Virginia LaVOLw. 62/NO. y5 • DeECEMrBER 2013 The Official Publication of the Virginia State Bar

Special section inside on the Virginia Law Foundation: Forty years of philanthropy, justice, education, and the rule of law.

feature articles by the Virginia Association of Law Libraries www.vsb.org Appeals When it comes time to appeal or to resist an appeal, call Steve Emmert at (757) 965-5021.

L. STEVEN EMMERT Rated AV www.virginia-appeals.com by Martindale Hubbell [email protected] SYKES, BOURDON, AHERN & LEVY VIRGINIA BEACH Virginia Lawyer The Official Publication of the Virginia State Bar December 2013 Volume 62 / Number 5 Features LAW LIBRARIES 15 Law Libraries and Options Galore 45 Increasing Your “App”titude: Legal Research Apps by Gail F. Zwirner for Virginia Practitioners by Marie Summerlin Hamm 16 Appellate Research Lessons from the Judges by Benjamin A. Doherty 49 A Much Debated Debt: The Virginia –West Virginia Debt Controversy 20 Discovering E-Discovery: a Resources Guide by Gregory H. Stoner by Timothy L. Coggins 53 Virginia CLE Sources: Important Practitioner 24 Solving Your Ethical Conundrums: Researching Tools for Forty Years the Rules of Professional Conduct by Gail F. Zwirner by Joyce Manna Janto VIRGINIA LAW FOUNDATION 30 The VLF Celebrates Forty Years of Philanthropy 39 VLF Grant Fuels JusticeServer Expansion by James V. Meath and Manuel A. Capsalis by Alexandra S. Fannon 32 One Barn at a Time (Being Good and Doing Great) 41 Public Service Internship Program: An Investment by Raymond M. White in the Community and Future Lawyers by Dana M. Fallon 34 Center Spreads the Rule of Law Project by G. Michael Pace Jr. 42 2013 Oliver Hill/Samuel Tucker Pre-Law Institute by Latoya C. Asia and Providence E. Napoleon 36 Museum Exhibit Represents the Greatest Example of Rule of Law in History 43 Virginia CLE Helps Attorneys to Help Others by Irving M. Blank by Raymond M. White 38 VLF Grant Has Powered Critical Virginia Capital 44 The Arc of Opportunity Defense Training by Manuel A. Capsalis by David I. Bruck Access to Legal Services Departments 56 Harrisonburg Attorneys Honored for Pro Bono Work 63 Forum 64 An Effective Model for Misdemeanor Courts and the Noteworthy Mentally Ill Defendant VSB NEWS ET AL. by the Hon. Joseph A. Migliozzi Jr. 67 CLE Calendar 57 Highlights of the October 4, 59 Task Force Offers 2013, Virginia State Bar Recommendations to Improve 69 Professional Notices Council Meeting Legal Writing 70 Classified Ads 57 Weiner Is President-elect 60 Supreme Court Exhibit Designee of the VSB Highlights the History of the PEOPLE VSB and VBA Columns 60 Trees for Virginia 58 In Memoriam 8 President’s Message 58 Local and Specialty Bar 10 Executive Director’s Message Elections 61 Consultus Electronica

Cover: Among the many beneficiaries supported by the Virginia Law Foundation during its forty-year history is the Court Appointed Special Advocacy program. (Photo courtesy of National CASA Association) Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2013–14 OFFICERS 17th Circuit Sharon D. Nelson, Fairfax, President Raymond B. Benzinger, Arlington http://www.vsb.org Kevin E. Martingayle, Virginia Beach, President- John H. Crouch, Arlington elect Harry A. Dennis, III, Arlington Editor: W. David Harless, Richmond, Immediate Past Adam D. Elfenbein, Arlington Rodney A. Coggin President David A. Oblon, Arlington Karen A. Gould, Executive Director and Chief ([email protected]) 18th Circuit Operating Officer Alan S. Anderson, Alexandria Assistant Editor: EXECUTIVE COMMITTEE Foster S. B. Friedman, Alexandria Gordon Hickey Sharon D. Nelson, Fairfax, President Carolyn M. Grimes, Alexandria ([email protected]) Kevin E. Martingayle, President-elect 19th Circuit W. David Harless, Richmond, Immediate Past Susan M. Butler, Fairfax Advertising: President Peter D. Greenspun, Fairfax Linda McElroy Alan S. Anderson, Alexandria Paul W. Hammack, Jr., Fairfax Doris H. Causey, Richmond ([email protected]) Joyce M. Henry-Schargorodski, Fairfax Donna Sue Baker Cox, Wise Sean P. Kelly, Fairfax Tracy A. Giles, Roanoke Graphic Design and Production: Daniel B. Krisky, Fairfax Ray W. King, Norfolk Luis A. Perez, Falls Church Caryn B. Persinger William L. Schmidt, Fairfax ([email protected]) William B. Porter, Fairfax Kenneth L. Alger, II, Luray, YLC President Dennis J. Quinn, Vienna Eugene M. Elliott, Jr., Roanoke, CLBA Chair Catherine M. Reese, Fairfax John M. Oakey, Richmond, SLC Chair Michael W. Robinson, Tysons Corner VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Rupen R. Shah, Staunton, DC Chair William L. Schmidt, Fairfax is published ten times a year in alternating COUNCIL Melinda L. VanLowe, Fairfax James A. Watson, II, Fairfax formats by the Virginia State Bar, Eighth & Main 1st Circuit Building, 707 East Main Street, Suite 1500, Richmond, Nancy G. Parr, Chesapeake 20th Circuit Christine H. Mougin-Boal, Leesburg Virginia 23219-2800; Telephone: (804) 775-0500. 2nd Circuit T. Huntley Thorpe, III, Warrenton Subscription Rates: $18.00 per year for non-members. William Drinkwater, Virginia Beach Judith L. Rosenblatt, Virginia Beach 21st Circuit This material is presented with the understanding that Daniel M. Schieble, Virginia Beach Joan Ziglar, Martinsville the publisher and the authors do not render any legal, 3rd Circuit 22nd Circuit accounting, or other professional service. It is intended Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham for use by attorneys licensed to practice law in Virginia. 4th Circuit 23rd Circuit Because of the rapidly changing nature of the law, infor - I. Lionel Hancock, III, Norfolk Mark K. Cathey, Roanoke Tracy A. Giles, Roanoke mation contained in this publication may become out - Ray W. King, Norfolk David W. Lannetti, Norfolk dated. As a result, an attorney using this material must 24th Circuit David B. Neumeyer, Lynchburg always research original sources of authority and update 5th Circuit Carl Phillips “Phil” Ferguson, Suffolk 25th Circuit information to ensure accuracy when dealing with a 6th Circuit Roscoe B. Stephenson, III, Covington specific client’s legal matters. In no event will the Peter D. Eliades, Hopewell 26th Circuit authors, the reviewers, or the publisher be liable for any 7th Circuit W. Andrew Harding, Harrisonburg direct, indirect, or consequential damages resulting from Leonard C. Heath, Jr., Newport News 27th Circuit the use of this material. The views expressed herein are 8th Circuit Richard L. Chidester, Pearisburg not necessarily those of the Virginia State Bar. The inclu - Lesa J. Yeatts, Hampton 28th Circuit sion of an advertisement herein does not include an 9th Circuit Roy F. Evans, Jr., Marion endorsement by the Virginia State Bar of the goods or John Tarley, Jr., Williamsburg 29th Circuit services of the advertiser, unless explicitly stated other - 10th Circuit Joseph M. Bowen, Tazewell wise. Periodical postage paid at Richmond, Virginia, and Robert E. Hawthorne, Kenbridge 30th Circuit other offices. 11th Circuit William E. Bradshaw, Big Stone Gap Dale W. Pittman, Petersburg 31st Circuit 12th Circuit Gifford R. Hampshire, Manassas POSTMASTER: Graham C. Daniels, Chester MEMBERS AT LARGE D. Sue Baker Cox, Wise Send address changes to 13th Circuit Paula S. Beran, Richmond Michael HuYoung, Richmond Virginia State Bar Membership Department Guy C. Crowgey, Richmond Beverly P. Leatherbury, Eastville Eighth & Main Building Doris Henderson Causey, Richmond Darrel Tillar Mason, Manakin Sabot Nancy C. Dickenson, Abingdon 707 East Main Street, Suite 1500 Christy E. Kiely, Richmond George W. Marget, III, Richmond Todd A. Pilot, Alexandria Richmond, Virginia 23219-2800 Eric M. Page, Richmond Savalle C. Sims, Silver Spring, MD O. Randolph Rollins, Richmond Lorrie A. Sinclair, Leesburg Edna R. Vincent, Fairfax 14th Circuit Thomas A. Edmonds, Richmond Senior Lawyers Conference Chair John M. Oakey, Richmond Daniel L. Rosenthal, Richmond William J. Viverette, Richmond Young Lawyers Conference President Kenneth L. Alger, II, Luray 15th Circuit Virginia State Bar Staff Directory Grayson S. Johnson, Rockville Conference of Local Bar Associations Chair Eugene M. Elliott, Jr., Roanoke Frequently requested bar contact 16th Circuit information is available online at Bruce T. Clark, Culpeper Diversity Conference Chair James M. Hingeley Jr., Charlottesville Rupen R. Shah, Staunton www.vsb.org/site/about/bar-staff .

4 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org As the philanthropic arm of Virginias’ legal profession, the Virginia Law Foundation has provided over $23 million in grants since its inception in 1974. We would like to thank the following benefactors for their generous support in our 2013 scal year (October 2012—September 2013). Without them, our important work would not be possible. 1974 Society Fletcher, Paul E. Tashjian-Brown, Eva Harp, III, Reno Schakelford, Jane L. ($10,000+ lifetime) Goodman, Robert C. Thomas, III, Frank A. Hester, Elizabeth G. Sergent, Hon. Birg E. Keith, John A.C. Hettrick, George Thomas, William G. Hingeley, James M. Slate, William K. Estate of Ken McFarlane Hopper, Leila Baum Walker, III, John L. Hodge, Glenn M. Slaughter, Alexander and Smith Hudson, Cynthia E. White, Carolyn A. Jennings, Jr., James W. Mary Street, III, W. Scott King, Ray W. Whittemore, Anne M. Johnston, Jr., F. C. Slaughter, Jr., Edward R. Lacy, Hon. Elizabeth B. Wiley, Jr., Roger C. Kearfott, Joseph C. Somerville, George A. Trustee ($5,000+) Landin, David C. Williams, J. Page Kent, Donald South, Rhysa Griffith Robins Foundation Light, Angelica D. Wood III, Robert C. Kirby, William L. Spahn, Thomas E. Partner ($1,000-$2,499) Malone, Christopher M. Lacey, Kevin C Spruill, Jr., Hon. Joseph E. Mastracco, Jr., Vincent Mentor (up to $249) Lannetti, David Stephens, E. Ford Capsalis, Manuel A. Ackerly, Benjamin C. McGavin, John Ledbetter, Susan Stephens, Hon. J. Warren Gould, Karen A. Aloupas, Carmelou G. McPhillips, Charles V. Martin, Jr., Howard W. Stone, Phillip C. Penrod, David Austin, James Meath, James V. Matthews, Jr., Joseph A. Sullivan, Ann K. Sheridan, Hon. Paul F. Betts, J. Edward Memmer, C. Kailani McCandlish & Lillard, PC Sullivan, Richard C. Weinberg, Jay M. Blankingship, Jr., A. Hugo Mercer, David S. McCoid, II, John Sullivan, Timothy J. Bonnie, Richard Associate ($250-$999) Millner, Jr., H. Victor Middleditch, Jr., Leigh B. Summers, Jr., Francis L. Booker, Lewis T. Albert, Alan D. Mitchell Jr., Robert T. Mitchell, Jr., Wiley Tower, Guy K. Botts, III, William L. Arntson, Peter Morris, III, James Monday, Monica Trabue, Hon. Kenneth E. Bridgeman, Andrea Arrington, Jr., C. Murov, Kenneth B. Moore, Thurston R. Updike, Russell W. Brown, Daniel S. Breckenridge Murphy, Gregory L Morse, Frederick A. Wallinger, M. Bruce Burks, Ann T. Baliles, Hon. Gerald L. Murray, William Murphy, Jr., Hon. William Walton, Jr., Edmund L. Burnette, Jr., Hon. R. Edwin Barr, Jr., Stanley G. Nelson, Margaret A. Tayloe Ware, Guilford D. Calhoun, Hon. Robert L. Belcher, Dennis Oakey, Jr., John M. O’Brien, Kathleen Warthen, III, Harry Carrico, Hon. Harry L. Betz, Jr., Hon. Thomas F. Pace, Jr., G. Michael Osborne, J Lee E. White, Raymond Cheek, Matthew E. Blank, Irving M. Palmer, Jr., Thomas Pinckney, C. Cotesworth Whiting, Elizabeth Claytor, John M Bobzien, David P. Pulley, J. Waverly Pollard, Overton P. Clement, Whittington In Honor of Donations Brown, Jr., Thomas Rapisarda, Jr., Joseph P. Poston, Anita O. Crenshaw, Ann K. Burnett, Peter Redmon, Gant Prince, Hon. William T. In Honor of Kathy Mays Daniel, James A. L. Burrus, Jr., Robert Rigsby, Linda F. Pulley, Glenn W. Coleman from the Davies, III, John J. Burtch, Jack Rigsby, Michael L. Rachels, Jr., William E. Honorable Diana McQuade Donohue, Jr., John B. Chambers, Edward L. Ring, Carlyle C. Rashkind, Alan B. Strickland Douglass, John G. Cox, III, James P. Roberts, Jr., George H. Rhinelander, John B In Honor of Lynn L. and Neil Douglass, III, W. Birch Cox, Kara Rosenblatt, Judith L. Robinson, Melissa W. S. Kessler Family, Donor Edmonds, Thomas A. Coyle, Timothy Shanks, George W. Rosenfield, Steven D. Advised Fund, Richmond Elliott, Jr., Eugene Creasy, Roy V. Sheild, Conway H. Rosenthal, Stephen D. Jewish Foundation Epps, Patricia K. Cullen, Richard Showalter, Donald E. Rucker, Jr., Douglas P. Gillespie, Jr., Carl In Honor of Roderick B. Daniel, John W. Smith, Julious P. Ryan, John M. Glasscock, Hon. J. Samuel Matthews from John Epps, John D. Tarley Robinson PLC Samuels, Stanley Fletcher, John Gordon, Howard E. Huddleston e Virginia Law Foundation, a 501(c)(3) charity, warmly welcomes donations from attorneys and their families, non-lawyers, law rms, and corporations who wish to support our mission. It is not too late to make a donation for calendar year 2013! Donate online securely via PayPal by Donate by mail postmarked by December 31 11:59 p.m. on December 31 (Visa, MasterCard, (Virginia Law Foundation, 600 East Main Street, Discover, Amex, or bank transfer) Suite 2040, Richmond, VA 23219)

Virginia Law Foundation 804.648.0112 · [email protected] · www.virginialawfoundation.org According to legend, an ostrich will shove its head in the sand when confronted with something unpleasant. I think you’ll agree - probably not the best approach.

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President’s Message by Sharon D. Nelson Saluting the 40th Anniversary of the Virginia Law Foundation: Bravo for Funding Good Works

THE VIRGINIA STATE BAR salutes • provided start-up funding for twenty- We also recognize, with thanks, a the Virginia Law Foundation on its eight Court Appointed Special grant to the Senior Lawyers Conference 40th Anniversary. The VLF has cer - Advocate (CASA) programs in for the revision and printing of the tainly lived up to its mission statement, Virginia (over $1.2 million) as well ever-popular Senior Citizens Handbook , which is, “The Virginia Law as the Community Tax Law Project’s which has been instrumental in Foundation promotes through philan - Low-Income Taxpayer Clinic informing many of the common - thropy the rule of law, access to justice ($230,000) which later became the wealth’s older population about laws and law-related education.” model for the National Taxpayer that pertain especially to them. The VLF has been a shining exam - Advocate Service which is now a The VLF has provided more than ple of adherence to its mission state - division of the IRS. $15 million to support projects that ment, funding nearly $24 million in provide civil legal assistance and/or pro grants through 2012 to hundreds of I have to stop right there and tell bono legal services to low-income projects and initiatives benefitting you that I am a Court Appointed Virginians. The foundation has also thousands of Virginians. Special Advocate for Abused and funded studies related to pro bono ser - Some signature projects of the Neglected Children so I am particularly vices and the unmet need for legal ser - VLF include: enthused that the VLF has helped to vices. Seed money provided by VLF has fund so many CASA programs. These provided the critical initial funding for • $100,000 to support construction of unfortunate kids, through no fault of many innovative projects such as the the Nuremberg Courtroom exhibit at their own, end up embroiled in a mys - Legal Information Network for Cancer the Virginia Holocaust Museum in terious and frightening legal and social (LINC). It has also funded a host of Richmond (and if you haven’t seen service system. They deserve all the videos, pamphlets, presentations, and this exhibit, you truly owe it to your - help they can get to find their way to a workshops. self to go); safe home and to any and all assistance Under the able leadership of new we can offer to help them recover from VLF president James V. Meath, the VLF • $350,000 over four years to the their abuse and neglect. Having seen is moving to Charlottesville, cutting VLF/VBA Rule of Law Project, firsthand the many successes of CASA costs by consolidating its offices in the involvement, I send out a big “Huzzah!” building now used by Virginia CLE. • funding of the Annual Legal Aid to the VLF for its support of CASA. This will allow for lower overhead and Conference of the Virginia Poverty The VSB owes a debt of gratitude make more money available for grants. Law Center ($341,046 over the past to the VLF on a more personal level for Virginia CLE Director Raymond M. twenty years); its support of our Conference of Local White will now also serve as the VLF Bar Associations, particularly with its executive director, which is a tremen - • VBA Capital Defense Workshop help in funding the So You’re 18 hand - dous bonus for the VLF. ($288,800 over the past seventeen books, which have proven so popular. As Meath has said, the VLF is “the years); and The handbooks have been translated philanthropic arm of the bar nobody into Spanish and Vietnamese to help really knows about.” Well, I hope this • VLF Public Service Internship s— serve more young people. It is truly a column will change that just a bit and honoring Oliver W. Hill Sr. great project, which VLF funds have that lawyers reading this will consider a ($1,238,000 since 1989). helped to sustain for many years. donation (I make one annually). All

8 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org President’s Message donations should be made payable to the Virginia Law Foundation, and mailed to 600 East Main Street, Suite 2040, Want to check on your Richmond, VA 23219. MCLE credits or certify Save the Date: May 19, 2014 your latest course? As a longtime member of the ABA Go to the iTunes store to download TECHSHOW faculty, I am delighted to the Virginia State Bar app for tell you that the Virginia State Bar will be mobile devices. The app allows offering a VSB TECHSHOW on May 19, you to check your contact 2014, at the Richmond Convention information of record, certify Center. The stellar faculty members are courses, and access Fastcase all nationally-known veteran ABA from anywhere, using the TECHSHOW speakers who will offer a same login and password full day of legal technology CLE. Not you now use on your only is the conference free, every lawyer’s computer. favorite price, but lunch is included in the bargain. So mark your calendars now The VSB mobile and watch for registration information member access app to appear shortly. is available for free in the iTunes store.

2013 Edition Now Available

The new Senior Citizens Handbook is an invaluable resource updated with the latest information on a wide variety of subjects including an overview of just about everything a senior would want to know about the law. It also includes a list of community- service organizations that provide aid to senior services in a large variety of areas.

For more information, or to order copies of the Senior Citizens Handbook, please e-mail Stephanie Blanton at [email protected] or call (804) 775-0576.

www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 9 Executive Director’s Message by Karen A. Gould New VSB Offices; New and Amended Rules

VSB New Headquarters several years of recent successful law Also on November 1, 2013, the Court By the time this column is published in practice may be accepted in place of a entered an order effective immediately the December Virginia Lawyer, the second bar exam as evidence of one’s amending Rules of Professional Virginia State Bar should have executed legal knowledge and ability. The mini- Conduct 1.11, 1.15 and 5.4. a ten-year lease with the owner of the mum practice requirement has been Bank of America building in down- reduced from five of the last seven Rule of Professional Conduct 1.11 town Richmond, at 1111 E. Main St. years under the old rule to three of the One change to RPC 1.11 is cosmetic: it The bar’s offices will be on the seventh last five years. New requirements for moved the definition of “confidential floor of the building, with additional twelve hours of approved instruction government information” from section office space on the sixth floor. The lease on Virginia substantive law and/or pro- (g) to section (c), which is the only also includes two five-year options to cedure and familiarity with the place in the rule that the term is used. extend the lease term. The bar has been Virginia Rules of Professional Conduct The second change to Rule 1.11 added located in its present office space, 707 have been added. Unchanged is the a provision to section (d), allowing the E. Main St., since 1992.1996. statutory requirement of a minimum conflict for a lawyer who is currently in of five years’ bar admission. Persons government service to be waived with New Admission Without Examination applying for admission on motion consent from the private client and the Rule (Reciprocity) must still establish their good character appropriate government agency. This By order entered November 1, 2013, and fitness to practice law in Virginia. provision parallels section (b), which the Supreme Court of Virginia has In what is perhaps the most signif- allows for informed consent to con- adopted, effective February 1, 2014, a icant change, the new rule drops the flicts created by a lawyer’s move from new Rule 1A:1, addressing admission old rule’s requirement that one admit- government service to private practice. to the Virginia bar without examina- ted on motion commit to practice full- The third change to RPC 1.11 was the tion (often called “admission on time in Virginia; and lawyers admitted adoption of American Bar Association motion”). Although the old and new on motion, including those who have Model Rule Comment 3, which rules are similar in many respects, there been admitted under the old rule, are explains why paragraphs (b) and (d) are several significant differences. no longer subject to potential license are not limited to situations in which a To continue encouraging other revocation if they move out of state or lawyer would be adverse to her former states to grant the same privilege to change their status. Lawyers admitted client, but rather apply to any matter in Virginia lawyers, the Court has on motion may change their member- which the lawyer participated person- retained the requirement that only ship status under the applicable mem- ally and substantially prior to her move lawyers who are admitted in jurisdic- bership rules in the same manner as from government to private employ- tions that also admit Virginia lawyers lawyers admitted by examination. ment or vice versa. without examination (i.e., “reciprocal” The Supreme Court of Virginia jurisdictions) are eligible for admission will be issuing revised regulations con- Rule 1.11 now reads as follows: on motion in Virginia. The new rule sistent with the provisions of new Rule requires that admission to the bar of 1A:1, and the Board of Bar Examiners RULE 1.11 Special Conflicts of Interest the reciprocal jurisdiction must have is preparing new application forms. for Former and Current Government been by examination. The new regulations and the applica- Officers and Employees Admission on motion is based on tion forms will be available in January (a) A lawyer who holds public office the premise that passage of a reciprocal on the board’s website, and the board shall not: state’s bar exam combined with the will begin accepting applications under (1) use the public position to experience gained over the course of the new rule on February 1, 2014. obtain, or attempt to obtain, a

