealth $5.00, for a suit in equity $15.00, and for a case in the Supreme Court suant to §14.1-198.4 $50.00.12 The first Virginia legislation regulating the practice of law was enacted in 1643; among other 4. Fees of Officers things, this act established a scale of maximum fees All fees charged by officers of the court are included that lawyers could legally charge their clients.~a in court costs. However, when charges are made for Although the amounts were varied by the General copies of documents, only the cost of a single copy of Assembly from time to time during the ensuing two any particular item can be charged to the losing party. hundred years, the principle of maximum fees for law- Fifty cents may be charged for every legal notice yers remained in force until the freedom of contract served in the state unless some other charge therefor was restored to lawyers and their clients in 1840.14 In has been taxed.5 colonial Virginia as in England, the attorney’s fees of a prevailing litigant were included in the taxable court 5. Orders of Publication costs. In 1765 it was noted that it was unfair for the All of the expenses of executing orders of publication prevailing party to be charged a higher counsel’s fee and of the required advertising are taxable as court than was allowed to be taxed as costs, and an act was costs.6 passed which made the two figures the same.15 Thus,

19 able court costs. In England the reasonable expenses of the prevailing party for lawyer’s fees are paid by the losing party; this and the rule against contingent attorney’s fees make the practicalities of litigation in England somewhat different from in Virginia. However, there are numerous specific Virginia stat- utes and rules of court that allow the court to award reasonable attorney’s fees as court costs in particular types of suits, for example quo warranto,2~ divorce and separate maintenance,23 to avoid a fraudulent or voluntary conveyance,~4 to sell land for taxes,~5 civil cases under the Administrative Process Act,~6 Freedom of Information Act,27 and to enforce a lien for assess- ments on a condominium unit?s Numerous statutes in the areas of consumer protec- tion and general business rapacity provide for reason- able attorney’s fees as part of court costs. Note, for example, antitrust suits,:9 antimonopoly suits,30 those for soliciting a breach of a tobacco marketing con- tract,~l suits involving insurance companies not autho- rized to do business in Virginia,.~ litigation for viola- tions of the Consumer Protection Act,aa private actions under the various criminal statutes prohibiting misrep- resentations in sales~4 and the Home Solicitation Sales W. Hamilton Bryson is Professor of Law at the T. C. Williams School of Law of the University of Act,35 and actions in state courts under the federal Richmond. He is author of the Handbook on Vir- Magnusson-Moss Act.36 Attorney’s fees are also pro- ginia Civil Procedure (1983) and is Editor of Vir- vided for in the Fair Housing Act..~7 Throughout the ginia Circuit Court Opinions. Professor Bryson Residential Landlord and Tenant Act~s, there are pro- received his B.A. degree from Hampden-Sydney visions for reasonable attorney’s fees. College, his LL.B. from Harvard University, the The Industrial Commission may assess costs, includ- LL.M. from the University of Virginia and a ing attorney’s fees, against an employer who has Ph.D. from Cambridge University. defended a workers’ compensation case without reason- able grounds therefor. Such an assessment is in the sound judicial discretion of the Commission.~9 from 1765 until 1840, the lawyer’s fee was set by stat- Reasonable attorney’s fees may be charged against a ute, and it was reimbursable to the prevailing party as party who has given notice of the taking of a deposi- an item of court costs.16 The Act of 1840 abolished the tion and who then fails to appear himself or whose maximum attorney’s fees, but it left intact the provi- witnesses, not having been summoned, fail to appear.4° sions and amounts of attorney’s fees that were reim- Unjustified conduct or motions relating to discovery bursable as court costs. In 1849 this latter schedule was may result in an award of compensatory attorney’s amended slightly to allow, inter alia, attorney’s fees of fees.41 $5.00 for cases of the Commonwealth, $15.00 for trials Attorney’s fees may be granted to compensate a in courts of equity, and $20.00 for cases in the Court of party for having to remove a suit to a proper forum or Appeals.17 In 1952 the statute was amended to allow to defend against a frivolous motion to transfer to a $50.00 for appellate work;is otherwise the nineteenth convenient venue.~2 century figures remain.19 As a general rule, these statu- In 1987, the General Assembly enacted a new Sec- tory attorney’s fees are the maximum that can be tion 8.01-271.1 which requires attorneys and parties not awarded as court costs.2° The attorney himself is to represented by counsel to certify to the court that all receive this statutory fee, and if the prevailing party pleadings and motions are made in good faith and not did not employ an attorney, then no fee is to be taxed?1 for any improper purpose. This statute, which follows It is needless to say that these amounts today have no Federal Rule of Civil Procedure 11 very closely, also relationship whatever to the actual legal fees charged requires the judge, if he finds a violation, to impose to clients, though in theory the General Assembly sup- appropriate sanctions including reasonable attorney’s ports the position that attorney’s fees are part of tax- fees upon the offending lawyer or party or both.43 This

2O statute goes considerably beyond Rule l:4(a); it also costs of the party substantially prevailing)2 In equity, goes beyond Federal Rule 11 in that it expressly even though this general rule applies, the judge has the includes oral motions. It is to be noted that this statute discretion to award or apportion costs as justice re- applies in district courts as well as in circuit courts. quires;~3 thus where each party is acting in good faith Although the practice in Virginia heretofore has been and equities lie on each side, the judge may decree that very lenient towards erring members of the bar, in each party pay his own costs. In cases involving novel England in cases of gross negligence or gross misbe- poin~ of law, there~should be no award of court costs.~4 havior, attorneys have been ordered to pay court costs The defendant who has before trial paid into court including attorney’s fees out of their own pockets.44’ the amount of the judgment is deemed to have pre- Whether Section 8.01-271.1 applies to nonsuits is vailed on the issues and should recover costs.~ A unclear; it might be argued that a nonsuit is neither a deferidant is to pay the plaintiffs costs when he pays pleading nor a motion. A nonsuit can be used in bad the plaintiffs claim after the action has been begun faith since it is a withdrawal of an action without prej- against him)6 Where the trial court committed error in udice to sue again. If a plaintiff does not prepare for the appellant’s favor, the appellant should pay the trial hoping to settle his claim before trial, perhaps costs of the appellee in the Supreme Court)7 even on the morning of the trial, he knows that ff the In divorce suits, the court may award court costs settlement fails to materialize, he can nonsuit the including attorney’s fees to either party.~s A defendant- action. However, the defendant must always prepare wife is not entitled to have her attorney’s fees paid by for trial in the event that there is no last minute ’settle the plaintiff unless she is unable to pay them herself)9 ment. If the defendant has brought in expert witnesses When a person is suing for the benefit of another, if from California or wherever and then the plaintiff the defendant is given his costs, they are to be paid by nonsuits, hh, the defendant, is out of pocket a signifi- the beneficiary of the litigation and not by the nominal cant sum of money. It seems only fair that the nonsuit- plaintiff.~° Court costs are thus normally paid out of a ing plaintiff pay the expenses of the defendant’s expert decedent’s estate and not by the executor or adminis- witnesses and attorney in such cases. It may well be trator out of his own pocket. If the litigation was begun that such a nonsuit is not taken for an "improper pur- by the decedent and then revived in the name of the pose," as out of court compromises are to be encour- administrator, costs are payable out of the estate only. aged, but nevertheless the cost of the nonsuit to the If, on the other hand, the administrator initiates the defendant should be shifted to the plaintiff. If a second lawsuit, the estate is still liable for costs, but if the nonsuit is allowed, attorney’s fees may be assessed.45 estate cannot pay them, then the administrator may be required to pay out of his own funds. B. Items Not Included A party suing or defending in forma pauperis is exempt by statute from paying fees and costs.~1 The fees of an expert witness to attend the trial are The Commonwealth does not pay court costs, unless paid only by the party for whom he testifies.46 If, on the there is a special statute permitting it.s2 In Common- other hand, pre-trial discovery of an expert who is not wealth v. County Utilities Corp.,~ it was declared that going to testify at the trial is ordered, or if discovery by §14.1-201 does not apply to suits in equity and thus costs means other than interrogatories is ordered, then the against the Commonwealth and its subdivisions can party seeking the information must pay the reasonable be awarded by a circuit court judge sitting in equity. fees of the expert witness.47 That such costs are not granted in the traditional Court costs do not include the fees of a court reporter, equity practice~ was not considered in that opinion. At the costs of a transcript, premiums on supersedeas common law and in equity in the old practice, the sov- bonds, or discovery depositions.4s The costs of deposi- ereign receives but never pays court costs. In modern tions are not includable as items of court cost but must times it still makes sense not to require the Common- be paid by the moving party.49 (In the federal courts, if wealth to pay costs because such payments must come a deposition is used at trial, the expense of taking that out of the public treasury; such payments would thus deposition is taxed as a part of the court costs.5°) be a financial imposition on the already over-burdened The fees of jurors are paid by the Commonwealth in taxpayer. This is not a liability which can be insured civil cases, but the expense of special juries of twelve against, On the other hand, when a private citizen is may be taxed as court costs in the court’s discretion)1 prosecuted or denied his rights by an over-zealous, or perhaps malicious, civil servant, it would be appro- C. Paid By Whom priate for him to be compensated for the costs and expenses of sueeessfally m .aintaining his position in In general the losing party is ordered to pay the court court.

21 Conclusion 30. Va. Code Ann. §18.2-500. 31. Va. Code Ann. §13.1-329(e). In conclusion, it is readily apparent that the recent 32. Va. Code Ann. §38.1-70. legislative developments in the law of court costs is in 33. Va. Code Ann. §59.1-204(B); e.g. Valley Acceptance Corp. the direction of awarding reasonable attorney’s fees to v. Glasby, 230 Va. 422, 432-433, 337 $.E.2d 291,297-298 (1985). the prevailing party. This is fair and appropriate. 34. Va. Code Ann. ~18:2-214 through 18.2-246. 35. Va. Code Ann. §59.1-68.3. Where a person is forced to resort to litigation to receive 36. 15 U.S.C. sect. 2310(d) (applies to plaintiffs only). J. O. that which is justly due or has to defend himself Wheeler, Attorney’s Fees in Consumer Products Litigation, Va. against an ill-conceived claim, he should not suffer any Bar News, vol. 33, no. 12, pp. 30-31 (June 1985). expenses for it: He should be made whole by the full 37. Va. Code Ann. §36-94(b)~ 38. Va. Code Ann. §55-248.2 et seq. reimbursement of what has been paid as a necessary 39. Va. Code Ann. §65.1-101; Volvo White Truck Corp. v. cost of the matter. Hedge, 1 Va. App~ 195, 200-201,336 S.E.2d 903 (1985) (award of attorney’s fees reversed); Jensen Press v. Ale, 1 Va. App. 153, FOOTNOTES 159-160, 336 S.E.2d 522 (1985). 1. Va. Code Ann. §14.1-182; applied in Howell v. C. & P. Tel. 40. Rule 4:5(g). Co., 215 Va. 549, 559, 211 S.E.2d 265 (1975); Herrick v. Quality 41. Rule 4:12. Home Builders, Inc., 6 Va. Cir. 467 (1970) (the expense of the 42. Va. Code Ann. §8.01-266. appeal record). 43. Lee Conner Realty Corp. v. Lannon, 9 Va. Cir. 97, 102 2. Rule 5:37 and Rule 5A:30. (1987) (for wanton and oppressive behavior). 3. Va. Code Ann. §§14.1-198, 14.1-189 to 14.1-195; Wessendorf 44. E.g. Wright v. Castle, 3 Merivale 12, 36 Eng. Rep. 5 (Ch. v. Wessendorf, 9 Va. Cir. 224 (1987); G. L. Hopkins, Inc. v. C & 0 1817) (attorney filed suit without permission of the plaintiff); Devel. Co., 6 Va. Cir. 546 (1978). Digardine v. Swift, 1 Chan. Cas. 71, 22 Eng. Rep. 700 (Ch. 1666). 4. Lee Conner Realty Corp. v. Lannon, 9 Va. Cir. 97 (1987). 45. Va. Code Ann. ~8.01-380(B). 5. Va. Code Ann. §14.1-198. 46. Va. Code Ann. §14.1-190; Med. Mal. Rule 7(e). 8. Va. Code Ann. §14.1-198; for the special list of fees for 47. Rule 4:1(b)(4). judgments by confession, see Va. Code Ann. §14.1-178.1. 48. Herrick v. Quality Home Builders, Inc., 6 Va..Cir. 467 7. Va. Code Ann. §14.1-199. (1970). Court reporter fees for in-court hearings were awarded in 8. German Nat. Ins. Co. v. Virginia State Ins. Co., 108 Va. Lee Conner Realty Corp. v. Lannon, 9 Va. Cir. 97, 102 (1987). 393, 61 S.E. 870 (1908); Va. Code Ann. §8.01-109, §§14.1-133, 14.1- 49. Hernandez v. Alexandria Hospital, 57 O.I.C. 172, 174 133.1. (1977); Davidbon v: Town of Gate’City, 53 O.I.C. 67, 68 (1971). 9. Med. Mal. Rule 7(d). 50. Marcoin, Inc. v. Williams & Co., 88 F.R.D. 588, 591-592 10. Va. Code Ann. §8.01-376. (E.D. Va. 1980). 11. Va. Code Ann. §14.1-198. 51. Va. Code Ann. ~8.01-362. 12. Va. Code Ann. ~14.1-t96, 14.1-197; these are the only 52: Va. Code Ann. ~14.1-177, 14.1-178, 14.i-181; e.g. Walsh v. attorney’s fees that are taxable: German Nat. Ins. Co. v. Virgin- Walshi 177 Va. 174, 191, 12 S.E.2d 757 (1941). ia State Ins. Co., 108 Va. 393, 61 S.E. 870 (1908). 53. Va. Code Ann. §14.1-177; Dade v. Alexander (1791), 13. Act of March 1643, c. 61, 1 Hening’s Statutes 275. Brown’s Reports, 11 U. Rich. L. Rev. 713. 14. Va. Acts 1839-40, c. 50, §2, p. 44; Yates v. Robertson, 80 Va. 54. E.g. Jones v. Mason, 26 Va. (5 Rand.) 577, 584, 596 (1827). 475 (1885). 55. Providence Forge Oil Co. v. C. & P. Tel. Co., 8 Va. Cir. 470 15. Act of Oct: 1765, c. 52, 8 Hening’s Statutes 184-185. (1966). 16. 1 Va. Rev. Code, c. 76, ~14-17, pp. 270-271 (1819). 56. Hudson v. Johnson, 1 Va. (1 Wash.) 10 (1791), B~own’s 17. Va. Code, c. 185, §13 (1849); see also Va. Code §3552 (1887); Reports, 11 U. Rich. L. Rev. 714. Va. Code §3433 (1919); Va. Code Ann. §14-193 (1950). 57. Pendleton v. Vandeveer, 1 Va. (1 Wash.) 381 (1794), 18. Va. Acts 1952, c. 616, p. 1068. Brown’s Reports, 11 U. Rich. L. Rev. 731. 19. Va. Code Ann. §14.1-196. 58. See generally Va. Code Ann. ~20-71.1; 20-79(b), 20-99(b). 20. Dunlop v. McGehee, 139 Va. 643, 651, 124 S.E. 199 (1924); 59. Jones v. Jones, 2 Va. Cir. 328 (1970). Stovall v. Hardy, 1 Va. Dec. 342, 349 (1879). 60. Va. Code Ann. §14.1-180. 21. Va. Code Ann. §54-69. 61. Va. Code Ann. §14.1-183. Where a plaintiff sued an indi- 22. Va. Code Ann. ~8.01-643. gent prisoner, even though the plaintiff prevailed on the merits, 23. Va. Code Ann. ~20-71.1, 20-79(b). he was required to pay the fee of the prisoner’s guardian ad 24. Va..Code Ann. §55.82. litem as an item of court costs: Englehart v. Green, 2 Va. Cir. 5 25. Va. Code Ann. §58-1117.5. (1980). .26. Va. Code Ann. §94~.14:21. 62. Va. Code Ann. §14.1-201; Rex v. Corum, 1 Anst. 50, 145 27. Va. Code Ann. §2.1-346; e.g. Gibbs v. Roanoke County Eng. Rep. 797 (Ex. 1792). Note that a relator is liable for court Supervisors, 3 Va. Cir. 24, 26 (1981). costs: A.G.v. Gleg, 1 Atk., 356, 26 Eng. Rep, 227 (Ch. 1738); A.G. 28. Va. Code Ann. §55-79.64(e). v. Smart, 1 Ves. Sen. 72, 27 Eng. Rep~ 898, 899 (Ch. 1748). 29. Va. Code Ann. §§59.1-9.12(b), 59.1-9.15(b). Under this stat- 63. 223 V~i. 534, 546-547, 290 S.E.2d 867 (1982). ute, an award of attorney’s fees and costs may not be made to 64. Commonwealth v. Colquhoun, 12 Va. (2 Hen. & M.) 213, the attorney general in a suit for equitable relief only: Com- 245, n. 1 (1808); A.G.v. Earl ofAshburnham, 1 Sire. & St. 394, monwealth v. Winslow, 9 Va, Cir. 130 (1987). 397, 57 Eng. Rep. 157, 159 (V.C. 1823).

