Virginia LawyerVOL. 63/NO. 6 • APRIL 2015 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar
Downton Abbey and Thomas Jefferson Senior Lawyers Conference 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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Features
SENIOR LAWYERS CONFERENCE Noteworthy VSB NEWS 25 Downton Abbey and Thomas Jefferson: Primogeniture, Entails, and More 38 Highlights of the February 28, by Frank Overton Brown, Jr. 2015, Virginia State Bar Council Meeting 32 Senior Citizens Law Day in Eastern Henrico County PEOPLE
33 The Honorable Buford M. Parsons Jr. 38 Jerrauld C. Jones Presented with the Carrico Professionalism Award by The Honorable L. A. Harris Jr. 39 Retired Magistrate Judge B. Waugh 34 Virginia Advance Health Care Directives and the Crigler Receives the Virginia State Bar Leadership in Education Award Virginia Health Care Directive Registry by Victoria J. Roberson 40 Betty Moore Sandler Honored for Lifetime Achievement in Family Law 37 Russell Alton Wright 40 Local and Specialty Bar Elections by Fielding L. Williams Jr. 41 Colleen M. Quinn Receives Family Law Service Award 41 Local and Specialty Bar Elections GENERAL INTEREST 42 James C. Roberts 42 In Memoriam 12 The Future of the Practice of Law: Forces of Change in the 21st Century by James M. McCauley, ethics counsel
18 A Life of Learning and Teaching Departments by Gordon Hickey 6 Letters to the Editor 22 Law Stories 20 Building Relationships is Key to a 46 CLE Calendar Successful Life by Gordon Hickey 55 Call for Nominations for Awards 56 Professional Notices 58 Classified Ads 59 VSB 77th Annual Meeting Schedule VIRGINIA LAWYER REGISTER
49 Disciplinary Proceedings 51 Legal Ethics Opinion 1876 50 Disciplinary Summaries 51 Criminal Defense Seminar Columns 51 Notices to Members: 51 Administrative Suspensions 8 President’s Message 51 Comments Sought on 52 New Rule 5.8 Governs 10 Executive Director’s Message Proposed Amendments Notification To Clients 43 Law Libraries to Rules When Lawyer Leaves Law Firm 44 Technology and the Practice 51 Council Approves of Law Amendments
Cover and illustrations by Madonna Dersch Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2014–15 OFFICERS 17th Circuit Raymond B. Benzinger, Arlington Kevin E. Martingayle, Virginia Beach, President http://www.vsb.org John H. Crouch, Arlington Edward L. Weiner, Fairfax, President-elect Harry A. Dennis, III, Arlington Sharon D. Nelson, Fairfax, Immediate Adam D. Elfenbein, Arlington Editor: Past President David A. Oblon, Arlington Gordon Hickey Karen A. Gould, Executive Director and Chief ([email protected]) Operating Officer 18th Circuit Alan S. Anderson, Alexandria EXECUTIVE COMMITTEE Advertising: Foster S. B. Friedman, Alexandria Kevin E. Martingayle, President Linda McElroy Carolyn M. Grimes, Alexandria Edward L. Weiner, President-elect ([email protected]) Sharon D. Nelson, Immediate Past President 19th Circuit Alan S. Anderson, Alexandria James F. Davis, Fairfax Virginia Lawyer Graphic Design: Doris H. Causey, Richmond Peter D. Greenspun, Fairfax Caryn B.Persinger Nancy .C Dickenson, Abingdon Joyce M. Henry-Schargorodski, Fairfax ([email protected]) Tracy A. Giles, Roanoke Sean P. Kelly, Fairfax Leonard C. Heath, Jr., Newport News Gary H. Moliken, Fairfax Virginia Lawyer Register Graphic Design: Michael W. Robinson, Tysons Corner Jay B. Myerson, Reston Madonna G. Dersch Mary M. Benzinger, Washington, DC, Luis A. Perez, Falls Church ([email protected]) CLBA Chair William B. Porter, Fairfax Eva N. Juncker, Silver Spring, MD, Dennis J. Quinn, Vienna Diversity Conference Chair Catherine M. Reese, Fairfax Renae R. Patrick, Winchester, SLC Chair Michael W. Robinson, Tysons Corner VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Maureen E. Danker, Fairfax, YLC President Melinda L. VanLowe, Fairfax James A. Watson, II, Fairfax is published six times a year by the Virginia State Bar, COUNCIL 1111 East Main Street, Suite 700, Richmond, Virginia Michael M. York, Reston 1st Circuit 20th Circuit 23219-35 65; Telephone: (804) 775-0500. Subscription Nancy G. Parr, Chesapeake Christine H. Mou n-Boal,gi Leesburg Rates: $18.00 per year for non-members. This material 2nd Circuit T. Huntley Thorpe, III, Warrenton is presented with the understanding that the publisher Steven G. Owen, Virginia Beach 21st Circuit Judith L. Rosenbl att, Virginia Beach and the authors do not render any legal, accounting, Joan Ziglar, Martinsville Daniel M. Schieble, Virginia Beach or other professional service. It is intended for use by 22nd Circuit 3rd Circuit attorneys licensed to practice law in Virginia. Because of Lee H. Turpin, Chatham Nicholas D. Renninger, Portsmouth the rapidly changing nature of the law, information 23rd Circuit 4th Circuit contained in this publication may become outdated. As Mark K. Cathey, Roanoke Lisa A. Bertini, Norfolk Tracy A. Giles, Roanoke a result, an attorney using this material must always I. Lionel Hancock, III, Norfolk research original sources of authority and update Ann B. Brogan, Norfolk 24th Circuit David B. Neumeyer, Lynchburg information to ensure accuracy when dealing with a 5th Circuit specific client’s legal matters. In no event will the Carl Phillips “Phil” Ferguson, Suffolk 25th Circuit Roscoe B. Stephenson, III, Covington authors, the reviewers, or the publisher be liable for 6th Circuit any direct, indirect, or consequential damages resulting Peter D. Eliades, Hopewell 26th Circuit W. Andrew Harding, Harrisonburg from the use of this material. The views expressed herein 7th Circuit Leonard C. Heath, Jr., Newport News 27th Circuit are not necessarily those of the Virginia State Bar. The Richard L. Chidester, Pearisburg inclusion of an advertisement herein does not include 8th Circuit Lesa J. Yeatts, Hampton 28th Circuit an endorsement by the Virginia State Bar of the goods Roy F. Evans, Jr., Marion or services of the advertiser, unless explicitly stated 9th Circuit W. Hunter Old, Williamsburg 29th Circuit otherwise. Periodical postage paid at Richmond, Joseph M. Bowen, Tazewell 10th Circuit Virginia, and other offices. Charles H. Crowder, Jr., South Hill 30th Circuit William E. Bradshaw, Big Stone Gap 11th Circuit Dale W. Pittman, Petersburg 31st Circuit POSTMASTER: Gifford R. Hampshire, Manassas 12th Circuit Send address changes to Graham C. Daniels, Chester MEMBERS AT LARGE Nancy C. Dickenson, Abingdon VIRGINIA LAWYER 13th Circuit William E. Glover, Fredericksburg MEMBERSHIP DEPARTMENT Paula S. Beran, Richmond Michael HuYoung, Richmond Brian L. Buniva, Richmond 1111 E MAIN ST STE 700 Beverly P. Leatherbury, Eastville Doris Henderson Causey, Richmond Darrel Tillar Mason, Manakin Sabot RICHMOND VA 23219-3565 Christy E. Kiely, Richmond Todd A. Pilot, Alexandria George W. Marget, III, Richmond Savalle C. Sims, Silver Spring, MD Eric M. Page, Richmond Lorrie A. Sinclair, Leesburg O. Randolph Rollins, Richmond A. Benjamin Spencer, Charlotte sville 14th Circuit Conference of Local Bar Associations Chair Thomas A. Edmonds, Richmond Mary M. Benzinger, Washington, DC Jon A. Nichols, Jr., Glen Allen Daniel L. Rosenthal, chmond Ri Diversity Conference Chair Eva N. Juncker, Silver Spring, MD 15th Circuit Virginia State Bar Staff Directory Jennifer L. Parrish, Fredericksburg Senior Lawyers Conference Chair Frequently requested bar contact Renae R. Patrick, Winchester 16th Circuit information is available online at Bruce T. Clark, Culpeper Young Lawyers Conference President www.vsb.org/site/about/bar-staff. James M. Hingeley, Jr, Charlottesville Maureen E. Danker, Fairfax
4 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org
Letters
W. Scott Street essay and told me that, unlike most of a licensed Virginia attorney, and proud the people he talked to, I had great para- of it. As I was leaving his office in I read with great sadness about the pass- graph structure, and excellent organiza- Richmond that day he asked if I had any ing of W. Scott Street in the last issue. In tion of my arguments. I was just wrong other questions. One burning issue came late 2003 I was freshly depressed from on the law! He told me “Ms. Hirsch, to mind. “What’s the W stand for?” I not passing the Virginia Bar Exam, you’re easy!” I was a bit taken aback! He asked. He chuckled. “Walter, but I never twice. I was prepared to find another continued, “You are only five points liked that name.” I owe him a debt of jurisdiction that was easier but my (now away, you can pass this bar exam, just gratitude and his passing is a loss to the late) mother made me promise her I study on the law and learn it well and entire Virginia legal profession. would make an appointment with a you will pass this exam!” I trusted him, member of the Virginia Board of Bar and he was right. The only reason I took Carole M. Hirsch Examiners. I was assigned sixty minutes the Virginia Bar again was because Mr. Alexandria with Mr. Street himself. He reviewed an Street encouraged me to do so. I’m now
Letters
Send your letter to the editor to:[email protected] or Virginia State Bar, Virginia Lawyer Magazine, 1111 E Main Ste 700, Richmond VA 23219-3565 Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at http://www.vsb.org/site/ publications/valawyer/.