10 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Executive Director’s Message

special advantage in legislative information” means information contract, claim, controversy, matters for the lawyer or for a that has been obtained under gov - investigation, charge, accusa - client under circumstances ernmental authority and that the tion, arrest or other particular where the lawyer knows or it is government is prohibited by law matter involving a specific obvious that such action is not from disclosing to the public or has party or parties; and in the public interest; a legal privilege not to disclose, and (2) any other matter covered by (2) use the public position to influ - that is not otherwise available to the the conflict of interest rules of ence, or attempt to influence, a public. A firm with which that the appropriate government tribunal to act in favor of the lawyer is associated may undertake agency. lawyer or of a client; or or continue representation in the (3) accept anything of value from matter only if the disqualified COMMENT any person when the lawyer lawyer is screened from any partici - [1] This Rule prevents a lawyer from knows or it is obvious that the pation in the matter and is appor - exploiting public office for the offer is for the purpose of influ - tioned no part of the fee therefrom. advantage of the lawyer or a private encing the lawyer’s action as a (d) Except as law may otherwise client. A lawyer who is a public offi - public official. expressly permit, a lawyer serving as cer should not engage in activities in (b) Except as law may otherwise a public officer or employee shall which his personal or professional expressly permit, a lawyer shall not not: interests are or foreseeably may be represent a private client in connec - (1) participate in a matter in which in conflict with official duties or tion with a matter in which the the lawyer participated person - obligations to the public. lawyer participated personally and ally and substantially while in [2] A lawyer representing a government substantially as a public officer or private practice or nongovern - agency, whether employed or spe - employee, unless the private client mental employment, unless cially retained by the government, is and the appropriate government under applicable law no one is, subject to the Rules of Professional agency consent after consultation. or by lawful delegation may be, Conduct, including the prohibition No lawyer in a firm with which that authorized to act in the lawyer’s against representing adverse inter - lawyer is associated may knowingly stead in the matter or unless ests stated in Rule 1.7 and the pro - undertake or continue representa - the private client and the tections afforded former clients in tion in such a matter unless: appropriate government agency Rule 1.9. In addition, such a lawyer (1) the disqualified lawyer is consent after consultation; or is subject to Rule 1.11 and to screened from any participation (2) negotiate for private employ - statutes and government regulations in the matter and is appor - ment with any person who is regarding conflict of interest. Such tioned no part of the fee there - involved as a party or as attor - statutes and regulations may cir - from; and ney for a party in a matter in cumscribe the extent to which the (2) written notice is promptly which the lawyer is participat - government agency may give con - given to the appropriate gov - ing personally and substan - sent under this Rule. ernment agency to enable it to tially, except that a lawyer [3] Paragraphs (b) and (d) apply ascertain compliance with the serving as a law clerk to a regardless of whether a lawyer is provisions of this Rule. judge, other adjudicative offi - adverse to a former client and are (c) Except as law may otherwise cer, mediator or arbitrator may thus designed not only to protect expressly permit, a lawyer having negotiate for private employ - the former client, but also to pre - information that the lawyer knows ment as permitted by Rule vent a lawyer from exploiting public is confidential government informa - 1.12(b) and subject to the con - office for the advantage of another tion about a person acquired when ditions stated in Rule 1.12(b). client. For example, a lawyer who the lawyer was a public officer or (e) Paragraph (d) does not disqualify has pursued a claim on behalf of the employee, may not represent a pri - other lawyers in the disqualified government may not pursue the vate client whose interests are lawyer’s agency. same claim on behalf of a later pri - adverse to that person in a matter in (f) As used in this Rule, the term “mat - vate client after the lawyer has left which the information could be ter” includes: government service, except when used to the material disadvantage of (1) any judicial or other proceed - authorized to do so by the govern- that person. As used in this Rule, the ing, application, request for a ment agency under paragraph (b). term “confidential government ruling or other determination, Similarly, a lawyer who has pursued www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 11 Executive Director’s Message

a claim on behalf of a private client quently is employed by a federal sent of both a current client and the for - may not pursue the claim on behalf agency. mer agency. of the government, except when [6] Paragraphs (b)(1) and (c) do not authorized to do so by paragraph prohibit a lawyer from receiving a Paragraphs (c), (d), (e) and (f) have no (d). Rule 1.10 is not applicable to salary or partnership share estab - counterparts in the Virginia Code . the conflicts of interest addressed by lished by prior independent agree - these paragraphs. ment. They prohibit directly relating COMMITTEE COMMENTARY [4] Where the successive clients are a the attorney’s compensation to the The Committee believed that the ABA public agency and a private client, fee in the matter in which the Model Rule provides more complete the risk exists that power or discre - lawyer is disqualified. guidance regarding lawyers’ movement tion vested in public authority [7] Paragraph (b)(2) does not require between the public and private sectors. might be used for the special benefit that a lawyer give notice to the gov - However, the Committee added the lan - of a private client. A lawyer should ernment agency at a time when pre - guage of DR 8-101(A) as paragraph (a) not be in a position where benefit to mature disclosure would injure the in order to make this Rule a more com - a private client might affect perfor - client; a requirement for premature plete statement regarding the particular mance of the lawyer’s professional disclosure might preclude engage - responsibilities of lawyers who are public functions on behalf of public ment of the lawyer. Such notice is, officials. Additionally, to make paragraph authority. Also, unfair advantage could accrue to the private client by however, required to be given as (b) consistent with similar provisions reason of access to confidential gov - soon as practicable in order that the under Rule 1.9(a) and (b), the ernment information about the government agency will have a rea - Committee modified the paragraph to client’s adversary obtainable only sonable opportunity to ascertain require consent to representation by through the lawyer’s government that the lawyer is complying with both the current client and the lawyer’s service. However, the rules govern - Rule 1.11 and to take appropriate former government agency. ing lawyers presently or formerly action if it believes the lawyer is not employed by a government agency complying. Rule of Professional Conduct 1.15 should not be so restrictive as to [8] Paragraph (c) operates only when The amendment to RPC 1.15 clarifies inhibit transfer of employment to the lawyer in question has knowl - that money held by a lawyer on behalf of and from the government. The gov - edge of the information, which a client must be held in a trust account, ernment has a legitimate need to means actual knowledge; it does not while other property may be placed in a attract qualified lawyers as well as to operate with respect to information safe deposit box or other place of safe - maintain high ethical standards. that merely could be imputed to the keeping. As it was previously written, The provisions for screening and lawyer. Rules 1.15(a) appeared to permit a waiver are necessary to prevent the [9] Paragraphs (b) and (d) do not pro - lawyer to place money held on behalf of disqualification rule from imposing hibit a lawyer from jointly repre - a client into a safe deposit box rather too severe a deterrent against enter - senting a private party and a than a trust account. The Court also ing public service. The private client government agency when doing so replaced the word “monies” with “funds” should be informed of the lawyer’s is permitted by Rule 1.7 and is not in Comment 1 to be consistent with the prior relationship with a public otherwise prohibited by law. language in the remainder of the Rules agency at the time of engagement of and Comments. the lawyer’s services. VIRGINIA CODE COMPARISON [5] When the client is an agency of one Paragraph (a) is identical to DR 8- The rule now reads as follows, in government, that agency should be 101(A). pertinent part: treated as a private client for pur - Paragraph (b) is substantially similar to poses of this Rule if the lawyer thereafter represents an agency of DR 9-101(B), except that the latter used Rule 1.15 Safekeeping Property another government, as when a the terms “in which he had substantial (a) Depositing Funds. lawyer represents a city and subse - responsibility while he was a public employee.” The Rule also requires con - Rule 5.4 continued on page 14

12 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Nominations Sought for 201 4–15 District Committee Vacancies

The Virginia State Bar Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be filled by Council in June 2014. Note that there are vacancies which may not become available because some members are eligible for reappointment. To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 – Establishment of District Committees, specifically 13-4.E (Qualifications of Members) and 13-4.F (Persons Ineligible for Appointment). First District Committee: 2 attorney vacancies (both current members are eligible for reappointment); 2 non-attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filled by members from the 1st, 3rd, 5th, 7th or 8th judicial circuits Second District Committee, Section I: 1 attorney vacancy; 3 non-attorney vacancies (2 current members are eligible for reappointment). The vacancies are to be filled by members from the 2nd or 4th judicial circuits. Second District Committee, Section II: 4 attorney vacancies (3 current members are eligible for reappointment); 1 non-attorney vacancy. The vacancies are to be filled by members from the 2nd or 4th judicial circuits. Third District Committee, Section I: 1 attorney vacancy (current member is eligible for reappointment); 3 non-attorney vacancies (2 current members are eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judi - cial circuits. Third District Committee, Section II: 2 attorney vacancies (both current members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicial circuits. Third District Committee, Section III: 3 attorney vacancies (2 current members are eligible for reappointment); 2 non-attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicial circuits. Fourth District Committee, Section I: 3 attorney vacancies (all current members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 17th or 18th judicial circuits. Fourth District Committee, Section II: 3 attorney vacancies (2 current members are eligible for reappointment); 1 non-attorney vacancy. The vacancies are to be filled by members from the 17th or 18th judicial circuits. Fifth District Committee, Section I: 2 attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits. Fifth District Committee, Section II: 3 attorney vacancies (all 3 current members are eligible for reappointment); 2 non-attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits. Fifth District Committee, Section III: 2 attorney vacancies (both current members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits. Sixth District Committee: 3 attorney vacancies (all 3 current members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 9th or 15th judicial circuits. Seventh District Committee: 2 attorney vacancies (both current members are eligible for reappointment); 2 non-attorney vacancies (both current members are eligible for reappointment). The vacancies are to be filled by members from the 16th, 20th or 26th judicial circuits. Eighth District Committee: 2 attorney vacancies (1 current member is eligible for reappointment); 2 non-attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filled by members from the 23rd or 25th judicial circuits. Ninth District Committee: 3 attorney vacancies (1 current member is eligible for reappointment); 2 non-attorney vacancies (both current members are eligible for reappointment). The vacancy is to be filled by a member from the 10th, 21st, 22nd or 24th judicial circuits. Tenth District Committee, Section I: 3 attorney vacancies (2 current members are eligible for reappointment). The vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits. Tenth District Committee, Section II: 3 attorney vacancies (all 3 current members are eligible for reappointment); 2 non-attorney vacan - cies (both current members are eligible for reappointment). The vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits. Nominations, along with a brief resume, should be sent by February 28, 2014, to Stephanie Blanton, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219-2800 or [email protected].

www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 13 Executive Director’s Message

Rule 5.4 continued from page 12 alignment with Virginia Code § 54.1- (a)(3) above, or except that a 3902(B)(1). The statute permits a non - fiduciary representative of the (1) All funds received or held by a lawyer to serve as the secretary, treasurer, estate of a lawyer may hold the lawyer or law firm on behalf office manager or business manager of a stock or interest of the lawyer of a client or a third party, or professional entity that is authority to for a reasonable time during held by a lawyer as a fiduciary, practice law. The rule change now pro - administration; other than reimbursement of vides an exception when a nonlawyer (2) a nonlawyer is a corporate advances for costs and corporate officer is authorized by law. director or officer thereof, expenses shall be deposited in except as permitted by law; or one or more identifiable trust The rule now reads as follows: (3) a nonlawyer has the right to accounts; all other property direct or control the profes - held on behalf of a client Rule 5.4 Professional Independence of a sional judgment of a lawyer. should be or placed in a safe Lawyer deposit box or other place of (d) A lawyer shall not practice with or safekeeping as soon as practi - in the form of a professional corpo - cable. ration or association authorized to practice law for a profit, if: Rule of Professional Conduct 5.4 (1) a nonlawyer owns any interest The amendments to Rule of Professional therein, except as provided in Conduct 5.4 bring subpart (d)(2) into

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14 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Law Libraries and Options Galore

by Gail F. Zwirner

As I listened in October to news coverage of source or its availability in Westlaw. He called me Americans struggling with access to the Affordable back to say he succeeded. Care Act insurance exchanges, I thought about the In another example, a law review draft article communications challenges in instructing library included references to hearings. The student needed users on all the research options we have today. We a source for a proper citation. There are many are in information overload, and more than ever online options for legislative history, but in this case, researchers need help to determine the most effec - the best source was the microfiche that reproduced tive research strategies. the official print source of the hearings that When I discuss with my law school students included the pinpoint pagination. Of all the recom - their best option — perhaps a print source, Internet, mendations I make, microfiche is not the most pop - or paid online services — I ask them to think about ular, but in this rare case, it was the only option. how they will use the information and what sources We librarians deal daily with online vendors are available to them. competing to add more databases. One online ven - • Will the client pay for online searches? dor claims that its system contains more than • Does the researcher need a treatise that is accessi - 36,000 databases. The challenge for law librarians is ble in one vendor’s service but not in another? to remember which vendor has added which • Does the researcher need an official source to sources. Most researchers become proficient in one submit for an exhibit? system, despite law librarians’ efforts to cross-train • Will the researcher need 19th or early 20th century law students on various systems. Seasoned sources that are available only in print? researchers can make obvious links from a Lexis • Does the researcher need to use the appropriate publication in print to the Lexis online version, source for citation to satisfy Bluebook standards? West to Westlaw, and BNA to Bloomberg. But the • Does the researcher need to read a recent law logic of going to LexisNexis to find a Matthew review article to catch up on the latest issues in a Bender treatise escapes recent generations of certain practice area where an Internet or online researchers unaware of the connections between the option will work? publishing houses. Tell a library user that Practising Let me illustrate my point with a couple of Law Institute materials have moved from Westlaw to examples. A practitioner called the reference desk Bloomberg and the regular response is, “How do saying he was having trouble finding a Virginia deci - you keep up with all these changes?” sion that ruled a person cannot burglarize his own Six Virginia librarians provide a range of arti - home. He was using a free database of Virginia case cles for this issue on topics including a survey of the law. I thought a secondary source would be a good Virginia and Federal judiciary on appellate research starting point and told him I would call him back. I lessons, sources on e-discovery, researching ethics pulled Criminal Offenses and Defenses in Virginia , issues, research apps, a historic piece about the one of the Virginia Practice Series titles, and found 150th anniversary of the Virginia/West Virginia debt the answer in a few seconds. When I looked at the issue stemming from West Virginia independence, footnote for the authority, I found the decision was and in special honor of the 40th anniversary of the from 1884. The database the attorney was using did Virginia Law Foundation, a review of its indispens - not have the depth of coverage to find that decision. able CLE handbooks, hands down favorites among I returned the call and suggested he use the print Virginia’s practitioners.

www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 15 Appellate Research Lessons from the Judges by Benjamin A. Doherty

Benjamin A. Doherty Know your audience. Appellate advo - a coherent body of law. Equipped with that joined the research and understanding, your own searches for cases that reference team of the cacy is an exercise in convincing a specific support your specific arguments will be more University of Virginia Law Library in 2004. He audience — judges — of the strength of effective. There are many Virginia practice guides received a B.A. in African- your arguments. From using accurate or treatises you can use. West publishes the Virginia American and African Practice Series on a variety of topics. LexisNexis Studies, and English, from citations, to properly representing case publishes several lengthy treatises on complex the State University of holdings, to successfully explaining how topics, including civil procedure, criminal law and New York at Binghamton 1 in 1993; and an M.A. in your case fits within a larger jurispru - procedure, and evidence. VirginiaCLE publishes African-American Studies a series of Virginia Lawyers Practice Handbooks from the University of dence, good research can help you con - that can be useful for legal background in an area Wisconsin-Madison in vince the judges to agree with you. Who you are briefing on appeal. If you do not have a 1995. He graduated relevant book in your office or as an online sub - from the University of better to explain what the judges would scription, ask for it at the local law library. Wisconsin Law School like to see in the briefs they read than the in 1999. Should the books not address the specific judges themselves? issue you are briefing, try Virginia Lawyer or law review articles. Each Virginia Lawyer issue con - Last summer, I sent a questionnaire on legal tains several articles on aspects of Virginia law. research to the justices and judges of the Supreme Law review articles often begin with an overview Court of Virginia, the Virginia Court of Appeals, of a particular area of law before delving into and the United States Court of Appeals for the arguments about law reform. In addition, remem - Fourth Circuit. I asked simply, “What one piece ber that cases themselves can serve as good sec - of advice would you provide to attorneys who ondary sources. For example, in writing a brief to are presenting legal research in a brief or memo a Virginia state court, you may not want to cite to to your court?” Seventeen justices and judges a case from the fourth circuit. However, if a responded. Their advice followed several themes: fourth circuit judge has written an opinion using secondary sources to your advantage, reviewing an area of Virginia law, that opinion focusing on analysis — not just finding — using may be useful for your own background under - persuasive authority as appropriate, being wary standing. of online research traps, preserving credibility through candor, and making your arguments Analyze the Cases, Do Not Just Find Them obvious. “Analyze cases cited rather than just lifting quota - tions.” — Senior Court of Appeals of Virginia Judge Use Secondary Sources Rudolph Bumgardner III When analyzing case law or statutes, there is no Many judges suggested they would like to see need to reinvent the wheel. more analysis in legal briefs. With the ease of full- Understanding context is crucial to legal research, text online case research, it is easy to forget that as judicial decisions or statutes rarely stand alone. judicial decisions are not just strings of legal state - Senior Judge Rudolph Bumgardner III of the ments there to be plucked as needed to support Virginia Court of Appeals suggested that treatises arguments in briefs. Cases are decided in context. are often the best resource to gain that under - Too frequently ignoring that context in your brief standing. There is no need to try to reinvent the while using only selected legal statements or quo - wheel in legal research, trying to understand an tations weakens your argument. Several judges unfamiliar area of law with your own searches for emphasized that good legal research means more cases or statutes. Instead, use treatises or practice than just finding cases or quotations — it means guides written by experts to point you in the right also taking the time to synthesize and analogize direction and allow you to understand how the the cases you have found to your client’s situation. major cases or laws or statutes fit together to form A Virginia Court of Appeals judge attributed the

16 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org APPELLATE RESEARCH LESSONS FROM THE JUDGES need for more in-depth analysis in briefs to the stand its relevance, and they force you to make fact that it is easy to do online, full-text keyword sure that the cases you cite do indeed say what searches for good quotes. Do not allow the ease you claim. A case citation with no explanation with which you can search online databases to can be a red flag to appellate judges that you did dull your ability to think about what you have not spend time thinking about the case and that found. Finding legal materials and helpful legal your research never progressed beyond finding to language may be easier than ever, but the core of actually analyzing. legal research and analysis remains the ability to analogize existing cases or statutes to new situa - Look for Cases from Other Jurisdictions and tions, something even the most sophisticated Unpublished Opinions When Appropriate search engines cannot do. Persuasive authority is best for issues of first In your analysis, pay attention to the facts. impression. One Virginia Court of Appeals judge expressed a Several judges agreed that appellate attorneys common sentiment: “I prefer when attorneys set should use cases from other jurisdictions for forth case law that is both factually and legally issues of first impression. There is no need to turn similar to the case at bar.” When discussing the to other jurisdictions when Virginia courts or the cases most central to your arguments, include the fourth circuit have already squarely addressed an relevant facts from those cases along with the issue, but for an issue of first impression, analyze legal conclusions. Make a full analysis of those cases from other jurisdictions as persuasive cases in your brief, showing point-by-point how authority in a similar manner to binding cases: they compare factually and legally with the case Those with similar facts are the most useful. at hand. Remember that cases do not stand alone, so Remember as well that cases usually do not explain the full jurisprudence of an area of law in stand alone. “If it is not obvious how a line of another jurisdiction and how it might apply simi - cases works together to form the parameters of larly in Virginia instead of just picking a single the court’s jurisprudence in a particular area, case that supports your argument. Finally, be can - harmonize them and set them out coherently as did by acknowledging negative cases from other opposed to addressing them separately,” explained jurisdictions or jurisdictional splits, while per - a fourth circuit judge. In your research, take the suading the court that one approach is preferable. time to understand how the most relevant cases The same is true of unpublished opinions. A fit together to form a body of law so that you can Virginia Court of Appeals judge said that, “It is explain that jurisprudence clearly in your brief. my practice to read all unpublished opinions Courts do this particularly well, so judicial opin - ions can serve as a good model. 2 Find a case or other legal authority to sup - Find a case or other legal authority port every argument or legal proposition you raise in your brief, however minor. One judge to support every argument or legal pointed to the language of Fadness v. Fadness , 52 Va. App. 833, 851, 667 S.E.2d 857, 866 (2008), on proposition you raise in your brief, the Virginia Supreme Court Rule 5A:20(e) requirement that attorneys provide legal author - however minor. ity for each assignment of error: “Appellate courts are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a dealing with the issue about which I am to write.” reversible error. If the parties believed that the Each court has rules on citing unpublished opin - circuit court erred, it was their duty to present ions. 3 Within those rules you might use unpub - that error to us with legal authority to support lished opinions to demonstrate to the court a their contention.” particular approach you think it should adopt. If it is not obvious how a case supports the proposition you raise, explain it to the court so Watch Out for Online Research Traps that the judges do not have to figure it out on Online databases make legal research easier than their own. One Virginia Court of Appeals judge ever. Don’t let that ease make you careless. appreciated parentheticals following a case cite for Watch out for mistakes common to electronic ” exactly that purpose. Parenthetical explanations research. A fourth circuit judge has seen instances make reading your brief easier for judges who do in which attorneys who have found good quotes not have to look up each case separately to under - from full-text keyword searching have used that www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 17 APPELLATE RESEARCH LESSONS FROM THE JUDGES

wording incorrectly out of context or have even yourself time to understand the facts of your cited a dissent as if it were the opinion of the case so that you can present them in a way that court. These are easy mistakes to make when reads well and is accurate. 5 reading cases on a computer screen, particularly A couple of judges noted the importance of when working quickly. Virginia Court of Appeals maintaining credibility by updating your research Judge Teresa M. Chafin noted frequent “cut and up through oral arguments. A fourth circuit judge paste” errors, where an attorney copied sections of explained that filing supplemental authority is not a brief from other sources without correcting for - appropriate when you simply missed an existing matting inconsistencies or even the party names. case in preparing your brief, but is essential if a These types of electronic mistakes signal to judges new case comes out between when you filed your that the attorney has not spent enough time brief and oral argument. 6 Judges will know of any preparing the brief. new case law, so preserve your credibility by acknowledging new developments, favorable or unfavorable, in advance, rather than waiting for a Judges at all three courts pointed to the importance of judge to bring it up during your argument. focusing on your strongest arguments in your brief. Focus and Make Your Arguments Apparent Judges read a lot of briefs. Make your arguments easy to follow and eliminate unnecessary references. “Come to the point. No long windups,” said Preserve Credibility with Candor Fourth Circuit Judge J. Harvie Wilkinson III. Enable appellate judges to trust you as an advocate Another fourth circuit judge said, “Spend what - by being honest with your legal research. ever time is necessary to boil your argument The judges want to trust you as an advocate. They down to its essentials.” Judges at all three courts may not always agree with your arguments, but pointed to the importance of focusing on your your goal should be for them to grow to trust strongest arguments in your brief. Lead with your legal and factual analysis. Fourth Circuit those arguments without unnecessary introduc - Judge Paul V. Niemeyer said, “Above all else, pre - tion, and spend most of your brief on them. Your serve credibility. Credibility is lost by misstate - job as an appellate advocate is to help the judges ment and exaggeration, among other things, of focus on those central arguments without being both law and fact.” distracted by side issues that are unlikely to deter - “It is not helpful to simply ignore difficult mine the outcome. The importance of brevity cases,” said a Virginia Court of Appeals judge. In extends to your recitation of the facts as well. fact, Virginia Rule of Professional Conduct Virginia Court of Appeals Senior Judge James W. 3.3(a)(3) requires you to disclose adverse control - Haley Jr. explained, “Only relate the facts neces - ling legal authority. In your legal research, spend sary to crystallize the issues raised.” Distilling your time thinking about the unfavorable cases so that arguments and facts down to the essentials means you can distinguish them in your brief. Judges stepping away from online databases to spend will discover those cases whether or not you cite time thinking about your research findings and them, and your strongest position is to acknowl - the factual record. edge them first and explain to the court how they Once you have taken the time for research differ from your client’s situation. analysis, construct your brief in a way that makes Similarly, “Do not spin the facts. Absolute it easy for the judges to follow your argument. candor and fairness is essential in the factual Virginia Supreme Court Senior Justice Charles S. presentation of the case,” pointed out Virginia Russell advocated a simple technique suggested to Court of Appeals Judge Glen A. Huff. Candor him by one of the permanent law clerks at the with your factual analysis is also important 4 and Court: Use headings and subheadings to your may be more difficult. An appellate record is advantage. Use a simple heading for each of the often built at trial in a disjointed and duplicative arguments in your brief, followed by subheadings manner, so it can take time to construct your that provide a very brief summary of the logic of brief’s factual recitation coherently and accu - your argument. That way the judges will know rately. If judges sense that you have left out the logical flow of your arguments by simply important facts or portrayed the facts inaccu - scanning through your brief and will have that rately, it can affect how they perceive your legal logic in mind as they focus on your analysis. arguments. Just as with the cases you find, give

18 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org APPELLATE RESEARCH LESSONS FROM THE JUDGES

Finally, retired Virginia Court of Appeals 2 For example, see Surles v. Mayer , 48 Va. App. 146, Judge Larry G. Elder suggests having “someone 173-75, 628 S.E.2d 563, 576-77 (2006), in which unfamiliar with the case read your writing in Judge Robert J. Humphreys draws on a variety of order to make sure your arguments are clear.” You cases from the Virginia Supreme Court and Court could even have a non-lawyer read your brief. of Appeals to explain Virginia’s jurisprudence on the relocation of a custodial parent. Note that after Your analysis may be nuanced, but your main setting forth the legal background, Judge arguments should be clear enough that even Humphreys engages in a specific factual analysis, someone without legal training can discern their comparing the facts of the case at hand to the facts basic logic. of the most relevant Court of Appeals decisions. See id. at 175-76, 628 S.E.2d at 577-78. I am grateful to all of the justices and judges who 3 See Va. Sup. Ct. R. 5:1(f) & 5A:1(f); Fed. R. App. P. took time from their busy schedules to provide 32.1; 4th Cir. R. 32.1. Note that the Fourth Circuit the terrific legal research advice discussed in this rule is dependent on the date of the decision. article. I also thank my colleagues Kristin Glover 4 See Va. Rules of Prof’l Conduct R. 3.3(a)(1). and Kent Olson for their helpful comments on an 5 As with legal propositions, which must be sup - earlier draft. ported by citation, remember that factual state - ments must be supported by reference to the record or appendix. See Va. Sup. Ct. R. 5:17, 5:27, Endnotes: 5:28, 5A:20 & 5A:21; and Fed. R. App. P. 28. 1 Charles E. Friend & Kent Sinclair, The Law of 6 See Fed. R. App. P. 28(j); 4th Cir. R. 28(e). Evidence in Virginia (7th ed. 2012); Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure (5th ed. 2008); and John L. Costello, Virginia Criminal Law and Procedure (4th ed. 2008).

Virginia State Bar Harry L. Carrico VSB.org: A Member Benefit Professionalism Course VSB.org — the Virginia State Bar’s website — helps you with your membership obligations and your practice. See dates and registration information at There you’ll find the Member Login , where you can: • download your dues statement and pay your dues, http://www.vsb.org . • certify Mandatory Continuing Legal Education, • conduct research on Fastcase, and • update your contact information with the bar.