22 Book Review

Worker’s Compensation for the Employer’s Attorney tioners will find the Rules to be an indispensable part and Claimant’s Attorney. (1987 Edition); Virginia of the volume.) The early chapters provide extensive Law Foundation, 1987. background and overview, while the later chapters provide more specific and specialized information. The public policy behind Virginia’s worker’s com- For-example, there are chapters devoted exclusively pensation statute is fairly simple and straightfor- to industrial diseases, to processing of uncontested ward. Workers should be compensated for lost wages claims and to preparation and presentation of claims and medical bills resulti.ng from injuries and illnesses in contested cases. A chapter on uncontested cases is occasioned bye their employment without the obsta- also included. This might seem inappropriate in a cles imposed by traditional common law defenses. By source for lawyers, but even uncontested claims pre- the same token, employers should face only limited, sent pitfalls for the attorney. Since approximately discretely defined liability for such injuries or illnesses. 95% of all claims filed are uncontested, the chapter on Despite the beguiling simplicity of these policy propo- such claims is more than worthwhile. Indeed, reprinted sitions, a lawyer who finds himself representing a as appendices to this chapter are forms used by the client in a worker’s compensation case faces an Industrial Commission. Adverse consequences may imposing labyrinth of statutory, regulatory and deci- flow from a failure of an attorney to file or use the sional law. Worker’s Compensation for the Employ- proper form. er’s Attorney and Claimant’s Attorney (Third Ed. Appended to other chapters are suggested forms for 1987) is the Virginia Law Foundation’s guide to the the practitioner, such as a form to record information labyrinth. from the initial interview of the claimant. The 1987 edition of the work is a complete revision The Handbook’s usability is enhanced by its sub- of the 1980 edition. It is a welcome revision, indeed. ject matter index, with which the practitioner can There have been many significant judicial decisions readily find material pertinent to a specific issue or interpreting the statute since the original edition, and inquiry. A table of statutes and rules also enables one the General Assembly has continued to modify and to find text discussing specific statutory provis~ions. refine the original statutory scheme. Unfortunately, there is no table of case citations. The new edition is the work of a distinguished If there is a flaw in the Handbook, it can be attrib- group of lawyers with extensive experience in the uted to the fact that each chapter was prepared by a worker’s compensation area. Two of the contributors separate contributor. The result is some redundancy. are former Deputy Commissioners of the Industrial For example, the statutes of limitations applicable to Commission of Virginia, which is the branch of Vir- occupational diseases are detailed at length in Chap- ginia’s Department of Labor and Industry charged ter 3 and are repeated in Chapter 6. By and large, with administration and application of the worker’s however, the matters which are repeated are impor- compensation laws. The remaining contributors in- tant ones, so their iteration is not even a significant clude both specialists in representing claimants under annoyance. the law and specialists in representing employers. Worker’s Compensation for the Employer’s Attor- The result of their combined efforts is an authorita- ney and Claimant’s Attorney is a valuable addition to tive reference source which accurately and exhaus- the library of anyone who practices worker’s compen- tively outlines the law and its application and inter- sation law, whether a novice or a veteran. It is pub- pretation. lished in a thre~ ring binder, and it is hoped that peri- The Handbook is organized into nine chapters. odic page revisions will be published to keep the (The ninth "chapter" is really a reproduction of the volume up to date with significant developments in Rules of the Industrial Commission. Although per- the law. haps inappropriately designated a chapter, practi- --A. W. VanderMeer, Jr.

23 socmt oq Proceedings

The Winter Meeting ...... 27

YLS News ...... : ...... 31

Announcements ...... 32

Sponsors ...... 33

Patrons ...... 34

Newly Admitted Members ...... 35

YLS Chairman’s Report ...... 38

Committee Reports ...... 41

Memorials ...... 49

President R. Gordon Smith presided over the ban- quet and introduced our Past President, Edmund L. Walton, Jri, for presentation of awards. The first award, which will be an annual award, was our Pro Bono Publico award to acknowledge a lawyer who, without compensation, either contributed to the deliv- ery of legal services to the poor or contributed sub- Jarmary 1988 took us once again to beautiful Colo- stantial amounts of his or her time to performing ¯ nial Williamsburg for the 98th annual meeting of The legal services for deserving individuals or groups. Virginia Bar Association and the beginning of the This award was presented by Guilford D. Ware to the celebration of our 100th anniversary. Over 850 people recipient, R. Barrow Blackwell of Norfolk. registered for the meeting--what a wonderful way to The Distinguished Service Award will be given begin our centennial year! only when someone stands out in our legal commun- It is interesting to note that our first January meet- ity as having contributed services to the public and ing, now called our annual meeting but previously the legal profession of such exceptional nature that it referred to as our midwinter meeting, was held in deserves to be recognized. In this case, not only was January, 1964 at the Williamsburg Conference Center the recipient easy to choose, but his service went far in Colonial Williamsburg. The President of Colonial beyond the boundaries of our Commonwealth. Mr. T. Williamsburg Cat that time was Mr. Carlisle H. Justin Moore presented ~ur first Distinguished Ser- Humelsine who addressed the Association and said vice Award to Retired Justice Lewis F. Powell, Jr. that, "... (he) had finally arrived ... He probably President Smith introduced Frank B. Atkinson, had the most profitable convention in Williamsburg Special Counsel to the Attorne~ General of the United in January that they had ever had, and he received States, for the purpose of presenting our banquet an outstanding introduction and didn’t have to pick speaker of the evening, The Honorable Edwin Meese, up the check!" Evidently, a good time was had by all III, Attorney General of the United States. and we have been returning ever since and enjoying Mr. Meese recognized The Virginia Bar Association Williamsburg’s friendly hospitality and beautiful sur- for its diligent efforts since 1888 to preserve the uni- roundings. que character and to maintain the high standards of Thanks to our President, R. Gordon Smith, and our the Virginia !egal profession. He also noted Virginia’s Program Chairmen, John M. Ryan and Claud von s. contribution to the development of our actual Constio Eley (Lex), we had-an-outstanding program which tutii)n and our early government. His topic was attributed to the overwhelming attendance. Our mem- "Fidelity to the Constitution" and he said, "... The bers were once again offered free CLE programs, pro- founding fathers with few exceptions were lawyers vided for the first time by our new sections. Also part but they understood the distinction between law and of the program was a panel discussion on Friday politics and they sought to preserve it... If men.and afternoon called "Press Versus The Politician: New women are to be able to successfully govern them- Rules?"; a notable guest speaker, The Honorable selves then there must be rules, rules that can be Edwin Meese, III; and the presentation of our first enforced, respected, that may be changed when awards for public service and citizenship, to R. necessary through orderly processes ..." He also Barrow Blackwell and The Honorable Lewis F, quoted Madison in his Federalist Papers: "In framing Powell, Jr., respectively. These programs, described a government which is to be administered by men later in this article, contributed to an overall success- over men the great difficulty lies in this. You must ful meeting and a fun time which is evident from the first enable the government to control the govern- pictures. ment and in the next place oblige it to control itself." As I noted earlier, we had an overwhelming attend- He ended his speech by saying, "It is the commitment ance. This led to a shortage of tables for our banquet to constitutional fidelity and to the concept of a and we apologize to anyone who might have been government of laws rather than of men that has inconvenienced. On the positive side, we appreciate blessed the first two hundred years of our nation and everyone’s interest in attending and thank the hotel the first one hundred years of this Bar organization staff for their prompt response. Although the pro- tonight." gram was late, we all enjoyed a great, dinner and Our program began Friday wi~h most of the 52 excellent banquet program. We appreciate and en- members of the Young Lawyers Section and the courage your attendance and will direct more atten- Senior Committees using this time to get their tion to banquet reservations in the future! members together for their individual meetings. Our