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6 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Appeals When it comes time to appeal or to resist an appeal, call Steve Emmert at (757) 965-5021.
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President’s Message by Kevin E. Martingayle Passing the Baton...
“Everybody can be great because everybody can serve.” — Martin Luther King, Jr. “Everything you need is already inside. Just do it.” — Bill Bowerman
ASALIFELONG RUNNER AND RACER, I have always found track relay races to be thrilling and fascinating, whether I was participating or merely watching. Achieving success requires effort, coor- dination, talent, and sometimes a little luck. Watching the baton move from athlete to athlete on a well-trained relay team is a thing of beauty. It is with that mental picture in mind that I prep are to hand off my responsibilities to the next Virginia State Bar president, Edward L. Weiner, who will be installed at the 77th VSB Annual Meeting in Virginia Beach in June. While the passage of leadership from one president to the next will not have the visual excitement of a relay race, you can count on the VSB leaders and staff to engage in a transition that Doria Martingayle carrying the baton during a relay race. is as smooth, cooperative, and seamless as possible. This has been a successful year for This year also saw the passing of VSB and our Supreme Court, and the the VSB. With the valuable assistance the baton from former Chief Justice healthy relationships between our of the voluntary bars and lawyers Cynthia D. Kinser to current Chief three branches of government. across Virginia, we were able to make Justice Donald W. Lemons, as well as In short, we’ve got a good thing great strides in filling judicial vacan- the installation of a new member of going here in the commonwealth. cies. The General Assembly also raised our Supreme Court, Justice D. Arthur Although I have had a smooth the mandatory judicial retirement age Kelsey. Having had the opportunity to ride as president — especially when from 70 to 73. More generally, but communicate with bar leaders of many compared with some of the bumpy importantly, we managed to avoid any other states during my tenure as presi- trips that a few of my predecessors significant conflicts with our friends in dent-elect and president of the VSB, I experienced — I feel about as respon- the other branches of government, and can tell you that we are envied for the sible for that as a passenger in an air- I am optimistic that relationships have accuracy, efficiency, independence, and plane should feel for a smooth flight. I grown and improved in ways that will skill demonstrated by our judiciary. need to give credit where it is due. At benefit the judiciary, our profession, Other bar leaders also marvel at the the risk of leaving out some deserving and the public. open communication between the folks, here goes....
8 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org President’s Message
First, I have to thank the members the job, including Irv Blank, George missed some important events, I never of our Supreme Court. The VSB serves Shanks, David Harless, and Sharon heard a single complaint. Not one. as its agency, and we have enjoyed ter- Nelson. I have received too much valu- Lizzie, Harrison, Doria, and Jackson: rific two-way communication and able guidance from too many individu- Thank you. Your unwavering support cooperation over the past year. It has als to name all of them, but I want means everything to me. been a pleasure and a privilege. everyone to know that it is deeply As I close out my run as president Next, a hearty thanks to VSB appreciated. and prepare to pass the baton to my Executive Director Karen A. Gould, as Next, I need to thank my law part- successor, I want each of my fellow bar well as the entire talented staff at the ners and staff at my firm, Bischoff members to know that the leaders and VSB. Unless you have had the chance Martingayle PC. In my year as presi- staff at the VSB try very hard to stay to see the operation up close, it would dent-elect, and then in my year as presi- focused on our mission — protecting be difficult for you to imagine the dedi- dent, I have worked on many projects the public, advancing access to justice, cation and productivity within the that took me out of the office, reduced and improving the legal profe ssion and organization. These professionals keep my productivity for the firm, and judicial system. These objectives remain the relay going, even as presidents required help from others. It is truly constant, even as time rolls on and lead- come and go. gratifying to be a part of a great team. ers change. I also owe a debt of thanks to the Last, and certainly not least, I am Soon I will pass the baton, but my current and former members of the taking this opportunity to publicly and gratitude shall endure. Thank you. VSB Council and Executive Committee emphatically thank my wife and chil- with whom I have served, and in partic- dren. I undertook this journey with ular the several presidents who preceded their blessings and encouragement, and me and set the example for how to do even though I have been away a lot and
You’re going places.
Take us with you. Check your contact information of record, certify courses, and access Fastcase from anywhere, using the same login and Security Clearance password you now Lawyers use on your computer. McAdoo Gordon & Get it for free in the iTunes store. Associates, P.C. 202-293-0534 www.mcadoolaw.com Executive Director’s Message by Karen A. Gould Be a Part of Self-regulation of the Profession, Volunteer in the Disciplinary System
LAWYERS IN VIRGINIA are privileged To determine who the Council imis dismissal or a dismissal for excep- to participate in the self-regulation of members are making the appointment tional circumstances, or an admonition the profession. Paragraph 13 of Part 6, decisions for the district committee in imposed within the five years immedi- § IV of the Rules of the Supreme Court your circuit, refer to the map and iden- ately preceding the proposed appoint- of Virginia governing the organization tify the circuits composing your district ment date. The Standing Committee and governance of the Virginia State committee’s jurisdiction. The VSB on Lawyer Discipline has the sole dis- Bar sets forth the procedural rules for website, at cretion to determine whether a de min- the disciplinary system. Members of http://www.vsb.org/site/about/council, imis dismissal or a dismissal for the VSB’s Office of Bar Counsel review contains a Council directory where the exceptional circumstances disqualifies a all complaints against Virginia’s lawyers judicial circuit of a Council member is potential appointee. to determine whether they should be denoted by the number to the left of Any person who is a potential dismissed or investigated. his or her name. You may want to con- nominee must execute a waiver of con- Subcommittees of the respective dis- tact the Council members directly fidentiality with respect to his or her trict committees review the bar’s inves- about your interest in a district com- disciplinary record and any pending tigations and determine whether to mittee position or have someone who complaints from any jurisdiction for dismiss the cases or to seek disciplinary knows the Council member vouch for purposes of the appointment process, action, such as a trial before the district your character, integrity, and experi- and an authorization for the VSB to committee or the Disciplinary Board in ence in the profession. conduct a criminal records check of all more serious cases. Paragraph 13-4 establishes the cre- jurisdictions for any conviction of a The VSB notifies the membership ation of district committees. crime. of upcoming vacancies on the district Subsection F of paragraph 13-4 delin- Service on a district committee is committees in the December Virginia eates who is ineligible for appointment: well worth any member’s time, effort, Lawyer.1 To become a volunteer in the (1) those who have been convicted of a and trouble. It is both educational in disciplinary system, the appointment crime as defined by paragraph 13 (any obtaining a better understanding of the process starts in early January by sub- offense declared to be a felony by fed- Rules of Professional Conduct and mitting your resume to the executive eral or state law; any other offense oftentimes disturbing to learn what director. involving theft, fraud, forgery, extor- passes for practice by some members The thirty-one judicial circuits in tion, bribery, or perjury; an attempt, of the bar. If you have questions about Virginia are divided into ten district solicitation or conspiracy to commit the process of becoming a district com- committees. The map 2 on page 11 any of the foregoing; or any of the fore- mittee member, please do not hesitate shows how the circuits are divided. going found by a foreign jurisdiction); to contact me at [email protected]. Because a district committee member (2) those who have ever committed any can serve two three-year terms, criminal act that reflects adversely on Endnotes: turnover on the committees is rela- the potential appointee’s honesty, trust- 1 In the December 2014 Virginia Lawyer, tively slow. Council members for the worthiness, or fitness as a member of a the notice was at page 58. The interac- tive magazine can be found on the judicial circuits comprising the juris- district committee; (3) a disciplinary record in any jurisdiction consisting of VSB website at diction of the district committee meet http://virginialawyer.vsb.org/i/434138. a disbarment, revocation, suspension in early spring to review the resumes, 2 The map can be found online at discuss the candidates, and nominate imposed at any time, or public repri- http://www.vsb.org/docs/map.pdf. the individuals best suited for the avail- mand imposed within the ten years able positions. The nominating slate is immediately preceding the proposed then voted on by the Council at its appointment date; or (4) a disciplinary June meeting, and the appointments record in any jurisdiction consisting of are effective July 1 for a three-year term. private discipline, except for a de min-