At VSB.org, you also can link to: • Latest News on VSB regulation, programs, and practice information; • the Professional Guidelines that contain the Rules of Professional Conduct; Lawyers Helping Lawyers • Rule Changes , proposed and approved; Confidential help for substance abuse • the Ethics Hotline ; problems and mental health issues. • Meetings and Events ; and For more information, call our • Search Resources for locating Virginia attorneys and checking their status with toll free number: the state bar. (877) LHL -INVA or visit http://www.valhl.org. VSB.org will keep you current and connected.

www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 19 Discovering E-Discovery: a Resources Guide by Timothy L. Coggins

“Finding a suitable sanction for the destruction of evidence in civil cases has never been easy. Electronic evidence only complicates matters. As documents are increasingly maintained electronically, it has become easier to delete or tamper with evidence (both intentionally and inadvertently) and more difficult for litigants to craft policies that ensure all relevant documents are preserved. This opinion addresses both the scope of a Timothy L. Coggins is associate dean for Library litigant’s duty to preserve electronic documents and the consequences of a failure to and Information Services and professor of law at the preserve documents that fall within the scope of that duty,” wrote U.S. District Judge University of Richmond Shira Scheindlin in her influential Zubulake v. UBS Warburg LLC decision in 2003. 1 School of Law. He is a member of the American And thus began the legal community’s increasing attention to electronically created Association of Law Libraries and has chaired information and e-discovery. several AALL committees, including those that deal with government relations E-discovery refers to discovery in civil litiga - time-efficient. The law library at the University of and advocacy and digital tion that focuses on the exchange of information Missouri School of Law produced and updates a legal information. He has in electronic form. Lainie Crouch Kaiser, a litiga - research guide titled Electronic Discovery . The received numerous honors tion attorney with McDermott Will & Emery, guide, designed for attorneys, judges, and law stu - and awards for his work with information technol - writes that “e-Discovery can be used as an dents who need to research electronic discovery ogy, government relations, umbrella term for both the legal and operational issues, is thorough. It includes an overview and and the authentication considerations related to how electronically stored sections addressing sanctions and privileges, rele - and preservation of digital information (ESI) is used in the modern day vant blogs, law firm e-discovery practice groups, legal information, includ - practice of law.”2 There are many types of ESI, and more. The guide references important mate - ing the 2013 Robert L. Oakley Advocacy Award. including e-mail and office documents, voicemail, rials produced by the Sedona Conference, the photos, video, and databases. Attorneys and oth - leading voice in addressing concerns about elec - ers who write about e-discovery also include “raw tronic discovery, and links to the Sedona data” as discoverable information. Ronald J. Principles: Best Practices, Recommendations & Hedges of Nixon Peabody writes that “[t]echni - Principles for Addressing Electronic Document cally, documents and data are ‘electronic’ if they Production . The guide is available at http:// exist in a medium that can only be read through libraryguides.missouri.edu/electronicdiscovery. the use of computers. Such media include cache The Touro College Jacob O. Fuchsberg Law memory, magnetic disks (such as DVDs or CDs), Center’s library produced another useful guide and magnetic tapes.”3 titled Social Media Use For Attorneys . The guide This article does not present any legal analy - includes a list of print and electronic resources sis of e-discovery and what is and is not discover - that deal specifically with e-discovery and a list able, but rather it provides a listing of resources of e-discovery blogs that address current and that attorneys and those who work with them cutting-edge issues. The guide is available at can use to gain a better understanding of e-dis - http://guides.tourolaw.edu/socialmedia. covery and its application in both federal and Westlaw, LexisNexis, Bloomberg BNA, and state courts. the Practising Law Institute all have databases that provide varied e-discovery resources. Westlaw’s e- Research Guide and Comprehensive Collections discovery collection includes law reviews, texts As in other legal research, starting with a source and bar journals, a national e-discovery law briefs that identifies the relevant resources is useful and collection, e-discovery trial court orders, state and

20 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org DISCOVERING E-DISCOVERY: A RESOURCES GUIDE federal e-discovery law cases, national e-discovery treatises, course handbooks, CLE materials, and law civil trial court filings, and an Electronic session transcripts. Searching the collection is Discovery and Records and Information easy, and an attorney can restrict results to partic - Management Guide . This guide addresses issues ular types of publications. To locate information such as proper planning of possible discovery in about e-discovery, an attorney selects Litigation order to reduce costs and burdens of complying from the Practice Area choices. In the Litigation with discovery requests. It also addresses issues practice area, a simple search for e-discovery relating to records management. results in valuable and important documents. The Lexis e-discovery database is extensive Representative results include course handbook and includes treatises, forms, litigation reports, chapters about sanctions for e-discovery viola - and other materials. Its collection of e-discovery tions, efficient e-discovery for the smaller case, forms includes demand letters, discovery plans, and ethical issues in e-discovery. Results also interrogatories, motions, preservation orders, include an important course handbook chapter requests for production, stipulations, and others. written in 2012, titled The Courts Intervene with Most forms are from Matthew Bender publica - Model Rules to Curb the Costs of E-Discovery: Will tions that are included in the Lexis databases. It Work and Should Litigants Use these Model Rules Mealey’s Litigation Report: Discovery covers the in the Rule 26(f) Conference . latest news pertaining to discovery issues, such as Included in the PLI Discover Plus database is how federal discovery rules are interpreted by dif - a full-text and searchable copy of The Electronic ferent districts and judges, work product, attor - Discovery Handbook , authored by Thomas Y. ney-client and common interest privileges, and Allman, Anthony J. Diana, Ashish S. Prasad, and discovery abuse. An important resource located in Matthew A. Rooney, very important authors and Lexis is E-Discovery: the Newly Amended Federal practitioners in e-discovery. Representative chap - Rules of Civil Procedure , authored by the ters in the handbook deal with information man - Honorable Shira A. Scheindlin. This guide agement policies and procedures, preservation includes sections that deal with the changes to the obligations, review and production of electroni - Rule 26(f) meet-and-confer requirement, new cally stored information, managing spoliation requirements in Rule 26(b) about production of claims and defenses, international issues, and the inaccessible electronically stored information, next generation of ESI (social media, web-based new “safe harbors” provision in Rule 37 for loss of collaboration applications, cloud computing, and information due to routine, good faith operation mobile technologies). Chapter 11 of the Electronic of an electronic information system, and new Discovery Handbook covers e-discovery in specific procedures under Rule 26(b)(5) for requesting areas of practice, such as antitrust, construction, return of privileged or work product-protected contracts, intellectual property, product liability, information that was inadvertently produced. Bloomberg BNA’s e-Discovery Resource The Lexis e-discovery database is Center includes many types of materials, including: extensive and includes treatises, • Federal and state statutes and rules dealing with e-discovery, forms, litigation reports, and • Practice tools, including pleadings and forms, calendars, etc., other materials. • Latest e-discovery cases, • BNA Insight articles (such as the one cited and securities. For each specific area of practice, earlier by Lainie Crouch Kaiser), the authors cover the nature of discovery, relevant • Top headlines in the news about e-discovery, data courses, and issues regarding preservation digital discovery, and e-evidence, and and production. • A comprehensive and searchable database of The print treatise most frequently cited and e-discovery cases. commonly considered the authority in the field is Attorneys using this collection can focus the Electronic Discovery: Law and Practice , authored research on narrower topics, including digital dis - by Adam I. Cohen and David J. Lender (two vol - covery and e-evidence, preservation, production, umes; Wolters Kluwer Law and Business, 2013). costs, privilege, and sanctions. Cohen, a principal with Ernst & Young LLP’s ” Practising Law Institute’s Discover Plus is the Forensics Technologies and Dispute Services prac - online version of familiar PLI materials, including tice, has more than seventeen years of experience

www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 21 DISCOVERING E-DISCOVERY: A RESOURCES GUIDE

in law and technology. Lender, a partner in the lit - Prashant Dubey & Sam Panarella, Litigation igation department of the New York office of Readiness: a Practical Approach to Electronic Weil, Gotshal & Manges LLP, specializes in com - Discovery (2011). plex commercial litigation with a particular emphasis in patent and intellectual property law. E-Discovery: Creating and Managing an Enterprise This treatise began as a primer on electronic dis - Program: a Technical Guide to Digital Investigation covery for the Weil Gotshal litigation attorneys to and Litigation Support (2009). teach them about the role that electronic discov - ery would play in shaping the litigation process. Neal Feigenson & Christina Spiesel, Law on The authors delve deeply into the analysis of e- Display: the Digital Transformation of Legal Persuasion and Judgment (2009). “Perhaps the best advice lawyers should heed regarding Jeffrey J. Fowler & William H. Dance, Preserving the scope of electronic discovery is this: if it’s relevant, Electronically Stored Information: a Practical Approach (Bloomberg BNA e-Discovery Portfolio you need to worry about how to handle it, regardless of Series 2013 ed.) the system or storage media in which it is contained.” Jay E. Grenig & William C. Gleisner III, E- Discovery & Digital Evidence (2005).

discovery case law and then present suggestions Alison Grounds & Benjamin W. Cheesbro, Cloud and strategies about the current state of e-discov - Control: E-Discovery and Litigation Concerns With ery law and where it is likely heading. In chapter 1 Cloud Computing , in Cloud Computing 2013: Cut of this book, the authors present an overview of Through the Fluff & Tackle the Critical Stuff the e-discovery issues facing litigators and write (2013). the following: “Perhaps the best advice lawyers should heed regarding the scope of electronic dis - Brent Kidwell, Matthew Neumeier & Brian covery is this: if it’s relevant, you need to worry Hansen, Electronic Discovery (2005). about how to handle it, regardless of the system or storage media in which it is contained.”4 David J. Lender, Privilege Issues in the Age of Incorporated into this treatise now is the ESI Electronic Discovery (Bloomberg BNA e-Discovery Handbook , which offers valuable practice aids to Portfolio Series 2013 ed.). help attorneys with corporate retention policy drafting, electronic discovery depositions, and Amy Jane Longo, Electronic Discovery Practice many other issues. Under the Federal Rules (Bloomberg BNA e- Discovery Portfolio Series 2013 ed.). Other Useful Books and Resources Attorneys who need the basics about electronic Ralph C. Losey, e-Discovery: Current Trends and discovery and digital evidence should look first at Cases (2008). Electronic Discovery and Digital Evidence in a Nutshell by Judge Shira A. Scheindlin and Daniel Ralph C. Losey, Electronic Discovery: New Ideas, Capra (West 2009). The following treatises and Case Law, Trends and Practice (2010). other resources are useful for more in-depth coverage. Managing E-Discovery and ESI: From Pre- Litigation Through Trial (ABA Section on Michael R. Arkfeld, Arkfeld Electronic Discovery Litigation 2011). and Evidence (3d ed. 2013). Sharon D. Nelson, Electronic Evidence and John M. Barkett, The Ethics of E-Discovery (2009) Discovery Handbook (2006). and E-Discovery: Twenty Questions and Answers (2008). Catrien Noorda & Stefan Hanloser, eds., E-Discovery and Data Privacy: a Practical Guide Michael D. Berman, Courtney Ingraffia Barton & (2011). Paul W. Grimm, eds., Managing E-Discovery and ESI (2011).

22 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org DISCOVERING E-DISCOVERY: A RESOURCES GUIDE

Bruce A. Olson & Tom O’Connor, Electronic data, backup procedures, and how to deal with Discovery for Small Cases: Managing Digital data loss). Evidence and ESI (2012). Honorable Thomas D. Horne, “The Nuts and Predictive Coding for Dummies (Wiley 2013). Bolts of Electronic Discovery: Virginia Practice 2003,” in The Nuts and Bolts of Electronic Marian K. Riedy, Suman Beros & Kim Sperduto, Discovery (Virginia CLE 2003) (issues relating to Litigating With Electronically Stored Information privileges, expectation of privacy, spoliation, and (2007). others) (chapter is dated, but useful).

The Rule(s) of Law: Electronic Discovery and the V. Thomas Lankford & William F. Coffield, Challenge of Rulemaking in the State Courts: “Electronic Discovery: Navigating the New Federal Report of the 2005 Forum for State Appellate Court Rules,” in E-Discovery and the New Federal Rules: Judges (2005). a Legal and Technological Survival Kit (Virginia CLE 2006) (includes the Sedona Conference Seventh Annual National Institute on E-Discovery Principles and information about computer ABA Section of Science and Technology Law and forensics experts, phases in the electronic discov - the Center for Professional Development 2013). ery process, and preservation and storage).

John Hardin Young, Terri A. Zall & Alan A. Edward B. Lowry, “Virginia’s Proposed Rules of Blakley, Written and Electronic Discovery (2009). Discovery Relating To Electronically Stored Information,” in Digital Tools for the Uber E-Discovery – Virginia Resources Litigator: What Every Trial Attorney Needs to Like attorneys in other states, Virginia attorneys Know (Virginia CLE 2008) (discussion of how the closely monitor e-discovery developments. 5 On proposed rules would affect e-discovery). Nov. 22, 2013, the National Business Institute pre - sented Everything You Don’t Know About E- Stephen E. Noona, The Discovery and Introduction Discovery (But Wish You Did) in Virginia Beach. of Electronic Evidence in Federal Court , in Digital The program, featuring John C. Lynch (Troutman Tools for the Uber Litigator: What Every Trial Sanders), Craig L. Mytelka (Williams Mullen), Attorney Needs to Know (Virginia CLE 2008) and Dustin M. Paul (VanDeventer Black), covered (how various rules that govern electronic infor - latest state rules and regulations; e-discovery pre - mation may be used in federal court, how to cautions, risks, and advice; ethical pitfalls; han - introduce and use electronic information at trial, dling social media, e-mail, video, and other ESI, and practice advice on obtaining electronic dis - new discovery sources; and other topics. covery and how to manage the e-discovery E-discovery resources listed below might be process and costs). useful to Virginia attorneys. Correy E. Stephenson, “Trends to Watch on Va. Sup. Ct. R. 4:1 & 4:9A, Va. Code Ann. (2013) Electronic Discovery,” Virginia Lawyers Weekly (available at http://valawyersweekly.com/2011/11 Joan E. Feldman, “Mechanics of Electronic /22/trends-to-watch-on-electronic-discovery/) Discovery,” in The Nuts and Bolts of Electronic (changes in e-discovery expected during 2012, Discovery (Virginia CLE 2003) (advice about including data, coding, and sanctions issues). gathering computer-based information, filling in the details with computer-based evidence, and the Correy E. Stephenson, “Computer Assisted Review expert’s role in computer-based discovery) (chap - Becomes Popular,” Virginia Lawyers Weekly (avail - ter is dated, but useful). able at http://valawyersweekly.com/2013/02/01 /computer-assisted-review-becomes-more Barron K. Henley, “Business Continuity: the New -popular/) (increasing use of computers to review Frontier of Backup and Data Protection,” in Legal large numbers of documents and how courts have Technology and Practice Management: Future handled determining whether computer assisted Trends and the Best of What’s Out There Now document review is acceptable). (Virginia CLE 2012) (practical aspects of elec - tronic data storage, including types of electronic

E-Discovery continued on page 27 www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 23 Solving Your Ethical Conundrums: Researching the Rules of Professional Conduct by Joyce Manna Janto

When I introduce the topic of ethical includes the rules dealing with the unauthorized 3 rules to my first-year legal research stu - practice of law. There are three ways to access the rules in dents, someone will always question the this volume. The first is to use the title index to need to research them. My students think Part Six. This index lays out the contents of the the rules are a self-explanatory set of part in detail. The heading of each rule is listed allowing the user to quickly scan and identify the Joyce Manna Janto was guidelines for their behavior, much like needed provision. The second way is to use the appointed deputy director the Ten Commandments. They are sur - of the University of volume’s index. This index provides a more con - Richmond William Taylor prised when I point out the need to trolled, subject oriented access to the rules. Muse Law Library in July research the rules to clarify what is meant Finally, the general index of the code contains 1991. She previously served as the acquisitions by a specific rule, to deepen their under - entries to the material found in the rules volume. librarian and associate standing of the issues involved, and to The rules in the code are published in the director for collection Code of Virginia, and there is some advisory development at Richmond gain insight into trends in this area of material available to the researcher within the from 1982 to 1991. She law. In short, you research ethical rules code volumes. While not actually part of the code, served as president of the Virginia Association of and issues for the same reasons you the Legal Ethical Opinions (LEOs) and the Law Libraries, the undertake any statutory research: in Unauthorized Practice of Law Opinions (UPLs) Southeastern Chapter of order to ensure that your (or your issued by the Virginia State Bar (VSB) are pro - the American Association vided as unnumbered volumes of the code . These of Law Libraries, and the client’s) behavior complies with the law. American Association of opinions, while they have no precedential value, Law Libraries. do give guidance as to how a disciplinary com - The current Model Rules of Professional mittee might interpret a rule. Access to these Conduct (Model Rules), as promulgated by the opinions is through the subject index which is American Bar Association (ABA), were adopted located at the end of each section. on August 2, 1983. On January 25, 1999, the Since the Virginia Rules are based on the Supreme Court of Virginia revised the Virginia ABA Model Rules, the ABA/BNA Lawyer’s Manual Code of Professional Responsibility, replacing it of Professional Conduct can be a rich source of with the Virginia Rules of Professional Conduct information if you are seeking a broader interpre - (Rules), adapting the Model Rules issued by the tation of a particular rule. This loose-leaf service ABA. They became effective on January 1, 2000. is easy to use as it is arranged in rule number Since that time, forty-nine states have adopted the order. Under each rule you will find ethics opin - 1 Model Rules either in whole or with revisions. ions from the ABA and a variety of bar associa - Thus, an attorney in Virginia who wishes to tions, both state and local. In addition to the research a particular rule or an ethical issue has a ethics opinions, the set contains a current aware - wide array of sources available. ness newsletter which summarizes recent opin - ions issued by courts or bar associations, and Old School Research: Finding Resources in Print articles on ethical issues facing attorneys written In researching the rules or ethical issues in gen - by members of the practicing bar. An index pro - eral, the first question is: print or online? If print vides subject access to the material, both the is your preference and you merely need the rules, opinions and the newsletters. the obvious starting place is the Code of Virginia. Lawyers in Virginia have the right to appeal The Virginia bar is under the jurisdiction of the the decision of the disciplinary board to the Supreme Court of Virginia, so the rules are found Supreme Court of Virginia, so a print search for in the Court Rules volume. 2 This volume also case law takes you to the Virginia/West Virginia

24 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org SOLVING YOUR ETHICAL CONUNDRUMS

Digest . A quick perusal of the title index for the The other link to the LEOs directs you to a topic “Attorney and Client” identifies key num - page maintained by the law firm of McGuire bers for a variety of ethical issues such as the Woods. 6 Here you find the LEO summaries pre - unauthorized practice of law (12), advertising and pared by attorney Thomas E. Spahn. Spahn, a solicitation (32(9)), malpractice (105.5), and even partner at McGuireWoods, is a nationally recog - disbarment (59.14). The digest provides informa - nized expert in the field of legal ethics. The data - tion about decisions issued by any court (federal base contains his summaries of not only the or state) sitting within the geographic confines of Virginia LEOs recognized by the VSB after its Virginia and West Virginia. reorganization of the LEOs in 1983, but also the If you are interested in broader trends in formal opinions issues by the ABA Standing legal ethics, you would do well to consult the Committee on Professional Responsibility. You Restatement of the Law Third, The Law Governing can find opinions in this database in several ways. Lawyers. This publication of the American Law There is a topical table of contents that links to Institute was issued in 2000. According to the LEOs on an assortment of subjects. Then there is introduction, it covers much of the law governing a link that will retrieve a list of all of the LEO lawyers but not all of it. At present, the restate - summaries written in the past year. The database ment addresses primarily the lawyer-client rela - also supports keyword searching. When searching tionship, confidentiality, and conflicts of interest. by keyword, you have the option of filtering the Like all restatements, it includes comments on the search by date or limiting the search to ABA or principles stated, illustrations of the principles in Virginia LEOs. action, and a table of cases which construe the Finally, if you can’t find a LEO dealing with principles addressed. your specific concern, you can request one from Along with the restatement, many books the VSB. There is a link on both the “Professional have been published in this area in recent years. A Regulation” page and the “Members Resources” search in your library’s catalog using the subject page which allows any member of the Virginia heading “legal ethics - United States” should pro - bar to request a LEO via e-mail. This service is duce many relevant entries. Books under this sub - confidential; ethics counsel for the VSB cannot ject heading will deal not only with ethics in the disclose the contents of any discussion about the abstract, but also with the ethical concerns of spe - e-mail without the express consent of the person cific practice areas. One of my favorite recent posing the question. titles is Ethics and Integrity in Law and Business: A free, to VSB members, source is Fastcase 7. Avoiding “Club Fed.” While LEOs and the rules are not part of the Fastcase database, Supreme Court of Virginia Web-Based Resources: Free and Subscription decisions are. As mentioned above, disciplinary Even though the print resources are easy to use, matters are appealable to the Supreme Court of these days most lawyers prefer to do their research Virginia so you will find valuable content in this online. The good news is that many of the online source. sources are free. The most obvious free resource is the website of the VSB. 4 Clicking on the link for “Professional Regulation” brings up a wealth of resources. As you would expect, the rules are pre - Even though the print resources are sented here since the VSB no longer provides printed copies. Amendments to the rules, pro - easy to use, these days most lawyers posed, adopted, and even rejected, are also avail - able on this page allowing you to trace the prefer to do their research online. evolution of the rules in Virginia. LEOs are searchable in a variety of ways. When you click on the link to the LEOs you are No mention of free Internet sources would taken to a page maintained by the Virginia CLE be complete without talking about Google. You division of the Virginia Law Foundation. 5 Here could just throw some words into the search bar you can pull up LEOs by number or you can and come up with a few million hits. Simply search by subject. When you choose the subject searching “ethics opinions” results in some very search you are given the option to run an good results, the ethics opinions of many state advanced Google search which permits Boolean and local bar associations. A savvy Google user, searching and the ability to limit the search however, would scroll to the bottom of the by date. Google results page and click on the advanced ” www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 25 SOLVING YOUR ETHICAL CONUNDRUMS

search option. Using this option allows you to All of the content in this area is available on both easily do Boolean searching and limit the results versions. To determine what is available in classic by language, last updated, or, most helpful, by Westlaw, you click on “Directory” and open the domain. tree for “Topical Materials by Area of Practice” A search in Google for “internet advertising and then the tree for “Legal Ethics and ethics opinions” garners slightly over twenty-four Professional Responsibility.” In WestlawNext you million hits. An advanced search for “internet first click on “Secondary Sources” then “Texts and ~advertising “ethics opinions” site:org” yields Treatises” and then “Ethics and Professional slightly more than seven thousand hits. The tilde Responsibility.” before the word advertising pulls websites using In Lexis.com, you can select the entry for synonyms for advertising, such as solicitation. By “Ethics” under the heading “Area of Law by Topic” on the home screen. A full listing of all available titles is then displayed allowing you to Even with the wide assortment of resources, both in choose to search in one or all of the databases. In Lexis Advance you first click on the “Browse print and electronic available to you, sometimes you Sources” tab. In the left hand frame, above the facets, is a search box. If you type in the word just want the human touch. ethics, Lexis Advance will pull up all of the data - bases in which the word appears in either the heading or the database descriptor. The list of placing ethics opinions in quotes, Google will databases that appear can then be sorted by mate - look for those terms as a phrase. Finally, since rial type or jurisdiction. most bar associations, as well as the ABA, have a Both Lexis and Westlaw have the full comple - .org domain you know the results retrieved will ment of ABA ethics materials, the model rules be from reliable sites. and the formal and informal LEOs. When it Google Scholar shouldn’t be overlooked comes to Virginia research, Lexis has the edge. either. Running the above search using the Legal Both systems have the rules but only Lexis has the Document option in Google Scholar results in Virginia LEOs. Interestingly, Westlaw does have a 762 hits. The results include court cases and arti - file of the public disciplinary orders issued by the cles from scholarly journals. Results can be fur - VSB. ther sorted by relevance or limited by date. You There is an extensive collection of secondary can select one of the dates provided or create a sources available from each service. Both contain custom date range. the Restatement of the Law Third: The Law A mixture of free and paid resources are Governing Lawyers. Westlaw has more general accessible at the webpage for the ABA Center for treatises dealing with the topic while Lexis has an Professional Responsibility. 8 On the home page of “Emerging Issues” database dealing with hot top - the center, any visitor can view or download the ics in the area. Lexis also has the ABA/BNA latest LEOs issued by the ABA. There is also a Lawyer’s Manual on Professional Conduct avail - news section on this page which highlights recent able. articles on ethical issues. Under the “Resources” Bloomberg Law is similar to Fastcase in its tab, the Model Rules of Professional Conduct ethic content. The cases of the Virginia Supreme along with the comments are available. Court are present, but the rules and the LEOs are Non-members of the ABA can see a list of all not part of the Bloomberg platform. Currently, of the formal LEOs issued by the ABA and indi - there are not any treatises dealing with ethical vidual opinions may be purchased for $20. issues on Bloomberg. Members of the section are able to search the Even with the wide assortment of resources, entire ethics database and download opinions free both in print and electronic available to you, of charge. If a member doesn’t want to search the sometimes you just want the human touch. In database, he or she can take advantage of the cen - Virginia, that’s still possible. If you desire, you can ter’s EthicSearch Research System. The center’s call the Legal Ethics Hotline 9 maintained by the lawyers will research ABA, state, and local bar VSB. When you call, you will be prompted to association opinions to assist a lawyer to under - leave a detailed message and your call will be stand or resolve any ethical issues. returned the same business day, if possible. The In the ethics area, it doesn’t matter if you service is confidential and the lawyers employed subscribe to the legacy versions of Westlaw or by the VSB will provide you with an informal Lexis or the newer WestlawNext or Lexis Advance. ethics opinion.

26 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org SOLVING YOUR ETHICAL CONUNDRUMS

Conclusion Endnotes: Being a lawyer is a difficult proposition. People 1 As of this publication date, California has not tell you their darkest secrets or ask you to per - adopted the Model Rules. The California State Bar form certain tasks for them. This may cause you is currently revising their Rules of Professional Conduct, taking into account the final report and to have information you feel compelled to share recommendations of the ABA’s Ethics 20/20 or to feel as if you’re being pushed in a direction Commission, with the intent of eliminating con - in which you hesitate to go. By using the flicts between the rules in California and other resources outlined in this article you can assure states. yourself that your behavior is conforming to the 2 Part Six, Integration of the State Bar, Section Two, ethical standards of the Virginia bar. Rules of Professional Conduct 3 Part Six, Integration of the State Bar, Section One, Unauthorized Practice Rules and Considerations 4 www.vsb.org 5 http://www.vacle.org/leoslegallinks-pg107.aspx 6 http://leo.mcguirewoods.com/ 7 http://www.fastcase.com/ 8 http://www.americanbar.org/groups /professional_responsibility.html 9 (804) 775-0564

E-Discovery continued from page 23

Correy E. Stephenson, Rules Changes Ball then proceeds with eleven room and tells them to resolve the Would Deal with Discovery , Virginia tips to help both judges and practi - matters or she will. Another jurist pan - Lawyers Weekly (available at tioners “get it right.” His first tip sum - elist at the program was even more http://valawyersweekly.com/2013/05/1 marizes well why it is so important for direct about e-discovery problems: “I 0/rule-changes-would-deal-with-dis - attorneys and others in the legal com - don’t get headaches, I give headaches covery/) (recent proposed changes to munity to understand e-discovery: … Without a discovery strategy, you the Federal Rules of Civil Procedure “Electronic evidence is the new nor - are playing chicken.” 10 and how the changes impact discovery, mal, there is no going back. If you particularly e-discovery). don’t fully accept that ESI is here and The author thanks Jessica E. Barile, growing in importance, litigants will third-year law student at the University Conclusion prey on your nostalgia and exploit of Richmond School of Law, for her E-discovery continues to be challeng - your desire to stay within a last-cen - research assistance. ing for judges and lawyers. In a recent tury comfort zone.”7 article, Craig D. Ball lists three reasons Judges have their own advice for Endnotes: why electronic data discovery can be attorneys about e-discovery. At the 1 220 F.R.D. 212 (S.D. N.Y. 2003). For more information about Judge challenging to the bench: recent annual Electronic Discovery Scheindlin’s influence in e-discovery • “Judges tend to be more senior than Institute Leadership Summit, four developments, see “Another Big E- the average lawyer – with the conse - jurists presented one dominant theme Discovery Ruling for Scheindlin,” quence that most jurists have had lit - — attorneys should solve EDD prob - Nat’l L.J. , Aug. 28, 2013, at 18, and tle hands-on experience with lems themselves without turning to the Lisa Holton, “A Front-Row Seat: Five 8 Judges At the Forefront of Electronic electronically stored information in judges. The four judges recom - Discovery,” Am. Law. , Aug. 2013, at 54. their own law practices. mended that attorneys develop proto - 2 Lainie Crouch Kaiser, “Understanding • Most lawyers are still at sea with e- cols with their adversaries and offer eDiscovery Can Boost a New discovery technology, so they are less tutorials to judges where technology Associate’s Career,” BNA Insight adept at framing ESI issues, making a may be a heavy factor. A goal, accord - (available via the Bloomberg BNA e-Discovery Resource Center) (Oct. 9, record, and educating courts. ing to one jurist panelist, should be to 2013). • The common practice to ‘split the change the “existing mindset of pro - 3 Ronal J. Hedges, Discovery of baby’ to achieve a just result rarely ducing parties that the data ‘is mine to Electronically Stored Information: prompts outcomes in electronic data know and for you to find out,’ rather Surveying the Legal Landscape 1 discovery.”6 than cooperating.”9 She actually sends (2007). attorneys who are bickering to a jury E-Discovery continued on page 52

www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 27 TENTH ANNUAL INDIGENT CRIMINAL DEFENS E ADVANCED SKILLS FOR THE EXPERIENCED PRACTITIONER

SAVE THE DATE FRIDAY , M AY 2, 2014

THE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF VIRGINIA THE MEMBERS OF THE CHIEF JUSTICE ’S INDIGENT DEFENSE TRAINING INITIATIVE AND THE VIRGINIA STATE BAR

INVITE ALL PUBLIC DEFENDERS AND COURT -A PPOINTED COUNSEL WHO HAVE BEEN CERTIFIED BY THE VIRGINIA INDIGENT DEFENSE COMMISSION TO REPRESENT INDIGENT CRIMINAL DEFENDANTS TO MARK THEIR CALENDARS FOR A D AY -L ONG ADVANCED TRIAL SKILLS CLE

RICHMOND CONVENTION CENTER (L IVE PROGRAM )

BLUE RIDGE COMMUNITY COLLEGE , W EYERS CAVE (W EBCAST )

AND WYTHEVILLE MEETING CENTER , W YTHEVILLE (W EBCAST )

Look for details at http://www.vsb.org. Registration information will be available on our website in early January.