27

committees worked hard during the year and their Business Section--Thurston R. Moore, Chairman efforts are recognized in the fine programs and servi- Panelists: Allen C. Goolsby, III, Esquire; F. Clai- ces they produce. Our many thanks for their con- borne Johnston, Jr., Esquire, and Michael W. tinued support and leadership. Schwartz, Esquire. Friday afternoon President-elect John M. Ryan Domestic Relations Section--Walter J. Wadlington, introduced Richard Cullen who moderated a lively Chairman panel discussion on "Press Versus The Politician: Panelists: Professor Walter J. Wadlington; Charles New Rules?". Panelists Ann Compton, ABC News, C. Webb, Esquire, and Professor Thomas R. Washington, DC: Hays Gorey, Time magazine, Wash- White, 3rd. ington, DC; Ross Mackenzie, The Richmond News Leader, Richmond, Virginia, and Guy R. Friddell, During the afternoon, the Virginia Law Founda- Virginian Pilot-Ledger Star, Norfolk, Virginia, pro- tion Fellows Luncheon, chaired by David C. Landin, vided us with a timely discussion on how rules might honored Justice Powell and presented him with a por- have changed, especially as they would relate to the trait. Many other events took place during the week- privacy of our public officials. Basically, it seems rules end including our YLS dance and, not the least of all, have changed due to the advancement of television. It our annual meeting and election of new officers for was noted that when you submit your name to the 1989. I want to thank R. Gordon Smith personally for public and ask to be elected to public office and hold all the help and leadership he provided for me and the public trust, you ~ive up a certain amount of privacy general support of all the members of the executive and that hasn’t changed. What has changed is that committee through my first year. with the Associa- television plays a leading role in all this and televi- tion. I’ve enjoyed it and look forward to working with sion time is expensive. This leads to candidates and the new President, John M. Ryan, the new members reporters trying to make things newsworthy or "spicy" of the executive committee and all members of The to capture air time. We also live in a very competitive Virginia Bar Association for many years to come. world where something has developed called "peo- Since the new members of our Executive Committee ple’s right to know." Politicians, to counteract some of are listed on the inside cover of this Jo~nal, I won’t this, hire experts to "spin control," a term defined as repeat them but would like to thank Thomas F. Far- the ability to influence the way the press treats a par- rell, II the (now) Past President of our Young Lawyers ticular story. Questions and answers occupied the last Section and welcome and congratulate the new YLS part of the program and moderator Cullen ended the Officers, Peggy O’Neal Haines, President; David G. program by trying to get a prediction on the coming Shuford, Chairman-Elect, and Stephen D. Busch, elections. While there was no concensus, Senator Dole Secretary-Treasurer. was slightly favored over Vice-President Bush on the A special thanks to our sponsors: Barrister Infor- Republican side and the names of Gore, Jackson and mation Systems Corporation for our Executive Com- Dukakis were mentioned as Democratic nominees. mittee Luncheon; Chicago Title Insurance Company We’ll see if our panelists were right. for our banquet music; The Michie Company for our Saturday morning we put our new sections to.work. reception before the banquet; Sovran Bank, NA, Trust They gave us four CLE programs providing 1.5 MCLE Division for our reception on Saturday afternoon, and credits each. While I won’t go into detail on the sub- United Airlines/Covington Travel Agency for our stance of the programs, I will just say that they were prize Of two free airline tickets. Also our exhibitors: well attended and provided good interaction and Baltimore Office Supply; BNA Books; Brief Printing questions for the benefit of the participants. Our sec- Specialists, Inc.; Chicago Title Insurance Company; tion chairmen and panelists were: Contel Cellular; Dardick; IBM Personal Computers; Lawyers Co-operative Publishing Company; Mead Real Estate Section--Charles R. Swartz, Chairman Data Central/Lexis Research; The Michie Company; Panelists: Ronald P. Donn, Esquire; John Goode, New England Financial Group; Serenity Lodge; Sulcus Esquire; Thomas G. Johnson, Jr., Esquire, and Computer Corporation, and Virginia Lawyers Weekly. Charles L. Menges, Esquire. Your support helped us provide an excellent meeting Taxation Section--Bruce C. Stockburger, Chairman for our members and we extend our thanks and Panelists: W. Birch Douglass, III, Esquire; Louis A. appreciation for being with us. Mezzullo, Esquire; Thomas P. Rohman, Esquire and Bruce C. Stockburger, Esquire. --Sue Gift Sanders

29 LAWYEI~S WEEKLY Yo g Lawyers News

Membership Committee General Mary Sue Terry on the contribution of key Virginia leaders in the drafting and ratification of the The Membership Committee co-chaired by Alison United States Constitution. Most, if not all, of tl~e McKee and Jacqueline Stone conducted telethons in spots will be airing this spring and summer. As a Richmond and Norfolk on February 4th and 15th, postscript, the Committee .wishes to thank Craig 1988, respectively. Approximately 25 to 30 lawyers at Wood, who chaired the Committee in 1987, for his each telethon contacted 500 to 600 new lawyers work in developing the project and producing many recently admitted to the Bar in October, 1987. The of the spots. results of the m~embership drive were not available prior to publication, but it is expected that the tele- thons will result in a substantial number of new Lawyers and the Arts Committee members to the VBA. The Lawyers and the Arts Committee chaired by Jim Ballowe continues work on the legal directory. Law School Liaison Committee The art work and introduction has been completed and the Committee has determined that bids for The Law School Liaison Committee Chaired by printing services will be necessary in order to get the Steve Wood held their second Roundtable Discussion directory published. The Committee hopes to distrib- on Recruiting and Placement at the Winter Meeting ute 3000 copies of the directory by the end of March, in Williamsburg in January. In attendance were the 1988 through the Virginia Commission for the Arts to placement directors of 25 law firms and all five law individuals and art-related entities interested in the schools in Virginia. The Placement directors and directory. Committee members discussed, among other things, trends in associate starting salaries and the number of students from Virginia law schools who graduate Courthouses of Virginia Committee and remain in Virginia to practice law. There are The Courthou.ses of Virginia Committee chaired by plans to meet again at the Winter Meeting in 1989. Hank Carter is in the early stages of developing’for The Committee continues to sponsor its Career publication a coffe~table quality book on Virginia’s Alternatives Program at each of the Virginia law courthouses. No timetable for publication has been schools, featuring practicing attorneys from large set to date, as the Committee continues to develop and small law firms, governmen~ service, private cor- information and perform background research on the porations and public interest groups. The Program various courthouses. The Committee continues to gives students an opportunity to investigatelaw prac- investigate various styles of courthouse architecture, tice in many contexts and to ask questions and including Colonial, Jeffersonian and Victorian. receive feedback on career choices. Special Projects Committee Law and Citizenship Studies The Special Projects Committee chaired by Harry Committee Ware has several projects under consideration for The Law and Citizenship Studies Committee chaired 1988. Projects include the Literary Project which will by Michael Cole has completed production of seven of analyze the availability of public services directed at the eight planned radio and television spots to be dis- increasing the level of adult literacy in the commun- tributed throughout Virginia. The spots feature com- ity and the possible implementation of non-duplicative ments by former Governors Holton and Godwin, programs in areas where such services may be Chief Justice Carrico, Senator Warriner, Governor needed. In addition, the Committee is looking into the Baliles, Lieutenant Governor Wilder and Attorney feasibility of setting up a state network of attorneys to

31 assist legal aliens in completing the necessary docu- Law Week to be held May 1st through May 7th, 1988. mentation to become legal resident aliens under the There will be a moderator and four panelists from the Amnesty Program. The Committee is also consider- Young Lawyers Section with expertise in various ing revisions to the book entitled "A Handbook for areas of the law to field questions from callers on a Jurors" which was prepared in 1977 by the Judicial wide range of legal issues. The Committee hopes to Council of Virginia. The object of the book is to have the "Ask-A-Lawyer" program broadcast through- acquaint the juror with the systems and piocedure of out Virginia. the Circuit Courts of Virginia. Finally, in the Court The Committee is also considering sponsorship of Reporting Project, the Committee is analyzing an essay contests for high school students and/or sym- alternative method for recording courtroom proceed- posia for senior citizens. The symposia would include ings that has been used successfully in other jurisdic- lectures and discussions by Young Lawyers Section tions to reduce the cost of court reporters and enhance members to senior citizens groups on trusts and the availability of courtroom records. estates, consumer credit, health insurance, age dis- crimination, crime prevention and the availability of American Bar Association legal services. It is anticipated that the symposia Liaison Committee would be held in various locations throughout Vir- ginia. Committee Chairman John Beardsworth and Young Lawyers Section Chairman Peggy Haines attended the ABA Young Lawyers Division Annual Member- Alternative DisputeResolution ship Support Network Workshop in Philadelphia, Committee Pennsylvania, on February 4th through 6th, 1988. The Alternative Dispute Resolution Committee The workshop was designed to let the Young Lawyers chaired by Rob Brooke.plans to discuss with various Sections from various states know what their counter- clerks and judges of the general district courts and parts in other states are doing so that good ideas juvenile and domestic relations courts about cases could be disseminated and implemented in new areas. appropriate for referral to the Center for Alternative Dispute Resolution. The Committee will report on the Community Law Week Committee outcome of their discussions in the future. The Community Law Week Committee chaired by Jane Glenn will be sponsoring an "Ask-A-Lawyer" --Robert E. Spicer, Jr. television "call-in" show to coincide with Community Editor, Young Lawyers Contributions

Mental Health and the Law Announcements:. The Eleventh Annual Symposium on Mental Health and the Law will be held May 19-20, 1988. The Sym- posium is sponsored by the University of Virginia Institute of Law, Psychiatry and Public Policy, the Division of Continuing Education, the Office of Con- We Need Photos tinuing Legal Education, and the Office of Continu- The Journal needs photographs from the Associa- ing Medical Education, and the Virginia Department tion’s past. This year is the Association’s 100th anni- of Mental Health, Mental Retardation and Substance ve’rsary, and we would like to use pictures of past pres- Abuse Services. The Symposium will be held at The idents and past meetings in our Centennial Issue. Williamsburg Hilton, Colonial Williamsburg, Virginia. If you have old photographs of Association person- 9 hours of CLE credit, 9 hours in Category 1 CME and alities or activities from bygone days, please let us .9 CEU credit have been applied for. For further know. Write or call Charles E. Friend, Editor, The information contact: Lynn Daidone, Administrator, Virginia Bar Association Journal, P.O. Drawer HF, Institute of Law, Psychiatry and Public Policy, Box Williamsburg, Virginia 23187.. Help us to make our 100 Blue Ridge Hospital, Charlottesville, Virginia anniversary issue a truly special one. 22901; telephone (804) 924-5435.

32 Sponsors

The Executive Committee and the Membership Committee thank these firms for their strong support of the Association.

Adams, Porter & Radigan, Ltd ...... Arlington Knight, Dudley, Pincus, Dezern & Clarke ...... Allen, Allen, Allen & Allen ...... Richmond Norfolk Maloney, Yeatts & Barr, P.C ...... Bangel, Bangel & Bangel ...... Portsmouth Richmond Mays & Valentine ...... Blankingship & Keith ...... ¯ ...... Fairfax : ...... Richmond

Browder, Russell, Morris McGuire, Woods, Battle & Boothe ..... Richmond & Butcher ...... Richmond Meade, Tate & Daniel, P.C ...... Danville

Caskie & Frost, P.C ...... Lynchburg Nelson, McPherson, Summers & Santos ...... Clement &Wheatley ...... Danville Staunton Parvin, Wilson, Barnett Cooper & Davis, P.C ...... Portsmouth & Hopper, P.C ...... Roanoke Crenshaw, Ware & Johnson ...... Norfolk Penn, Stuart, Eskridge & Jones ...... Abingdon Davies, Barrell~ Will, Dunford~lackson & Lewellyn, P.C .... Culpeper Rilee, Cantor, Arkema & Edmonds, P.C ...... Richmond Dickstein, Shapiro Rumsey, Breeden, Hubbard, & Morin ...... Wash., DiC., & Vienna Bugg & Terry ...... Irvington Edmunds & Williams ...... Lynchburg Sands, Anderson, Marks & F1, orance, Gordon and Brown ...... Richmond Miller ...... Richmond Gabeler, Ward & Griggs ...... McLean Signet Bank ...... Richmond Gardne~ Moss& Rocovich, P.C ...... Roanoke Sovran Financial Corporation ...... Norfolk Gentry, Locke, Rakes & Moore ...... Roanoke Thompson & McMullan ...... Richmond Glenn, Flippen, Feldmann & Darby ... Roanoke Timberlake, Smith, Thomas & Hall, Monahan, Engle, Moses, P.C ...... Staunton Mahan & Mitchell ...... Winchester Walton & Adams, P.C ...... McLean Heilig, McKenry, Fraim and Wetherington & Melchionna ...... Roanoke Lollar, P.C ...... Norfolk .Whartsn, Aldhizer & Weaver ...... Harrisonburg Hofheimer, Nusbaum, McPhaul & Samuels ...... Norfolk White, Elliot & Bundy ...... Abingdon

Hunton & Williams ...... Richmond Willcox & Savage, P.C ...... Norfolk

Johnson, Ayers & Matthews ...... Roanoke Wosds, Rogers & Hazlegrove ...... Roanoke