10 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Executive Director’s Message
Map of Judicial Circuits and Districts of Virginia District Committees as of January 1, 2003
District Committee consists of Judicial Circuits
1 1, 3, 5, 7, 8 2 (2 Sections) 2 and 4 3 (3 Sections) 6, 11, 12, 13, 14 Frederick Clarke 4 (2 Sections) 17 and 18 Loudon
5 (3 Sections) 19 and 31 Arlington arren Fairfax 17 W Fauquier 6 9 and 15 26 Alexandria 18 Shenandoah 19 7 16, 20, 26 20 Prince
Page Rappahannock William 8 23 and 25 Rockingham 31 9 10, 21, 22, 24 Culpeper Stafford Madison Highland 10 (2 Sections) 27, 28, 29, 30 Greene King Augusta George Orange ania Spotsylv Westmoreland Bath 25 Albemarle 15 16 Caroline Richmond Louisa Esse Northumberland Rockbridge x Alleghany Fluvanna King WilliamKing & Queen Tangier Nelson Goochland Hanover
Henrico Lancaster Amherst New K Accomack Botetourt Buckingham land Powhatan 14 Gloucester Craig 9 Middlesex 13 ent 2/2A Char James Mathews 24 Appoma Richmond Cumber Chesterfield City les ttox Amelia Northampton Buchanan Giles 23 Bedford 12 City Roanoke Prince Newport 29 York Campbell Edward Prince News 7 enson Bland Nottoway Tazewell 11 George Surry Pulaski Montgomery Franklin Hampton Dick Charlotte 8 Wise Dinwiddie Norfolk 4 Russell 27 Lunenburg 6 Floyd 22 Isle of Smyth Wythe Sussex Portsmouth Pittsylvania 10 Wight Virginia Beach 2 30 28 Chesapeak Scott Carroll 21 Lee Washington Henry Halifax Mecklenburg Grayson unswick Southampton Suffolk Patrick eensville Br 5 1 Gr e
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www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 11 GENERAL INTEREST
The Future of the Practice of Law: Forces of Change in the 21st Century by James M. McCauley, ethics counsel illustration by Madonna Dersch
12 VIRGINIA LAWYER | April 2015 | Vol. 63 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST
Nationwide, law school admissions disturbing statistics, new law schools continue to come on-line each year. Encouraging even more have plummeted to levels not seen in students to go to law school to incur crippling years. From 2010 to 2014, applications loans so that they can fill more law schools and are down by twenty-eight percent and graduate only to enter a shrinking legal job mar- down by nearly half over the last eight ket places the legal profession in jeopardy of not being able to correct this course and self-regulate 1 years. Excluding perhaps some first tier its membership. 9 law schools, on the average, law schools Like everyone else, members of the legal pro- are only placing about half of their new fession suffered the consequences of the Great Recession. Observers saw that law firm profits graduates in jobs that require a law plummeted, firms dissolved, and shrank with lay- degree and a law license.2 Recently, ABA offs of staff and lawyers.10 mandated disclosure policies forced law There are other forces compounding the challenges to the legal profession in the 21st schools to reveal that they are paying Century. First, an increasing dissatisfaction with stipends to graduates to work short-term the billable-hour system by consumers of legal jobs for employers to beef up their place- services has forced lawyers and law firms to com- 3 pete by offering fixed and capped fee billing ment statistics. Law students, saddled arrangements. Second, corporate consumers of with unemployment and a six-figure legal services are bringing their legal service non-dischargeable student loan debt for providers in-house. The expansion and influence their law degree,4 filed class action suits of corporate counsel over the past twenty years cannot be overlooked. Third, there is an increas- 5 against some law schools. In March ing consumer-driven demand for lawyers to “do 2012, a New York state court judge dis- more for less,” otherwise clients will turn away missed the complaint filed against New and look for other service providers. Coming out of the Great Recession, large corporations and York Law School but not without small businesses alike are looking for ways to cut acknowledging the large and growing back their legal services budgets. Fourth, increas- “lawyer bubble”: ing competition from non-lawyer providers such There is no question that this dearth of [legal as Legal Zoom and Rocket Lawyer has reshaped job] opportunity is an unprecedented situa- the business of providing legal information and tion in the modern history of the practice of legal document preparation to consumers unable law and it cannot simply be ignored. If law- to pay the fees that lawyers typically charge for suits such as this have done nothing else, they wills, leases, powers of attorney, deeds, etc. Fifth, have served to focus the attention of all con- advances in technology have contributed to the stituencies on this current problem facing the commoditization of legal services and client legal profession.... All must take a long, hard look at the current situation with the utmost seriousness of purpose.... [I]t is this court’s While there is approximately one lawyer for every 265 fervent hope that all the heat generated persons living in the US,12 only one legal aid attorney around this issue over this last year will be replaced with a renewed sense of responsibil- is available for every 6,415 low-income people. ity to prospective applicants and students, starting at the law school level, and extending to the entire legal industry as we strive to expectation that lawyers will provide services address the concerns that have risen to the more efficiently and less expensively.11 Sixth, tech- surface in this changed, challenging career nology has served to accelerate the globalization environment.6 of legal services, assisting US law firms to enter Yet, law schools are currently graduating legal services markets overseas, foreign law firms 40,000 plus graduates per year7 with well over 1.2 to explore footholds in US legal services markets, million lawyers already in the United States, an increase in multi-jurisdictional law practice, which translates to four lawyers for every 1,000 and a decreasing relevance of geographical persons living in the US.8 Notwithstanding these boundaries. www.vsb.org GENERAL INTEREST FEATURES | Vol. 63 | April 2015 | VIRGINIA LAWYER 13 GENERAL INTEREST
Notwithstanding the oversupply of lawyers February 3, 2015. California and Arizona also and the shrinking opportunities for placement in license and regulate legal document preparers. the legal services market, the unmet legal needs of Some other organized bars, including the the poor and middle class continues to grow. American Bar Association and Law Societies in While there is approximately one lawyer for every Quebec and Ontario, Canada, have been looking 265 persons living in the US,12 only one legal aid at developments in the UK and Australia, which attorney is available for every 6,415 low-income now allow professional service firms composed of people.13 One consequence has been an explosion lawyers and non-lawyers to serve the public. Non- in self-representation in both transactional and lawyers are permitted to own and invest financial litigation work. Numerous commentators have capital in professional service firms that provide sounded the alarm that the organized bar and its legal services to the public. Further, both the UK regulators need to rethink the nature and provi- and Australia have in place a framework to regu- sion of legal services. Some commentators believe late not just the lawyers individually, but also the that if the legal profession fails to take heed and non-lawyers and even the professional services right its course, the profession and its self-regula- entity itself. tion will become irrelevant. Last year, VSB President Kevin E. Martingale As can be seen, some of the forces come from appointed a fourteen-member Committee to within the profession, i.e., law school policies and Study the Future of Law Practice.18 The commit- billing for legal services. Other forces are external tee has met twice with the goal of attempting to and beyond the profession’s control. Further, get out ahead and address some of the forces that some of these forces appear permanent,14 indicat- are reshaping the profession and legal services ing that there will be no turning back to “the market. The committee started with a review of good old days,” and therefore the profession must the ABA’s Commission on Ethics 20/20, which determine how to retool and reinvent itself in this issued a report in 2011 from its Working Group post-recession global market.15 on Alternative Business Structures. The working UPL enforcement against non-lawyer service group’s commission was to study and make rec- providers will not be a cost-effective solution to ommendations regarding regulatory reform so stem the stronghold taken by companies such as that US lawyers and laws firms could participate Legal Zoom, which has served more than one on a more even playing field with the emerging million customers with its legal document prepa- alternative business structures in the UK, Europe, ration service and is a billion dollar enterprise.16 and Australia. In other words, should lawyers and Companies such as Legal Zoom and Rocket law firms in the US be