28 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Virginia Law Foundation Fortieth Anniversary Special Section

The Virginia Law Foundation ... promotes through philanthropy the rule of law, access to justice, and law-related education.

www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 29 The VLF Celebrates Forty Years of Philanthropy by James V. Meath, president of the Virginia Law Foundation, and Manuel A. Capsalis, immediate past-president of the Virginia Law Foundation

It is with great pride that we welcome you to this issue of Virginia Lawyer magazine. The Virginia State Bar has graciously dedicated the issue to the Virginia Law Foundation. We are thankful for this great honor.

The Virginia Law Foundation There are more than 400 fellows of the

is the philanthropic arm of Virginia’s Virginia Law Foundation, representing

legal profession. It uses its endowment the top 1 percent of lawyers and retired

to fund worthy projects in three crucial judges in the commonwealth. These are

areas: the rule of law, access to justice, men and women who have achieved

and legal education. Next year the excellence in the profession while

foundation celebrates forty years of demonstrating leadership and a selfless

philanthropic work. The organization commitment to the betterment of their

has provided more than $23 million in communities. The fellows of the

grants during its history. Virginia Law Foundation are celebrat -

One of the components of the ing thirty years of leadership and com -

foundation is its Fellows Committee. mitment in 2014.

30 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org In the pages that follow, you will We hope that you enjoy this special read about the philanthropic efforts of issue of Virginia Lawyer and find the the foundation. We hope you will be articles instructive and compelling. We struck by the good work that has been also hope you agree that there is some - done by the funds that the foundation thing very special about being a has provided to grantees. Lives have Virginia lawyer — a sense of history and been changed, futures have been of civic duty to the commonwealth and formed, and the commitment that our its people. Supporting the foundation’s

Founding Fathers made to justice for all philanthropic pursuits enables us to has been furthered. That said, there is touch the lives of thousands of more need now than ever for the Virginians our individual good work

Virginia Law Foundation to raise funds could not possibly reach. and continue its philanthropic mission.

Members of the Virginia Law Foundation board gathered at the Virginia State Bar annual meeting in June. Pictured on page 29 are, standing (left to right): John D. Epps, president-elect; Raymond M. White, executive director; James V. Meath, president; G. Michael Pace Jr.; Irving M. Blank, vice president; Manuel A. Capsalis, immediate past president; William L. Schmidt; The Honorable Paul F. Sheridan; Yvonne C. McGhee, secretary; George Warren Shanks, Fellows Committee chair; Stanley G. Barr Jr.; J. Page Williams; David P. Bobzien, CLE chair; and F. Anderson Morse. Seated (left to right): John M. Oakey Jr.; Karen A. Gould, treasurer; Lucia Anna “Pia” Trigiani; Cynthia E. Hudson; and Angelica D. Light.

www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 31 One Barn at a Time (Being Good and Doing Great) by Raymond M. White

I cannot help but believe the Practicing law provides us with a unique the foundation supports, while also shar - opportunity to be good people and a ing ourselves in ways that mean so much reason most of us chose the law special platform for doing great things. to so many and that can also be uncom - as our life’s work is to help make Accordingly, among the many reasons I monly fulfilling. a difference in the administration am especially proud to join the Virginia For example, throughout our first Law Foundation (VLF) as its executive forty years as the philanthropic arm of of justice in our communities director is it gives me a chance be good Virginia’s legal profession and the while bettering the lives of our and do great in important ways. parent organization of Virginia CLE, the In fact, the VLF gives us all a won - VLF has provided sizable grants to a clients, our neighbors, and our derful opportunity to share our collec - number of critical law-related projects loved ones. tive passion for the multitude of causes across the commonwealth, including:

32 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org • Central Virginia Legal Aid Society – The VLF gives our legal community think we all might agree there are still a Immigrant Domestic Violence a chance to be good and do great as we few more barns that need to be rebuilt Survivors Project try to make a difference in the lives of along the way to that perfection. That is those without meaningful access to jus - why I am here, why I am writing this • CASA of Central Virginia – CASA Big tice, and in the lives of those who may piece, and why I hope you find a way to Brother/Big Sister Collaborative somehow feel that they have been left join with us as the VLF crosses the com - • Blue Ridge Legal Services – Legal behind by the rule of law. monwealth to help rebuild the occa - Assistance for the Elderly What personally grounds me in this sional barn that needs fixing. concept comes from a simple story Yes, the VLF will always be there to • ChildHelp Children’s Center of about my late father-in-law, John Bartel. support our own, and it is comforting to Virginia – Kids Court A dairy farmer from the time he know that in the past we have been able was in his teens, Mr. Bartel loved his to count on so many of you to be in • Greater Richmond SCAN (Stop Child work more than life itself. Still, the ups there with us, hammering away until the Abuse and Neglect) – Child Advocacy and downs of family farming brought job is done. Center him to a point where he eventually had We are particularly proud that over • Hispanic Committee of Virginia – to sell several acres at a time simply to the course of our forty-year history we Immigration Services Program pay the bills. And if that wasn’t enough, have provided more than $23 million in one summer night as the bills continued grants to promote the rule of law, access • Legal Services of Northern Virginia – to mount, up the hill and out of to justice, and law-related education. Domestic Violence Pro Bono Program nowhere a flame shot through the sky as We are prouder still that beginning last • Offender Aid & Restoration of the barn he helped build years ago year we embarked upon an ambitious Richmond – Prostitution Rehabilitation burned to the ground. There was noth - plan to expand our outreach to better Program ing left; this was the only time my wife assist even more Virginians with critical had ever seen her father cry. legal needs. • Southwest Virginia Legal Aid – That next morning, as word of the To that end we believe that through Community Training to Protect fire spread across the county, a small passion, people, and partnerships we can Victims of Domestic Violence army of farmers got off their tractors, continue to make a difference, and along left their milking parlors, and stopped the way we are looking to old and new • Asian Pacific American Legal Resource bailing hay. They grabbed hammers and friends who share our passion and who Center –Asian American Equal Access saws, and started carting lumber in dusty would like to join with us — to stand Project pickup trucks as they gathered together together like those dairy farmers did — • Virginia State Bar Young Lawyers to do whatever it was going to take to whether through financial donations, Conference – The Oliver Hill-Samuel rebuild that barn. donations of time, or donations of Tucker Prelaw Institute They worked day and night to expertise, so together we can fix what rebuild that barn, and when they were needs fixing as we strive to perfect our • The Women’s Center – Domestic done, with hardly a word spoken, as legal system, and help our communities Violence Audio-Visual Project none were needed, they patted my and neighbors one barn at a time. • Virginia Bar Association – Capital father-in-law on the back and made Defense Workshop their way home. They didn’t need thanks; they didn’t need praise; they did - • Virginia State Bar – Spare The Child n’t need a front page story telling the Video (Protecting Children of Divorce) world how special they were. To them, what they did wasn’t special. They were • Virginia Law Schools – Public Service simply good people doing something Internships great — because that’s who they were. • William and Mary Law School – This story matters so much to me Veteran’s Assistance Project because it shows the goodness of who we really are as a people, and how that • Virginia Bar Association – Rule of goodness shines through when given a Raymond M. White is the executive director of Law Project Virginia CLE and the Virginia Law Foundation. chance. It represents how we rise to the He previously worked as a prosecutor and in occasion for all the right reasons, and private practice in New York, as chief operating • Greater Richmond Bar Foundation – this is precisely what the VLF represents officer of the National Institute for Trial Justice Server Project Advocacy at The Notre Dame School of Law, to me. for the Michie Co., and as a screenwriter in Los • Virginia Holocaust Museum – Our system of justice is second to Angeles and songwriter in Nashville. Nuremburg Courtroom Project none. But is it perfect? Let’s just say I www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 33 The Henrico County Bar Association brought the Rule of Law Project to Godwin High School on October 10. The association presented a line-up of speakers to discuss the sepa - ration of powers and roles of the three branches of government. Among the speakers were Supreme Court of Virginia Justice Cleo Powell, Delegate John O’Bannon of the 73rd House District, and Roderick C. Young of the U.S. Attorneys’ Office. Other participants included (seated, left to right) Jennifer Fox, Heather Szjada, Nerissa N. Rouzer, Tony H. Pham, and Suzanne E. Wade, (standing, left to right) Deputy Joel Lawson, Officer Allen Wilson, Officer Pete Siepert, Lori Lord, Daniel L. Rosenthal, Officer Craig Burton, Officer Sun Jung, Officer John Woodson, Timothy Isaacs, Angela B. Axselle, Officer Rafael Medina, G. Michael Pace Jr., Christopher H. MacTurk, Officer Clay Woodcock, Renu Brennan, Benjamin N. Spence, Kathryn Daughtry, Andrew McNevin, Deputy John Barnes, Melissa Y. York, Deputy Walter Allmon, James Parsley, Deputy Mike Genau, Ramona L. Taylor, Deputy Megan Clark, Deputy John Mizell. Center Spreads the Rule of Law Project

by G. Michael Pace Jr.

With its beginnings in the Virginia Bar to advise us about educational content support scholarship, programming, and Association, and with the generous and to create additional online materials operations. Other grant requests are out - financial support of the Virginia Law for classroom use. standing. The center has an audacious Foundation, the Rule of Law Project is Working together, we will assure goal of raising $10 million within three starting its fifth year, and now involves that Virginia is recognized as the leader to five years to fully endow its program. all state-wide bar associations and a in rule of law education nationwide. We held the initial meeting of the growing number of local ones, some for center’s board of directors on August 27 the fourth and fifth time. We continue The Rule of Law Project in the United at Roanoke College. The members of the to expand our website offerings States and the World board of directors include: Kathy Mays (www.ruleoflaw-vba.org), which pro - Created at Roanoke College in 2012, the Coleman, Senior Justice Lawrence L. vide on-line teacher resources, training Center for Teaching the Rule of Law Koontz Jr., Justice Cleo E. Powell, Diane materials, reading lists, and lesson plans (www.thecenterforruleoflaw.org) is a M. Strickland, Guy K. Tower, and for teaching the origin, meaning, and think-tank, research, scholarship, and Anthony F. Troy. importance of the rule of law in society, training institute for rule of law educa - None of the board members are together with training materials for tion. It also serves as a forum for discus - required to raise money for the center. volunteer bar members. sion about the relationship between the Their willingness to serve and the guid - We created a Lawyer Advisory rule of law and society, nationally and ance they provide is greatly needed and Committee to establish relationships internationally. The center is the vehicle appreciated. with more local bar associations for the by which the Rule of Law Project will be Roanoke College has graciously purpose of organizing Rule of Law Day introduced to other states and countries. donated office space and technical and in every community in Virginia on an It is an independent Section 501(c)(3) operational support for the center. The annual and sustainable basis. We have educational charitable organization college’s reputation as an excellent also created a Teacher Advisory supported by private donations. The liberal arts institution provides the per - Committee comprising educators and center received its first grant, of $50,000, fect platform to engage students, fac - administrators in Virginia and other this spring from the Foundation for the ulty, staff, and the community in the states. The purpose of this committee is Roanoke Valley. These funds help center’s activities, and for teaching our

34 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org Law and Society class. The center will included as the rule of law education Center staff and Roanoke Bar have two student interns to assist in component in a new U.S. Department Association members will teach students research and writing projects on rule of of State program that hosts delegations about the rule of law and citizenship. law-related subjects. We are working from other countries. This is a perfect example of relationships with several college organizations on a Our existing relationships also con - that develop to address a need and series of co-sponsored programs for tinue to expand: improve communities. We are proud to this academic year. be part of this effort. The center will be In addition, we have expanded our Virginia Department of Education — meeting with national representatives of curriculum to include “The Rule of Law Patricia Wright, Superintendent for Big Brothers and Big Sisters about using and the Environment,” a topic of Public Instruction, will again endorse the Oliver Hill House experience as a increasing national and international the Rule of Law Project for inclusion in pilot project for similar ones across the importance. Our environmental educa - all public schools. We have received country. tion curriculum will be led by Maggi this endorsement each year since our I will end with my favorite story Pace, our new director of beginning. from this past semester. The Moton Environmental Education and Social Museum is the former public school in Media. Maggi is a Wake Forest The Virginia Consortium of Social Farmville that closed its doors to stu - University graduate with a major in Studies Specialists and College dents during the “massive resistance” era biology, and a master’s degree in envi - Educators (VCSSE) —We have been in Virginia in the 1950s and ‘60s. A new ronmental education from Slippery invited to present at the last three VCSSE school, Prince Edward Academy (now Rock University. She began her new annual conferences in Williamsburg. called the JB Fuqua School) was created position on September 1. The other This year, the annual meeting will be for white students while a generation of members of our staff are: H. Timothy held in Roanoke in October, where we black students was denied a public edu - Isaacs, vice president of education; John have been invited to speak and will cation. Later, Prince Edward County S. Koehler, director of communications; sponsor a teacher reception. recreated and integrated its public school and Nancy H. Pace, administrative system. The former Moton School assistant. American Bar Association Commission became the Moton Museum, under the We are bigger than we look. on Civics Education — The Rule of Law strong leadership of Lacy Ward Jr. As a result of our relationship with the Project continues to be designated as a Moton is a sobering yet hopeful National Council of the Social Studies, “best practices” program for all state bar reminder of a part of our history during the largest association of civics, social associations. which the rule of law was suspended and studies, and history teachers in the U.S., the concept of equality did not include we are working on rule of law projects in Legacy International — This spring, everyone. Brookfield, WI, and Howard County, Legacy asked us to present the Rule of With the wonderful help of mem - MD). Through our involvement in the Law Project to a group of twenty-two bers of the Prince Edward County Bar National Council of Bar Presidents, we Indonesian secondary school exchange Association, we held Rule of Law Day in also helped start a rule of law initiative students and their teachers. These stu - in Florida spearheaded by the dents were very engaged and extremely Rule of Law continued on page 37 Jacksonville Bar Association in its public well versed in the relationship between schools. We expect schools in more the rule law and democracy, exceeding states to adopt the Rule of Law Project the understanding of most American this year. students. At the invitation of the World Justice Project (www.worldjusticeproject.org), The Virginia Holocaust Museum —We we participated in World Justice Forum are pleased the Rule of Law Project and IV at The Hague in July. We also partic - rule of law education will continue to be ipated in World Justice Forum II in part of the offerings of the Virginia Vienna in 2009 and Forum III in Holocaust Museum in its program again G. Michael Pace Jr. is general counsel to Roanoke College in Salem. He is also the presi - Barcelona in 2011. This year’s partici - this year. dent and CEO of the Center for Teaching the pants included more than 600 people Rule of Law and the creator of its signature from 100 countries. We presented each Big Brothers and Big Sisters/Oliver Hill program, the Virginia Law Foundation and The Virginia Bar Association Rule of Law Project. of the four days of the forum and led House/Roanoke City Public He is a member and past president of The group discussions on the topic “Youth Schools/Roanoke Bar Association/Rule Virginia Bar Association, a member of the and the Rule of Law.” Our involvement of Law Project — This fall, these organi - American Bar Association, and of the National Conference of Bar Presidents. He is a Fellow of led to requests to provide rule of law zations will collaborate to provide after- the American Bar Foundation and a board education in Jamaica, the Philippines, school educational programs at the member of the Virginia Law Foundation. He and Burundi and closer to home in Oliver Hill House for students ages 7 to served as managing partner of Gentry Locke Rakes & Moore LLP from 1999 to 2012 in Texas. In addition, we expect to be 12 in four inner-city elementary schools. Roanoke and remains of counsel to the firm.

VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 35 The Virginia Law Foundation honored Murray J. Janus and Roderick B. Mathews for their life-long dedication to the ideals of the Rule of Law during a ceremony at the Virginia Holocaust Museum in May. Accepting the award from Anthony F. Troy on behalf of her late husband was Karia Mathews (left photo). Accepting the award from Irving M. Blank on behalf of her late father was Rabbi Beth Janus. Museum Exhibit Represents the Greatest Example of Rule of Law in History by Irving M. Blank

The Nuremberg Courtroom Exhibit in and witnessed by the entire world as the rule of law. The original courtroom in the Virginia Holocaust Museum at first trials of a vanquished army and Nuremberg, Germany, had been sub - 2000 E. Cary St. in Richmond is an the greatest example of the rule of law stantially changed, was only open to visi - exact replica of the Palace of Justice in history. tors on weekends, and was rumored to where the Nuremberg Trials were held In 2006, Jay Ipson, the founder of be scheduled for demolition by the city. following World War II into the spring the Virginia Holocaust Museum, thought Ipson secured the original plans for the of 1949. The exhibit contains memora - that a permanent exhibit depicting the courtroom and began fundraising to bilia, videos, and photos of the trials. Nuremberg Courtroom would be a build a replica of the Nuremberg Palace The enormity of the crimes committed unique addition to the museum and an of Justice. I volunteered to raise funds by the Nazis were put before the court impressive testament to justice and the for the project.

36 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org At the Virginia State Bar Council the scene of many memorable events Thousands of visitors, including many meeting in April 2007, I met Jon D. and is an impressive tool to teach the students and teachers, have visited the Huddleston, who was then on the board rule of law. Past recipients of the Rule of exhibit and taught the lessons of the of the Virginia Law Foundation (VLF) Law Award have included Henry King, Nuremberg Trials. The visual reminders and the Virginia State Bar Council. We a prosecutor at the Nuremberg trials; of the world’s response to the Nazi happened to sit next to each other on Senator John W. Warner; Justice Gabriel atrocities are invaluable in the under - the bus taking council members to din - Balch, who was the prosecutor of standing, appreciation, and application ner. During the ride, I told Huddleston Adolph Eichman and later a member of of the rule of law. about the Nuremberg Courtroom pro - the Israeli Supreme Court; and in 2013, The mission of the Virginia Law ject and its need for funds. He told me Roderick B. Mathews and Murray J. Foundation is to promote, through that he was trying to get the VLF to Janus, who were great Virginia lawyers philanthropy, the rule of law, access to change the grant-giving process so that and the living essence of the rule of law, justice, and law-related education. The fewer but larger grants would be made as well as devoted members of the mission of the Virginia Holocaust to get a greater impact from the grants. Nuremberg Courtroom Committee. Museum is to promote tolerance That chance meeting led to a great The dedication of the exhibit on through education. Rarely have two friendship between our families and a Law Day, May 1, 2008, was the culmi - institutions and their missions so wonderful marriage between the Law nation of an extraordinary day in the perfectly coincided. Foundation and the Holocaust history of the museum, the VLF, the Museum. Huddleston was successful in Richmond bar, and the State Bar. his efforts to change the grant giving Through the efforts of Mathews, the process at the VLF and the museum museum was selected as one of the sites was approved for a $100,000 grant. A for the World Justice Project. On May 1, memorandum of agreement between 2008, the day-long international pro - the two entities was executed in August gram focused on the rule of law and 2007. That marriage has endured and culminated in the dedication of the grown over the years. The Nuremberg courtroom exhibit. Madam Justice Courtroom Exhibit is permanently Rosalie Abella of the Supreme Court of displayed at the Virginia Holocaust Canada delivered the keynote address Museum and is managed by the and there was not a dry eye in the audi - Nuremberg Courtroom Committee ence. The courtroom exhibit has been Irving M. Blank, a personal injury attorney with Paris Blank LLP in Richmond, is a former that is made up of eight members, four used by the general and legal communi - president of the Virginia State Bar. He is a fel - of whom are selected by the museum ties as a means to see that democratic low of the Virginia Law Foundation and the and four of whom are selected by the values, rights, and institutions designed American College of Trial Lawyers. He is a member of the John Marshall Inn of Court, the foundation. The committee also selects to ensure that justice is not only seen to Virginia Association of Defense Attorneys, and the annual recipient of the Rule of be done, but is done. It has also allowed the Virginia Trial Lawyers Association. Law Award. us to trumpet justice and promote toler - He was a member of the Virginia Bar Association commission that developed the While the courtroom exhibit has ance by reminding people of the injus - Virginia Principles of Professionalism, an aspi - only existed for a few years, it has been tice and intolerance of the Holocaust. rational set of standards for attorney conduct.

Rule of Law continued from page 35

Farmville on April 27. For the first Everyone involved left with a teachers, their students, and to the time, students, teachers, and adminis - greater appreciation for the need to communities in which they live. trators of the two schools came be constantly reminded about how Together, we will help create new gen - together to talk about their history. democracy is supposed to work. It erations of citizens who understand The day included remarks by Justice was a magnificent day, one we hope that without enlightened and active Cleo Powell, Lacy Ward Jr., and local to recreate from year to year. This citizen participation, democracy is not officials, followed by breakout sessions experience, as much as any other so sustainable. to discuss the presence and absence of far, makes clear the importance of As we plan for another busy and the rule of law in our history, and its what we do. exciting school year, let’s always enduring nature as the basis for hope, With the encouragement, partici - remember what Abraham Lincoln told justice, fairness, stability, and equality pation, and support of members of the us: “Teach the children so it will not be for all people. bar, we are making a difference to necessary to teach the adults.”

www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 37 VLF Grant Has Powered Critical Virginia Capital Defense Training by David I. Bruck

The death penalty is probably the single best-attended criminal defense training most controversial and divisive feature of program, and has provided up-to-date our criminal justice system. The dis - information and creative new ideas from agreements between those who support Virginia and national leaders in the capi - the death penalty and those who would tal defense field. This annual day-and-a- curtail or abolish it roils many narrower half program always includes sessions on differences over how the criminal justice forensic science, ethics, and legal and system should operate. legislative developments, and frequently But death penalty supporters and explores such topics as how to negotiate opponents all agree on at least one thing: life-saving plea agreements, how to rec - no one should be convicted of a capital ognize mental impairments in clients, crime or sentenced to death because of and how to respond with sensitivity and inadequate legal representation. Capital compassion to murder victims’ families. defense attorneys have long contended At the time of that first Capital (with a lot of evidence to prove the Defense Workshop, the U.S. Supreme Michael HuYoung, who was 2012 chair of the Capital point) that the quality of the defense Court had only recently held, in two Defense Workshop Planning Committee, spoke at the provided by court-appointed attorneys cases arising from Virginia, that seem - 20th Annual Capital Defense Workshop, sponsored by often explains more about who lives and ingly minor procedural errors by court- the Criminal Law Section of The Virginia Bar dies in the American system of capital appointed or volunteer lawyers could Association. punishment than do the facts of the forfeit forever their condemned clients’ crimes charged. From the other side of ability to have their constitutional developments and to current best prac - the issue, the importance of adequate claims heard by any court. Those rather tices in death penalty trial defense. The defense representation is equally clear. draconian procedural rules are, if any - Virginia Law Foundation’s steady, gener - George W. Bush oversaw more execu - thing, even less forgiving today than ous support for such a program, and the tions as governor of Texas than any they were in 1993, so the need to equip faithful work of the Virginia Bar state’s chief executive in American his - court-appointed lawyers with the Association in administering it, have met tory up until that time, but in 2005, as knowledge and skill to navigate the this pressing need for more than twenty president, he devoted part of a State of complexities of capital trial litigation is years, and continue to do so now. the Union Address to announcing that as great as it ever was. his administration intended “to fund To be sure, in recent years national special training for defense counsel in capital defense training programs have capital cases” because, as he put it, “peo - emphasized more intensive, “bring-your- ple on trial for their lives must have own-case” training methods that engage competent lawyers by their side.” existing defense teams with their own It was in this spirit, seventeen years pending cases in small workshops. In ago, that the Virginia Law Foundation fact, the modest federal funding that the began providing funding to support the Bush and Obama administrations have Virginia Bar Association’s (VBA) then- provided for capital defense training David I. Bruck has directed Washington & Lee School of Law’s death penalty defense clinic, the fledgling Capital Defense Workshop since 2005 have gone mainly to support Virginia Capital Case Clearinghouse, since (CDW). The impetus for the CDW was such targeted, “bring-your-own-case” 2004. Prior to coming to W&L, Bruck practiced Virginia’s adoption, in 1992, of mini - programs around the country (including criminal law in South Carolina for twenty-eight years, and specialized in the defense of capital mum experience and training require - two in Virginia so far). But as long as cases at the trial, appellate and post-conviction ments for lawyers who wished to be Virginia retains the death penalty, there stages. Over the course of his career, he has considered for appointment in capital will be a need for at least one large capi - served as Richland County (Columbia, S.C.) public defender, as chief attorney of the South cases. Since that first VBA Capital tal defense CLE each year to introduce Carolina Office of Appellate Defense, and since Defense Workshop in November 1993 new lawyers, and re-introduce experi - 1992 as federal death penalty resource counsel the CDW has developed into Virginia’s enced ones, to recent legal and scientific to the federal defender system nationwide.