33 1988 Patrons

Michael E. Barney...... Norfolk Walter J. McGraw ...... RiChmond Charles V. Bashara ...... Norfolk James R. McKenry ...... Virginia Beach John S. Battle, Jr...... Richmond Henry H. McVey, III ...... Richmond Charles W. Best, Jr...... Norfolk S. D. Roberts Moore ...... ’ ...... Roanoke A. J. Brent ...... Richmond T. Justin Moore, Jr...... Richmond Thomas C. Brown, Jr...... McLean G. Marshall Mundy ...... Roanoke M. Caldwell Butler ...... Roanoke Robert Terrance Ney ...... McLean Leroy T. Canoles, Jr...... : ...... Norfolk Robert C. Nusbaum ...... Norfolk Daniel A. Carrell ...... Richmond Rosewell Page, III ...... Richmond William R. Cogar ...... Richmond: Robert S. Parker ...... Richmond Michael M. Collins ...... ~ovington John M. Peterson ...... Norfolk C. Lacey Compton, Jr...... Woodbridge Allan R. Plumley, Jr...... Fairfax John J: Corson, IV ...... McLean Robert D. Pope ...... Richmond James S. Cremins ...... Richmond Robert L. Powell ...... Pearisburg Clifford A. Cutchins, IV ...... Richmond Richard C. Rakes ...... Roanoke Arthur B. Davies, III ...... Lynchburg William R. Rakes ...... Roanoke Norwood H. Davis, Jr...... Richmond Frank W. Rogers, Jr...... Roanoke Collins Denny, III ...... Richmond William L. Rosbe ...... Richmond Eva L. Dillard ...... Richmond Toy D. Savage, Jr ...... Norfolk Mark S. Dray ...... Richmond John S. Shannon ...... Norfolk Bernard M. Fagelson ...... Alexandria David G. Shuford ...... ". .... Richmond E. Milton Farley, III ...... Washington, D.C. Frank M. Slayton ...... South Boston Thomas F. Farrell, II ...... Alexandria Edward M. Smith ...... Arlington Gilmer Franklin Flippin .... ¯ ...... Roanoke Michael W. Smith ...... Richmond ¯Paul D. Fraim ...... Norfolk R. Gordon Smith ...... Richmond Harry Frazier, III ...... Richmond Richard W. Smith ...... Staunton Martin A. Gannon ...... Alexandria Emerson G. Spies ...... Charlottesville Richard D. Gary...... Richmond James G. Steiger ...... Norfolk Allen C. Goolsby, III ...... Richmond Gregory N. Stillman ...... Norfolk George G. Grattan, IV ...... Charlottesville John S. Stump ...... McLean George H. Gromel, Jr...... Richmond Francis L. Summers, Jr...... Staunton Virginia H. Hackney ...... Richmond James T. Tilton ...... Richmond James A. Harper, Jr...... Richmond Guy K. Tower ...... Norfolk George H. Heilig, Jr...... Norfolk Anthony F. Troy ...... ’.. Richmond R. Braxton Hill, III ...... Norfolk Abram William Vandermee~; Jr...... Richmond Waller H. Horsley ...... Richmond Braden Vandeventer, Jr...... Richmond John F. Kay, Jr...... Richmond John L. Walker, Jr...... M. Langhorne Keith ...... McLean Roanoke Penelope Kyle ...... Richmond Archibald Wallace, III ...... Richmond Thomas T. Lawson ...... Roanoke Edmund L. Walton, Jr...... McLean George B. Little ...... Richmond Thomas R. Watkins...... Newport News Charles M. Lollar ...... Norfolk Hill B. Wellford, Jr...... Richmond Harry H. Mansbach ...... Norfolk Hugh V. White, Jr...... Richmond Thomas E. Martenstein, Jr...... Richmond Anne Marie Whittemore ...... Richmond Howard W. Martin, Jr...... Norfolk J. F. Wilks ...... Norfolk Henry M. Massie, Jr...... Richmond Jesse B. Wilson, III ...... ¯ ...... Fairfax J. Robert McAllister, Ill ...... Arlington Arthur J. Winder ...... Virginia Beach R. Dennis McArver ...... ¯ ...... McLean John C. Wood ...... Fairfax William G. McClure, Ill ...... Richmond Robert C. Wood, III ...... Lynchburg

34 Newly Admitted Members November 16, 1987-February 18, 1988

*Charles Frederick Abel ...... Chesapeake Stephen Rober~ Davis ...... Norfolk *Kenneth Samuel Abraham ..... Charlottesville Jeffrey Mark DeBord ...... Richmond Kenneth J. Alcott ...... Richmond Pamela B. Dickson ...... Richmond Edward L. Allen ...... Richmond Suzanne W. Doggett ...... McLean Mark S. Allen ...... Alexandria John Peter Domeika ...... Richmond Chester L. Banks ...... Dale City Jean Marie D’Ovidio ...... Norfolk James L. Banks, Jr...... Richmond Gregory S. Duncan ...... Richmond David H. Battaglia ...... Washington, D.C. James A. Eastwood ...... Washington, D.C. Delmara Faye Bayliss ...... Leesburg *John K. Ebiasah ...... Arlington *Judge William Alan Becker ...... Manassas *Robert E. Eicher ...... Richmond *Marian W. Benn ...... Suffolk Adam David Elfenbein ...... Arlington Eric James Berghold ...... Fairfax *Marion Dwight Evans ...... Virginia Beach Margot R. Bodine ...... Richmond Thomas W. Farrell ...... : ...... Danville Randall J. Boe ...... Washington, D.C. Carter Bruce Faulds ...... Culpeper Tressa Jane Borland ...... Washington, D~C. James Douglas Fife ...... Fairfax *Cary B. Bowen ...... Richmond Calvin W. Fowler, Jr...... Richmond Paul William Boyer ...... Fairfax Jessica A. Ginsburg ...... Washington, D.C. Kimberly Gooch Bram . : ...... Richmond Mary Chambers Grandy .... Washington, D.C. Kimberly Anne Britts ...... Richmond Harriet Grant ...... Vienna Albert Peter Brodell ...... Richmond Jana Kay Guggenheim ...... Washington, D.C. Angela Birgit Brown ...... Richmond Benjamin M. Hahn ...... Foquoson John Smallpdge Buckley ...... McLean Curtis M. Hairston, Jr...... Richmond *Francis A. Burke ...... Kilmarnock Laura Holt Hamilton ...... Richmond Kevin John Burke ...... Winchester David Stuart Harlow ...... Richmond James Joseph Burns ...... Richmond Timothy A. Hartin ...... Richmond Robert W. Caporossi ...... Vienna *Ann-Marie F. Hartline ...... Fort Monroe John X. Cerveny ..... ’ ...... Washington, D.C. Robert J. Hartsoe ...... Suffolk Richard Lynn Chidester ...... Pearisburg Valerie Lee Havard ...... Norfolk Stephen G. Christianson ...... FairfaX Michael V. Hernandez ...... Richmond Leisa K. Ciaffone ...... Roanoke Kimberley S. Herson ...... Virginia Beach Bernice H. Cilley ...... Richmond Stephen B. Hess ...... McLean Gorham S. Clark ...... Vienna ¯ Stephen R. Himelfarb ...... Washington, D.C. Joel G. Clarke ...... Richmond Todd Wright Holliday ...... Roanoke Nicholas C. Conte ...... Roanoke Dwight F, Hopewell ...... Richmond *John L. Costello ...... Arlington *Randy Clark Howard ...... Richmond James David Crutchfield ...... Norfolk Cynthia Eppes Hudson ...... Richmond Charles E. Curran ...... Arlington Sharen E. P. Hughes ...... Norfolk Susan Warriner Custer ...... Richmond Peter W. Hull ...... Chesterfield Eugene A. Cutright, Jr...... Orange James N. L. Humphreys ...... Abingdon David Lee Dallas, Jr...... Richmond Charles L. Ingebretson ...... Richmond

35 Newly Admitted Members

*Richard J. Jamborsky ...... Fairfax Scott Alton Mills ...... Falls Church Monroe Jamison, Jr...... Abingdon William H. Monroe, Jr...... Norfolk Eric Scott Jensen, Sr...... Richmond Robert A. Mordhorst ...... Alexandria Joi LaVerne Jeter ...... Richmond Paul Alan Morrison ...... Leesburg Molly Boyd Joseph ...... Newport News ~ Douglas P. Mueller ...... Washington, D.C. *Harold P. Juren ...... Norfolk *Lucy B. Mullins ...... " Richmond *Johnson P. Kanady, III ...... Richmond Colleen Ann Mulrenin ...... Vienna Gayle Thomasson Kellner ...... Norfolk *Robert L. Musick, Jr...... Richmond Helen Lewis Kemp ...... Richmond *Carol Smith Nance ...... Richmond *Barbara Wise King ...... Lynchburg *Gary Keith Nedrow... : ...... Richmond Nell M. King ...... Richmond Michael Nedzbala ...... Richmond Sarah Y. M. Kirby ...... Richmond *Arthur E. Neubauer ...... Roanoke Janis L. Kirkland ...... Richmond Deborah Kelley Newell ...... Richmond Duncan S. Klinedinst ...... McLean *D. Alan Newland ...... Manassas Deborah.E. Kolodner ...... Philadelphia, PA *John A. Newman ...... Fredericksburg Paul C. Kuhnel ...... Richmond Mark Dudley Obenshain ...... Harrisonburg Richard Q. Lafferty ...... Richmond *Rosalie W. O’Brien ...... Richmond Nicholas Leo Lampros ...... Roanoke Kevi~ P. Oddo ...... Roanoke Kenneth J. Lasky ...... Roanoke Cheryl Ann 0’Neil ...... Washington, D.C. Richard C. Lawrence ...... Richmond Judith A. Ott ...... Washington, D.C. *Paul A. LeBel ...... Williamsburg Amy S. Owen ...... Washington,. D.C. David O. Ledbetter ...... " ..... Richmond *Joseph G. Painter, Jr...... Blacksburg Jeffrey G. Lenhart ...... Harrisonburg Meredith Susan Palmer ...... Lexington Norman F. Lent, III ...... Washington, D.C. Jonathan B. Palmquist ...... Glen Allen Katherine C. Link ...... Staunton John C. Pasierb ...... McLean Diane M. Lowder ...... McLean Lorin Eugene Patterson ...... Norfolk Nancy L. Lowndes ...... Richmond Diana Pennington ...... Washington, D.C. *E. Eugene Luther ...... Annandale Walter Thomas Perkins ...... Reston Deborah Brennan Magri ...... Richmond *Harvey H. Perritt, Jr...... Alexandria Pamela H. Malech ...... Washington, D.C. *Robert Dean Perrow ...... Richmond Mark Hanson Mapp ...... Norfolk Jill Lynette Peterson ...... Georgetown, DE Rebecca Lee Mason ...... McLean Donna Marie Philips ...... Falls Church -*A. Blanton Massey ...... Fredericksburg Frances L. Pierson ...... Fairfax Dayna Bowen Matthew ...... Richmond Richard T. Pledger ...... Fairfax Kenneth R. Mayo ...... Richmond Mary L. Poletti ...... Roanoke Malcolm P. McConnell, III...... Richmond Patricia Maria Powis ...... Washington, D.C. Joseph T. McFadden, Jr...... Norfolk *Richard Martin Price ...... Richmond Janice Marie McPherson ...... :.. Norfolk Alexa J. Quinn ...... Richmond Peter E. Meier ...... Washington, D.C. David Thomas Ralston, Jr...... Stafford Julia B. Messersmith ...... Richmond Alfred M. Randolph, Jr...... Norfolk Thomas Henry Miller, Jr...... Harrisonburg *Lee Arthur Rau ...... McLean ~

36 Newly Admitted Member

*Ann Kathryn Recknor . i’ .... Washington, D.C. Julie Anne Stanley ...... Richmond Michelle ReDavid-Rack ...... Norfolk Elizabeth Ellen Stanulis ...... Richmond Sheila Reingold ...... Norfolk Robert Lee Stephens, Jr...... Richmond Mona Rena Reinhardt ...... Washington, D.C. Margaret E. Stone ...... Richmond *Frances H(ReYnolds ...... Richmond Robert J. Stoney ...... Richmond Jesse James Richardson, Jr...... Winchester Kathleen A. Stromeyer ...... Richmond John Frederick Richter ...... : ...... Fairfax Catherine Anne Stronach ...... Portsmouth Mary G. Robertson ...... Richmond Robert Joseph Strupp ...... Washington, D.C. Charles H. Rothenberg ...... Richmond Margaret Warren Swartz ...... Richmond Andrea H. Rowse ...... Richmond James J. Szablewicz ...... Richmond Marguerit~ Rice Ruby ...... Richmond *Irene E. Szopo ...... Arlington Stever~ Layne Russell ...... Pearisburg Charles Henry Tenser, III ...... :.. Richmond Laurence E. Salans ...... Washington, D.C. Catherine Jane Thacker ...... Denton, TX Deanna C. Sampson ...... Richmond Ward Leslie Thomas ...... Richmond *Diane Marie Bianculli Savage William Carl Thomas, Jr...... Herndon Washington, D.C. James C, Thompson, Jr...... Vienna Thomas J. Sawyer ...... Washington, D.C. James David Thornton ...... Richmond Beth V. SChreiber ...... Chicago, IL *Roy B. Thorpe, Jr...... Christiansburg David G. Schwariz ...... Washington, D.C. . James Jeffrey Tinkham ...... Norfolk. *Paul Tucker Scott ...... Fredericksburg Sondra Jane Tomlinson ...... Richmond David Allen Sendi. :-...... Alexandria *Philip R. Trapani ...... Norfolk Charles Stephen Setliff ...... Richmdnd *Randolph E. T~ow, Jr...... Richmond Jill Anderson Sgro ...... Richmond Christine L. Turner ...... Richmond Robert L. Shearer, Jr...... Fairfax *Buddy Allen Ward ...... Camp Lejeune, N.C. Michael Randolph Shebelskie ..... : Richmond Teresa R. Warner ...... Norfolk Erin A. Sheehey ...... Richmond Stanley Paul Wellman ...... Richmond Rita Arlene Sheffey ...... Richmond Hugh Butler Wellons ...... Richmond Charles P. Shimer ...... Richmond Deborah Campbell Welsh ...... Leesburg Joseph Frank Siiek, Jr...... Front Royal *George Thomas West, Jr...... Richmond Kyle E. Skopic ...... Alexandria Sydney K. L. West ...... Newport News *William K. Slate, II ...... Richmond Geoffrey Lynn Wilcox ...... Richmond James Bruce Slaughter ...... Lewisburg, WVA Elizabeth Ellen Williams ...... Richmond Helen Mead Snyder ...... Charlottesville Rhonda Anne Wilson ...... McLean Lisa Rose Sockett .... ¯ ...... Washington, D.C. Alan D. Wingfield ...... Richmond Fay Frances Spence ...... Norfolk Janell Marie.Wolfe ...... Alexandria Jeffrey Allen Standen ...... Richmond *William A. Young, Jr...... Richmond