permitted to structure Lawyer are prepared to fight for their share of the themselves differently than is permitted under consumer legal services market through litigation current states’ regulations? and by lobbying state legislatures to pass bills pro- As the working group noted in 2011, and tecting them from being charged with UPL. which is currently the status in 2015, the District Professional regulatory authorities, with limited of Columbia is the only US jurisdiction that per- resources, are not equipped to wage war with the mits non-lawyers to hold an ownership interest in growing number of competitive non-lawyer ser- a law firm. 19 The ABA rejected Multidisciplinary vice providers. Moreover, an unsympathetic pub- Practice (MDP) in 200020 and the Virginia State lic, a large portion of which is finding their legal Bar’s Council rejected MDP in 2003. Since that needs largely unmet by the legal profession, will time, no organized bar in the US has reconsidered only view the bar’s enforcement of the UPL rules the issue; however, the legal services market land- as anti-competitive barriers to access to services. scape has changed dramatically over the ensuing To date, a few organized bars in a few states years making it desirable to reexamine what regu- seem to have embarked on a mission to find solu- latory structures may need reform and how to tions to the crisis of the legal profession. For implement those changes without sacrificing the example, on January 8, 2015, the Washington core values of the lawyer-client relationship and Supreme Court adopted the Limited Practice the profession’s role of serving the public. Rule for Limited License Legal Technicians and While the “Big-5” accounting firms the Limited License Legal Technician Rules of encroachment into legal services was the impetus Professional Conduct.17 This will enable trained for the MDP movement,21 a paradigm shift has and certified legal document preparers to open for since occurred in both the domestic and foreign business and serve the public. They will operate legal services market in which smaller, but far independently and not under the supervision of a greater in number, non-lawyer providers are com- lawyer or law firm. The program went into effect peting with lawyers and law firms. Unable to
14 VIRGINIA LAWYER | April 2015 | Vol. 63 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST obtain regulatory reform in the US, some US Zealand allows IDPs but non-lawyers may not firms are forming alternative business structures hold voting shares.31 in the UK where up to 25 percent of the owner- One of the primary factors cited for these ship of the firm may be held by non-lawyers. changes in the UK and Australia was public dis- Australia commenced an expansive approach satisfaction with the traditional law practice to ABS that began in 1994 with the development model and the professional regulation of and growth of Incorporated Legal Practices lawyers.32 The regimes in the UK and Australia (ILPs).22 There were more than 2,000 ILPs have been in place for seven years or longer so reported in 2010 and their number is growing there soon should be some experiential and rapidly.23 There are around seventy known MDPs empirical data to analyze regarding their impact and, as of the working group’s report in 2011, at on the legal profession, service to the public, least 20 percent of the lawyers in New South lawyer regulation, and public protection. Wales were working in non-traditional business Some of the questions the VSB’s study com- practices, including thirty MDPs.24 A primary mittee might consider include: reason for this dynamic change was the public’s 1. Are there integrated (legal and non-legal) view that the legal profession and traditional law services to clients that law firms and non- practice in Australia was not meeting their lawyers should be permitted to offer to needs.25 Through these alternative business struc- clients, through an alternative professional tures, ILPs are permitted to provide legal services services entity, but that they currently are not and any other lawful service. The attorney-client permitted to offer due to restrictions on non- privilege and duty of confidentiality have lawyer ownership and sharing of legal fees set remained intact and still protect clients of these forth in Rule of Professional Conduct 5.4? ILPs. In addition to non-lawyer ownership, an 2. Should the Virginia State Bar propose that ILP may be listed on the public stock exchange Rule 5.4 be amended so as to allow lawyers in Australia and outside investors may provide and nonlawyers to work collaboratively, for capital to ILPs.26 Nevertheless, the Legal Services the sole purpose of providing legal represen- Commissioner worked closely with Gordon & tation, and permit fee sharing with non- Slayton, the first publicly traded legal services lawyers and allow nonlawyers to hold a firm, to ensure its prospectus spelled out to noncontrolling ownership or financial inter- investors that its primary duty is to its clients, est in an alternative professional services then the courts and then investors. Sanctions for entity? Is it necessary to limit services per- non-compliance with ethics and practice rules formed by nonlawyers to services related to can be levied against the ILP as an entity, a con- the representation of a client? cept that is largely foreign to lawyer regulation in 3. Can the VSB regulate these proposed profes- the US.27 sional services entities in such a manner so as Multidisciplinary practices are now permit- to ensure that the core values that apply to a ted in Ontario, British Columbia, and Quebec. lawyer’s representation of a client (compe- Lawyers must maintain control over the services tence, confidentiality, loyalty, and indepen- the firm provides. Participation in the MDP dent professional judgment) are preserved? includes a “good character” requirement.28 4. Will regulatory reform as suggested above In England and Wales, under the Legal improve the public’s access to legal services? Services Act of 2007, alternative business struc- 5. Can or should lawyers be held accountable tures that have lawyer and non-lawyer manage- for the conduct on nonlawyers working in a ment and ownership are permitted and may proposed professional services entity? See provide only legal services or legal services in con- Rules 5.1 and 5.3? junction with non-legal services.29 In October 6. Can or should such professional services be 2010, Scotland’s Parliament approved a Legal regulated by the VSB, and if so, can those Services Act that permits and regulates ABS in entities be held accountable for the miscon- which Scottish solicitors are permitted to partner duct of both lawyers and nonlawyers? with non-lawyers and to seek capital from outside 7. What types of nonlawyer service providers investors, provided solicitors hold the controlling (other than administrative assistants, parale- ownership of the firm.30 Under this regime, privi- gals, receptionists, and other support staff) leged communications by and between solicitors currently assist lawyers in serving their or non-solicitors with clients of the firm are pro- clients? tected by law. MDPs are now permitted in Germany, the Netherlands, and Brussels. New www.vsb.org GENERAL INTEREST FEATURES | Vol. 63 | April 2015 | VIRGINIA LAWYER 15 GENERAL INTEREST
a. Are they employees of the firm, indepen- 2010, when many flocked to law school dent contractors, or do they have some during the economic recession. other status? Law School Enrollment Continues Historic Decline, b. If lawyers employ these nonlawyers National Law Journal (December 16, 2014) at http://www.nationallawjournal.com/id=1202679 directly, why do they choose to do so 988741/Law-School-Enrollment-Continues rather than through a separately orga- -Historic-Decline (last checked 2/2/2015). US law nized business structure, such as a law- school applications are down by nearly half from related ancillary business? eight years ago. Richard Gunderman and Mark See, e.g., See LEO 1819 (lobbying firm); Mutz, The Collapse of Big Law: A Cautionary Tale LEO1754 (attorney selling life insurance for Big Med, The Atlantic, (February 11, 2014). products); LEO 1658 (employment law 2 Nine months after graduation, only 56 percent of firm/human resources consulting firm); the class of 2012 had found stable jobs in law — LEO1647 (employee-owned title meaning full-time, long-term employment in a position requiring bar passage, or a judicial clerk- agency); LEO1634 (accounting firm); ship. The Jobs Crisis at our Best Law Schools is LEO 1564 (lawyer owned real estate set- Much, Much Worse Than You Think, The Atlantic tlement companies); LEO 1368 (media- (April 9, 2013). See also Above the Law: Top 50 tion/arbitration services); LEO 1345 Law Schools, reporting that 43 percent of the (court reporting); LEO 1318 (consulting graduates failed to secure a job in law in 2014. firm); LEO 1311 (insurance products); http://abovethelaw.com/careers/2014-law-school LEO 1254 (bail bonds); LEO 1198 (court -rankings/ reporting); LEO 1163 (accountant; tax 3 Even leading law schools like University of preparation); LEO 1131 (realty corpora- Virginia and George Washington University are paying many of their newly graduated stipends or tion); LEO 1083 (non-legal services sub- salaries to work in private law firms, non-profit sidiary); LEO 1016 (billing services organizations and government. For example, firm); LEO 187 (title insurance). GWU paid salaries to 22 percent of its graduating c. If it were ethically permissible for class of 2012 and UVA law paid salaries to 17 lawyers to allow a nonlawyer service percent, in order to pump up their job place- provider to work in their firm and hold ments statisti cs for rankings in U.S. News & an ownership interest in the law firm, World Report. The price of success: Some American would lawyers do so? law schools are paying many of their graduates’ These are not the only questions the commit- salaries, The Economist (March 15, 2014) at http://www.economist.com/news/business tee may need to consider. Charting a new course st /21599037-some-american-law-schools-are-pay for the legal profession in the 21 Century is a ing-many-their-graduates-salaries-price-success complex and multifaceted challenge. The com- 4 85 percent of law graduates now carry at least mittee is interested in your thoughts and wel- $100,000 in debt. Gunderman & Mutz, supra at comes your feedback. Please send your comments n.1. to James M. McCauley at [email protected]. 