38 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org VLF Grant Fuels JusticeServer Expansion by Alexandra S. Fannon

Times are challenging, and changing. Recent studies indicate that 80 percent of civil legal needs go unmet in Virginia. Given that one million Virginians live in poverty, and 48 percent of those will encounter a legal problem each year on average, legal aid organizations have 480,000 potential clients in the com - monwealth, just in 2013. With budget cuts, legal aid staff is dwindling, and so is its ability to serve underprivileged Virginians. In the current conditions, legal aids can only handle about 35,000 The Virginia Law Foundation in July presented a check for $100,000 to the Greater Richmond Bar Foundation to cases a year, for the benefit of nearly help fund the JusticeServer program. Presenting the check were (from left) Leslie A.T. Haley, president of the GRBF; James V. Meath, VLF president elect; Alexandra S. Fannon, GRBF executive director; and John D. Epps, VLF vice presi - 87,000 people. That means almost dent. JusticeServer, which was featured in a June/July 2012 Virginia Lawyer article, is an online case management 400,000 Virginians each year do not have and referral system developed in collaboration between the GRBF, the Legal Aid Justice Center, and Central Virginia access to the services of a lawyer on civil Legal Aid Society. The system allows volunteer attorneys, paralegals, and law students to work on pro bono cases matters. online. The good news is pro bono lawyer volunteerism is on the rise. More attor - vate bar volunteers. The result was the of interest and to trigger e-mail notifica - neys than ever appreciate the need and creation of JusticeServer, an online case tions about case availability. obligation to give back, and they are management and pro bono opportunity JusticeServer allows participating looking for paths of service. matching system. legal aid and nonprofit organizations to With an internet connection, legal send cases to the Pro Bono Portal in one The Solution: JusticeServer aid staff can now screen client eligibility, easy step. The portal provides levels of The best ways to attack the legal aid crisis provide legal service, and collect required secure information for the volunteers to are to provide more volunteer pro bono case information on the JusticeServer browse opportunities, perform the con - lawyers, improve efficiency to stretch system — tripling functionality for less flicts check, evaluate the case, and accept legal aid lawyers’ capability, and develop cost. From JusticeServer, staff can track the pro bono engagement. The Pro Bono a centralized organization for the delivery case activity, attach documents or plead - Portal allows legal aid to exchange all of services around Virginia. JusticeServer ings, or even e-mail the client. Supervisors client information and relevant docu - provides all of these and more. can track individual and team produc - ments with the volunteer online, and At the Supreme Court of Virginia’s tivity, and monitor the status of cases. vice versa. 2010 Pro Bono Summit, leaders at Any data entered into JusticeServer can Capital One pledged to build for legal be tracked, tallied, and analyzed through Current status: aid a state-of-the-art information man - a robust reporting feature. Only Virginia has this technology. A agement and case referral system. Capital Besides being a legal aid nerve JusticeServer pilot is underway in central One began leading a collaborative pro - center, JusticeServer is also a lawyer Virginia. Thanks to the generosity of the ject team composed of members of the recruitment tool, a case referral system, Virginia Law Foundation with a Greater Richmond Bar Foundation a website, and a virtual law library. $100,000 grant to the Greater Richmond (GRBF), the Central Virginia Legal Aid Through its Pro Bono Portal, www Bar Foundation, the core team collabo - Society (CVLAS), the Legal Aid Justice .justiceserver.org, JusticeServer provides rative partnership can continue to Center (LAJC) and the Virginia Bar a centralized location for any interested enhance the pilot version and expand to Association Pro Bono Task Force. This attorney, law student, or paralegal to reg - other pilot regions, with full deployment core team deconstructed the current ister and create a profile of pro bono throughout Virginia by 2015. processes of civil case intake, case man - interest (practice area and location). The With technology advances, the com - agement, and case placement with pri - profile is used to filter the available cases monwealth can operate as one region. As www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 39 the world shrinks, organizations such as the Virginia Bar Association and the Greater Richmond Bar Foundation can rally and deploy lawyers statewide. With the expansion of JusticeServer, we can make initiatives like distance lawyering, virtual pro bono law firms (Firms In Service), and centralized deployment of specialized law projects realities in the commonwealth. We thank the Virginia Law 1 2 Foundation for being justice servers, and partnering in this groundbreaking solution to improve access to justice for hundreds of thousands of Virginians.

Endnote: 1 The active members of the Core Team are: Alexandra S. Fannon (executive director, GRBF), Alex R. Gulotta (execu - tive director, LAJC), Kathleen D. Caldwell (senior attorney, LAJC), Phillip T. Storey (attorney, LAJC), Dan Epstein (finance, LAJC), Stephen E. Dickinson (executive director, CVLAS), Martin D. Wegbreit (senior attorney, CVLAS), Bill Burnet (senior business analyst, Capital 3 One), and Michele Deane (senior pro - ject manager).

4 1. Pete Johnson of Hunton & Williams and Scott Oostdyk of McGuireWoods were co-chairs of the Virginia Bar Association’s Pro Bono Committee when the JusticeServer project began. 2. John G. Finneran Jr., general counsel and corporate secretary of Capital One Financial Corporation, brought a team of experts to the project. 3. The Capital One team ( l–r): IT Director Andy Schwarz, Michelle Deane for supply chain management, Brent Timberlake from the legal department, Elizabeth Wood in communications, and Bill Burnet from operations. Alexandra S. Fannon is executive director of 4. Virginia Attorney General Ken Cuccinelli presents JusticeServer T-shirts to Alex Gulotta (left) and Steve Dickinson, the Greater Richmond Bar Foundation. She at a luncheon following an April 2012 Pro Bono Summit. The shirt portrays Gulotta’s comparison of the old Legal previously was an assistant city attorney for City of Richmond, representing various city Aid case management system to a plastic picnic knife — not effective for getting the work done. departments in all levels of courts and adminis - trative hearings and providing legal counsel on issues ranging from constitutional to public relations. She has been on the board of direc - tors of the Metropolitan Richmond Women’s Bar Association, the board of directors of local nonprofit CARITAS, and the Local Government Attorneys’ Standing Pro Bono Committee.

40 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org Public Service Internship Program: An Investment in the Community and Future Lawyers by Dana M. Fallon

Each year since 1990 the Virginia Law Foundation has provided public service internship stipends to selected students at Virginia law schools. In 2013, Virginia’s eight American Bar Association-accredited law schools received $5,000 each to fund public ser - vice internships during the summer. This important program supports uni - versal access to legal representation and enables law students to work at law- related public service jobs. It also Since 1990, the Virginia Law Foundation Public Service Internship Program has provided more than $1.2 million to encourages young lawyers to consider give more than 400 students at Virginia law schools the opportunity to learn more about public service while serving careers in public service and to be mind - low-income clients. Interns from 2012 include Washington & Lee students William Beecher, Jan Fox, and Patrick Sweeney, all class of 2014. ful of the importance of pro bono work. Interns work under the direct supervi - would not have had this opportunity. tool to assist real people facing tremen - sion of an attorney at an organization in The grant helped ease the uncertainty dous and unthinkable problems.” With Virginia. These organizations serve a about providing for additional support the VLF scholarship opportunity, variety of legal needs of the citizens of to care for my daughter while I worked,” Hryniewicz realized how lucky she was the commonwealth and provide access he said. Monahan’s biggest fear was that that her biggest stress in life was law to legal services that might otherwise not if his daughter got sick or when her pre- school grades rather than trying to seek be available. Some examples of the school was closed he would have to take a safe place to live. “My experience made groups that Virginia law students serve off work, not only reducing the amount me remember that attorneys can make include the Community Tax Law of time he had to give back, but also big differences.” Project, Community Mediation Center, affecting his ability to be a contributing All the participating law schools and Refugee and Immigration Services, the member of the team. “Being an adult law students are grateful for the support of Office of the Virginia Attorney General, student with a family, I work hard to the VLF, and especially all members of as well as numerous commonwealth balance and prioritize the things in my the bar who support the Public Service attorneys’, legal services, and public life. The VLF grant went a long way in Internship stipend program. The efforts defenders’ offices. eliminating a potential conflict in my of all involved make an immediate and The statistics are impressive, with developing legal career. As a result of my real difference in the lives of Virginia cit - more than $1.2 million provided to summer grant, I never had to worry izens. To find out more about the VLF’s more than 400 law students since 1990. about choosing between family and law related education grant programs go But, the numbers alone do not speak to career because the financial support I online at http://virginialawfoundation .org/grantprogram.htm. the real impact of the program. These received meant I would be able to pro - stipends increase the awareness of public vide both with quality care.” service legal opportunities available in Malvina Hryniewicz graduated the community. Additionally, the from George Mason in 2010 and cur - stipends allow some students to take on rently works at the Office of Special this type of service work who could not Counsel. Her VLF internship gave her a otherwise consider an unpaid summer better perspective on law school and the position. practice of law. “I first found law school Dan Monahan, a student at George extremely difficult due to the stress of Mason University School of Law, spent classes and the pressure of grades,” she last summer at the Fairfax County said. “At the time, I associated the law Dana M. Fallon is the director of Alumni Public Defender Office. It was a chal - with competition and academic success. Services at George Mason University. She is a 1999 graduate of George Mason University lenge that helped him build professional But my time at the Immigration and School of Law. Until December 2007, she was a skills while providing him the chance to Refugee Appellate Center showed me partner at Ritzert & Leyton PC, specializing in make a greater impact on the commu - that the law could be used to help indi - administrative and regulatory law related to viduals who were suffering and needed institutions of higher education. Prior to nity. “Without the financial support attending law school, she was an assistant direc - from the Virginia Law Foundation, I protection. I learned to use the law as a tor of residence life at Marymount University. www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 41 2013 Oliver Hill/Samuel Tucker Pre-Law Institute by Latoya C. Asia and Providence E. Napoleon

The 2013 Oliver Hill/Samuel Tucker Pre- Law Institute (HTI) continued to affect the lives of young people by nurturing their interest in the legal profession. About thirty students participated in the institute this year — twenty new and ten returning — aged 13 to 21. The 2013 HTI class included students from all over Virginia, one from Maryland, and one from Ohio. These students were also from diverse racial, ethnic, and socio- economic backgrounds. Held on July 7–12, 2013, at the University of Richmond, the institute The Oliver Hill/Samuel Tucker Pre-law Institute at the University of Richmond drew students from Virginia, Maryland, drew distinguished individuals from the and Ohio in the summer of 2013. legal profession, dedicated and commit - ted to increasing diversity in the legal how they will continue to play an University and the University of profession. Judges Roger L. Gregory of important role in their lives as they pur - Richmond, and from professionals rep - the U.S. Court of Appeals for the Fourth sue further education and their careers. resenting traditional and alternative Circuit, James R. Spencer of the U.S. Throughout the week, the students legal careers. District Court for the Eastern District of prepared for a mock trial held on the The 2013 HTI class graduated in Virginia, and Justice Cleo E. Powell of last day of the institute. Session topics style at the end of the week. Families and the Supreme Court of Virginia spoke included opening statements, closing friends attended the graduation. The arguments, direct and cross examina - banquet’s keynote speaker, Douglas B. with the students who toured their cour - tion, and evidence. We thank Raymond Smith, director/assistant general counsel thouses. Delegate Jennifer L. McClellan M. White, executive director of Virginia at Capital One, addressed the realities of of the Virginia General Assembly visited Continuing Legal Education, for the the legal profession, inspiring the stu - the students and led a mock session on extensive and comprehensive training dents on how they can each play their how bills become laws, after which the he provided. The students also had the role in standing out and succeeding. students toured the Virginia Capital. opportunity to hear from and ask ques - We have no doubt that in less than Richmond City Sheriff C. T. Woody and tions of a panel of admissions officers ten years the 2013 HTI class will repre - Tony Pham, general counsel of the from Virginia Commonwealth sent our profession well. Richmond City Sheriff’s Office, gave the students an unforgettable tour of the city jail and spent time answering the stu - dents’ questions. On the first evening of the institute, the students participated in an invalu - able networking event. Several legal and non-legal professionals volunteered to interact with the students and exchange contact information. The students Asia Napoleon learned firsthand the art of networking. Latoya C. Asia is an associate at McGuireWoods LLP in Richmond. She counsels and represents employ - For personal and professional develop - ers in various aspects of employment-related litigation and labor law. She has served as co-director of the ment, the students also participated in Oliver Hill/Samuel Tucker Pre-Law Institute since 2011. She recently returned from a one-year mission - ary trip to Niamey, Niger, West Africa, where she taught high school sociology, Spanish, and U.S. History. an etiquette dinner facilitated by a pro - fessional. This program allowed the stu - Providence E. Napoleon is an associate at McGuireWoods LLP in Richmond. She represents clients in antitrust and trade regulation, class actions, and complex commercial litigation. She also conducts inter - dents to understand fully the importance nal investigations and represents clients who are being investigated by federal and/or state agencies. She of dining etiquette and protocol, and has served as co-director of the Oliver Hill/Samuel Tucker Pre-Law Institute since 2011.

42 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org Virginia CLE Helps Attorneys to Help Others by Raymond M. White

On my first day at Virginia CLE I was ciently, competently, professionally, and asked an excellent question by one of ethically throughout their careers. our staff members: “What makes you You may also know that we are the want to take a job like this?” Virginia State Bar and Virginia Bar While it was something I’d never Association sponsored CLE provider in asked myself, I knew the answer right Virginia. We are a not-for-profit, receiv - away. Having practiced law for fifteen ing no state funds or dues. We strive to years, I knew the awesome responsibility be financially self-sufficient by generat - of having a client on the other side of ing revenue to cover both operating the desk — it was something I took very expenses and long-term capital needs seriously. I knew the look — the look while offering the fairest prices possible that said I was the most important per - to our customers. son in a client’s life, or in the life of a But one thing about Virginia CLE loved one. And my look hopefully told many attorneys may not know is that them I’d do all I could to get them the we are a proud branch of the Virginia best outcome possible, and that I felt Law Foundation (VLF) tree. And that confident in my ability to do so. some of our finest faculty members and Whether it was defending a loved highly valued CLE committee members one accused of a crime; helping a divorc - are CLE fellows. ing parent get as much parenting time as In fact, in addition to its philan - possible; or helping a musician, a writer, thropic endeavors, the VLF supports actor, or a small business person navi - legal education at all levels and in many gate contracts that could change their ways, including within the legal profes - lives, those moments made me realize sion, through Virginia CLE, and in the that attorneys who cheat themselves out community to consumers, educators, of meaningful continuing legal educa - young adults, the elderly, visually handi - tion actually cheat more than just them - capped, and others through educational selves. For attorneys to do their job videos, pamphlets, presentations, and properly, and to sleep well at night (I workshops. know you know what I mean), it’s This broad commitment to educa - incumbent upon us to make sure we tion is one of the many things I find so really know our stuff. appealing. Now in my current role as So as for my answer: I want to be an executive director of both organizations important part of Virginia CLE as we I hope to forge an even stronger bond help attorneys gain the requisite skill, between the VLF and VACLE. confidence, and professionalism so they As the strength of the VLF in so never feel they are letting their client many ways rests on our collaboration down … or letting themselves down. with other organizations such as the I also want to help give our legal VSB and the VBA, so does the strength community what we need to enhance of Virginia CLE. Now is clearly the time the administration of justice across the for us to strengthen ourselves from the commonwealth, and I want to help inside out, to take stock of what we do, lawyers sleep well at night. why we do it, and what we want to do You may know that Virginia CLE into the future. It is also the time to use Raymond M. White is the executive director of has been in existence since 1960 and this strength to join in collaborations Virginia CLE and the Virginia Law Foundation. continually strives to be the top quality across all of Virginia’s legal service orga - He previously worked as a prosecutor and in provider of educational materials to help nizations to be sure we can and will private practice in New York, as chief operating meet the continuing education needs of fully support every attorney who sits officer of the National Institute for Trial Advocacy at The Notre Dame School of Law, the Virginia legal community, and to behind a desk — and the client sitting for the Michie Co., and as a screenwriter in Los help Virginia attorneys practice profi - across from them. Angeles and songwriter in Nashville. www.vsb.org VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 43 The Arc of Opportunity by Manuel A. Capsalis

It is said that the privilege of countless legal projects large and small, tion of justice and the quality of service public service is its own reward. I statewide and local. As the foundation rendered by the legal profession.” prepares to celebrate its 40th anniversary It is my respectful opinion that no know of no better example of this in 2014, and for all that is has achieved, organization is better poised to meet this than the honor bestowed upon it is clear that there is much more work glorious responsibility than the Virginia those of us who have served as to do and many challenges ahead. With Law Foundation. As a long-time board stewards for the Virginia Law those challenges, however, comes great member and now as a past-president, I Foundation. As the philanthropic opportunity. The foundation will con - have been blessed with the opportunity tinue to make a critical difference, and to see the good works of the foundation arm of Virginia’s legal profession, its unrealized potential is enormous. firsthand. It has been truly inspiring to over the last thirty-nine years the We are members of the only self- work with so many dedicated colleagues. foundation has granted almost regulated profession in the common - Thank you for the honor of service. $24 million throughout our com - wealth. The Preamble to the Rules of monwealth to promote and pro - Professional Conduct sets forth the duties attendant to the practice of law tect the rule of law, improve and that go well beyond the ethical con - access to justice, and support law- siderations in the representation of our related education. clients. Along with the license to prac - tice, each of us carries the unique The VLF’s history of grant-making responsibility of our learned profession. in addressing the legal needs of our fel - The preamble reminds us that a lawyer is Manuel A. Capsalis is the managing partner of low Virginians is simply astounding. As a “public citizen having special responsi - Capsalis, Fitzgerald PLC, concentrating primar - ily in criminal defense and civil litigation. He the articles within this issue of Virginia bility for the quality of justice. . . As a also has been the Town of Herndon’s deputy Lawyer wonderfully illustrate, the foun - public citizen, a lawyer should seek town attorney and its prosecutor from 1989 to 1992 and from 1994 to the present. He is a for - dation has supported and sustained improvement of the law, the administra - mer president of the Virginia State Bar.

44 VIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION www.vsb.org Increasing Your “App”titude: Legal Research Apps for Virginia Practitioners by Marie Summerlin Hamm

According to the recently released 2013 ABA Technology Survey, 91 percent of the approximately one million attorneys in the United States regularly use a smart - phone in the practice of law. Of those, nearly 62 percent are using an iPhone. Increasingly popular Android OS phones have garnered 22 percent of the market.

Marie Summerlin Hamm Somewhat shocking is the fact that only 16 percent of lawyers continue to choose is a past president of the Blackberry. Virginia Association of Law Libraries. She is assistant director for Tablet usage statistics are equally impressive. VIRGINIA APPS collection development The first generation iPad was released April 3, at Regent University Law Library. She has a mas - 2010. In 2011, only about 15 percent of attorneys Virginia State Bar Mobile Member Access ter’s degree from Syracuse used a tablet. By 2012 that figure had increased to The Virginia State Bar app is a must for Virginia University and a law 33 percent. This year, 48 percent of all attorneys practitioners. Not only does the app allow access degree from Regent report using a tablet. Although Windows Mobile to membership details and MCLE information, it University School of Law, has not yet gained a statistically significant share also provides seamless access to Fastcase. Free. where she teaches the advanced legal research of the market, that is likely to change with the iOS. An Android version is in development. and writing course as an recent release of the new Surface Pro 2 with adjunct professor. Windows 8. Fastcase The benefits of mobile research are obvious. Although the vast majority of Virginia lawyers are Just as the advent of online legal research systems undoubtedly familiar with the web-based version obviated the need for hauling volumes from office of Fastcase, it bears noting that according to the to court, so has the mobile device obviated the aforementioned ABA Technology Survey, Fastcase need for lugging a laptop. Lawyers can research, is the most popular legal research app, with communicate, collaborate and generally stay con - downloads surpassing both WestlawNext and nected in real-time, all the time. Lexis Advance. Searchers can use citations, There are two major types of apps: those phrases, or keywords. Boolean operators and designed for Apple’s iOS (available through the proximity connectors are allowed. The basic iTunes App Store) and those created for the Fastcase app is free to all with registration, Android OS (available on the Google Play Store). although bar members should take advantage Downloading an app from either is as easy as the of the more robust version accessible via the proverbial piece of cake. Indeed, one of the fea - Virginia State Bar Mobile Member Access. tures that make apps so popular is their inherent Free. iOS and Android. simplicity. Apps are generally not plagued by the complexities and quirks of their software dwelling dLaw (better known as Droidlaw) counterparts. Instead, screens offer users a limited This native Android app developer essentially number of task-driven functions. allows the end user to cobble together a series of As mobile devices have proliferated, so have free and paid in-app add-ons to create a cus - the number of available apps. There are more than tomized research platform. The free app includes 900,000 apps available for iOS and about 866,000 the Federal Rules of Civil Procedure, Evidence, for Android. Not surprisingly, legal-related apps Appellate Procedure, Criminal Procedure, and abound. Though it pains me to ignore the Bankruptcy Procedure. The U.S. Constitution, plethora of available practice and productivity U.S. Tax Court cases, and a legal dictionary are tools, this article will focus exclusively on legal also available as free add-ons. The U.S. Code research apps of interest to Virginia practitioners. ($14.99), U.S. Supreme Court opinions ($9.99), www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 45 INCREASING YOUR “APP”TITUDE: LEGAL RESEARCH APPS FOR VIRGINIA PRACTITIONERS

the entire Federal Code of Regulations ($14.99), ings, treatises, and rules. Bloomberg Law has individual CFR titles ($1.99), a wide variety of taken the legal information world by storm. The state codes, and a variety of other resources are law school market has been particularly welcom - also available for purchase. Virginia specific add- ing as a whole new generation of soon-to-be ons include the complete Virginia Code ($9.99), lawyers is introduced to the electronic counter - Virginia Crimes and Offenses (Title 18.2) ($2.99), part of the once ubiquitous but now infrequently Virginia Motor Vehicle Code (Title 46.2) ($2.99), encountered black BNA binder set. Both Virginia Criminal Procedure (Title 19.2) ($2.99), Bloomberg Law and Bloomberg BNA function and Virginia Civil Remedies (Title 8.01) ($2.99). well on any mobile device, but the Bloomberg The app allows users to search, bookmark, copy, Law Reports app offers easy access to reports in share, and annotate text, which can be saved to an practice areas including tax & accounting, labor & SD card for offline access. Free. Android. employment, intellectual property, banking & securities, employee benefits, health care, privacy THE USUAL SUSPECTS & data security, human resources, and environ - ment, health & safety. Reports can be marked as WestlawNext favorites for future reference. Free. Subscription The mobile version of WestlawNext works well on required. iOS only. any device, even without an app. That said, both iPad and Android apps are available and provide CCH IntelliConnect full access to the powerful WestSearch algorithm, CCH IntelliConnect allows subscribers on-the-go KeyCite, and folders — though the iPad version access content such as Tax Tracker News and does seem to offer additional functionality CCH Mobile alerts. The newest release employs a including offline viewing of documents and tiled, widget approach and lets a user customize highlighting. The app syncs automatically with the homepage. In addition to relevant Aspen trea - both the WestlawNext website and across all tises, content includes IntelliConnect’s Smart mobile devices, so research is always up to date. Charts, State Tax Reporters, rate tables, and cita - Free. WestlawNext subscription required. iOS tion templates. Practice areas include corporate and Android. governance, federal banking, financial reform, and secured transactions. Subscription required. iOS Lexis Advance HD and Android. Like the excellent mobile site, the intuitive Lexis Advance HD app allows users to run a search LoisLaw Connect without having to select a specific source. Results Another product from publisher Wolters Kluwer, can then be filtered by jurisdiction, date, legal LoisLaw Connect is a comprehensive legal data - topic, key word, or court. Documents and search base that includes primary law, forms, and Aspen history stored in work folders synchronize with treatises. Users can search by keyword, case name, your web-based Lexis Advance application. You or citation. Features include a clean search inter - can even view documents and make notes offline face, federated and advanced search options, and then synch any changes. And it is Lexis, so hyperlinks to related cases and regulatory content, Shepard’s evaluation is readily available. Free. and the ability to save and e-mail search results. A Subscription required. iOS. There is also a sepa - rather unique feature of this app is the ability to rate LexisNexis Get Cases & Shepardize app that, purchase primary law access in increments of as the name implies, allows quick retrieval of a forty-eight hours, one week, or one month rather case and codes by citation and features an at-a- than committing to a lengthy subscription. Free. glance Shepard’s analysis. Free. Subscription Subscription required. iOS. required. iOS. HeinOnline Bloomberg Law and Bloomberg BNA HeinOnline boasts the world’s largest image- In 2010, Bloomberg’s renowned news, business, based legal research database. Best known for its company and financial data was coupled with the extensive PDF collection of law reviews and jour - research and in-depth analysis created by highly nals, HeinOnline’s available libraries also include respected Bureau of National Affairs (BNA) the Congressional Record , Federal Register , CFR , reporters, correspondents, and practitioners. All treaty collections, historic legal treatises, and of this expert knowledge was loaded onto an much more. Content is fully searchable, with a intuitive, sophisticated platform also offering pri - variety of advanced search features available. mary and secondary legal resources, dockets, fil - Additionally, resources can be retrieved by cita -

46 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org INCREASING YOUR “APP”TITUDE: LEGAL RESEARCH APPS FOR VIRGINIA PRACTITIONERS tion or electronic table of contents. Free. Rulebook Subscription required. iOS and Android. An innovative app that obviates the need for pocket parts with automatic updating, Rulebook ALTERNATIVE LEGAL RESEARCH APPS is a must have. The basic app includes a number of free titles, including the Federal Rules of Constitution Annotated Evidence and U.S. Constitution. Users can then Created jointly by the Library of Congress, the personalize their platform with additional low- Senate Committee on Rules and Administration cost federal and state rules. Those resources are and the Government Printing Office, this app is then kept current by automatic updates — no the mobile version of the print Constitution of the more pocket parts. It is also the only app which United States of America: Analysis and offers The Bluebook: a Uniform System of Citation Interpretation . It features the full text of both the as an in-app purchase. ($39.99) The app offers Constitution and the treatise, including clause by many functional features including the ability to clause legal analysis. It lists all federal, state, and highlight (in a variety of colors), take notes, copy, local laws struck down by the Supreme Court and print, and bookmark selected text. Users can navi - all cases where the Court overturned its prior gate easily from rule to rule by swiping and can precedent. There are tables of contents and cases toggle between multiple authorities with as well as an index. Free. iOS. An Android version Rulebook’s multi-task function. Free. Most add- is in development. ons are $1.99. iOS.