*Indicates Senior Section Member. All others are Young Lawyers. PEGGY O’NEAL HAINES

AT the annual meeting of the Association in Wil- liamsburg on January 15, 1988, the Young Lawyers Section elected the following officers and Executive Committee members for 1988: Chairman--Peggy O’Neal Haines, P.O. Box 2009, Bristol, VA 24203. Chairman-Elect--David G. Shuford, P.O. Box 1122, Richmond, VA 23208. Secretary-Treasurer--Stephen D. Busch, One James Center, Suite 600, Richmond, VA 23219. Peggy O’Neal Haines is with the Bristol office Immediate Past Chairman--Thomas F. Farrell, II, of Penn, Stuart, Eskridge & Jones. Mrs. Haines P.O. Box 25047, Alexandria, VA 22313. received her B.A. in English and Political Science Executive Committee from Virginia Polytechnic Institute and State Southwest--James P. Barry, P.O. Box 1280, Bristol, University in 1973 and a J.D. from the Univer- sity of Virginia School of Law in 1976. VA 24203. Valley--Jane S. Glenn, P.O. Box 1018, Roanoke, VA 24005. Potomac--E. Tazewell Ellett, 555 13th Street, N.W., he demonstrated and hard work he performed during Washington, DC 20004-1109. 1987. The Section accomplished much during Tom’s Capitol--John D. Epps, One James Center, Suite tenure, and during the next few years, we will see 1100, Richmond, VA 23219. many projects he initiated come to fruition. Tom’s Blue Ridge--D. French Slaughter, III, P.O. Box ability to get things done has set a fine example that 1288, Charlottesville, VA 22902. will be difficult to match. His efforts are truly appre- ciated. Tidewater--William R. Van Buren, III, P.O. Box This year the Association celebrates the 100th 3037, Norfolk, VA 23514. anniversary of its organization. Many special events At Large--John J. Beardsworth, Jr., P.O. Box 1535, have been planned to commemorate the progress that Richmond, VA 23212. has occurred in the last century and to chart the At Large--John E. Coffey, 510 King Street, Suite course that the Association will take in the next cen- 200, Alexandria, VA 23313. tury. David Shuford, Chairman-Elect, is chairing a At Large--John C. Ivins, Jr., P.O. Box 1Q, Rich- Centennial Committee charged with planning the mond, VA 23202. Association’s centennial events. Ted Ellett of Wash- ington, D.C., John Epps of Richmond, Bill Van Buren At Large--Alison McKee, P.O. Box 3889, Norfolk, of Norfolk, French Slaughter of Charlottesville, and VA 23514. Lex Eley of Richmond will assist David in his At Large--Claud von S. Eley, One James Center, endeavors. Suite 600, Richmond, VA 23219. The Young Lawyers Section in 1988 will be continu- I would like to take this opportunity to thank Tom ing its long tradition of service to the public and ser- Farrell, immediate past Chairman, for the leadership vice to the bar. Twenty-nine committees have already

38 begun their activities for 1988 and a number of new each month through late summer one of these broad- projects are being considered for implementation this casts will be released to television and radio stations year. I would like to report on a few of the projects throughout the State. The Committee has worked now underway. hard for many months to accomplish this worthwhile The extraordinary work of the Membership Com- project. mittee will be carried on by Alison McKee of Norfolk In conjunction with the Williamsburg meeting, the and Jackie Stone of Richmond. One focus of the Law School Liaison Committee, chaired by Steven Membership Committee this year will be to ~encourage Wood of Richmond, sponsored a panel discussion third-year law students to join the Association and to featuring the placement directors of all five Virginia get them involved with the Section’s projects as soon law schools. The Committee invited the recruiting as possible. To that end, the Committee plans to hold coordinators ,from many firms throughout the State receptions this year for third-year students at all the to the presentation so that the coordinators could Virginia law schools. In addition, the Committee once have their questions answered by the placement again conducted a "phonothon" to encourage the directors and discuss any problems they were having lawyers newly admitted to practice in Virginia to with the interviewing and hiring processes at the law become members of the Association. This Commit- schools. The Committee developed this special pro- tee’s efforts last year resulted in the largest single- gram in 1986 and plans on making it an annual year increase in membership in the Association’s his- event. The response from the placement directors and tory. They are t6 be commended for their hard work the attorneys attending has been quite favorable. and dedication. The Model Judiciary Program is completed for the John Beardsworth of Richmond has served for 1987-1988 school year, and this highly successful many years as the Section’s ABA liaison and has mock trial program had more high school partici- performed admirably his duty of keeping the Section pants this year than ever before. Approximately 1200 -informed on what transpires at various ABA func- students throughout the State conducted jury trials in tions throughout the year and what resources the front of local judges during the fall. On February 1, ABA has available to assist with projects the Section 1988, some bf the schools presented their appellate. undertakes. On February 5 and 6, 1988, David Shu- arguments before panels of the Intermediate Court of ford, John and I attended the ABA Young Lawyers Appeals. On March 4, 1988, the students’ hard work Division/Membership Support Network Program in culminated in selected schools having their argu- Philadelphia, where we also served as delegates to the ments heard by the entire Virginia Supreme Court. ABA Young Lawyers Division Assembly. The two- This program is now in its thirteenth year, and con- - day program focused on assisting young lawyers in tinues to provide high school students with an making their careers personally and professionally incomparable educational experience. Elaine Brede- rewarding and imparted a number of ideas for pro- holt of McLean, who has worked with the Committee grams to be implemented by local ABA affiliates. for several years, will chair this Committee in 1988: The Corporate Counsel Committee, co-chaired by The Meetings Committee is to be congratulated on Tom Ebel of Richmond and Jim Barry of Bristol, has the fine job it did in Orchestrating the annual meeting set a full agenda for their Committee in 1988. The of the Association in Williamsburg. The meeting Association’s Senior Section has recently appointed a enjoyed record attendance~ Nancy Little and Tom counterpart committee to attract in-house corporate Hardy of Richmond will co-chair this Committee in counsel to membership in the Association. The Com- 1988 and are presently completing their plans for the mittee is currently planning several special programs summer meeting at The Homestead. Several interest- that will appeal to corporate counsel. ing program topics are being considered by the Com- Mike Cole of Richmond is the new chairman of the mittee. Law and Citizenship Studies Committee. For 1987, This year, The Virginia Lawyer Committee will be this Committee, under the able leadership of Craig guided once again by Mike Falzone of Richmond. The Wood, began the production and distribution of "Con- Committee has set a goal of revising ten existing stitutional Comments." These radio and television chapters of The Virginia Lawyer and preparing a announcements feature prominent Virginians com- new chapter on "Employment Law." This Commit- menting on outstanding moments in the development tee’s efforts in keeping The Virginia Lawyer up-to- of the United States Constitution. The spots featuring date result in the tome being the most current hand- Chief Justice Carrico, U.S. Senator Warner, Gover- book of Virginia law and practice available. nors Godwin, Holton and Baliles, Lt. Governor Wilder The new Supr.eme Court film to be shown at the and Attorney General Terry have been taped, and Visitors Center at the U.S. Supreme Court has been

39 substantially completed. The Section is co-sponsoring Law and Citizenship Studies, Michael H. Cole, McGuir~, the production of the film with public television sta- Woods, Battle & Boothe, One James Center, Suite 600, Richmond, VA 23219. tion WETA in Washington, D.C. The film is an update Law and the Diasbled, Darrell B. Smelcer, Hunton & Wil- of the one previously produced by the Section" in 1976. liams, P.O. Box 1535, Richmond, VA 23212. It is the only film that has been approved by the Law School Liaison, Steven W. Wood, McGuire, Woods, Court, and the only film that shows the inside of the Battle & Boothe, Ohe James Center, Suite 600, Richmond, Court itself. Steve Busch, who championed the Sec- VA 23219. tion’s cause before the Court, plans to secure a copy of Lawyers ’and the Arts, James C. Ballowe, Jr., McGuire, the film to show at the summer meeting. Woods, Battle & Boothe, 1627 Eye Street, N.W., Washington, On February 20, the 1988 organizational meeting of DC 20O06. the Executive Council for the Section was held at the Legal Services to the Public, Barrett E. Pope, Mezzullo, McCandlish & Framme, 700 East Main Street, Suite 804, Sovran Center in Richmond and many plans were Richmond, VA 23219. made for upcoming activities. We expect 1988 to be a Meetings Committee, Thomas G. Hardy, II, McGuire, year of tributeto the past, but we also intend to lay Woods, Battle & Boothe, One James Center, Suite 600, the groundwork for future growth and service. In Richmond, VA 23219; and Nancy R. Little, McGuir~, Woods, order to accomplish our goals, many volunteers will Battle & Boothe, One James Center, Suite 600, Richmond, VA 23219. be needed. If you are not already involved in the Sec- Membership, Alison McKee, Hunton & Williams, P.O. Box tion, but would like to become involved, please write 3889, Norfolk, VA 23514; and Jacqueline Stone, McGuire, to me. I am sure the Section can find a place for your Woods, Battle & Boothe, One James Center, Suite 600, talents. Richmond, VA 23219. Since I cannot, in the space provided, inform you Model Judiciary Program, Elaine C. Bredehoft, Walton & fully of all the activities of the ~many committees,"~ Adams, 1301 Vincent Place, McLean, VA 22101. listed below~ are the committees and the names and National Moot Court, Jessine A. Monaghdn, Hunton & Williams, P.O. Box 1535, Richmond, VA 23212; and Lynn addresses of their chairmen. Please feel free ~ contact Jones Blain, Browder, Russell, Morris & Butcher, One any of them directly if you are interested in learning James Center, Suite 1100, Richmond, VA 23219. more about the work of a particular committee. Pie-Law Counseling, Herbert A. Claiborne, III, McGuire, ABA Award of Achievement, Kurt J. Krueger, McGuire, Woods, Battle & Boothe, One James Center, Suite 600, Woods, Battle & Boothe, P.O. Box 1288, Charlottesville, VA Richmond, VA 23219. 22902. Speakers Bureau, Rebecca W. West, University of Virginia ABA/ Young Lawyers Division Liaison, John J. Beards- Health Services Foundation, P.O. Box 3883, Charlottesville, worth, Jr., Hunton & Williams, P.O. Box 1535, Richmond~ VA 22903. VA 23212. Special Projects, Henry N. Ware, Jr., McGuire, Woods, Alternative Dispute Resolution, Robert" L. Brooke, Hunton Battle & Boothe, One James Center, Suite 300, Richmond, & Williams, P.O. Box 1535, Richmond, VA 23212. VA 23219. Bridge-the-Gap, Robert W. Jackson, Michie, Hamlett, Town Hall Meeting-Northern Virginia, Melanie M. Reilly, Donato & Lowry, P.O. Box 298, Charlottesville, VA 22902- McGuire, Woods, Battle & Boothe, 8280 Greensboro Drive, 0298. Suite 900, McLean, VA 22202. Community Law Week, Jane S. Glenn, Gentry, Locke, Town Hall Meeting-Richmond, John C. Ivins, Jr., Hirsch- Rakes & Moore, P.O. Box 1018, Roanoke, VA 24005. ler, Fleisher, Weinberg, Cox & Allen, P.O. Box 1Q, Rich- Corporate Counsel, James P. Barry,.The United Company, mond, VA 23202. P.O. Box 1280, Bristol, VA 24203; and C. Thomas Ebel, Town Hall Meeting-Roanoke, Matthew W. Broughton, Sands, Anderson, Marks & Miller, P.O. Box 1998, Rich- Gentry, Locke, Rakes & Moore, P.O. Box 1018, Roanoke, VA mond, VA 23216-1998. 24005. Courthouses of Virginia, Henry S. Carter, Sands, Ander- Trial Practice Education, John D. Epps, Browder, Russell, son, Marks & Miller, P.O. Box 1998, Richmdnd~ VA 23216: Morris & Butcher, One James Center, Suite 1100, Richmond, 1998. VA 23219. Criminal Law and Corrections, Mark L. Earley, Tavss, VBA Journal, Robert E, Spicer, Jr., Williams, Mullen, Fletcher & Earley, P.C., P.O. Box 3747, Norfolk, VA 23514. Christian & Dobbins, P.O. Box 1320, Richmond, VA 23210. Disaster Legal Assistance, John F. Anderson, McGuire, The Virginia Lawyer, Michael P. Falzone, Hirschler, Woods, Battle & Boothe, P.O. Box 25047, Alexandria, VA Fleischer, Weinberg, Cox & Allen, P.O. Box 1Q’, Richmond, 22313. VA 23202. Executive Council Meetings, Thomas H. Tullidge, Jr.; Virginia Tax Manual, Richard Howard-Smith, Feil, Dein- McGuire, Woods, Battle & Boothe, One James Center, Suite lein, Pettit’& Williams, 409 Park Str.eet, Charlottesville, VA 600, Richmond, VA 23219. 22901.