5 A Dozen Law Schools Hit with Lawsuits over Jobs Data, Law Blog (February 1, 2012) at Endnotes: http://blogs.wsj.com/law/2012/02/01/a-dozen- 1 The 202 ABA-approved J.D. programs reported law-schools-hit-with-lawsuits-over-jobs-data/ that 39,675 full-time and part-time students began 6 Gomez-Jimenez v New York Law School, 2012 NY their law school studies in the fall of 2013. This is Slip Op 22071 (March 21, 2012) Supreme Court, a decrease of 4,806 students (11 percent) from the New York County Schweitzer, J. at *19-20. fall of 2012 and a 24 percent decrease from the 7 Eric Posner, The Real Problem With Law Schools, historic high 1L enrollment of 52,488 in the fall of The Slate, April 2, 2013 at http://www.slate.com 2010. ABA Section of Legal Education reports 2013 /articles/news_and_politics/view_from_chicago law school enrollment data (Dec. 13, 2013) at /2013/04/the_real_problem_with_law_schools_to http://www.americanbar.org/news/abanews o_many_lawyers.html indicating also that median /aba-news-archives/2013/12/aba_section_of starting salaries have declined from $72,000 in _legal.html (last checked 2/2/2015). Also, law 2009 to only $60,000 in 2012. school enrollments fell for the fourth straight 8 In other words, one lawyer for every 265 year, according to figures released by the ABA. Americans. Stephen J. Harper, The Lawyer Bubble: The number of first-year students who A Profession in Crisis, Basic Books (2013) citing showed up on law campuses this fall declined American Bar Association, “National Lawyer by 4.4 percent compared with the previous Population By State.” year, which amounts to 1,751 fewer students. 9 As Eric Posner notes: That means new student enrollment is down The figures are grim, and the human cost is by nearly 28 percent since its historic peak in real. Ninety-two percent of 2007 law school
16 VIRGINIA LAWYER | April 2015 | Vol. 63 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST
graduates found jobs after graduation, with 15 As Noam Scheiber explains: 77 percent employed in a position requiring There are currently between 150 and 250 them to pass the bar. For the class of 2011 firms in the United States that can claim (the latest class for which there are data), the membership in the club known as Big Law, employment figure is 86 percent—with only the group of historically profitable firms that 65 percent employed in a position that cater to the country’s largest corporations. required bar passage. Preliminary employ- The overwhelming majority of these still ment figures for the class of 2012 are even operate according to a business model that worse. The median starting salary has assumes, at least implicitly, that clients will declined from $72,000 in 2009 to $60,000 in insist upon the best legal talent instead of the 2012. A while back, the Bureau of Labor best bargain for legal talent. That assumption Statistics estimated that 218,800 new legal has become rickety. Within the next decade jobs would be created between 2010 and or so, according to one common hypothesis, 2020. As law professor Paul Campos points there will be at most 20 to 25 firms that can out, because law schools graduate more than operate this way—the firms whose clients 40,000 students per year, those jobs should be have so many billions of dollars riding on snapped up by 2015—leaving only normal their legal work that they can truly spend attrition and retirement spots left for the without limit. The other 200 firms will have classes of 2016 to 2020. Meanwhile, tuition to reinvent themselves or disappear. has increased dramatically over the last sev- 16 As of August 2012, Legal Zoom had provided eral decades. Students who graduate from services to some 2 million customers, according to law school today with $100,000 or more in a prospectus it filed with the U.S. Securities and debt will default on their loans if they cannot Exchange Commission in advance of a planned, get high-paying work in the law. but still postponed, initial public offering. In 2011, Posner, supra at n.6. it brought in revenues of $156 million and was on 10 The years of the Great Recession wreaked havoc track to bring in close to $200 million in 2012. on Big Law. Heller Ehrman LLP collapsed in 2008. Robert Ambrogi, Latest legal victory has Howrey LLP and Dewey & LeBoeuf LLP fell apart LegalZoom poised for growth, ABA Journal (August in 2011 and 2012. Patton Boggs in Washington 1, 2014) DC trimmed its ranks by laying off at least 30 17 Washington State Bar Associaton, Limited associates and expelling 20 partners. Noam Licensed Legal Technicians Program at Scheiber, The Crisis at Washington’s Ultimate http://www.wsba.org/licensing-and-lawyer Power Firm, New Republic, (May 9, 2013). -conduct/limited-licenses/legal-technicians. Moreover, in the past decade 12 law firms with 18 The committee members are Allen C. Goolsby, more than 1,000 lawyers have disbanded. Jason chair, The Hon. Elizabeth Lacy, Marni Byrum, Krause, The Collapse of Big Law, and the Rise of Stephanie E. Grana, Andrew H. Hook, J. Neal Small Law Firms, Trial (December 12, 2013). Insley, the Honorable Maurice Jones, Walter D. 11 E-discovery is an example of how discovery, Kelley, Sharon D. Nelson, Anita O. Poston, Michael including document review and production has W. Robinson, Thomas E. Spahn, Professor A. become commoditized by advances in technology, Benjamin Spencer and Neil S. Talegaonkar. greatly reducing the costs of services in that area. 18 Issues Paper Concerning Alternate Business Lawyers and law firms can outsource a big discov- Str uctures, ABA Commission on Ethics 20/20 ery project to a vendor using internet platforms Working Group on Alternative Business and technology at a fixed commodity price. See, Structures (April 5, 2011) at 2. (“ABS Issues e.g., Nextpoint e-Discovery Pricing at Paper”). http://www.nextpoint.com/pricing/ 19 Id. 12 See n.8, supra. 20 Id. at 5; see also James M. McCauley, The Delivery 13 Documenting the Justice Gap in America, Legal of Legal Services Through Multidisciplinary Services Corporation (2009) at 1. Practices, http://www.vsb.org/site/regulation 14 “Only some of [these forces] is cyclical. The legal /legal-services-multidisciplinary-practices profession, like so many others, has been 21 ABS Issues Paper at 7-8. permanently disrupted by the Internet and 22 Id.at 8. globalization in ways few could have anticipated 23 Id. 10 or 15 years ago. Online legal guidance is widely 24 Id. accessible. Commercial services like LegalZoom 25 Id. at 9. make it easy to create documents without paying 26 Id. attorneys’ fees. Search engines for legal 27 Id. at 11. professionals reduce the need for paralegals and 28 Id. at 13. junior lawyers.” Jeff Jacoby, US Legal Bubble Can’t 29 Id. at 15. Pop Soon Enough, The Boston Globe, (May 9, 30 Id. at 16. 2014). 31 Id. www.vsb.org GENERAL INTEREST FEATURES | Vol. 63 | April 2015 | VIRGINIA LAWYER 17 GENERAL INTEREST A Life of Learning and Teaching by Gordon Hickey photos photos by Bob Times-Dispatch Richmond Brown/
Virginia Chief Justice Donald W. Lemons Domestic Relations Court. “I had the opportunity to see up close what it was like to be a lawyer,” he knew from an early age that he wanted a said. He got first-hand experience on the affect a career that was somehow involved with trial lawyer can have on the lives of people. The juvenile and domestic relations court handles the law. But it wasn’t until he worked as a some of the most difficult societal problems that probation officer during the three years we have, he said. “Watching the professionals was enormously helpful to me in deciding that I between college graduation and law wanted to be a trial lawyer.” He continued learning from those profes- school that he decided he wanted to be a sionals after he graduated from law school, also at trial lawyer. the University of Virginia. He had a number of mentors early in his career. “Older members of “I can’t remember a time when I didn’t consider a the bar were helpful to me in that I learned the career that involved the law,” he said during a things that school can’t teach you. It’s the craft of recent telephone interview. His father was a law; you find out how litigation really works from United States secret service agent, so the law was people who have done it.” central to his life. “I knew that my future was His experience as a probation officer also led going to include some measure of law training.… him to believe he would someday be a juvenile Going to law school was a natural course of and domestic relations court judge. After law action for me.” school graduation in 1976 he was an assistant It was the time after graduating from the dean and assistant professor at U.Va., where he University of Virginia, though, that really nar- taught juvenile courts. And when he went into rowed his focus. Lemons took a job as a proba- private practice he continued to do pro bono tion officer in the Fairfax County Juvenile and work in juvenile courts.