LawStack OpenRegs This app includes the U.S. Constitution, Federal With this app, the Federal Register is always at Rules of Civil Procedure, Appellate Procedure, your fingertips. Users can locate recently issued Evidence, Bankruptcy Procedure, and Criminal notices of final and proposed rule-making, and Procedure at no cost. Additional titles may be browse regulations by agency or comment peri - downloaded in the app. Free. iOS. ods that were recently opened or are soon closing. Free. iOS Push Legal Although Virginia has not yet been added to the OyezToday growing number of jurisdictions covered by Push Created by the Oyez Project at Chicago-Kent Legal, this popular app, designed by lawyers for School of Law, this app offers the latest informa - lawyers, still has much to offer. It attempts to tion and media on current cases in the U.S. make needed information available on demand, Supreme Court. The app provides searchable much as it would be found in a deskbook. audio of oral arguments and transcripts, up-to- Content includes the usual selection of federal date summaries of the Court’s most recent deci - rules and selected state materials. A distinguishing sions, and copies of the full decisions. Free. iOS feature is that it includes annotated case law and and Android. smart linking to Google Scholar. Free trial. Subscriptions begin at less than $1 per day. iOS PocketJustice and Android. Pocket Justice claims to bring the U.S. Supreme Court “down to earth” with its innovative and MyCongress interactive app. The application includes voting This app provides detailed information about alignments and biographical sketches for all 110 U.S. Congressional officials, allowing users to of the Court’s past and present justices and track news, video, and Twitter feeds. It also incor - includes audio of hundreds of hours of oral porates a direct link to each legislator’s website as arguments and opinion announcements. A dis - well as to official Open Congress profiles. Free. tinguishing feature is synchronized, searchable iOS. transcripts which identify all speakers. $0.99. iOS and Android. Congress This app offers users real-time notifications of REFERENCE votes, laws, floor activity, and other congressional activities. Users can search lawmakers by state, Black’s Law Dictionary house, or senate, and view how they voted on leg - One of the most well-known and well-respected islation. Free. iOS and Android. of all legal reference titles, Black’s Law Dictionary ,

www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 47 INCREASING YOUR “APP”TITUDE: LEGAL RESEARCH APPS FOR VIRGINIA PRACTITIONERS

9th Edition, edited by Bryan A. Garner, is avail - LawRachet able for $54.99. iOS and newly available Android. Launched shortly after the demise of Google Reader, LawRachet was designed by lawyers deter - iWriteLegal mined to create an effective, yet visually engaging This app includes legal writing tips and checklists interface. The pre-populated search parameters to assist with editing and revising legal docu - make it surprisingly simple to stay current on all ments. Free. iOS. things legal or to focus on particular, albeit preset, practice areas. Free. iOS. Nolo’s Plain English Law Dictionary This popular app offers a no cost alternative to Legal Edge the Black’s Law Dictionary mobile application. Developed by and streamed through JD Supra, Free. iOS and Android. the Legal Edge app offers news alerts, updates, newsletters, and case filings. Subject areas include Osborn’s Concise Law Dictionary real estate, banking and finance, immigration, Offering definitions of more than 4,700 legal insurance, consumer protection, taxes, bank - terms, the Osborne’s app permits users to search ruptcy, intellectual property, health law, labor and or browse for terms. Other features include cross- employment, legal marketing and more. Free. iOS references and the ability to bookmark selected terms. $13.99. iOS LexisNexis Tax Law Community Although limited in scope, this app is excellent for Wolfram Lawyer’s Professional Assistant practitioners seeking news, analysis, and com - This innovative legal reference tool provides mentary on emerging tax issues. Free. iOS. access to a plenitude of helpful information. Features include a legal dictionary, quick access to LEARNING MORE ABOUT APPS statutes of limitations for each state, crime rate If you are interested in more information about and demographic data, a variety of calculators, the range of legal apps available, Tom Mighell’s and more. $4.99. iOS. iPad Apps in One Hour for Lawyers, published in 2012 by the ABA’s Law Practice Management KEEPING CURRENT Section, is an excellent starting point. The book introduces basic concepts and covers both pro - ABA Journal Mobile ductivity and legal research apps. This app provides daily breaking legal news and articles featured in the ABA Journal . Users can e- If you prefer something other than a frontal mail, bookmark, or share articles via social media search assault on the nearly one million apps from within the app. Free. iOS and Android. available for each mobile operating system, check out the Mobile Apps for Law database compiled The National Law Journal and maintained by Infosources Publishing, The NLJ app offers up-to-the-minute reporting provider of basic reference sources for lawyers, on both local and national legal news. Coverage law librarians, legal researchers and information details recent court decisions, jury verdicts, and professionals since 1981. A $50 annual subscrip - includes expert practitioner columns, as well as tion is required to enable all search features, but reports focusing on emerging trends. iOS and even the free components of the site are quite Android. useful. Additionally, the paid site offers an RSS feed providing information on the latest mobile Law.com apps that have been released for legal research and Coming soon. According to Robert Ambrogi’s legal utilities. The feed is accessible at www.mobi - Law Sites blog, legal publisher ALM is about to lappsforlaw.com and can be subscribed to unveil an app that “delivers content from all ALM through any news reader. publications and websites in a seamless, stylish Additionally, articles, blog posts, and, of and customizable interface.” ALM publications course, law library research guides on the topic include American Counsel , American Lawyer , also abound. At the end of the day, all that is Daily Business Review , Law Technology News , Legal required is a willingness to expand your technical Intelligencer , National Law Journal , and others. horizons and increase your “app”itude. Free to download. iOS.

48 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org A Much Debated Debt: The Virgini a–West Virginia Debt Controversy by Gregory H. Stoner

For more than half a century, States a series of Unionist conventions were held in the western town of Wheeling. At the Second Virginia’s antebellum debts loomed over Wheeling Convention, held in June 1861, the the political and economic landscape of “Restored Government of Virginia” was the commonwealth. In the years following organized. This government, which declared the government in Richmond did not represent the Civil War, Virginia’s politicians Virginia, elected a governor and received Gregory Stoner , reference grappled to formulate an approach that recognition by President Lincoln as the legitimate librarian at McGuireWoods in Richmond, has bache - would both reduce the financial burden government of the entire state. Efforts to formally separate the counties of northwestern Virginia lor’s degrees in historic on the state and satisfy its creditors. A preservation and American and establish a new state soon moved forward. Studies from the University longstanding source of attention and After voters approved the new constitution of of Mary Washington, a West Virginia, Congress passed a statehood bill master’s degree in history debate centered on the obligations of that President Lincoln signed in December 1862. from Virginia West Virginia as related to this prewar Commonwealth University, A revised constitution was adopted the following and a master’s in informa - debt. After years of discussion, political March, and on June 20, 1863, West Virginia was tion science from the posturing, and various funding schemes, formerly admitted to the Union. University of Tennessee. He Throughout the process to statehood, the is a member of the Virginia Virginia presented the case to the Law Libraries Association new state recognized the prewar debts of Virginia. and other professional Supreme Court of the United States in First, a provision from an ordinance of the groups that advance the 1906. Over the course of the next twelve Wheeling Convention acknowledged both the work of law librarians. existence of the debt and the obligation to pay it: years, the Court would hand down a series of decisions in the case that would The new State shall take upon itself a just eventually lead to a resolution — a proportion of the public debt of the commonwealth of Virginia, prior to the first financial settlement between Virginia and day of January, 1861, to be ascertained by West Virginia of their much debated debt. charging to it all the state expenditures within the limits thereof, and a just proportion of Origins the ordinary expenses of the State The origins of the controversial Virginia debt government since any part of said debt was dated to the mid-1820s, when the Virginia contracted, and deducting therefrom the government embarked on an ambitious campaign moneys paid into the treasury of the of funding internal improvements. Funds Commonwealth from the counties included dedicated to rivers, canals, roads, turnpikes, within the said State during said period. 2 railroads, and bridges served the dual purpose of stimulating the economy and improving Article 8, Section 8 of the Constitution of the transportation networks. While these efforts also State of West Virginia also acknowledged the debt helped mitigate longstanding sectionalism and directed the legislature to determine the between eastern and western Virginia, issues extent of the obligation “as soon as may be concerning voting, representation, and taxation practicable” and to “provide for the liquidation continued to be a source of contention between thereof.” 3 the regions. 1 Following the Civil War, efforts to apportion By 1861, sectional discord within the and settle the debt became viable. During the next expansive state had reached a breaking point. several years, authorities in Virginia and West Following Virginia’s secession from the United Virginia made unsuccessful attempts to determine www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 49 A MUCH DEBATED DEBT: THE VIRGINIA –WEST VIRGINIA DEBT CONTROVERSY

the proportion of the debt obligations of each The Suit Commenced state. Reconstruction in Virginia combined with a On February 26, 1906, the Commonwealth of suit before the Supreme Court seeking a Virginia filed its bill of complaint in the U.S. determination of the status of two border counties Supreme Court, seeking “an adjudication of the proved significant obstacles. In 1871, with amount due the former state by the latter as the Reconstruction complete and the border issue equitable proportion of the public debts of the nearly resolved, Virginia’s legislature proposed to original state of Virginia” that West Virginia had have a group of commissioners arbitrate the debt. assumed upon statehood. Virginia asserted that West Virginia rejected the proposal and instead West Virginia had repeatedly recognized its created a debt commission to visit Richmond and liability for a just portion of the debt, and that the one-third division allocated by the commonwealth represented a just and equitable Frustrated with the inability to adjust the debt by proportion. West Virginia filed a demurrer contending the Court lacked jurisdiction to negotiation, Virginia concluded that a resolution to resolve the dispute, but the Court disagreed in its first ruling in the matter. 4 the matter may only be reached in the Supreme After the overruling of the demurrer in May 1907 and the filing of West Virginia’s answer to the Court of the land. complaint, counsel for both states proposed that the case be referred to a special master for the purpose of ascertaining West Virginia’s liability. conduct research in the records of the state. The Court handed down its second decision in However, this method of ascertaining the debt was May 1908 and referred the case to a master who frowned upon by Virginia’s governor and a was instructed to examine evidence, consult with reciprocal commission was not appointed. the authorities of both parties, and present to the 5 To manage state debts that had ballooned to Court a report of his findings. Charles E. more than $45 million, Virginia’s legislature Littlefield of Maine, recommended by West passed the first in a series of funding acts. The first Virginia, was selected by the Court as the special act, passed by the legislature in 1871, called for master. Virginia to pay two-thirds of the debt, with West Over the course of the next fifteen months, Virginia assuming the remainder. This calculation accountants and attorneys for both states and apportionment of the debt was based on the conducted extensive research in Virginia’s records. assumption that at the time of its separation West Several hearings were held in which schedules Virginia contained “about one-third of the were reviewed and argued. Following his review of territory and population of Virginia.” This testimony and evidence, Littlefield prepared an 6 independent determination of West Virginia’s extensive report of more than 200 pages. share of the debt, which lacked any definitive Littlefield determined that on January 1, basis, would prove to be a primary source of 1861, the public debt of Virginia amounted to contention in the years to come. $33,897,073.82. He agreed with the conclusions In the decades that followed, Virginia’s reached by both states concerning the assessed legislature passed additional funding acts. By the valuation of the territory constituting each state early 1890s, Virginia had settled and adjusted the and their respective population. Of the remaining two-third liabilities it had accepted two decades questions the master was charged with earlier. In 1894, the Virginia legislature provided determining, the most significant and by joint resolution for the adjustment of the controversial concerned whether interest on the proportion of debt owed by West Virginia. Back public debt was an ordinary expense of and forth communications for more than a government. Littlefield held that the interest paid decade resulted in little progress, as West Virginia’s on public debt was indeed an ordinary expense governor and legislature refused to accept and calculated that Virginia had paid more than Virginia’s steadfast assertion that they were $18 million in interest prior to January 1, 1861. This determination, and the report overall, was responsible for one-third of the prewar debts. viewed by many as favoring the assertions of Frustrated with the inability to adjust the debt by Virginia in the dispute. negotiation, Virginia concluded that a resolution In January 1911, the matter again returned to to the matter may only be reached in the Supreme the Court where both sides presented their Court of the land. arguments by way of briefs and oral argument. In

50 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org A MUCH DEBATED DEBT: THE VIRGINIA –WEST VIRGINIA DEBT CONTROVERSY its most noteworthy ruling to date in the When the matter again came before the proceeding, the Court calculated that the debt was Court in June 1914, it granted West Virginia’s $30,563,861.53 as of January 1, 1861. Regarding request to file a supplemental answer to Virginia’s the debt as general and assumed for the benefit of original 1906 complaint and explain how certain the entire state and not a particular region, the credits should be applied in calculating its portion Court declined to attempt a determination based of the debt principal. While noting that such on the location of improvements and their cost. action by the Court was highly irregular, the Instead, the Court adopted the master’s view that opinion explained the unique nature of the case. an apportionment of the debt was best determined The matter was once again directed to Master by utilizing the estimated valuation of real and Littlefield. 11 personal property in the states (excluding slaves) In his report dated January 1915, Littlefield at the date of separation, June 20, 1863. Using this notified the Court that additional assets and method, the Court calculated that West Virginia investments, not previously disclosed, resulted was responsible for 23.5 percent of the debt, a sum in a net credit to West Virginia in the amount of of $7,182,507.46. 7 principal owed. He also determined that West While the March 1911 ruling of the Court Virginia was indeed liable for interest on the signified noteworthy progress in the dispute, the debt for more than a fifty year period from 1861 issue of West Virginia’s liability to pay interest on to 1915. Largely following Littlefield’s the debt remained open. In an expression of recommendations, the Court ruled that West optimism, the Court directed the two states Virginia’s total obligation was $12,393,929.50, conference in the hope of resolving the matter. with additional interest of 5 percent per annum until the entire debt was discharged. 12 ...this case is one that calls for forbearance upon both sides. Great states have a temper The Debt Resolved superior to that of private litigants, and it is In 1916, Virginia petitioned the Court for a writ of to be hoped that enough has been decided for execution against West Virginia for a money patriotism, the fraternity of the Union, and judgment in connection with the Court’s prior mutual consideration to bring it to an end. 8 ruling. Determining that the West Virginia legislature had not met during the intervening Unfortunately, such confidence was period, the Court denied the petition. 13 misplaced. Progress toward an eventual resolution Two years later, following a long period of had only just begun. inactivity by the West Virginia legislature, the Per the Court’s direction, members of the Court issued its ninth and final decision in this Virginia commission appointed many years earlier protracted dispute. In its opinion, the Court began to plan for negotiations with their counterparts from West Virginia. When West Virginia failed to promptly organize a committee In an expression of optimism, the to conference, Virginia filed a motion requesting the Court to “determine all questions left open by Court directed the two states the decision of March 6, 1911.” While holding that the questions should be disposed of without conference in the hope of resolving excessive delay, the Court ruled that West Virginia had not attempted to shirk its responsibility and the matter. obligation. 9 By 1913 the committees from both states had asserted the finality of its June 1915 ruling, that begun to conference. West Virginia argued that the the Court had the authority to enforce the Court’s 1911 order to conference was for the judgment, and that Congress had the power to purpose of evaluating West Virginia’s share of secure the enforcement of a contract between both principal and interest, while Virginia states. 14 After continued discussions with the believed the matter of interest was the only issue Virginia commissioners, the West Virginia of note remaining unresolved. Frustrated with the legislature passed legislation on April 1, 1919, lack of progress, Virginia petitioned the Court for providing for the payment of West Virginia’s share a final decree in October 1913. However, a patient of the debt. Under the legislation, the amount Court remained unmoved and instead granted ” would be settled by a combination of bonds West Virginia additional time to attempt a spread out over the course of the following twenty 10 resolution. years and an initial cash payment. On April 18, www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 51 A MUCH DEBATED DEBT: THE VIRGINIA –WEST VIRGINIA DEBT CONTROVERSY

1919, a check for $1,062,869.16, representing the 6 CHARLES LITTLEFIELD, REPORT OF SPECIAL largest single payment ever made by the state, was MASTER (1910). presented to the attorney general of Virginia at a 7 Virginia v. W. Virginia , 220 U.S. 1 (1911). ceremony between the two commissions. By 1939, 8 Id. at 36. West Virginia’s proportion of Virginia’s debt had 9 Virginia v. W. Virginia , 222 U.S. 17 (1911). 10 Virginia v. W. Virginia , 231 U.S. 89 (1913). been liquidated. Finally, after nearly eight decades, 11 Virginia v. W. Virginia , 234 U.S. 117 (1914). countless meetings and years of litigation, this 12 Virginia v. W. Virginia , 238 U.S. 202 (1915). unique and unparalleled controversy finally drew 13 Virginia v. W. Virginia , 241 U.S. 531 (1916). 15 to a close. 14 Virginia v. W. Virginia , 246 U.S. 565 (1918). 15 BIENNIAL REPORT OF THE TREASUER OF Endnotes: WEST VIRGINIA FOR THE PERIOD ENDING 1 For a discussion of the issues surrounding the ori - JUNE 30, 1920 (1920) at 9-10; and Rosewell Page, gins of the suit, see Randolph Harrison, West The West Virginia Debt Settlement , 5 Va. L. Reg. Virginia’s Contributive Share of the Debt of n.s. 257 (1919-1920). For a more extensive narra - Virginia , 10 Va. L. Reg. 1055-1071 (1905). tive and analysis of the entire debt controversy, see 2 Virginia v. W. Virginia , 220 U.S. 1, 25 (1911). Elizabeth J. Goodall, The Virginia Debt Controversy 3 Id. at 26. and Settlement , 24 W. Va. Hist. 42, 296, 332 (1962- 4 Virginia v. W. Virginia , 206 U.S. 290 (1907). 1963); 25 W. Va. Hist. 42, 102 (1963-1964) (pub - 5 Virginia v. W. Virginia , 209 U.S. 514 (1908). lished in five parts).

E-Discovery continued from page 27 Call for Nominations

4 1 Adam I. Cohen, David J. The Betty A. Thompson Lifetime Achievement Award Lender & G. Edward Kalbaugh, The VSB Family Law Section recognizes and honors an individual who has Electronic Discovery: Law and made a substantial contribution to the practice and administration of family law Practice § 1-2 (2013). in the Commonwealth of Virginia. The award is presented at the Annual Family 5 The Richmond Journal of Law and Technology (University of Law Seminar in April at The Jefferson Hotel in Richmond, Virginia. Richmond School of Law) pre - sents an annual Spring sympo - Family Law Service Award sium about e-discovery and The VSB Family Law Section recognizes and honors an individual or organiza - presents the papers at tion who has consistently given freely of time, talent and energies to provide http://jolt.richmond.edu/. See, valuable services in advancing family, domestic relations or juvenile law in e.g. , E-Discovery In a World of Cloud Computing, Social Virginia. The award is presented at the Annual Family Law Seminar in April at Networking, and Data Hording The Jefferson Hotel in Richmond, Virginia. (Spring 2011, issue 3). 6 Craig Ball, 11 E-Discovery Tips for VSB Family Law Section award nominations are due January 31, 2014. Judges and Lawyers , Law More information at http://www.vsb.org/site/sections/family Technology News, Sept. 25, 2013 (available at http://www.law.com/jsp/lawtech - nologynews/PubArticleLTN.jsp?i d=1202620757390&slre - Award of Merit Competition turn=20130913234725) . Ball is a The VSB Conference of Local Bar Associations recognizes outstanding projects trial lawyer and certified com - and programs of Virginia bar associations. puter forensic examiner who has written many publications on e- Local Bar Leader of the Year discovery, including E-Discovery The VSB Conference of Local Bar Associations recognizes past and presently Workbook , ED: a Special Master’s Perspective , E-Mail in Civil active leaders in their local bar associations who have continued to offer Discovery 2009 , and Plaintiff’s important service to the bench, bar and public. The award serves as a continu - Guide to E-Discovery . ing monument to the dedication of local bar leaders. It also serves to empha - 7 Id. size the importance of close cooperation between the Virginia State Bar and 8 Monica Bay, Jurists Spill the Beans local bar leaders. About E-Discovery , L. Tech. News, Oct. 16, 2013. 9 Id. VSB Conference of Local Bar Associations nominations are due April 25, 2014. 10 Id. More information at http://www.vsb.org/site/conferences/clba/view/clba-awards

52 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org Virginia CLE Sources: Important Practitioner Tools for Forty Years by Gail F. Zwirner

In honor of the Virginia Law Virginia judiciary, Bankruptcy Practice in Virginia Foundation’s 40th anniversary, we (2012) covers many topics ranging from pre- bankruptcy planning troubleshooting to how to celebrate some of Virginia’s most impor - save a business through a reorganization. It also tant research tools, the continuing legal reviews the legislative history of the Bankruptcy education sources published by Virginia Abuse Prevention and Consumer Protection Act of 2005. Enforcement of Liens and Judgments in Gail Zwirner is head of CLE, the foundation’s nonprofit educa - access services at the Virginia (6th ed. 2009) blends analysis of the law, University of Richmond tional division. Virginia CLE offers semi - practical advice, and forms to enable the practi - Law School Library, where nars and publications in many formats, tioner to deal with creditor/debtor issues. The she also teaches legal new edition of Debt Collection for Virginia research in the first year including live, on-site seminars, and pop - law skills program. Prior to Lawyers: A Systematic Approach (5th ed. 2013) joining the library faculty, ular online and USB flash drive seminars. guides practitioners from winning a case through she was senior reference Each year Virginia CLE presents approxi - collection of the debt with nearly 200 forms and librarian at Hunton & practical advice from experts in the field. Williams LLP in Richmond mately eighty-five new seminars in all and worked at law firms in practice areas, offered as live on-site pro - Washington, D.C. and Business and Commercial Law: Choosing a Philadelphia. She is a con - grams, video on-site replays, webcasts, or Virginia Business Entity (3d ed. 2009) includes a tributing author and co- helpful chart comparing the attributes of C and S editor of A Guide to Legal telephone seminars. In addition, the pub - Research in Virginia. lisher offers more than 300 previously corporations, general, limited and limited liability Zwirner is a former partnerships, limited liability companies, and President of the Virginia presented programs for online viewing or business trusts and allows the practitioner to Association of Law choose among the different business forms to Libraries and co-chairs the on USB flash drive. publications committee. determine the best client match. Limited Liability She welcomes suggestions This article focuses primarily on the desk - Companies in Virginia (4th ed. 2012) covers topics for article topics for the book sources that are the go-to materials in many including formation, dispute resolution, taxation, Law Libraries column in subject areas for Virginia practitioners. i The pub - use in estate planning and real estate, and termi - future issues at [email protected]. lisher offers all these sources on CD, USB, or nation. It also addresses state and federal legisla - downloads. The titles include the forms that prac - tive changes. Corporations and Partnerships in titioners savor as good starting points for their Virginia (2009) covers many topics, including for - clients’ needs. These forms account for many ref - mation planning, general corporate governance erence desk success stories for practitioners who and management, sales of assets, mergers and rely on Gouldman’s Virginia Forms and are disap - acquisitions, redemptions, and liquidations. pointed when that group does not provide the specificity they want. When I refer the patron to a Civil Litigation: Civil Discovery in Virginia (3d CLE, the response consistently is, “I found exactly ed. 2009) moves through the preparation of a the language I need.” comprehensive discovery plan, possible ethical Virginia CLE also bundles at significant dis - problems, and court expectations when the attor - counts related publications into “libraries.” The ney faces a discovery obstacle. The forms disc following descriptions outline the libraries and included with the handbook works with a docu - their contents: ment assembly system called Pathagoras. The Law of Damages in Virginia (2d ed. 2008) outlines the Bankruptcy and Collections: With contributions factors that determine the amount of recovery in from leading bankruptcy practitioners and the a particular case. Topics include evaluating a case www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 53 VIRGINIA CLE SOURCES: IMPORTANT PRACTITIONER TOOLS FOR FORTY YEARS

for damages, a judge’s decision to increase/ offered with the companion Virginia Employment decrease jury-awarded damages, punitive dam - Practices and Forms (2007 & Supp. 2011). The lat - ages, damages without proof of loss, and future ter is intended to provide practical advice on the financial losses. Objections: Interrogatories, use of more than thirty forms related to employer Depositions, and Trial (2013) covers objections at policies that become the subject of a dispute. It each stage of litigation from discovery and voir includes summaries of the revisions to the Fair dire to closing argument. Additionally, it Labor Standards Act. Workers’ Compensation addresses written objections to discovery, motions Practice in Virginia (8th ed. 2011) addresses not in limine, and pleas in bar. Appellate Practice – only the issues for the workers’ compensation Virginia and Federal Courts (5th ed. 2012) practitioner, but also employment attorneys, per - addresses the needs of an appellate practitioner sonal injury attorneys, and corporate counsel. including preservation of issues for appeal, brief writing, oral argument, and federal and state Estate Planning and Administration: Two titles court procedure. It also addresses recent Supreme in this series were released with new editions this Court of Virginia rules changes. year. Estate Planning in Virginia ( 4th ed. 2013) is a core tool for new and experienced attorneys and Criminal Law: Defending Criminal Cases in walks practitioners through the entire estate plan - Virginia (9th ed. 2012) is a collaboration with ning process from client intake to completion of the Virginia Association of Criminal Defense representation. It includes ready-to-use forms and Lawyers. It is designed to provide relevant statu - addresses recent developments in Federal and tory and case material, and also significant por - Virginia legislation and case law. Estate and Trust tions devoted to tactics and techniques. A Guide Administration in Virginia (4th ed. 2013) traces to the Rules of Evidence in Virginia contains the step-by-step the probate process, including initial full text of the new rules that became effective on decisions in the administration process, qualifica - July 1, 2012. The Boyd-Graves Conference tion of the personal representative, probate of the Evidence Committee collaborated with Virginia will, and distribution of assets. Practitioners will CLE on the guide and contributed updated cita - also benefit from the topics covering tax filing tions and descriptions of recent case law. The requirements, federal and Virginia estate tax Guide is Virginia CLE’s best-selling title. Trial of returns, and the fiduciary income tax return. The Capital Murder Cases in Virginia (5th ed. 2013) Manual for Commissioners of Accounts (4th ed. addresses many unique issues related to this type 2009) is the product of the Standing Committee of litigation. The publication provides tables of on Commissioners of Accounts of the Judicial relevant cases grouped by defendant’s surname Council of Virginia and includes a list of Virginia and citation, by degree of aggravation and mitiga - Commissioners of Accounts and contact informa - tion, by aggravator, and by Virginia Code section. tion. Elder Law in Virginia (2011) tackles the A new section addresses issues related to the inef - many challenges unique to this practice area with fective assistance by counsel. Defense of Serious a special focus on Medicare and Medicaid Traffic Cases in Virginia (3d ed. 2012) includes statutes. The last title in this library is a manage - analysis of the different aspects of scientific evi - ment tool published by the American Bar dence relied on to support the methods of proof. Association entitled How to Build and Manage an Mental Health Experts: Roles & Qualifications in Estates Practice (2d ed. 2008). It covers many top - Court guides a practitioner through evaluating ics, including client development, fee agreements, experts and understanding who is qualified to do and how technology and ethics have changed the what and when. It also includes trial preparation practice area. sources including voir dire questions for many key types of mental health professionals, direct Family: Virginia Family Law: A Systematic and cross-examination samples, an acronym Approach (3d ed. 2008 & Supp. 2013) is authored glossary, and professional association contact by Professor Richard Balnave of the University of information. Virginia School of Law. This two-volume title tackles all aspects of family law from the attorney- Employment: Employment Law in Virginia (4th client relationship through divorce, discovery and ed. 2010) is a comprehensive overview of statu - trial, custody, property, domestic violence, and tory, regulatory, and common law issues and is interstate divorce and support issues. It includes