40 II Committee Reports 11

Report of the Committee on Timothy G. Hayes Blackwell participated in staff training, or- Administrative Law Harold G. Hernly, Jr. ganization of the office and establishment of John P. Jones procedures for the system. His exceptional To The Virginia Bar Association: Kathy E. B. McCleskey efforts, without compensation, merited him The Committee on Administrative Law met Patrick M. McSweeney this award by the Association. twice during the year 1987: First, on January Charles F. Midkiff The Distinguished Service Award was pre- 9 in Williamsburg in conjunction with the Edward C. Minor sented to the Honorable Lewis F, Powell, 1987 Winter Meeting of the Association; and John B. Purcell, Jr. Retired Justice of the United States Supreme second, on May 15 in Richmond. James E. Ryan, Jr. Court. Justice Powelrs contributions to the ¯ During the course of the year, a pilot project Jeter M. Watson profession and to the Commonwealth and to of the Gommittee was completed. This project Stephen H. Watts, III the Nation were deemed so exceptional as to was the preparation of a digest of administra- David F. Peters, Chairman merit his being the first recipient of this tive case decisions under the Virginia Motor award. Vehicle Dealers Franchise Act. Under the The Awards Committee was quite pleased supervision of Professor John Paul Jones, a with the reception of the program by the member of the Gor~mittee, two law students attendees at the January meeting in Wil- from the T. G. Williams School of Law of the Report of the Awards Committee liamsburg and it feels that the program is off University of Richmond researched the ad- To The Virginia Bar Association: to an excellent start. ministrative case files of the Division of Respectfully submitted, Motor Vehicles and prepared drafts of case The Awards Committee was created by act- decision synopses. These synopses were ed- ion of the Executive Committee of the Virgi- Calvin Fowler ited by members of the Committee and then nia Bar Association in the fall of 1986. It was James 1~ Austin collected in notebooks that have been distrib- charged with recommending to the Executive James McKenry uted to .the Commissioner of Motor Vehicles Committee awards to be made to deserving Frank Summers for placement in the Research Library of the persons, as the result of contributions to the Evans Brasfield DMV, and to the Virginia Automobile Dealers profession and to the public at large. Edmund L. Walton., Jr., Chairman Association and the Motor Vehicle Manufac- The first award which was established was turers Association for copying and dissemi~ the Virginia Bar Association Pro Bono Pub- nation to their respective members. In addi- lico award to be presented annually at the tion, the Chairman of the Committee has winter meeting of the Association to recog- Report of the Committee on made copies available to "thos~ members of nize a member of the Bar who, without com- Business Law the Bar who have requested copies. pensation, gave substantially of his time To The Virginia Bar Association: At its May 15 meeting, the Committee towards the delivery of legal services to the addressed a proposal for legislation to clarify poor or towards eleeomosynary projects. After several years of heightened activity .. the appropriate judicial forum for appeals The second award is to be known as The on the legislative front, the Business Law from administrative case decisions. The issue Virginia Bar Association Distinguished Ser- Committee took a short breather during 1987, arises from the early 1987 decision of the Vir- vice Award. It would be awarded only when although it could not resist some further legis- ginia Supreme Court in Department of High- the Awards Committee and the Executive lative fine tuning of the Virginia version of ways and Transportation v. Yeatts. The Com- Committee of the Asssociation deemed it mer- the Revised Uniform Limited Partnership Act mittee was unable to develop a consensus ited. The Distinguished Service Award is to (RULPA) and the formation of several com- position on the issue during 1987. acknowledge outstanding Virginians whose mittees to study possible new and significant The following members of the Committee service to the public and the profession was so legislation to be considered in 198~. participated in the planning for and as pane- exceptional as to merit special recognition. The Business Law Committee was actively lists at a Continuin~ Legal Education Semi- This award would be presented at the winter involved in the promotion of the adoption of nar on Administrative Law sponsored by the meeting of the Association. RULPA in Virginia, which was adopted by Richmond Bar Association on May 8-9, 1987: A permanent plaque would be maintained the General Assembly in 1985. Our committee Pat McSweeney, John Purcell and Dave in the Association Headquarters with the was responsible for the incorporation into the Peters. Professor J. P. Jones served as moder- names of the recipients of beth awards. Virginia version of RULPA of a number of ator of that program. The Awards Committee determined to re- textual .variations (i) culled from the various The Committee would welcome to its mem- commend and the Executive Committee versions of RULPA as enacted in other states bership any Virginia attorney whose practice agreed to the presentation of the Pro Bono or (ii) that were thought necessary to address includes administrative law. Publico Award at the January, 1988 meeting the needs of Virginia practice and the in- to R. Barrow Blackwell of the Norfolk firm of creased use of limited partnerships in com- Respectfully submitted, Kaufman & Canoles. Mr. Blackwell was rec- plex business transactions. Subsequent to the William. G. Broaddus ognized for his exceptional efforts and devel- passage ofRULPA in Virginia., the National Brian L. Buniva opment and promotion ofa pro-bono program Conference of Commissioners on Uniform James N. Christman for the Norfolk and Portsmouth Bar Associa- State Laws approved and adopted significant Russell W. Cunningham tion. The program was especially noteworthy changes in.RULPA in an effort to keep pace David E. Evans for the extent of participation by members of with the evolution of limited partnership law John A. Gibney, Jr. the bar in the Norfolk and Portsmouth area. and to conform the uniform act to the increas-

41 ingly non-uniform character of the vemions of five other committees of the Association, is measures to improve criminal justice in Vir- RULPA enacted in several leading business being converted to a Section, which will be ginia and suggesting a number of legislative states, including V’.trginia. Under the aegis of administered by a chairman and a Council. proposals. our Committee and the Business Law Section The initial Council will consist of the follow- The 1987 Session of the General Assembly of the Virginia State Bar, an ad hoc commit~ ing persons: Thomas C. Brown, Jr., G. Frank- acted on a proposal initiated by the Commit- tee was formed under the chairmanship of lin Flippen, Charles H. Majors, Donald E. tee to clarify the statutory double jeopardy William G. McClure, HI to conform the Virgin- Schowalter, Ross C. Reeves, Stephen R. Lar- law barring state prosecution when the fed- ia vemion of RULPA, to the extent applicable, son, William G. McClure, III, Clifford A. Cut~ eral authorities prosecute for the same act. with the newly revised vemion of the uniform chins, IV, and Thurston R. Moore. As a newly Also passed into law was a proposal endorsed act. The Committee consisted of W. Edward reconstituted Section, the Business Law Sec- by the Committee to provide interim fees to Clingman, Jr., Allan G. Donn, Bruce V. Tho- tion will also sponsor its first formal continu- court appointed counsel in death penalty mas, Courtland I~ Traver and George W. Bry- ing legal eduction program at the Annual ant, Jr., the Clerk of the State Corporation Meeting in January. We are very fortunate to The Committee is currently supporting leg- Commission. The Committee is pleased to have a panel consisting of Michael Schwartz islative proposals regarding parental liability report that the legislative proposal of the ad from Wachtell, Lipton~ Rosen & Katz, Allen C. for personal injuries caused by minors, negli- hoc committee was adopted by the 1987 Goolsby, HI, from Hanton & Williams and F. gent vehicular homicide, and procedures for General Assembly. Claiborne Johnston, Jr., from Mays & Valen- using paternity admissions made in court in In light of the United States Supreme tine, to discuss corporate restructuring and unrelated cases. Court’s April 21, 1987 opinion in CTS Corp. v. related matters in the takeover area. The Committee also endorsed the concept Dynamics Corporation of America, et al., a The Chairman wishes to express to all of General District Court rules. special ad hoc subcommittee of the Business members of the Committee his appredation Under study are proposals for combining Law Committee was formed under the chair- for their interest and hard work during 1987 habeas and direct appeals in death penalty manship of Allen Goolsby to consider whether and his anticipation for their continued activ- cases, providing a mechanism for disclosure any additional tender offer or takeover legis- ity as part of our reconstituted Section during of matters presented to special grand juries in lation was desirable in Virginia. The Supreme 1988. limited circumstances, adding manufacturing Court decision upheld the validity of the Indi- Respectfully submitted, marijuana as an accommodation misdemean- ana control shares acquisition statute, which or, providing civil restitution judgments in generally provides that "control shares" can- Thurston R. Moore criminal cases, authorizing fines in certain not vote unless authorized by a majority of serious felonids, providing counsel for indi- the disinterested shares. The ad hoc subcom- gent defendants, providing special treatment mittee currently is studying recently intro- to child victims as witnesses in sexual abuse duced legislation in Delaware, as well as Report of the Civil Litigation Committee cases, abolishing grand jury indictments when other states, and expects to deliver a prelimi- (Boyd-Graves Conference) a probable cause hearing is held, tolling nary report to the Committee at the annual interest on fines while a prisoner is incarcer- meeting of the Association in January. To The Virginia Bar Association: ated, and improving the training of magis- The Business Law Committee operates, for Throughout 1987 various committees of the trates. the most part, through six subcommittees: Boyd-Graves Conference have been studying Finally, the Committee wishes to express its Partnership, Securities, l~inancial Institu- matters affecting the legal system in Virgin- sorrow and sympathy to the family of its tions, Commercial, Bankruptcy and Credi- ia, concentrating on Virginia civil procedure. long-time member, H. Albert Nance, Jr., at his tors’ Rights, and Corporate Laws. In addition untimely death during the year. Committee Their efforts culminated in the annual meet- to the ad hoc subcommittee currently study- ing which was held in Old Colony Inn, Alex- members made contributions to a scholarship ing takeover statutes, the subcommittees on andria, Virginia on November 13-14, 1987. As fund at VMI in his name. Commercial Law and on Bankruptcy and in previous years a broad range of issues was Creditors’ Rights currently have projects under discussed and several legislative proposals Respectfully submitted, way. The Subcommittee on Cdmmercial Law, were recommended. The enclosed minutes under the chairmanship of David Greenberg, bear out the success of the meeting. Hon. William N. Alexander, III currently is studying new Article 2A on leases The Conference’s Executive Committee ap- Cary B. Bowen that has been approved and adopted by the pointed Robert C. Wood, HI of Lynchburg as James C. Breeden National Conference of Commissioners on the new Conference Chairman, effective Jan- John R. Fletcher Uniform State Laws for inclusion in state uary 1, 1988. All VBA members are urgently Joseph W. Kaestner versions of the Uniform Commerical Code. requested to submit to him matters in the area H. Lane Kneedler The subcommittee on Bankruptcy and Credi- of civil procedure requiring reform. Joseph A. Massie, Jr. tors’ Rights, under the chairmanship of Ben F. William McGraw, Jr. Ackerly, currently is reviewing the new Uni- Respectfully submitted, James R. McKenry form Fraudulent Transfer Act, also approved Leigh B. Middieditch, Jr. John H. McLees, Jr. and adopted by the National Conference of Chairman, Boyd.Graves Overton P. Pollard Commissioners on Uniform Laws. Both sub- Conference Rodney M. Poole committees are reviewing the new uniform Hon. Ralph B. Robertson legislation in order to make a recommenda- James M. Roe, Jr. tion to the Business Law Committee whether Steven D. Rosenthal The Virginia Bar Association should support John B. Russell the adoption of these new uniform laws in Report of the Committee on Stephen A. Saltzburg Virginia and to follow related legislative Criminal Law Paul A. Sciortino activity in Virgimh and other states. I~ Neff Steverson To The. Virginia Bar Association: As 1987 draws to a close, the era of our John H. Underwood, III Committee operating as a committee also The Criminal Law Committee continued to Hon. James B. Wilkinson draws to a close. Our Committee, along with meet regularly throughout the year studying John S. Edwards, Chairman 42 Report of the Committee on the ing actively involved in computer law and ject, and that that committee may address Federal Judiciary for the international law issues that are forming a concerns in this area, or address means of Eastern District of Virginia. major component of intellectual property prac- relief for this. tices today. It is also the hope of the Commit- To The Virginia Bar Association: Among the alternatives considered was (1) tee that for the 1989 and 1990 sessions of the the formation of a special committee of the The Committee, whose function is to con- state legislature that the Committee will be Virginia Bar regarding character and fitness, sider, upon request, the nominations to the able to present several legislative proposals (2) the use of a committee separate from the United States District Court for the Eastern for consideration by the Bar Association. Bar to handle the matter, (3) removal of the District of Virginia, has not met during the The Committee is currently exploring the character certification issue from the Bar past year. During the year there were two possibility of conducting a seminar at the examiners with relocation in an independent vacant judgeships in the Eastern District of annual meeting this summer. It is hoped that agency, (4) utilization of a full-time investiga- Virginia. One has been filled by the appoint- such a program can be put on in cooperation tor as in Florida, and (5) the use of mentor or ment of The Honorable Thomas S. Ellis, III, with other committees and sections of the Bar precept system following entry into law school of Richmond. The other position remains Association on a topic dealing with business from which the mentor or precept would cer- aspects of licensing and capitalizing on intel- tify the character after coming to know the Senator John W. Warner notified the Com- lectual property. individual. mittee on February 20, 1987, that he was for- Respectfully submitted, The Committee withheld further action on warding Judge Ellis’ name to the President this issue until the report on professionalism but did not ask the Committee for comment. Gary M. Hoffman, Chairman is available. On August 13, 1986, Senator Paul Trible 3. There is currently before the General announced that he had forwarded the names Assembly a special Bill to allow graduates of of three potential nominees to the President proprietary law schools in .Virginia to stand for consideration. Since that time, press re- Report of the Committee on the Virginia Bar. The proprietary law schools ports have indicated that Senator Trible has Legal Education and ¯ issue is not new.to the Conunittee as the VBA, nominated a fourth candidate and that that Admission to the Bar Virginia State Bar, and Bar Examiners all candidate is under serious consideration. Sen- have opposed the proprietary law school’s To The Virginia "Bar Association: ator Trible has not asked the Committee for existence where they are not accredited by the comment or recommendations concerning any On January 15, 1988, the Committee met at ABA. Legislation to legitimize the schools of the potentiul nominees he has suggested. the winter VBA meeting in Williamsburg. was passed by in a previous General Assem- Although the Committee has not been The following issues were discussed with bly. However, the graduates of the school are asked to make specific recommendations con- resolution indicated: now seeking to take the Bar, and the Bar cerning these two vacancies, it has in the past 1. There have been complaints received by examiners are faced with a decision of wheth- been consulted about other vacancies. The the VBA and other Bar groups that some er or not to allow the graduates to take the Committee stands ready to offer its assist- applicants for the Bar examination object to Bar exam though they do not meet the requi- ance whenever another vacancy occurs in the providing a picture for the application. Those site standards to do so. Eastern District of Virginia. objecting believe it violates their civil rights, After discussion, it was recommended to Respectfully submitted, and they have asked the requirement be the Executive Committee that the VBA go on removed. A discussion suggested the histori- record as "not opposed" to the proprietary J. Jay Corson, IV cal reason for the picture was to provide, a school students standing the Bar after com- Donald C. Kiigore security device for the examiners to assure the pletion of the proprietary school. This is the Robert D. McIlwaine, III person appearing to take the exam ’was, in same position taken by the Virginia State Toy D. Savage, Jr. fact, the person authorized to stand the exam. Bar. The reason for non~pposition was that .Lewis T. Booker, Chairman However, the picture has not been used at Bar those who had gone to the school’ in good exams in recent years. faith and who had studied law there had done After discussion, the Committee recommend- so to the equivalent of the law reader pro- ed to the Bar examiners that the application gram. The proprietary law school is in its last Report of the Committee on be changed and that some other identifica- years by pronouncement from its proprietor, Intellectual Property tion system be used, such as fingerprints. and, upon its closing, there will be no further Frank Crenshaw, of the Committee, advised graduates to face this problem. In view of To The Virginia Bar Association: he would bring this to the attention of the Bar this, and because there are only a small The Intellectual Property Committee of The examiners. number that may be affected, the Committee Virginia Bar Association was established in 2. The issue of law school deans and/or took the stance it did. June of 1987. Since that time, the Committee professors certifying the character of an appli- 4. The Committee continues to study the has begun to seek members and establish its cant for the Bar exam was again considered. concept of a jointly sponsored seminar by the basic organizational goals. At this point in The deans and professors still have reluc- VBA’s Legal Education and Admission to the time, there are six attorneys who have made a tance to be involved in the certification proc- Bar Committee and Legal Economies Com- commitment to work in establishing this new ess, even though an affidavit system has been mittee with one of the business schools in the Committee. worked out with the Bar examiners to give state which would be presented in the fall of In its initial organizational meetings and the deans something to rely on in making the 1988 or winter of 1989 related to law firm its first formal meeting at the recent Wil- certification of those students whose charac- management and administration. The think- liamsburg conference of the Bar Association, ter is not personally known to them. The ing behind the need for this is that law the Committee has discussed its primary Committee discussed the moral character cer- schools teach students a new language, new goals during the coming year. The Committee tification requirement in the Virginia Code concepts and new theories about law, and sees itself actively involved in the topics of and believed the certification to remain of provide great amounts of substantive infor- licensing, litigation and legislative issues value. The Committee was advised that there mation "about law, but they do not teach stu- involving intellectual property law issues. In is forthcoming a Report on Professionalism dents how to manage or administer the busi- addition, the Committee anticipates becom- from the VBA’s special committee on the sub- nesses ’in which they will be placed. It is not