18 VIRGINIA LAWYER | April 2015 | Vol. 63 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST
During those years, Lemons often sat as a pictures with people in them, he knows that tak- substitute judge in the juvenile and general dis- ing pictures of strangers “has to be handled very trict courts in the Richmond area, and later was carefully. Generally speaking, I don’t have to ask elected to the circuit court bench in Richmond. permission to take a photo of a landscape.” A Since then he has served in the Virginia Court of number of his photographs, including some taken Appeals and starting in 2000 as a justice of the at Yellowstone and Glacier National Park, hang on Supreme Court of Virginia. He was sworn in as the walls of his home in Nellysford. chief justice in January. Lemons said the Supreme Court remains a “I have sat as a judge at every level of the work in progress. “We continue to have a good court system,” he said. “I like it all. I’ve always working relationship with the General Assembly,” enjoyed every legal experience I’ve had. I love he said. Virginia now has 405 funded judgeships, teaching, I love being a trial lawyer, I love being a which is an improvement. The state needs 429 to trial judge, I love being an appellate judge, and meet current demand. “I’m just as pleased as I can certainly have learned to enjoy being chief justice.” be that we’re moving in the right direction.” Lemons has been a teacher since the begin- The state has an aging and multi-cultural ning of his career. In addition to teaching at the population. Virginia is home to many military U.Va. law school, he has been the A.L. Philpott veterans returning from war zones, and there are Distinguished Adjunct Professor of Law and the issues with drug and alcohol addiction, and men- John Marshall Professor of Judicial Studies at tal health issues. “All of these things are challenges the University of Richmond School of Law, and the Court has to anticipate,” he said. is now a Distinguished Professor of Judicial The Court also has technology issues. “We’re Studies at the Washington and Lee University about to roll out E-filing in the appellate courts,” School of Law. which is scheduled for July 1. Also, electronic He continues to teach, he said, “Because it is transfers of records from the trial courts to the intellectually engaging and exciting and it is a Supreme Court and the court of appeals will soon great privilege to be a part of the development of begin. He anticipates actions designed to better the next generation of lawyers.” use technology. Today’s students are facing many challenges. Lemons also pointed out that throughout his “The job market is depressed. Opportunities are career, “I have been very involved in professional- not as great initially as they were when I gradu- ism and ethics issues.” He intends to emphasize ated. The debt they incur is difficult.” professionalism issues to the bar. He served four He said he tells “prospective law students to years as president of the American Inns of Court, think long and hard about whether or not they an organization dedicated to promoting civility, want to take that road.” Those that are already in professionalism, and ethical behavior. “At every school, he tells to think outside the box. “There turn, the judges of the commonwealth are going are lots of things you can do with a law degree to be emphasizing that as well.” that are not traditional.” He mentioned public policy and journalism as two examples. Lemons has devoted his working life to the law. He has served as a member of the council of Teaching “is intellectually engaging and exciting the Virginia State Bar, chair of the Virginia State Bar Special Committee to Revise the Code of and it is a great privilege to be a part of the Professional Responsibility, a member of the Executive Committee and the Judicial Section of development of the next generation of lawyers.” The Virginia Bar Association, a member of the Task Force on Professionalism of The Virginia Bar Association, a member of the board of governors of the Virginia Trial Lawyers Association, and as “When we admit lawyers to the bar, I always judicial liaison to the Lawyers Helping Lawyers have the opportunity to say a few words to program of The Virginia Bar Association. them,… and one of the things I tell them is that But he does have other interests. “I have civility is a characteristic that needs to be first and always tried to nurture my creative side,” he said. foremost in the mind and attitude of a lawyer, as One of his great passions is photography. “I enjoy well as a judge…. The practice of law has been a recording life in one-sixtieth-of-a-second inter- noble profession but we’re going to have to all vals.” He enjoys taking landscapes. While he likes work together to keep it that way.” www.vsb.org GENERAL INTEREST FEATURES | Vol. 63 | April 2015 | VIRGINIA LAWYER 19 GENERAL INTEREST Building Relationships is Key to a Successful Life by Gordon Hickey
Glen A. Huff knew from the fourth grade that he wanted to be a lawyer, even though, “I had never met a lawyer,” he said during a recent interview. “I had no idea what lawyers did.”
But he lived in a small town in a poverty-stricken University of New Hampshire Law School, for- area of central Maine, and he thought of lawyers merly the Franklin Pierce Law Center. His legal as people of substantial means. He saw the profes- career started in 1977 when he joined a presti- sion as a way out. It wasn’t until after he got out, gious law firm of Seawell, Dalton, Hughes & until after he had been a lawyer for ten years, that Timms in Norfolk. Then, in 1987, the path he his motivation changed. He realized he wanted to was on came to an abrupt end when the law firm be a lawyer whose goal was to build what he calls collapsed. He had a wife, two children in private “right relationships with people.” That realization school, a mortgage, and no job. changed his life. “I had to do some deep, fast introspection to Last October, the Honorable Glen A. Huff figure out what this law thing is all about,” he said. was elected chief judge of the Court of Appeals That self-examination led him back to God. of Virginia by his fellow judges. He succeeded He said several people, independently, directed Chief Judge Walter S. Felton, who retired on him to a passage in Matthew: “Do not worry December 31. about life, what you will eat or drink, or about … Judge Huff was appointed to the court by what you will wear.” the Virginia General Assembly in July 2011, after “When you put God first,” Huff said, “all these thirty-five years as a lawyer. things will fall into place.” He received his bachelor’s degree from the He hung out his shingle and decided to start University of Maine and his law degree from the a solo practice where he would be “a respecter of
20 VIRGINIA LAWYER | April 2015 | Vol. 63 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST persons.” His practice was “a place where every- He also has done some religious writing. Part of one was to be on a first-name basis…. It really his daily morning ritual is to spend some time in was a different kind of law firm. … It’s a vehicle prayer and reading scripture. for building right relationships with people.” And he enjoys carpentry in his spare time. It worked. The firm grew and Huff became a He has built floor-to-ceiling book shelves in his very successful and respected lawyer, the person of chambers in Virginia Beach, along with a fireplace means he had set out to be. mantel. He also has a stand-up wooden desk he The firm he started, Huff, Poole & Mahoney built for his chambers. PC, employed many young lawyers over the years. His other hobby is boating. He owns a His advice to them continues to be that building twenty-five foot pocket trawler. relationships with other lawyers is essential to the His focus, though, is firmly on the court. Like successful practice of law. He said young lawyers all courts, his is facing challenges in keeping up should find their own niche, and “be a little more with technology. All the judges now have tablets, discerning than I was” about their relationship to for the first time. The court is working on a new the law. “Success is not measured by what you get, case management system, electronic filing, and … success is measured by what you give.” video conferencing. He said he has found that most young The court, which often goes on the road to lawyers already are motivated by those principles, hear cases, is also looking at different locations to not by the pursuit of the money. meet. His goal is “to make the court system more His early career also got him thinking about accessible” by having the judges go out to the the bench. In 1976-77, Huff worked as a law clerk clientele. for US District Court Judge Richard B. Kellam. Ethics questions are also on his mind. “We The previous year he had been as assistant law have to sort out where the boundary lines are on clerk for Chief Justice Frank Kenison of the some of these ethics standards” for interaction Supreme Court of Hew Hampshire. Judge Kellam, between the court and bar associations, he said. Huff said, had a great memory and Huff recalls “What things can our judges participate in and him playing Bible trivia with Bankruptcy Judge on what terms?” The judges have an ethical Hal Bonney. Huff thought then that being a obligation to be available to practitioners, but judge, “would be wonderful — someday.” But he some events require overnight stays and there’s also knew, “I had a lot to do to prove myself” no state funding for that. Who can pay has before he could consider it. become an issue. He also encountered many mentors along the way. Among them was Robert M. Hughes III. Huff was the firm’s brief writer, and he and Hughes prided themselve s on making docu- The opinions issued by the Court of Appeals are tools ments concise. They had a contest – “Who could for practitioners, he said, and he encourages judges strike more words.” It remains a goal. Lawyers to keep their opinions to under thirteen pages. don’t have time to read thirty-page opinions, he said. The opinions issued by the Court of Appeals are tools for practitioners, he said, and he encourages judges to keep their opinions to Huff is proud of the Appeals Court’s reputa- under thirteen pages. tion for congeniality. One of his main goals “is to Another mentor is his wife, Linda, who maintain and build upon the level of congeniality taught him “the greater values in life, in particu- we have on the court,” he said. “Everyone needs to lar, the value of building relationships.” realize they are an important part of this well- Huff is a religious man. He leads a men’s oiled machine.” Bible study class and teaches an adult Sunday school class at Baylake United Methodist Church. www.vsb.org GENERAL INTEREST FEATURES | Vol. 63 | April 2015 | VIRGINIA LAWYER 21 Law Stories Tell Us Your Favorite Law Story
Every lawyer has a story set aside for gatherings of friends or relatives. It’s a special tale about a legal battle won, or lost. Or about an amusing encounter with a judge. Or a story with a surprising twist. Maybe it’s a story that will bring a knowing smile, or shake of the head, from a colleague.