54 VIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES www.vsb.org VIRGINIA CLE SOURCES: IMPORTANT PRACTITIONER TOOLS FOR FORTY YEARS more than 200 forms to support each stage of the and globalization of legal practice. Fee Agreements proceedings. The supplement covers legislative for Virginia Lawyers (2004) is designed to assist updates including required content to custody the practitioner in creating fee agreements that and visitation orders, enforcement of equitable are consistent with professional ethics require - distribution awards, and garnishment of federal ments. Forms are easily modifiable for a particu - pensions. Juvenile Law and Practice in Virginia (3d lar situation and commentary clarifies the ed. 2009) covers the unique proceedings associ - subject areas. ated with children and adolescents. It includes analysis of factors such as child psychology and development, physical and medical aspects of The Boyd-Graves Conference child abuse and neglect, and substance abuse. Adoption Procedures and Forms: A Guide for Evidence Committee collaborated Virginia Lawyers (5th ed. 2010) provides guidance to the novice and experienced family law attorney with Virginia CLE on the guide and with a practical guide to the successful comple - tion of each type of adoption procedure. contributed updated citations and Negotiating and Drafting Marital Agreements (5th ed. 2008) is one of the most heavily circulating descriptions of recent case law. items in our collection. The source has added value with nearly 100 available on disc. In another collaborative effort with the ABA, Virginia CLE Real Estate: Real Estate Transactions in Virginia makes How to Build and Manage a Family Law (3d ed. 2012) is a comprehensive two-volume Practice (2006) available to Virginia practitioners. source addressing issues ranging from the sim - The author shares practical tips, techniques, plest purchase transactions to complex zoning forms, and checklists from an established special - issues. It includes checklists, forms and practical ized legal practice. advice for many situations. Virginia Construction ” Law Deskbook (2d ed. 2011) offers expert advice Practice Management and Technology: A Guide on dealing with builders, owners, insurers, finan - to Legal Research in Virginia (7th ed. 2012) assists cial institutions, subcontractors, and suppliers at practitioners with finding Virginia research all government levels – federal, state and local sources to comply with their ethical obligation for authorities. The new edition includes a chapter on well-prepared representation. The guide covers subcontractors and suppliers and covers changes the primary materials generated from all branches to the Virginia Public Procurement Act, use of the of government, secondary sources and Fastcase, federal E-Verify system to verify eligibility of and includes coverage of internet and major ven - employees on projects involving federal funds, dor sources as well. The Virginia Lawyer: A and revision of Public Contracts title of the U.S. Deskbook for Practitioners (4th ed. 2011 & Supp. Code. Eminent Domain Law in Virginia (2012) 2013) is an excellent source for new attorneys to covers proceedings at both the federal and state understand the basics in many practice areas or level, including expert advice on aspects such as for the attorney whose regular client presents an valuation and relocation assistance. unexpected topic to research. For example, it includes general information on managing your Virginia CLE sources are favorites among many law office and professional responsibility, and also practitioners because of the expert analysis and tackles specific topics from “administrative law” to the specificity of supporting appendices and “representing debtors and creditors.” How to Start forms. It is well worth your time to familiarize and Build a Law Practice by Jay Foonberg (5th ed. yourself with these titles and we look forward to 2004) is published by the ABA and made available forty more years of effective publications from to Virginia practitioners through Virginia CLE®. Virginia CLE. It is a comprehensive guide to planning, launch - ing, and growing a successful practice. Endnote: Additionally, there are new chapters covering 1 For a complete list of Virginia CLE® sources, con - mergers and dissolutions, opportunities created sult the Virginia CLE publications page at http://www.vacle.org/Publications-c131.aspx. by an aging population, non-lawyer consultants,

www.vsb.org LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 55 Access to Legal Services Harrisonburg Attorneys Honored for Pro Bono Work

Blue Ridge Legal Services, the Harrisonburg-Rockingham Bar Shenandoah and Roanoke Valleys’ non- Association. profit legal aid society, recognized four Since 1982, Blue Ridge Legal Harrisonburg attorneys for their extra - Services and the Harrisonburg- ordinary pro bono work during the Rockingham Bar Association have col - Harrisonburg-Rockingham Bar laborated in this pro bono referral Association’s annual Professionalism program to provide free civil legal ser - Seminar held October 9. vices to financially disadvantaged mem - Honored were Timothy E. Cupp, bers of the community. Last year, the Thomas D. Domonoske, Laura A. Evans, bar completed 138 pro bono cases for and Robert C. Lunger. Mr. Cupp prac - low-income local residents, logging over Award recipients (above, left to right) were Timothy E. tices law with Cupp and Cupp PC; Mr. 937 hours of donated legal services con - Cupp, Laura A. Evans, and Thomas D. Domonoske. Lunger practices law with Wharton, servatively valued at over $227,000. Also receiving an award was Robert C. Lunger (below). Aldhizer, and Weaver PLC; Mr. Over the last eighteen months, nearly Domonoske and Ms. Evans are solo three-quarters of the bar’s firms and solo practitioners. practitioners were involved in pro bono Blue Ridge Legal Services’ president, representation through the pro bono Dana J. Cornett, and its executive direc - referral program. tor, John E. Whitfield, presented awards Over the last three decades, this pro - and recognized the volunteers for the gram has garnered statewide and quality of pro bono services they pro - national acclaim, including the national vided to their clients and their dedica - Legal Services Corporation’s Rural Pro tion to promoting equal access to justice Bono Attorneys of the Year Award in for local low-income residents who oth - 1993, the Virginia State Bar’s Lewis As a partner-agency of the United erwise could not afford to obtain legal Powell Pro Bono award in 1998, the Way, Blue Ridge Legal Services provides assistance. The pro bono awards presen - American Bar Association’s prestigious free civil legal assistance to low-income tation is a longstanding tradition recog - Harrison Tweed Award in 1995, and a residents of the Shenandoah and nizing particularly noteworthy pro bono Pro Bono Service Award from the Legal Roanoke Valleys through its staff and contributions of members of the Services Corporation in 2011. volunteer attorneys across its service area.

The Greater Richmond Bar Foundation hosted its 2013 Pro Bono Clearinghouse Reception on October 24. Attending were (left to right) Scott C. Oostdyk, foundation vice president; Andy Nea, volunteer of the year; Justice S. Bernard Goodwyn of the Supreme Court of Virginia; and Leslie A. Haley, foundation president.

56 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org VSB NEWS < Noteworthy Highlights of the October 4, 2013, Virginia State Bar Council Meeting

At its meeting on October 4, 2013, in 5.5 and Comments 5 and 13 regarding Council voted 44 to 12 to refer the Norfolk, the Virginia State Bar Council the temporary practice of foreign lawyers. proposed per-claim limit increase to heard the following significant reports $100,000 to the CPF Board for consider - and took the following actions: Paragraph 13-13 Amendments ation of a gradual phase-in. Council approved by unanimous vote Amendments to VSB Bylaws Regarding the proposed amendments to Paragraph Virginia Code § 2.2-1839 Amendment Executive Committee Size 13-13 regarding participation and dis - Council approved by unanimous vote The motion to amend the Bylaws of qualification of counsel. pursuing the amendment of Va. Code Council, Part II, Article VI, “Executive § 2.2-1839 to include a risk management Committee,” Sec. 1, changing the total Clients’ Protection Fund Limits and plan for VSB pro bono volunteers. number of members from thirteen to Assessment sixteen failed by a vote of 28 to 28. Council approved 48 to 5 seeking an YLC Website and Social Media Policy amendment Va. Code § 54.1-3913.1 to Council approved by unanimous vote Rule Change authorize the Supreme Court to con - the proposed YLC website and social Council unanimously approved amend - tinue the $25 CPF assessment beyond media policy. ments to Rules of Professional Conduct June 30, 2015. Weiner Is President-elect Designee of the Virginia State Bar

Edward L. Weiner, founder and senior American Bar Association, as well as an partner at Weiner Spivey & Miller PLC award from the VSB for being an innov - in Fairfax, is the new president-elect ative fundraising program. designee of the Virginia State Bar. He is a graduate of the State Weiner will take over as president University of New York at Binghamton, for the 201 5–16 year. He will follow and received his J.D. from the University Kevin E. Martingayle, who will be presi - of Richmond and his LL.M in dent for 201 4–15 after the term of International Law from Georgetown Sharon D. Nelson ends. University Law Center. Weiner is president of the Fairfax Weiner is a member of the board of Bar Association. He also is a past presi - directors of the George Mason dent of the VSB Conference of Local Bar University Center for the Performing Associations. In 2012 he was appointed Arts, serves on the board of directors of to serve on the Virginia Supreme Court the University of Richmond Law School professionalism faculty. Alumni Association, and is the host of Weiner founded Jazz 4 Justice, a an annual Law Day celebration that ben - fund-raising model to be used by local efits the Fairfax Law Foundation’s pro Edward L. Weiner bar associations and university music bono programs. departments to benefit their programs, His practice areas are personal in 2000. Numerous Virginia universities injury and medical malpractice. have joined this partnership between He will become president at the education, music, and law. This event VSB annual meeting in June 2015. has received an award from the www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 57 Noteworthy > PEOPLE In Memoriam

Robert Abady Ades Joseph Hugh Eros Robert John Patch Springfield Fort Richardson, Arkansas Alexandria March 1948 – September 2013 April 1971 – June 2013 November 1926 – September 2013

F. Keith Adkinson Frank Morris Feibelman Ronald George Precup Hartsville, Tennessee Richmond Alexandria May 1944 – June 2013 July 1948 – August 2013 June 1942 – May 2013

John Taro Akiyama Carter Bruce Foulds Stacy Suzanne Riordan Reston Winchester Arlington October 1969 – December 2012 September 1956 – June 2013 February 1966 – August 2013

Robert Lee Aston Douglas K. Frith Roger Lewis Tuttle Elberton, Georgia Martinsville Midlothian August 1924 – September 2013 September 1931 – October 2013 November 1930 – September 2013

Warren McElroy Ballard Richard A. Graham Christoph Walker Catonsville, Maryland Chevy Chase, Maryland Sacramento, California December 1910 – July 2013 November 1945 – June 2013 September 1961 – January 2013

Franklin Robert Blatt Valerie Nichole Hale Mark Bridger Warlick Harrisonburg Roanoke Norfolk April 1947 – October 2013 April 1975 – August 2013 April 1955 – July 2013

William James Bradley III Thomas J. Harrigan New York, New York Sun City West, Arizona March 1960 – March 2013 May 1933 – September 2013 Local and

John M. Braswell G. Duane Holloway Specialty Bar Alexandria Williamsburg January 1955 – July 2013 January 1931 – December 2012 Elections Asian Pacific American Bar Association Kenneth Paul Bucci Robert Alan Jones of Virginia, Inc. Charlottesville Las Vegas, Nevada Quynh-Trang Duc-Thuy Mary Nguyen, July 1968 – August 2013 November 1940—September 2013 President Shani Rosanne Else, Vice President Gary Lee Cardwell John L. Krajsa Jr. Lynette Teresa Kleiza, Secretary Collinsville Allentown, Pennsylvania Matthew William Lee, Treasurer September 1943 – August 2012 December 1946 – November 2012 Hill Tucker Bar Association Rexford R. Cherryman Alexander Nicholas Lamme Stacy Elizabeth Lee, President Hartfield McLean Myron Demarcus McClees, October 1925 – July 2013 September 1974 – April 2013 Vice President Crystal Garrett Foster, Secretary Thomas W. diZerega Lee M. Modjeska Devika Edele Davis, Treasurer Upperville Raleigh, North Carolina September 1926 – July 2013 September 1932 – January 1996 Virginia Creditors Bar Association Lt. David Benjamin Ashe, President Robert C. Elliott II John E. O’Brien Philip Matthew Roberts, Vice President Colonial Heights Ganesville William Douglas Moore III, Secretary August 1943 – October 2013 January 1932 – October 2013 George Ryder Parrish, Treasurer

58 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org ET AL. < Noteworthy Task Force Offers Recommendations to Improve Legal Writing

In January, Professor A. Benjamin skills in grading standards. Some law Law Firms Spencer, chair of the Virginia State Bar school faculty members have suggested Although the quality of legal writing was Section on the Education of Lawyers, a writing component be including in a concern expressed by both lawyers and established a Task Force on Legal the bar exam to reinforce the impor - judges at the 2012 Conclave, few law Writing chaired by Senior Justice tance of clear writing. The task force firms responded to a survey sent to Elizabeth B. Lacy. The need to address recommended the section provide an them by the task force. The few that did the problem of inadequate legal writing ongoing environment for legal writing respond said there was little concern became apparent during the 20th groups from all law schools to exchange with legal writing skills. Anniversary Conclave on the Education ideas on best practices and other aspects of Lawyers held in Charlottesville in of legal writing education. The task Judges April 2012. force also concluded that it should sup - Some judges said they marked up defi - The task force was appointed and port efforts to identify measurements to cient pleadings and sent them back to began its work in January 2013. In assess writing skills during law school the drafting attorney. Most said that if September the task force produced its and later in practice. the poor writing was not in compliance report recommending that the section with the applicable rule in a pleading, support efforts to assess and improve Expanding the Bar Exam an order rejecting the pleading would legal writing skills during law school The task force recommended that the be entered. and later in practice, support efforts to section should support efforts to include include evaluation of legal writing as a evaluation of legal writing as a compo - CLE Providers and Programs component of the bar exam, and nent of the bar exam. As stated in the The task force recommended that the encourage CLE providers to offer legal report, Virginia Board of Bar Examiners section should encourage CLE writing seminars. The task force made Secretary Treasurer W. Scott Street III providers to offer legal writing semi - the following observations and recom - indicated he was interested in working nars. A survey of CLE providers found mendations for section consideration: with the section to find an exam format, that very few offer a CLE for legal writ - other than the Multistate Performance ing. The task force supported the Support Efforts of Law Schools Test, to address legal writing issues. Bar proposition that the cachet for teaching Most legal writing faculty agree that examiners do not now grade based on in the Professionalism Course might student writing skills in general have the quality of writing and they believe carry over to teaching an intensive writ - declined in recent years. The Virginia law time constraints and grading parameters ing program, and that the section could schools are increasing resources devoted would make such a standard impossible. assist with identifying lawyers, judges, to improving writing skills. A number of Thirty-seven states, Washington, DC, and professors to serve as faculty mem - approaches have emerged to deal with and three U.S. territories — though not bers for such a program. the problem, including an earlier and Virginia — use the Multistate continuing focus on writing and com - Performance Exam, which has a writing munication skills by including writing component.

VSB TECHSHOW Save the Date: May 19, 2014

The Virginia State Bar is sponsoring a VSB TECHSHOW on May 19, 2014, at the Richmond Convention Center. The stellar faculty members are all nationally-known veteran ABA TECHSHOW speakers who will offer a full day of legal technology CLE. Not only is the conference FREE, every lawyer’s favorite price, but lunch is included in the bargain. So mark your calen - dars now and watch for registration information to appear shortly.

www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 59 Noteworthy > ET AL. Supreme Court Exhibit Highlights the History of the VSB and VBA

The Supreme Court of Virginia has Today, Virginia is one of only three Court of Virginia Archives, housed in opened an exhibit titled “The Bar at states with a mandatory and a separate the law library on the second floor. Work: 125 Years of Building the Legal state-wide voluntary bar. The exhibit, which will run through Profession in Virginia, 188 8–2013” on For 125 years, Virginia lawyers have at least August 2014, is open to the pub - the third floor of the Supreme Court exerted a profound influence on the lic, but people are asked to call the law building at 100 N. 9th St., across from development of the legal system in library at (804) 786-2075 to make an the State Capitol. Virginia through their participation in appointment. Exhibit hours are This exhibit highlights the history bar associations. From 1890 to 1910, 8:1 5–4:45 on weekdays. of the Virginia Bar Association from its the bar led the way in raising the organization in 1888 and also com - memorates the 75th anniversary of the requirements for entry to the profes - * * * Virginia State Bar. sion; however, it also created barriers The VSB was formed after the for women, minorities, and foreign To read a profile of Chief Justice Virginia General Assembly authorized a born attorneys that were not removed Cynthia D. Kinser, and for an article on mandatory, regulatory bar in 1938. The until the twentieth century. the Virginia State Bar and Virginia Bar main issue before the bar then was the Many of the items and documents Association, see the December issue of task of defining the practice of law. displayed were culled from the Supreme Virginia Living magazine.

Trees for Virginia Save the Date

Virginia State Bar Young Lawyers Conference 12th Annual Celebration of Women and Minorities in the Legal Profession Bench Bar Dinner

Honoring the newly elected and elevated women and minority member of the Virginia judiciary. One of the premier projects of the VSB’s Senior Lawyers Conference is to con - Keynote Speaker tinue the late John Tate’s plan to plant Justice Elizabeth A. McClanahan more trees in Virginia. In the last two Monday, February 10, 2014 years, the conference has planted more The Bull and Bear Club, Richmond than 7,500 trees plus an Honor Tree in Capitol Square in Richmond for the late For more information visit www.vayounglawyers.com Chief Justice Leroy Hassell Sr. Make your contribution to John M. Oakey, Treasurer, c/o McGuireWoods LLP, 901 E. Cary St., Richmond, VA Have You Moved? 23219. If you are aware of any person or To check or change your address of record with the Virginia State Bar, go to the VSB Member Login at https://member.vsb.org/vsbportal/. Go to “Membership Information,” organization that would like trees where your current address of record is listed. To change, go to “Edit Official Address of (they’re free), contract Bruce E. Record,” click the appropriate box, then click “next.” You can type your new address, Robinson, [email protected]. phone numbers, and email address on the form. Orders should be placed by January 3, Contact the VSB Membership Department ([email protected] or (804) 775- 2014, and the trees will be delivered to be 0530) with questions. planted in late February or early March.

60 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Consultus Electronica The CFAA and Aaron’s Law by James Juo

The Computer Fraud and Abuse Act political activist for Internet freedom and with this dilemma, at age 26, Swartz took (CFAA) is a computer trespass statute social justice issues, and formed the his own life in January 2013. 21 that has been called “one of the broadest advocacy group Demand Progress. 12 federal criminal laws currently on the In late 2010, Swartz allegedly Aaron’s Law 1 books.” Congress enacted the CFAA in attempted to access and rapidly In the wake of Swartz’s death, there have 1984 to criminalize the hacking of download a large number of academic been several proposals to amend the computers in connection with national articles from JSTOR (or Journal CFAA. In June 2013, Rep. Zoe Lofgren, security, financial records, and govern- Storage), a nonprofit organization that D-CA, introduced a bill titled “Aaron’s 2 ment property. But the CFAA has been provides a searchable database of 22 3 Law Act of 2013” to reform the CFAA. expanded a number of times since then. digitized articles archived from academic The bill would eliminate the “exceeds For example, in 1994 the statute was 13 journals. Libraries and universities pay authorized access” language from the expanded to allow private entities to a subscription fee for access to JSTOR, statute and define “access without assert a civil cause of action and obtain where its Terms of Service prohibit authorization” to mean obtaining compensatory damages. 4 In 1996, the downloading or exporting documents information on a protected computer CFAA was further amended to expand from JSTOR using automated computer that the accesser lacks authorization to the class of protected computers to in- 14 programs. JSTOR also uses technical obtain by circumventing one or more clude any computer “used in interstate or measures to prevent such automated 5 technological measures that exclude or foreign commerce or communication.” downloading. 15 In the space of a dozen years, the scope prevent unauthorized individuals from JSTOR declined to pursue legal 23 of this criminal statute has gone from a obtaining or altering that information. action against Swartz after he turned limited set of protected computers to “The proposed changes make clear over his hard drives which contained 4.8 possibly every computer in the United that the CFAA does not outlaw mere million JSTOR documents. 16 But the States connected to the Internet. 6 violations of terms of service,” but federal government charged Swartz with The CFAA prohibits “access with- would prohibit “bypassing technological violations of the CFAA. 17 out authorization” and “exceed[ing] or physical measures via deception (as A computer expert for the defense authorized access” to a protected in the case with phishing or social asserts that Swartz did not “hack” the computer. 7 But the CFAA has been engineering), and scenarios in which an 8 JSTOR website under any reasonable called “remarkably vague” on this point. authorized individual provides a means definition — Swartz did not use to circumvent to an unauthorized The Story of Aaron Swartz parameter tampering, break a CAPTCHA gate, or do anything more individual (i.e., sharing login Calls to reform the CFAA have increased credentials).” 24 significantly after the tragic death of complicated than automate a process that downloads a file in the same Notwithstanding the bipartisan sup - Aaron Swartz. port of Rep. Darrell Issa, R-CA, and Sen. At age 14, Aaron was working with manner as clicking “Save As” from a 18 Ron Wyden, D-OR, it may be a lengthy leading technologists to craft open browser. Whether this defense would political journey for these legislative pro - standards such as the Really Simple have been successful is questionable posals. 25 Congress rarely scales back Syndication specification for sharing because the CFAA prohibits more than criminal laws,” according to Tim Wu, a information on the Internet. 9 He then just traditional hacking. professor at Columbia Law School. 26 helped Lawrence Lessig with Creative With criminal charges hanging over Commons, a company that promotes the him for a year-and-a-half, Swartz was Proposals to narrow the scope of a crim - use of simple, standardized copyright offered a plea bargain requiring a felony inal statute often also include provisions licenses that give the public permission conviction, under which the government for increased penalties to avoid a soft- 27 to share and use creative works. 10 At age would recommend a six-month prison on-crime label. “To be successful, (the 19, Swartz was a founding developer of term (although his defense counsel could effort to pass Aaron’s Law) will likely Reddit, a widely-used social news website argue to the judge for probation take substantial time and require sus - where users can post news links and vote instead). 19 The government would not tained and intense support from all of on them. 11 Swartz later became a back off its demand for jail time. 20 Faced you,” according to Lofgren. 28 Time will www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 61 Consultus Electronica tell whether momentum will be sus - /uploads/2013/03/KerrCFAATestimony labeled a ‘felon.’ For in the 18 months of tained for Aaron’s Law to become law. 2013.pdf. negotiations, that was what he was not 9 Tim Carmody, “Memory to Myth: willing to accept.”) Endnotes: Tracing Aaron Swartz Through the 21st 21 John Schwartz, “Internet Activist, a 1 Paul J. Larkin Jr., “United States v. Nosal: Century,” THE VERGE (Jan. 22, 2013, Creator of RSS, Is Dead at 26, Rebooting the Computer Fraud and 12:30 PM), Apparently a Suicide,” N.Y. T IMES (Jan. Abuse Act,” 8 SETON HALL CIR . R EV . http://www.theverge.com/2013/1/22 12, 2013), http://www.nytimes.com 257, 261 (2012); see also Jennifer /3898584/aaron-swartz-profile-memory /2013/01/13/technology/aaron-swartz Granick, “Towards Learning from -to-myth. -internet-activist-dies-at-26.html?_r=0. Losing Aaron Swartz,” THE CENTER FOR 10 Lawrence Lessig, “Prosecutor as Bully,” 22 Proposed “Aaron’s Law Act of 2013,” INTERNET AND SOCIETY (Jan.14, 2013, LESSIG BLOG , V2 (Jan. 12, 2013), available at http://www.lofgren.house 4:37 PM), https://cyberlaw.stanford.edu/ http://lessig.tumblr.com/post/40347463 .gov/images/stories/pdf/aarons%20law blog/2013/01/towards-learning-losing 044/prosecutor-as-bully. %20-%20lofgren%20-%20061913.pdf. -aaron-swartz. (“Another way to look at 11 Larissa MacFarquhar, “Requiem for a 23 Id . the CFAA, is that it protects the box”). Dream,” THE NEW YORKER (Mar. 11, 24 Section-by-Section Summary, available 2 Technically speaking, the CFAA was a 2013), http://nyr.kr/ZUnMMv. at http://www.lofgren.house.gov/images 1986 amendment to 18 U.S.C. § 1030, 12 See also Justin Peters, “The Idealist: /stories/pdf/aarons%20law%20summary but the common convention is to refer Aaron Swartz Wanted To Save the %20-%20lofgren%20-%20061913.pdf. to Section 1030 as a whole as the CFAA. World. Why Couldn’t He Save Himself?” 25 Tony Romm, “After Activist Aaron Orin S. Kerr, “Vagueness Challenges to SLATE (Feb. 7, 2013, 9:47 PM), Swartz’s Death, a Tough Slog for Aaron’s the Computer Fraud and Abuse Act,” 94 http://slate.me/YevwGC. Law,” POLITICO (Feb. 8, 2013, 4:48 AM), MINN . L. R EV . 1561, 1561 n.2 (2012). 13 Superseding Indictment at 1, United http://politi.co/XVjnau. The original 1984 statute was called the States v. Swartz , No. 11-cr-10260, Dkt. 26 Tim Wu, “Fixing the Worst Law in Comprehensive Crime Control Act No. 53 (D. Mass. Sept. 12, 2012). Technology,” THE NEW YORKER NEWS (CCCA). Id . at 1563-64. 14 Id . at 2. The subscription fees are shared DESK (Mar. 18, 2013), 3 Id. at 1566. with the publishers who hold the origi - http://nyr.kr/YCubsS. 4 Id . (citing 18 U.S.C. § 1030(g)). nal copyrights. Id . 27 See Orin Kerr, “Recent Developments — 5 Id . at 1567–68 (citing 18 U.S.C. 15 Id . Both in the Courts and in Congress — § 1030(e)(2)). 16 See Lessig, supra note 10 (“JSTOR fig - on the Scope of the Computer Fraud and 6 Id . at 1571 (“Perhaps the only identifi - ured ‘appropriate’ out: They declined to Abuse Act,” THE VOLOKH CONSPIRACY able exclusion from the scope of pro - pursue their own action against Aaron, (July 30, 2012, 11:35 PM), http://www tected computers is a ‘portable hand and they asked the government to drop .volokh.com/2012/07/30/recent held calculator.’”) its.”) -developments-both-in-the-courts-and 7 See 18 U.S.C. § 1030(a)(2); see also 17 Press Release, United States Attorney’s -in-congress-on-the-scope-of-the Jennifer Granick, “Thoughts on Orin Office for the District of Massachusetts, -computer-fraud-and-abuse-act/. Kerr’s CFAA Reform Proposals: A Great “Alleged Hacker Charged with Stealing 28 Romm, supra note 25. Second Step,” The Center for Internet Over Four Million Documents from and Society (Jan. 23, 2013, 9:43 PM), MIT Network” (July 19, 2011), https://cyberlaw.stanford.edu/blog/2013 http://www.justice.gov/usao/ma/news /01/thoughts-orin-kerrs-cfaa-reform /2011/July/SwartzAaronPR.html. -proposals-great-second-step 18 Alex Stamos, “The Truth About Aaron (“ Historically, the CFAA partitioned the Swartz’s ‘Crime’,” UNHANDLED world of computer criminals into two EXCEPTION (Jan. 12, 2013), camps, outsiders who ‘access without http://unhandled.com/2013/01/12 authorization’ and wayward insiders /the-truth-about-aaron-swartzs-crime/. who abuse their position of trust to 19 MacFarquhar, supra note 11; see also ‘exceed authorized access’ and obtain Jennifer Granick, “Towards Learning information they were not entitled to.”) From Losing Aaron Swartz: Part 2,” The 8 “Investigating and Prosecuting 21st Center for Internet and Society (Jan.15, Century Cyber Threats: Hearing Before 2013, 3:54 PM), https://cyberlaw.stan - United States House of Representatives ford.edu/blog/2013/01/towards-learn - James Juo is a partner at Fulwider Patton LLP, a Subcommittee on Crime, Terrorism, ing-losing-aaron-swartz-part-2 (discussing the “great practical risk” in Los Angeles law firm specializing in intellectual Homeland Security and Investigations,” property including patents and trademarks. He 113th Cong. 1 (Mar. 13, 2013) (written pleading to a felony). is a registered patent attorney and holds a B.S. statement of Orin S. Kerr, Fred C. 20 Peters, supra note 12; see also Lessig, in electrical engineering. He previously worked as a patent examiner at the United States Patent Stevenson Research Prof., George supra note 2 (“[T]he question this gov - ernment needs to answer is why it was and Trademark Office. He received his J.D. from Washington Univ. Law School), available George Washington University. He may be con - at http://www.volokh.com/wp-content so necessary that Aaron Swartz be tacted at [email protected].