43 believed by the Committee that management H. Aubrey Ford, III, John S. Barr, James V. Willis J. Spauldmg and administration are yet sufficient topics Meath, Donald L. Creach, and Thomas J. Hon. Warren G. Stambaugh for inclusion in the law school curriculum, but Flaherty also spoke on topics of current sig- Robert C. Wood, III that a seminar approach available on some nificance. The written materials were com- Charles S. McNulty, III recurring basis would allow graduates who piled in a spiral bound, 1,300 page book which Margaret G. Seiler were faced with management and adminis- was distributed to all registrants. Additional Richard J. Bonnie, Chairman tration of their law business to have a copies are available for purchase. resource in the state from which to learn the We are currently considering locations for skills necessary to do the job. the conference next year. The Committee has made an inquiry both Respectfully submitted, to the William and Mary and Richmond schools regarding participation in this, and is W. Carter Younger, Chairman Report of the Committee on waiting to follow up with each. Once those Prisons and Corrections discussions have been completed and a pro- To The Virginia Bar Association: posal is available, it will be presented to the entire Committee for study. Lang Keith and Report of the Committee on The Committee on Prisons and Corrections Arch Wallace are assigned as a sub-committee the Mentally Disabled has been trying to follow up on the many to continue the efforts in this regard. recommendations made in our Citizens R~ To The Virginia Bar Association: port on the prison system released in Decem- Respectfully submitted, The Committee met several times during ber, 1986. A representative of the Committee Archibald Wallace; III, Chairman 1987. In November, the Committee approved testified before the General Assembly about our findings, and in particular about some of and forwarded to the Executive Committee two legislative proposals concerning surro- the suggestions for more community involve- gate medical decision-making on behalf of ment in corrections programs. We hope in the Report of the Committee on patients whose competency to make informed coming year to press for implementation of Labor Relations and Employment Law decisions is doubtful. The Committee has those recommendations. After the large amount of work that went into the prepara- To The Virginia Bar Association: been drafting these proposals for several years in consultation with the Department of tion of the report, a number of our members The Labor Relations and Employment Law retired. We would welcome new members. Mental Health, Mental Retardation and Sub- Committee, which now has 38 members, will stance Abuse Services and other interested Respectfully submitted, become a Section at the January meeting. organizations. They will be introduced during J. Lloyd Snook, III, Chairman Mike Marino and Hill Wellford represented the 1988 session of the General Assembly. our Committee by making a presentation on The Committee also completed a two-year employer "downsizing" at the Southern Meth- effort to develop a bill governing the psychi- odist University labor and employment law attic hospitalizati6n of minors. In general seminar in Atlanta on April 2-3, 1987. The terms, the Committee’s proposal would auth- annual seminar features the representatives orize hospitalization of children under 12 Report of the Public Service Committee of the labor and employment law sections of upon application of the child’s parent or legal To The Virginia Bar Association: the Bar Associations of 13 southern states. guardian and with the approval of an inde- We will participate on the program again at pendent clinical examiner; however, any ex- The Public Service Committee of The Vir- this year’s seminar in Orlando, Florida on tended hospitalization of these children (be- ginia Bar Association has considered various May 5-6, 1988. yond 45 days) would require approval by a potential projects for the Association during The Committee met in Richmond in May to juvenile and domestic relations district court 1987. A brief list of the projects considered are discuss issues relating to becoming a section, judge. For minors 12 years of age or older who listed below. and to plan for the annual Cbnference. Clint object to hospitalization, an involuntary com- 1. Public Service Ad. The committee has Morse volunteered to collect and circulate to mitment proceeding would be required. These considered preparing, a public service adver- Committee members significant unpublished proceedings would be intergrated with the tisement, perhaps on video tape, which could court decisions that are brought to his atten- procedures of the juvenile and domestic rela- be used to highlight the Association’s activi- tion. Committee members have been encour- tions district courts. ties. This project is based on a similar project aged to send decisions to Clint. Finally, the Committee is conducting an completed by the Orange County, Florida Bar Our annual Labor and Employment Law empirical study of civil commitment practices Association. The Committee is still consider° Conference was held at the Tides Inn on in Virginia under an $8500 grant to The Vir- ing this project. November 8-10, 1987. The conference was ap- ginia Bar Association Foundation from the 2. Guardianship Laws. The Committee con- proved for 9 hours of CLE credit, and we had Virginia Law Foundation. The main areas of sidered whether the Virginia Guardianship 78 registrants. Four guest speakers partici- interest are mandatory outpatient treatment Laws should be reviewed and updated. The pated: Joseph Ritok of Dyken~a, Gossett, and temporary detention orders. The study Committee has concluded that there are al- Spencer, Goodnow & Trigg in Michigan; Carl will be completed early in 1988. ready several committees of the State Bar and B. Frankel, Associate General Counsel for the Bar Association working on Guardianship Respectfully submittal, United Steelworkers of America, Jesse Etel- Laws and that with a little coordination son, Author of the United States Department Hon. Bernard G. Barrow between these committees further attention of Labor’s "First Interim Report on U.S. Susan L. Canby need not be directed toward Guardianship Labor Law and the Future of Labor-Manage- l~rank M. Feibelman Laws. ment Cooperation," and Frank B. Clayton, William S. Francis, Jr. 3. Disaster Advertisement. The Committee Director of Labor Relations for James River Matthew D. Jenkins considered the" possibility of preparing an Corporation. Clinton S. Morse, Jay J. Levit, John Oliver advertisement to be used in a disaster situa- Louis Aronin, Hill B. Wellford, Jr., Thomas Hon. Philip Trompeter tion to tell the public what its rights are in M. Lucas, Gary S. Marshall, Bayard Harris, Karl Schmeidler connection with filing suits and matters relat-

44 ing to a disaster. The Young Lawyers Disaster 1987 and, at the request of the Association, VBA, entitled "Representing S Corporations Assistance Committee has agreed to prepare creation of a task force to recommend and and their Owners," which we feel will be a such an ad for consideration by the Associa- follow the issues as they affect Virginians. very timely seminar. tion. The Committee looks forward to a full Finally, the Committee has begun the 4. Drug and Alcohol Abuse Program for agenda for 1988. work necessary to make a transition from Lawyers. The Committee considered forming Respectfully submitted, Committee to "section status," which will a Drug and Alcohol Abuse Program for lawy- take place in January, 1988. ers but learned that such a program was C. Torrence Armstrong Respectfully submitted, already up and running. James Ashby, III The Committee continues to receive from Herbert A. Claiborne, III Bruce C. Stockburger, Chairman the Executive Committee and the officers of Reverend George E. Conway the Association projects to be considered for George B. Craddock, M.D. feasibility. Honorable B. Waugh Ctigler Patricia A. K. Epps Respectfully submitted, Lawrence H. Framme, III J. Edward Betts Gail A. Galloway Report of the Special Committee Thomas C. Brown, Jr. Honorable Elizabeth B. Lacy for the Defense of Indigents Thomas F. Farrell, II Dr. James McClellan George G. Grattan, IV Albert R. Orgain, IV To The Virginia Bar Association: Gall Starling Marshall Richard D. Robertson The Committee on the Defense of Indi- George H. Roberts, Jr., Jay T. Swett gents met and prepared a questionnaire Clifford A. Cutchins, IV Chairman Stephen H. Watts, II which was distributed in late 1986 to Judges, William T. Wilson Commonwealth Attorneys, and members of John W. Zunka the Criminal L.aw Section. From this, we Allen C. Goolsby, III have been working on a final report of the David Craig Landin, survey and have been assisted by Charles L. Chairman Cappell, John Jarvis and Marian Borg of Report of the Committee on Resolutions the Sociology Department of the University To The Virginia Bar Association: of Virginia. We have analyzed the survey in preparation of the final report. The final During 1987, the Committee on Resolutions report is now in draft form and should be has prepared or approved resolutions express- submitted to the Executive Committee mem- ing thanks to hosts, panelists and speakers at Report of the Committee on Taxation bers with our results and recommendations the annual and summer meetings of the within the next 30 to 40 days. Association and has been available to pre- To The Virginia Bar Association: pare or review any other resolutions which During 1987 the Committee on Taxation Respectfully submitted, might be requested. continued its work in three primary areas in John R. Fletcher Respectfully submitted, conjunction with the Virginia State Bar Sec- H. Lane Kneedler, III tion on Taxation. Joseph A. Massie, Jr. John S. Battle, Jr. The Committee’s major project continues Hon. J. Harry Michael, Jr. Alan J. Hofheimer to be the Virginia Tax Reporter. The editorial Hon. Norman K. Moon William W. Koont~ board of the Reporter has adopted a revised James M. Pates Joseph D. Logan, III, Chairman format in order to alleviate some logistical Anthony F. Troy ~ strains. Tom Millhiser is serving as editor-in- James R. McKenry, Chairman chief, with Professor Emetic Fischer serving as executive editor. Others serving on the editorial board are Benham Black, James Keeler, Bob Lee, Bob Parker, Harold Starke, Report of the Committee on Sally Warthen and Gerald Wilson. Special Issues of State and Report of the The joint legislative review subcommittee Special Joint Committee on National Importance of our Committee continues to screen all Alternative Dispute Resolution proposed tax legislation introduced to the To The Virginia Bar Association: Virginia General Assembly. This screening To The Virginia Bar Association: The Committee met on January 9, March is done from a technical and drafting pro- The Special Joint Committee of the Virginia 31, June 3 and September 1, 1987. Over the spective and does not address, in any way, State Bar and The Virginia Bar Association on course of 1987, the Committee continued to the political advisability of the legislation. Alternative Dispute Resolution continued to follow surrogate parenthood or the owner- The subcommittee for the review of Virgin- oversee the activities of the Dispute Settle- ship of the child; religious issues in the ia tax regulations serves a similar function ment Center in Richmond and our Charlot- schools and general issues of teacher liabil- as the legislative review subcommittee, by tesville Center for Alternative Dispute Reso- ity. reviewing proposed tax regulations promul- lution. In addition the Committee is promoting New issues for the Committee in 1987 gated by the Department of Taxation. The the development of dispute resolution legisla- included an analysis of the legal issues comments generated by the subcommittee’s tion in the Commonwealth. involving AIDS, the lottery legislation and work are directed to the Department of Taxa- Our Richmond dispute settlement center is the impact of alcohol on Virginians. The tion for their use in promulgating the final a joint project with the Better Business Bu- Committee’s focus on AIDS included presen- regulations. reau ofRichmond and is under the leadership tation of a program for legal education credit The Committee planned and will present a of our Executive Director, Karen L. Donegan. at the meeting of the Association on July 10, CLE program at the Winter Meeting of the Since assuming her post on July 7, she corn-