Pick your best Law Story, your incredible adventure, your unusual courtroom or even boardroom escapade, and send it to us. Keep them short — about 400 words or less — and send them in.
E-mail your stories to us at [email protected].
And the Trap Door Opened warned by the first case. Counsel for the A Busy Man appellant had reserved three minutes for by Edward J. Kiley by John Carter Morgan Jr. rebuttal, and when the red light went on It was the Spring of 1975. I had been a Chief Judge Friendly warned him to Terry was sort of a legend in Fauquier lawyer for a bit over a year, working for a stop. Counsel responded that he had County. He was homeless, a vagrant, Washington firm that specialized in reg- only a few more points to make. As near wandering the streets and roads of the ulatory law, principally transportation as I can remember Judge Friendly country town of Marshall, always look- and energy. I had started at the firm as a replied that if he didn’t stop that minute ing for a place to lay his head during law clerk in 1972 and would remain a trap door would open under him and those warm days of the summer of 1990. there until the end of 2008. That means his appeal. He sat down. A rather young and uneducated man, he that it was a great place to practice, or I My turn. I made my argument, had no shoes, and his torn shirt was was just lazy. reserving no time for rebuttal. There hardly acceptable attire in a courtroom. I The case in question was my first US were no questions from the panel, and in was a brand new lawyer, court appointed Court of Appeals assignment. The issue my neophyte stupidity, I thought “This is to represent Terry on a charge of tres- was both obscure and esoteric. One of great; I must have really wowed them”! passing. Judge Foley had been on the the firm’s clients had received an injunc- Counsel for the government rose and bench for four years, and was my tion sought by the now defunct Interstate approached the podium. Before he got favorite judge, the real reason I decided Commerce Commission on the basis there Chief Judge Friendly advised, to practice law in Warrenton. that the company was operating as a sur- “Counsel, there is no need for you to In his characteristic country drawl, face freight forwarder without proper argue; the judgment of the District Judge Foley said from the bench five feet registration. The client maintained that Court is affirmed.” The trap door had above the courtroom, “Terry! What are it was an air freight forwarder subject to opened. In shock I packed my briefcase you doing back here on this same the (also now defunct) Civil Aeronautics and turned to leave. My dad was sitting charge? Can’t you stay out of trouble? Board. The client had used its local in the back row. As I approached, shak- This is the fifth time this year that you’ve attorney at the district court level, but ily, he put his arm around my shoulder been here on this same charge.” (It was came to us for the appeal. My mentoring and said, “I thought that you made some my first time representing Terry and I partner assigned the matter to me, good points; let’s have lunch.” I don’t didn’t know this.) “Terry! I have half a thinking that I was brilliant or that this recall where we went or what I ordered, mind to throw you in jail. Do you want case was a loser. I of course thought the but I do remember that I had a double me to put in jail?” former; it turned out to be the latter. Jack Daniels on the rocks. Terry stood up straight at attention, I did the briefs, receiving approving Since then I have argued some sixty his arms extended down, and in a loud nods and comments from my mentor, court of appeals cases and won more voice, he said, “No saaah!” Terry stretched and travelled to New York (Second than I lost, but that case will stay with out that second word, and bellowed it Circuit) for the argument. The panel me always. Good news: After nearly forty louder than the first. consisted of Chief Judge Henry Friendly, years, I still represent that client. Judge Foley cracked a smile. Then retired Supreme Court Justice Tom Clark Edward J. Kiley practiced law for he almost laughed. A couple of people in and a senior district court judge whose thirty-five years as a clerk, associ- the crowded courtroom chuckled. Then name I’ve forgotten. At the time my dad ate, and partner for the the judge said, “Terry! You can’t be sleep- Washington, DC, firm of Grove, was editor in chief of the New York Law Jaskiewicz and Cobert. Since ing in people’s sheds. People you don’t Journal, and I of course invited him to 2009 he has engaged in a solo know. You have to stay off other people’s practice in Leesburg, focusing on witness his number-two son’s prowess. federal and state regulatory mat- property. Maybe I should put you in jail. My case was the second on the cal- ters and employment classifica- Do you think jail would teach you not to endar that day. I should have been tion issues. trespass?”
22 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Law Stories
Terry jerked straight up again and representing some of the jerks. In those policemen (on a CNN’s Bill Kurtis pro- practically yelled, “No saaaaaah!” cases the judges invariably agreed with gram, I think). I stopped surfing to With that, Judge Foley started to me and I was released. watch the program and only saw the tail laugh, and out of embarrassment he One of the jerks I had as a client end of the strange tale of Clyde, the leaned over to his right as if to pick was arrested for distribution of cocaine, ersatz attorney. something up off the floor. He just did- a serious offense that called for hard I am not boasting here. My “nose” is n’t want everyone in the courtroom to prison time. Mr. Jerk did not want to not at all perfect and I don’t have a stel- see he was laughing. have a court appointed attorney so, with lar record with my hunches. I still give Then, he composed himself some- his parent’s financial assistance, he thanks to the Lord, however, for steering what quickly, looked down at Terry, and wanted attorney “Bill” to represent him. me correctly on those two occasions — said, “Terry! Tell me why I shouldn’t put The assistant commonwealth’s attorney, severing ties with Adam and foregoing you in jail today.” outside of court, said that Bill could not the experience of working with Clyde. Terry snapped straight up again like represent Jerk because Bill was already representing Jerk’s co-defendant. Jerk James Wesley Moyers retired a soldier to a general, and shouted, early from the federal govern- “Thaangs to-doooo!!!” was going ballistic and could not or ment where he worked in the Starting with Judge Foley and then would not listen when I told him his Census Bureau and Federal choice of counsel did not require the Reserve Board in 1985. After me, the whole courtroom burst into graduating from George Mason prosecutor’s approval; it was between roaring laughter at the hilarity of the University Law School in 1989, Jerk, Jerk’s co-defendant, and Bill — with he was admitted to the Virginia scene before them. the judge’s approval. bar in 1989. He was a sole practi- tioner in northern Virginia until mid-2001. He is John Morgan has been practicing No matter what I tried to tell Mr. retired Sun City Center, FL. law in the Town of Warrenton, in Jerk, he naturally knew better than I. He Fauquier County, for twenty-five lined up another attorney, let’s call him Gunk years. He now focuses primarily Clyde. Clyde, it turned out, was a quasi- on bankruptcy cases all across by Denman A. Rucker the commonwealth, and is the associate in the newly constituted law author of the newly published firm headed up by immigration attorney book, “The Truth About Adam, my first unofficial colleague as a Many years ago, I was appointed by the Bankruptcy In Virginia.” fledgling lawyer. Clyde was not a mem- court in Arlington County to represent a ber of the Virginia Bar so I would have defendant charged with burglary, grand A Certain Odor had to be the credentialed member of larceny, and destruction of property. The by James Wesley Moyers the team that was representing Mr. Jerk. defendant was arrested at home about That didn’t give me too much pause; I thirty days after the burglary. On my I had just received notification that I’d could have been hasty in my earlier first meeting with the defendant, he passed the July 1989 Virginia bar exam opinion of Adam or he might have shed stated “they got nothing on me.” At first and was beginning a very unofficial part- the “odor” I thought I had detected ear- glance he appeared to be correct. There time job with a Fairfax County immigra- lier. So I called Clyde. Alas, I detected were no eye witnesses and no incrimi- tion lawyer. Let’s call him Adam. After a another odor. I found Clyde to be very nating statements from my client. few weeks, things just didn’t smell right strange and told Mr. Jerk that I would The perpetrator had forced a door with the chap so I terminated the rela- not work with Clyde under any circum- open to gain entry to the building and tionship. stances. Mr. Jerk then engaged “Mr. located a safe in the office. He moved the I already had a Plan B, namely being Nice” to represent him. He ultimately safe around and finally gained access a sole practitioner in northern Virginia. I did a straight up plea. I heard no word using a crow bar. In order to destroy any had retired early from the federal gov- of his actual sentence. fingerprints, the perpetrator sprayed the ernment so finances, important to be A few years went by and two events point of entry and safe with gunk (a sure, weren’t positively critical. At that transpired in northern Virginia legal cir- substance used to remove grease, etc. time it seemed that there were more cles. I do not recall which came first, but from the automotive engines). The gunk attorneys in northern Virginia than there they were certainly connected. Clyde was did its job. No fingerprints were lifted were cockroaches. That essentially con- convicted for unauthorized practice of from the point of entry or the safe. vinced me to take court appointments, law. He had no bar membership any- However, the perpetrator left the gunk mainly from criminal defendants who where and had never graduated from can on top of the safe with his finger- claimed to be unable to afford counsel. law school. (It’s not clear to me that he prints all over it. Faced with this evi- A few years passed. I was doing had ever attended any law school.) Adam dence, he eventually pled guilty. fairly well with my one-person law firm was convicted in the federal court in in Falls Church, dealing mostly in Alexandria on multiple counts of immi- Denman A. Rucker has been in Arlington and Falls Church courts with gration fraud. As a footnote, I also dis- private practice since 1974. He is occasional trips to Fairfax and Manassas. covered from Mr. Nice that the check he primarily involved in litigation with an emphasis on criminal My appointed clients were generally received from Mr. Jerk’s parents bounced. defense, domestic relations, and what you could expect — some fairly In mid-2001 we relocated to Florida personal injury. decent folks who had gone wrong and where I retired the second time. One some who were, let’s face it, jerks. Only evening while channel surfing with my in rare cases would I have real difficulty TV remote, I recognized an Arlington www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 23
Downton Abbey and Thomas Jefferson: Primogeniture, Entails, and More
by Frank Overton Brown, Jr.