62 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Forum

Trayvon Martin

Your writer, Clarence Dunnaville A Note from the Editors: (Virginia Lawyer , October 2013), believes that the Trayvon Martin case We Want Your Ideas had important implications for our bar. And, he is correct. The December 2013 issue of Virginia Lawyer is an example of what our maga - If any homicide case can be called zine has been and hopes to be. Like every issue, it includes a number of articles routine, the killing of Trayvon Martin with a pre-arranged focus — in this case, law libraries and librarians — and sev - was routine; an open and shut case of eral other features, including a special section celebrating the 40th anniversary of self-defense. But, the Florida justice the Virginia Law Foundation. It also includes an unsolicited article by Judge system succumbed to pressure gener - Joseph A. Migliozzi Jr. discussing the value of mental health courts in Virginia, ated by the likes of Al Sharpton and his and another by James Juo about the Computer Fraud and Abuse Act and Aaron’s cohorts who always stand ready to Law. While we didn’t ask for those articles, they were too good to pass up. exploit the misfortunes of others to It’s that too-good-to-pass-up quality that got those stories published in advance their socio/political agenda. I Virginia Lawyer . We know there are many other articles out there by and about hope that we never witness a perver - the members of the Virginia State Bar that are just looking for a place to appear. sion of justice such as that in Virginia. We would like to open up our magazine to those articles. Mr. Dunnaville’s criticism of the However, we also know that the solicited articles are equally valuable. With defense strategy is ill-founded as well. that in mind, we intend to continue our practice of publishing theme issues, but Surely, it is within the duty of a crimi - because of space and money considerations, we may ask for fewer theme articles nal defense team to question the con - in future issues. duct and character of a shooting victim Upcoming theme issues are planned on family law, the Senior Lawyers without being charged with racism. Conference, trusts and estates, and construction law. Surely, too, it was their responsibility to Look for those in 2014. challenge the incoherent, contradictory We want Virginia Lawyer to serve our members. We will continue to edu - and unpersuasive testimony of Rachel cate, inform, and even entertain our readers. We might publish debates among Jeantel, Martin’s friend, without being two or more of our members on an issue. We might print interesting profiles by accused of “disrespecting” her on and about our members. A lawyer might want to explore a controversial or account of her race. evolving point of law. We might get an article from a lawyer just returned from And, yes, there were press state - doing pro bono work in another country. We might feature some of the services ments which “fueled the flames of racial we offer at the VSB or some of the work done by our committees. animosity.” But they were made by the We want your ideas. If you have an idea for an interesting article on a law- busloads of agitators who came to related issue that is not tied too closely to the daily news — we are, after all, a Florida from all over the country. periodical, not a daily — please let us know about it. Send a note to Editor Of course, we must take Mr. Rodney A. Coggin at [email protected] or Assistant Editor Gordon Hickey at Dunnaville at his word that he and his [email protected]. family have suffered because they are African American. All I know is, as a member of our bar for forty-seven years, that racial discrimination has long since disappeared from our profes - Letters sion and from the largest part of civil society as a whole. Send your letter to the editor to: [email protected]; fax: (804) 775-0582; Thomas P. Dugan Columbus, OH or mail to: Virginia State Bar, Virginia Lawyer Magazine 707 E. Main Street, Suite 1500, Richmond, VA 23219-2800

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

www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 63 Forum An Effective Model for Misdemeanor Courts and the Mentally Ill Defendant by The Honorable Joseph A. Migliozzi Jr.

In 2012, approximately 770,000 felony competency issue and requests a court- will house more mentally ill inmates criminal offenses were committed by ordered evaluation. over longer periods. Our jails have, effec - people diagnosed with a mental illness. 1 There are many cases like Jerry’s tively, become the new state institutions This figure does not account for the that appear before misdemeanor courts for the mentally ill. Because jail cells thousands of minor criminal infractions in this country each day. In 2011, the were never designed to care for the men - or misdemeanors committed each day General District Court in Norfolk tally ill and because jail personnel are by people afflicted with similar, if not became one of only three misdemeanor not trained mental health caretakers, the more severe, mental illnesses. Consider courts in Virginia 3 to redirect all defen - result is often no different than what was the hypothetical story of Jerry. dants with mental illnesses to a mental once considered cruel and inhumane. Jerry is a 45-year-old, Axis 1 2, para - health docket (MHD). This article iden - Fortunately, some progress has been noid schizophrenic who lives alone in an tifies a model for misdemeanor courts to made to change this bleak situation. The apartment, almost entirely funded by his organize dockets exclusively for people first nationally recognized Mental Health monthly social security disability with mental health disorders in an effi - Court began in Broward County Florida income. He has, in the past, worked with cient, cost-effective manner that utilizes in 1997. Subsequently, President Clinton a local community services caseworker services that typically already exist in signed into law the Mental Health Courts to assist with the administration of his every urban jurisdiction. Bil l10 in 2000 to establish a national medication and his adjustment into mental health court system, offering community-based housing. Summary of Mental Health Courts and nonviolent, felony offenders with severe Jerry has lived in a residential, multi - Their Development in Virginia mental illnesses an opportunity to par - unit apartment building for three years. As a result of de-institutionalizing the ticipate in a voluntary, supportive, and He has deliberately rigged his apartment mentally ill across the nation in the structured program designed to transi - with devices to make him feel safe, but 1960s, many of those individuals now tion the inmate back into society. each apparatus constitutes a separate fire aimlessly wander city streets, sleep in The advent of these “problem-solv - code violation that his landlord has parks, and often end up in local jails. 4 In ing” courts helped to alleviate some of repeatedly insisted he remove. Finally, 1999, the National Institute of Justice the burdens placed on the criminal jus - during a regular city code inspection of estimated that “of the 10 million people tice system, but most of the mentally-ill the eight-unit apartment building, Jerry’s arrested and admitted to jail each year, were still falling through the cracks for unit is cited for ten violations, all of which 13% suffer from severe mental disabili - one reason: Most people in need were are class-one misdemeanors charged ties,”5 contrasted with only “2% in the committing misdemeanors, not felonies. directly to the tenant and each carrying general population ”6 who suffer mental Consequently, some states started spe - up to twelve months in jail. Jerry panics, illness. In 2006, a Special Report by the cialty misdemeanor dockets to identify but refuses to make any changes. When Bureau of Justice Statistics estimated that and assist the mentally ill in local jails. approached by law-enforcement officers more than 17 percent of the national Unlike in mental health courts, a misde - who attempt to execute service of the prison population was mentally ill. 7 Of meanor inmate does not volunteer to notice of violations, Jerry causes a public this population, 10 percent were incar - participate in the program. During his disturbance in the building and tem - cerated in state prisons, 1 percent in fed - intake process or during his stay in jail, porarily barricades himself in his apart - eral prisons and approximately 6 percent an inmate who suffers a mental illness ment. He is subsequently apprehended in local jails. 8 In 2012, New York City may be diverted to the MHD by the court with minor force, taken directly to a reported that 24 percent of its prison or upon motion of a lawyer. Once on the magistrate where he is charged with an population had mental health needs, docket, the case is treated like any other additional offense of obstructing justice with the largest segment of that popula - with respect to ensuring a timely and and held without bond. At his arraign - tion under the age of 25. 9 appropriate adjudication of the offenses ment, Jerry is appointed an attorney The younger age of inmates coupled charged — with the exception that par - who immediately recognizes a potential with recidivism suggests that local jails ticular attention is given to the mental-

64 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Forum health diagnoses. The court may order local community services board, the phrenia and bi-polar disorders, yet was an evaluation for competency, assure PACT team (Program of Assertive capable of understanding the nature and that previously prescribed medications Community Treatment), the jail’s mental consequences of his behavior and the are available, and order access to a com - health service provider, the Veterans role of the court. Jerry had a life-long munity-based support service to assist Administration, the public defender’s history of mental illness, but as long as the transition of the mentally ill inmate office, the commonwealth attorney’s he maintained his anti-psychotic med - through the criminal justice system. office, and various other agencies that ications he was able to function inde - provide independent services through - pendently in society. Thus, the The Mental Health Docket out the city. A written docket is prepared evaluating psychologist determined that Beginning in September 2011, the Norfolk two weeks in advance, listing all defen - Jerry was competent to stand trial for the MHD has been called to order at 2:00 dants who are pending dispositions and ten misdemeanor fire-code violations. 15 p.m. on the first and third Wednesday of will be in need of services. Each entity After reviewing the report with each month. Defendants who meet the represented at the MHD recognizes that Jerry and discussing with him the facts unique criteria to be placed on this simply allotting four hours each month of the case, Jerry’s court-appointed docket 11 no longer languish in jail await - to attend this docket not only serves the attorney proposed to the prosecutor and ing medications, psychiatric treatment, needs of the mentally ill and the com - the court that a finding under advise - or sentencing for their misdemeanor munity, but also furthers their own fun - ment was appropriate, allowing Jerry to violations. Similarly, the community is damental mission of service. be released on bail and giving him an assured that the revolving door of recidi - Most importantly, the MHD pro - opportunity to remedy the violations vism among mentally ill defendants is vides an isolated and dignified opportu - and obtain the necessary medical atten - deliberately monitored by the court and nity for defendants’ family members to tion to deal with his diagnosis. Jerry by the various agencies that serve the be present and to offer background would be required to maintain regular judicial system. information and suggestions to the court meetings with the community services Making such a docket work requires in an effort to determine an appropriate board, where his medication and psychi - the cooperation of several large entities. sentencing disposition. In fact, it can be atric treatment could be monitored. Any The relationship between the sheriff’s said that family members in attendance violations of this proposal would result department, which operates the local provide the greatest service to the MHD in an immediate violation hearing on jail, and the court is most critical. For and can do so without the embarrass - the MHD, a potential revocation of years, jail officials recognized that their ment of seeing their children or siblings Jerry’s bond status and a conviction of cells were becoming long-term holding paraded before a packed courtroom of most, if not all the charges pending facilities for the mentally ill, draining less sensitive citizens. against him. valuable resources needed for other In the end, each representative is Considering the nature of the inmates. 12 Similarly, the court noticed present to provide recommendations or charges in this hypothetical, the court that with a random rotation of judges, options to the court. The court is then accepted Jerry’s plea of guilty to all no time limits for the return of compe - tasked, as in any other case, to resolve charges and deferred a final disposition tency evaluations, and little order to the charges consistent with the law and to for six months. Twice he returned to array of mental health services available discourage similar future behavior court during his six-month probationary within the community, this specific seg - through its sentencing dispositions. period. Each time, he was reported as ment of the jail population may have However, in these unique cases, the taking too long to address the fire code been held in custody for longer peri - court recognizes the additional burden violations. Yet, with the encouragement ods. 13 Thus, a few short organizational of providing an incentive for defendants of his case-worker, the city attorney and meetings between jail representatives to continue their prescribed medication the court, Jerry finally brought his home and the Norfolk General District Court regimen, maintain a stable residence, and into conformance with city code, was resulted with the identification of a clear find the necessary out-patient services able to maintain his residence, obtained solution — to exercise the statutory before returning to their communities. supervision for his medication intake, authority already provided to the chief By the time Jerry first appeared and his case was successfully closed. Jerry judge to organize the docket in such a before the MHD, two weeks after his ini - served a total of fourteen days in jail. manner that “allows the court to operate tial arrest and arraignment, a compe - efficiently.”14 tency evaluation was already prepared Conclusion At each MHD, at least one represen - and provided to defense counsel and the In 1968, Virginia closed state institutions tative is present from the adult commu - court for review. Jerry was diagnosed as for the mentally ill and by 1976 there nity supervision office (probation), the suffering from severe paranoid schizo - remained only 5,967 in-patient beds for www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 65 Forum mentally ill patients who required 5 National Institute of Mental Health. written competency evaluation is now restoration or civil commitments. 16 As of 1995. Mental Illness in America: The fourteen days. 2011, that number was reduced to only National Institute of Mental Health 14 “Subject to such rules as may be estab - 1,252 beds. 17 With an overall state popu - Agenda. (Bethesda, MD 1995) lished pursuant to § 16.1-69.32, the 6 National Institute of Justice. The chief judge may establish special divi - lation of 7.8 million that same year, American with Disabilities Act and sions of any general district court when 262,000 of whom suffered from serious Criminal Justice: Mental Disabilities, the work of the court may be more effi - mental health issues and often commit - U.S. Government Printing Office ciently handled thereby…” Va. Code ting minor criminal offenses, it’s not dif - (Washington, DC 1995). § 16.1-69.35(4) ficult to understand why local jails have 7 Doris J. James and Doris E. Glaze, 15 Had Jerry been deemed not-competent involuntarily assumed the role of health - Mental Health Problems of Prison and to stand trial, then the court would have care provider. Yet, as demonstrated in Jail Inmates , Bureau of Justice Statistics to consider restoring him to compe - Norfolk and increasingly in misde - Special Report, NCJ 213600, Sept 2006. tency. This could be accomplished at a 8 Id. state hospital, which would require that meanor courts nationwide, specialty 9 Justice Center, the Council of State Jerry be taken into custody until a bed mental health dockets can provide a Governments, Improving Outcomes for was made available for him. Or, if meaningful and substantial intervention people with Mental Illnesses Involved appropriate, his restoration could be to this unfortunate trend. with New York City’s Criminal Court accomplished out of custody through a (The author recognizes the contribu - and Correction Systems, December 2012. case worker at the community services tions of Regent University law students 10 S. 2639, H.R. Bill 5091, 106th Cong. board. Prior to the introduction of the Diana Galinis and Wesley Pilon, who (2000) (enacted). MHD in Norfolk, people held in cus - served as judicial interns for the Norfolk 11 A defendant may be placed on the tody awaiting restoration at a state hos - General District Court in 2013.) MHD by order of any judge who deter - pital spent on average 150 days in jail mines there to be sufficient history of before being transported to the hospital. mental illness to warrant the commu - Since the MHD, that time has been Endnotes: nity-based services made available by reduced to less than 80 days. 1 Bureau of Census. U. S. Commerce this docket. Additionally, any defendant 16 Nat’l Alliance on Mental Illness Department, The Statistical Databook. who is evaluated for competency or san - (NAMI), FACT SHEET: Mental Illness The National Abstract (Washington, ity is automatically referred to the in Virginia’s Adult Population, DC: Government Printing Office, docket until such time as it is deter - http://www.namivirginia.org. 2012)(reporting 11 B arrests), Gary mined that these issues no longer exist 17 Id. Cordner, The Problem of People with or until the defendant is restored to Mental Illness , Center for Problem competency. Oriented Policy, Guide #40 -2006, 2013 12 At an average cost of $49 per day to POP Conference( reporting 7 percent of house any inmate in the Hampton all people arrested are mentally ill). Roads area of Virginia, the MHD saves Therefore, 7 percent of 11B is 770,000 the state an estimated $3,700 per indi - mentally ill people arrested. vidual. With over 300 inmates processed 2 Diagnostic and Statistical Manual of through the MHD, taxpayers have saved Mental Disorders, Code 310.0, 4th over $1.1 million in initial processing Edition (DSM-IV), 1994 (defining Axis alone. Extrapolating these numbers 1 as the top-level of the DSM multi- using the National Institute of Justice axial system of diagnosis, representing and the Bureau of Justice Statistics, if 17 acute symptoms that need treatment. percent of the 10 million people Such symptoms include major depres - arrested are mentally ill, and housing sive episodes, schizophrenic episodes, them in jail costs $49 per day (small and panic attacks.) towns would be lower and big cities 3 Petersburg, VA in April 2011 and higher), this is a savings of $83.3 million Richmond, VA in May 2011 started in one year. mental health dockets. 13 Prior to the implementation of the 4 In 2010, The U.S. Department of MHD in Norfolk General District Housing and Urban Development esti - Court, the average wait for a compe - mated that on any given night in tency evaluation was ninety days, America, over 400,000 individuals in regardless of the nature of the offense. Joseph A. Migliozzi Jr . was appointed to America are homeless. U.S. Department This was often the result of a system the Norfolk General District Court of Urban Development, 2010 Annual bench in 2009. Beginning in 2002, he overwhelmed by the needs of this Homeless Assessment Report served as the southeastern district’s inmate population. With the advent of capital defender, representing people (AHAR)(Washington, DC 2010). the MHD, the maximum wait for a charged in death-penalty-eligible cases.

66 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org CLE Calendar

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

December 13 January 28 Ethics Update for Virginia Lawyers 2013 Trying Cases in the Western District of Webcast/Telephone Virginia NOO N–2 PM Video —Abingdon, Charlottesville, Danville December 17 8:55 AM–1:25 PM Drafting and Negotiating Indemnification Clauses in Virginia January 29 Telephone Trying Cases in the Western District of 10 AM–11:30 PM Virginia Video — Harrisonburg, Roanoke January 7 8:55 AM–1:25 PM Representation of Children as a Guardian ad Litem 2011 January 30 Video —Abingdon, Alexandria, Trying Cases in the Western District of Charlottesville, Norfolk, Richmond, Virginia Roanoke Video — Lynchburg, Winchester 8:55 AM–1:25 PM 8:30 AM–5:15 PM (R ICHMOND VIDEO BEGINS AT 9 AM ) January 30 The Basics of Bankruptcy Law in January 8 Virginia Representation of Children as a Webcast/Telephone Guardian ad Litem 2011 10 AM–NOON Video — Tysons Corner 8:30 AM –5:15 PM January 31 Hot Topics for In-House Counsel 2014 Too busy? Need help? January 15 Live — Richmond Representation of Incapacitated 9 AM–1:15 PM First Choice Paralegal Persons as a Guardian ad Litem —2012 Group, LLC Qualifying Course February 5 Video — Abingdon, Alexandria, Elder Law Basics “Your first choice for experienced Norfolk, Richmond, Roanoke Live — Richmond paralegal support” 9 AM–4:05 PM 9 AM–4:10 PM We can help you meet those deadlines with competent, professional expertise. We can January 16 February 5 help you work more efficiently AND Representation of Incapacitated Advanced Legal Writing: The Tips That increase your profit at the same time. Persons as a Guardian ad Litem —2012 You Need to Take Your Practice to the Qualifying Course Experienced Support With: Next Level • Bankruptcy Video — Charlottesville, Tysons Corner Live — Charlottesville/Webcast/ • Family Law 9 AM–4:05 PM Telephone • Discovery NOO N–1:30 PM • Document Drafting January 15 • Trial Prep and Support The Basics of Bankruptcy Law in February 7 Visit us on the web at: Virginia Forty-Fourth Annual Criminal Law www.Firstchoiceparalegals.com Live — Charlottesville/Webcast/ Seminar 2014 [email protected] Ph 540.937.3331 | Fx 866.831.8922 Telephone Live — Charlottesville NOO N–2 PM 8:15 AM–5:15 PM www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 67 CLE Calendar

February 12 Capacity Issues Telephone “Not in Good Standing” Search Available at VSB.org NOO N–1 PM The Virginia State Bar offers the ability to search active Virginia lawyers’ names to see if they are not eligible to practice because their licenses are suspended or February 14 revoked using the online Attorney Records Search at http://www.vsb.org Forty-Fourth Annual Criminal Law /attorney/attSearch.asp. Seminar 2014 The “Attorneys Not in Good Standing” search function was designed in Live —Williamsburg conjunction with the VSB’s permanent bar cards. 8:15 AM–5:15 PM Lawyers are put on not-in-good-standing (NGS) status for administrative reasons — such as not paying dues or fulfilling continuing legal education February 20 requirements — and when their licenses are suspended or revoked for violating professional rules. Capacity Issues The NGS search can be used by the public with other attorney records Telephone searches —“Disciplined Attorneys” and “Attorneys without Malpractice NOO N–1 PM Insurance” — to check on the status and disciplinary history of a lawyer.

Virginia Lawyer publishes at no charge notices of continuing legal education programs sponsored by nonprofit bar associations and government agencies. The next issue will cover February 22 through April 13. Send information by Got an Ethics Question? January 8 to [email protected]. For other CLE opportunities, see Virginia CLE The VSB Ethics Hotline is a confidential consultation service for members of calendar and “CurrentVirginia Approved the Virginia State Bar. Non-lawyers may submit only unauthorized practice Courses” athttp://www.vsb.org/site of law questions. Questions can be submitted to the hotline by calling (804) /members/mcle-courses/ or the websites 775-0564 or by clicking on the blue “E-mail Your Ethics Question” of commercial providers. box on the Ethics Questions and Opinions web page at http://www.vsb.org/site/regulation/ethics/.

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68 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org Professional Notices

Marion S. Cooper has joined the Foundation for the Humanities and Emily B. Talbott has joined Armstrong Alexandria office of MercerTrigiani as Public Policy by Governor Bob Bristow Farley & Schwarzschild PLC in counsel. Most recently she worked as McDonnell. Richmond as an associate. Her practice risk management attorney for Dow will focus on estate and trust planning Lohnes PLLC in Washington, DC, Charles D. “Chip” Nottingham is a new and administration. where she managed the firm’s conflict partner in Husch Blackwell’s of interests and ethics issues. Previously, Washington, DC, office, joining the James J. Wheaton , general counsel of she was a conflicts attorney with firm’s Transportation and Public Policy, Liberty Tax Service, has been appointed Hunton & Williams . Regulatory & Government Affairs teams. to serve on the ABA Commission on Disability Rights, and to chair the Anne W. Coventry , partner at Pasternak Jeffrey S. Palmore , former director of Finance Committee of the ABA Section & Fidis, has been selected as the new policy development and deputy counsel of Business Law. author of Maryland Estate Planning and in the Office of Virginia Governor Bob Probate Laws Annotated , a Thomson- McDonnell, joined Reed Smith LLP’s Julie M. Whitlock has joined the West publication. She will provide edi - Global Regulatory Enforcement Practice Virginia Department of General Services torial oversight and commentaries for in Richmond on September 30. Palmore as its first procurement, policy, and leg - the book assisted by Pasternak & Fidis will focus his practice on Virginia islative analyst. Whitlock most recently Associate Stephanie T. Perry who will be administrative, regulatory, and legislative served ten years in the Procurement and responsible for research and annotations. law as well as commercial litigation. Technology Law section of the Office of the Attorney General. Douglas M. Diffie has joined the Edward F. Parsons has moved his office Alexandria office of MercerTrigiani as an from downtown Richmond to the Glen Gregory D. Winfree was confirmed by associate. His practice focuses on general Forest Office Park located south of I-64 the U.S. Senate on October 16 and legal matters for common interest com - near Glenside Drive and Forest Avenue sworn in as the fourth administrator of munity associations, including advising in Henrico County the U.S. Department of Transportation’s community associations with respect to Research & Innovative Technology daily business operations, contract mat - Catherine M. Reese, family law attorney Administration by Secretary Anthony ters, voting and proxy issues, and quo - and owner of Reese Law Office, has been Foxx on October 28. rum and meeting requirements. appointed by the Fairfax Bar Association board to serve as a member of the Charles A. Zdebski, a partner in Eckert Mark K. Flynn, general counsel of the Judicial Nominations Committee for the Seamans Cherin & Mellott LLC’s Virginia Municipal League, has been FBA to assist the bar in making recom - Washington, DC, and Richmond offices, awarded the Edward J. Finnegan Award mendations to the legislators for judicial has joined the board of directors of the for Distinguished Services by the Local appointments . Unified Prevention Coalition of Fairfax Government Attorneys of Virginia Inc. County LLC. George H. “Skip” Roberts Jr. , of John C. Frazer has opened the Law Lexington, has been named interim Office of John Frazer PLLC in Fairfax, president of the George C. Marshall focusing on firearm-related law includ - Foundation. He will serve in that capac - Professional Notices ing criminal, administrative, and regula - ity during the search for a permanent Email your news to [email protected] tory matters. replacement for the current president, for publication in Virginia Lawyer . Brian D. Shaw, who resigned to become All professional notices are free to James W. Van Horn Jr . is a new partner the assistant to the president at Virginia VSB members and may be edited for at Hirschler Fleischer in Richmond. His Commonwealth University. length and clarity. background is in advising middle-market businesses and private investment funds. Michael W. Smith , a partner at Christian & Barton LLP in Richmond, has been William B. Hubbard has become a part - elected treasurer of the American ner at Hubbard, Terry and Britt. His College of Trial Lawyers and will serve VSB Staff Directory practice includes civil and criminal liti - on its Executive Committee. He is chair gation, domestic relations, debt collec - of the Executive Committee at Christian Frequently requested bar contact tion, and the general practice of law. & Barton, and he is head of the litigation information is available online at practice group. He is a former president www.vsb.org/site/about/bar-staff . Edward Augustus Mullen of Reed Smith of the Virginia State Bar and the Bar LLP has been appointed to the Virginia Association of the City of Richmond. www.vsb.org Vol. 62 | December 2013 | VIRGINIA LAWYER 69 Classified Ads

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70 VIRGINIA LAWYER | December 2013 | Vol. 62 www.vsb.org The Virginia State Bar 76th Annual Meeting June 12–15, 2014 Virginia Beach

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