45 pleted a brochure outlining our program in dispute settlement center from subpoenaing agencies and institutions, including the Richmond, She also recruited our fast class of of their records; the third would provide for schools. volunteers (30) which contained a cross- the inadmissibility of the mediation process One member of the Commission, Robert section of the Richmond population. The at a subsequent civil trial. Karen Donegan Sutton, Deputy Director for Youth Services of training session for these mediators took and Mark Rubin are working with Tony Troy the Virginia Department of Corrections, died place on September 24 and 27 in Richmond. to develop the specific legislation to imple- during the year, much to the sorrow of the Experts from the American Bar Association ment these suggestions. The proposals re- group, and to the detriment of the cause of provided twenty hours of training and lawyer ceived a positive reception at the Dec. 2 meet- children in the Commonwealth. Other mem- participants obtained sixteen hours of MCLE ing of the Subcommittee at which Tony Troy bers of the Commission are Margaret I. Baci- credit from the Virginia State Bar. Ms. Done- outlined the legislation in general terms. gal of Williams, Mullen, Christian & Dobbins gan has also contacted the Attorney Gener- Respectfully submitted, in Richmond, Dr. Andre Derdeyn of Charlot~ ars office to co-ordinate efforts to promote tesville, Director of Child Psychiatry, Univer- alternative dispute resolution in the Com- Wilbur C. Allen sity of Virginia, Ms. Sue Gibson, a Director of monwealth. In October Ms. Donegan lectured Wiley R. Wright, Jr. the National Committee for the Prevention of part of a four-hour CLE course on alternative David Shuford Child Abuse from Norfolk, Martha Gilbert of dispute resolution which was sponsored by Kent Sinclair Richmond; Director of the Virginia Depart~ the Committee on Continuing Legal Educa- R. Edwin Burnette, Jr., Chairman ment for Children, Jory Hingson, a sole prac- tion of the Virginia Law Foundation. Specific titioner in Reston, the Honorable Elizabeth areas of mediation, arbitration and mini- Lacy of Richmond, a Commissioner of the trials were discussed in detail by four instruc- State Corporation Commission, T. Braxton tors and moderated by Richard Balnave, McKee, with Kaufman & Canoles in Norfolk, director of our Center for Alternative Dispute Anita Poston from the Norfolk firm of Van- Resolution in Charlottesville, On September Report of the Commission deventer, Black, Meredith & Martin, Harriet 16, the Richmond Center and the Joint Com- on the Needs of Children Russell of Richmond, with the Department of mittee hosted a reception for local State Mental Health, Mental Retardation and Sub- To The Virginia Bar Assbciation: judges and Bar leaders to explain and pro- stance Abuse in Richmond and an active mote our Richmond ADR program. The ADR The Commission on the Needs of Children volunteer in many child advocacy efforts, center officially opened on October 1 and has is completing its second year as an inter- Stephen St. John of the Norfolk firm of Wil- already mediated, arbitrated or conciliated disciplinary group sponsored by the Associa- liams, Worrell, Kelly & Greet, Robert She- thirty disputes. tion. The level of activity has remained high, pherd, a Professor of Law at the University of Richard Balnave, the director of our Char- as has the impact of the Commission on Richmond and Commission Chair, the Honor- lottesvil]e ADR Center, has been busy publi- issues involving children in the Common- able Franklin Slayton, a member of the Vir- cizing the opening of this center in the Virgin- wealth. The body has met approximately ginia House of Delegates from South Boston, ia Lawyers Weekly and subsequent articles every six weeks during the year, and has con- the Honorable Michael Valentihe, Chief Judge appearing in the issues of the Virginia State tinued to focus primarily on legislative and of the Fairfax County Juvenile and Domestic Bar and The Virginia Bar Association Journals. professional education issues. The Commis- Relations District Court, Walter Wadlington, Mr. Balnave surveyed the alternative dispute sion has also begun to examine the drafting a Professor of Law at the University of Virgin- resolution organizations which are presently of a "Bill of Rights for Children in Virginia" ia in Charlottesville, and Dr. Joseph Zanga, operating in the Commonwealth. A directory as a broad framework for developing policy of the Medical College of Virginia Pediatrics has been compiled listing and describing the positions and strategies on matters impacting Department, Virginia Commonwealth Uni- various ADR projects available and will be on the well-being of children. versity, in Richmond and Chair of the Virgin- indexed geographically so we will be able to The Commission co-sponsored a Training ia Chapter of the American Academy of (1) identify where projects may be needed and Seminar on Guardians Ad Litem with the Pediatrics. avoid duplication of effort and (2) respond to Young Lawyers Conference of the Virginia The Commission has been fortunate to inquiries by members of the Bar. Mr. Balnave State Bar, and Professor Shepherd, Dr. Zanga have the enthusiastic and helpful support of is also advising the Charlottesville/Albemarle and Dr. Derdeyn were all lecturers at the pro- President Gordon Smi~’th, Executive Commit~ County mediation group which we have taken gram which was held in Richmond and tee Liaison, Claiborne Johnston, Executive under our administrative wing to firmly re- videotaped for future presentations around Director Sue Gift Sanders, Professor Emerson establish. We have no financial commitment the state. Spies, and Association legislative representa- to this group. The Commission is pursuing the estab- tive Tony Troy and his staff, in carrying out On June 29, Ed Burnette appeared with lishment of a pilot Family Court in Virginia its work during the year. Tom Gallagher, President of the Better Basi- during the 1988 General Assembly Session, Respectfully submitted, ness Bureau of Richmond, Richard Balnave and it has continued to advocate for the crea- Robert E. Shepherd, Jr., Chairman and Karen Donegan before the General AS- tion of a separate Department of Youth Servi- sembly Joint Subcommittee studying the in- ces out of the present Department of Correc- suranee crisis and the need for tort reform tions. Commission members worked closely chaired by State Senator William F. Parker- with the legislative study committee address- son, Jr. Each outlined the Bar’s efforts in the ing the problems of CHINS--juvenile status ADR area and made the legislators aware of offenders--in the Virginia justice system, and Report of the Committee on the assistance they could provide. Following with the committee focusing on the problems Real Property Law this meeting the committee contacted Tony of child victim witnedses in sexual abuse To The Virginia Bar Association: Troy and advised him of three areas of legis- cases. Commission members contributed sig- lation which hopefully can be ushered through nificantly to the recommendations developed Over the past several years, as seems to be the upcoming General Assembly. The first by that legislative committee. In addition, the the rule, the Committee Ires been very involved would provide civil immunity for mediators in Commission is advocating the adoption of in the practical aspects of real property law. the absence of gross negligence; the second legislation prohibiting the use of corporal In that regard, the Real Estate Committee,. would offer protection for the mediators and punishment as a disciplinary tool in public soon to be the Real Estate Section, is indebted

46 to David S. Cohn for his leadership and dedi- counsel, will be subject to penalties and Fed- The Section is also sponsoring a 1.5 hour cated work performed on behalf of the Com- eral Rule 11-type sanctions, respectively, if CLE Program at the mid-winter meeting of mittee. legislation currently under consideration is The Virginia Bar Association entitled "Legal On the legislative front, there are several proposed and passed. Finally, we are consult- Opinions in Real Estate Transactions." As a matters under consideration by the Section. ing with the Virginia Court Clerks’ Associa- long range project, the Section will begin the First, either directly, or in concert with others, tion over their effort to propose legislation process of recommending a form of attorney’s we expect legislation to permit the filing of all regarding a cover sheet for deeds, deeds of opinion letter to be used in the "typical" federal liens, not just federal tax liens, in the trust and contracts of sale. commercial real estate transaction. local record rooms. Prior to such legislation, Members of the Section are currently par- We expect the work of this Section to be title examiners need to go to the Clerk’s Office ticipating in two ad hoc task forces. One task very exciting over the next several years. In of the Federal District Court where the prop- force was formed by the General Assembly to addition to your officers, the following indi- erty under examination is located in order to evaluate the lending institutions’ practice of viduals will form the initial Council to the check for filed federal environmental liens. requiring sellers to pay certain purchasers’ newly formed Real Estate Section and you Secondly, the Section believes a valuable ser- fees and other related matters. The other task are encouraged to contact them to make your vice can be provided ff holders of notes force was formed by realtors, lenders and law- interest known so you can get involved in the secured by superior deeds of trust are required yers and is attempting to make understand- process: Philip H. Lemon (Roanoke), Charles to give notice of pending foreclosures to able the process from signing a residential H. Majors (Danville), Paul T Scott (Frede- holders of notes secured by junior deeds of contract of purchase, the loan application and ricksburg), Ronald P. Donn (Norfolk), John A. trust. The Section is considering legislation so processing, and the conclusion of the transac- Goode (Richmond), Jane P. Long (Charlottes- that,junior noteholders will have the oppor- tion with the preparation of papers and set- ville), Bruce L. Christman (Faidax), E. Peter tunity to protect their interest at the time of tlement. Kane (Richmond) and Frank I~ Summers, Jr. the foreclosure sale. Thirdly, the Section is The Section, in conjunction with the Real (Staunton). currently reviewing remedial legislation re- Estate Section of the Virginia State Bar, has garding improperly filed/is pendens..Because prepared and distributed copyrighted Resi- of actual and potential abuses, the Section dential Contract of Purchase forms for the Courtland L Traver, would like to make sure the use oflispendens sale and purchase of residential property and Vice-Chairman will be proper for the purposes intended. is currently working on a form Lease relating Charles L Menges, Secretary Those parties who use it improperly, and their to the leasing of residential property. Charles R. Swartz, Chairman

47 THE VIRGINIA BAR ASSOCIATION Objectives: The Association was incorporated and shall exist "for the purpose of cultivating and advancing the science of jurisprudence, promoting reform in the law and in judicial procedure, facilitating the administration of justice in this state, and upholding and elevating the standard of honor, integrity, and courtesy in the legal profession." APPLICATION FOR MEMBERSHIP

(Complete form by providing all information requested. Send application together with fee of $20.00 to The Virginia Bar Association at the address shown below.) I hereby make application for membership in The Virginia Bar Association and grant the Association access to the records of The Virginia State Bar and of the Bar of any other state and the District of Columbia that pertain to me.

Please answer the following:

1. Do you subscribe to the objectives of the Association?

2. Will you exhibit a substantial interest in the affairs of the Association?

3. Have you ever been disbarred or disciplined? (If yes, attach complete details.)

4. Are there any disciplinary actions now pending against you? (If yes, explain.)

5. Have you ever been convicted of a felony?

6. List the Bars of all states, including Virginia and the District of Columbia, of which you are a member with the dates of admission.

Name of Bar Date Name of Bar Date

It is my understanding that once admitted to membership in this Association, any member whose license to practice law is suspended or revoked or surrendered after a complaint has been made as to professional conduct shall thereby automati- cally be expelled from this Association; any member who receives a public reprimand by a court of competent jurisdiction or by The Virginia State Bar Disciplinary Board shall thereby automatically be suspended from this Association. If admitted as an active member, I agree to abide by the provisions of the Constitution and By-Laws of the Association and the Virginia Code of Professional Responsibility. I hereby certify that the information given is true and correct.

Date Signature of Applicant

Date of birth Print full name

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Endorsement: Application must be endorsed by a member of the Virginia Bar Association: I do not know of any disciplinary proceedings ever instituted against applicant and recommend him/her for membership.

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VERIFIED APPROVED DENIAL AUTHORIZED BY ENTRY ON RECORDS LTR ML MF

Suite 1515 . 7th & Franklin Building ¯ 701 East Franklin Street * Richmond, Virginia 23219 . (804) 644-0041 The Association notes with deepest regrets the passing of the following members:

Peter K. Babalas ...... 1922-1987

Roger D. Kaplan ...... 1951-1988

The Honorable Harold F. Snead ...... 1903-1987 Judicial Life Member