By now, many thousands of twenty-first century Virginia television viewers have watched multiple seasons of “Downton Abbey,” the Masterpiece/PBS interna- tional hit series from writer and creator Julian Fellowes. As a consequence, today’s viewers know a bit more than did their nineteenth and twentieth century Virginia ancestors (unless their ancestors were students of the law and history) about “fee tail” (or “entailed”) property and “primogeniture.” Downton Abbey deals with the fictional Earl of Grantham (Robert Crawley), his family, and their concerns as occupants of an “entailed” estate in England in the early twentieth century; despite their titles and privileged lifestyle, the unseen but constant presence is the entail, affecting practically every aspect of their lives. On condition of anonymity, an occupant of an entailed estate in England once referred to it “as a kind of life sentence”; it should be added though, quite a posh life sentence. There are many twists and turns of plot regarding the issues that the lord and his family face, but at their core are primogeniture and fee tail. We are given some scant background about how Downton Abbey came to be entailed, but we must fill in some details in order to understand how things came to be as they were for the titled Crawley Family in England in the first and second decades of the twentieth century.
Though we do not know the exact wording of the wealthy American family who could, and did, instrument that created the entail on Downton bring her wealth to England to support the entail Abbey, we suspect that a generations-earlier and the lifestyle that accompanied it. This was an ancestor of Lord Grantham provided that the ironic twist when we look back on the relative estate pass “to my son and the male heirs of his positions of early colonial Virginia and England. body, lawfully begotten,” creating what was called Across the Atlantic Ocean and looking back a “fee tail male,” and under the male-only version across time to colonial Virginia, we realize that of primogeniture, the property, subject to its Thomas Jefferson was also concerned about pri- entail, passed to the eldest son, and then to his mogeniture and entails, but for a very different set eldest son, and so on. If an heir had only daugh- of reasons than Lord Grantham and his family. ters, the heir apparent could be a distant male cousin, which is what happened in Downton Abbey when Matthew Crawley (a distant cousin Across the Atlantic Ocean and looking back across time of Lord Grantham) became the heir apparent. to colonial Virginia, we realize that Thomas Jefferson Upon Matthew’s untimely death, Matthew’s infant son became the heir apparent. Of course, was also concerned about primogeniture and entails ... viewers have already learned that, like many of the other landed gentry in England, Lord We know that, in thinking of the concept of pri- Grantham, early on, had found it opportune to mogeniture (which was often combined with
illustration by Madonna Dersch marry his Lady Grantham (Cora), a daughter of a entailing), it was both a law and a custom (it was
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a law in cases of the intestate descent of real relationship between Virginia’s elected assembly estate, and it was a law when combined with and the crown: entailing; it was also a societal custom, particu- “Whereas all Laws, Statutes and Ordinances, larly among the upper classes). In her award- made and passed in the General Assembly of this winning 1997 article, “Entailing Aristocracy in Dominion, are according to the Constitution of Colonial Virginia: ‘Ancient Feudal Restraints’ and this Government, by his Majesty’s Letters Patent Revolutionary Reform,” Holly Brewer, after dis- under the Great Seal of Britain, to be transmitted puting many of the conclusions in the 1968 arti- to his Majesty, for his Royal Approbation or cle of C. Ray Keim (see references below) and in Disallowance, and such of the said Laws, Statutes the articles of others, concluded that “At this and Ordinances, as shall be thereupon disallowed point, however, the weight of evidence, dare I say, or disapproved, and so signified by His Majesty, entails the conclusion that the dead hands of under his sign manual and signet, or by order in ancestors did control a majority of the land in Privy Council, are from thenceforth to cease, Virginia in 1776. Thomas Jefferson and other leg- determine, and become utterly void. And Whereas islators throughout the middle and southern his Majesty, in Council has been pleas’d to signify states, who thought they were taking a significant his disapprobation and disallowance of several step when they eliminated entail and primogeni- Acts passed in the years 1748...(to wit)...An Act, ture, were indeed radical. This transformation in intituled, An Act declaring Slaves to be personal inheritance law was much more than the ritual Estate, and for other purposes therein men- abolition of an obsolete institution that most tioned...” The rules were that, if the king disap- recent scholars have believed it to be.” probated and disallowed an act, that act could not In looking at entails and primogeniture in be reenacted by the assembly without the express Virginia, we must remember that an act was approval of the crown, so it was not until after the passed by the General Assembly in October 1705 Revolution on December 17, 1792, that the (Chapter XXIII), declaring that, subject to certain assembly passed chapter 41 (which was a kind of provisos of the act “... all negro, mulatto and codification of the various laws regarding slaves): Indian slaves, in all courts of judicature, and other “An ACT to reduce into one, the several acts con- places, within this dominion, shall be held, taken, cerning slaves, free negroes, and mulattoes... and adjudged, to be real estate (and not chattels) Paragraph 43. All negro and mulatto slaves in [emphasis added] and shall descend unto the all courts of judicature within this common- heirs and widows of persons departing this life, wealth, shall be held, taken and adjudged to be according to the manner and custom of land of personal estate.” inheritance, held in fee simple...” This, of course, In addition, it should be borne in mind that meant that slaves could be entailed with the very Virginia’s Laws of Descent (regarding the passage land on which they worked, adding yet another of real estate in intestacy, in which primogeniture worse-than-feudal aspect to the barbarous prac- was the rule), and the Laws of Distribution tice of slavery. An act affirming that slaves could (regarding the passage of personal property in be entailed with the land was contained in intestacy, in which primogeniture was not the Chapter XI enacted in February 1727. rule), were different in that respect. In October 1748, an act, chapter II, was In writing or reading about Thomas passed intituled (a now archaic term in the Jefferson, the writer or the reader remembers that United States meaning “to furnish (as a legislative Jefferson: served twice as the Governor of Virginia act) with a title or designation” ) “An act declaring (appointed once and elected once); attended the slaves to be personal estate and for other purposes College of William and Mary; read law under therein mentioned,” which act declared: (“...And George Wythe in Williamsburg; practiced law that for the future, all slaves whatsoever shall be from 1767 to 1774; served in the Virginia House held, deemed, and taken, to be chattels personal.”) of Burgesses and the House of Delegates; served By royal proclamation, this act of 1748 was in the Continental Congress; was the author of repealed by the king’s proclamation of October the Declaration of Independence and of the 31, 1751, and communicated within the colony by Virginia Statute on Religious Freedom; was proclamation, dated April 8, 1752. It is instructive Secretary of State, the third President of the to read the preamble to this latter proclamation, United States, and the Father of the University of since it illustrates the growing intensity of the Virginia. Jefferson was also a slaveholder through
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the date of his death on July 4, 1826, a date of Jefferson’s part, included the laws (among others) death which he shared with his friend, John dealing with testate and intestate estates and Adams. In the codicil to his Last Will and related matters. Testament, Jefferson did manumit five of his The other act was written by Jefferson and numerous slaves. shepherded through the assembly by him. His In 1776, in the first session of the House of choice of language in the preamble, and his later Delegates subsequent to the Declaration of writings about this act are illustrative of some of Independence, there were two bills that were of Jefferson’s publicly expressed political, govern- special significance to Jefferson: One was “An Act mental, and social philosophies. for the Revision of the Laws” through which pri- mogeniture was finally abolished in 1785, and the “CHAP. XXVI. other was a “An Act declaring tenants of lands or An Act declaring tenants of lands or slaves in slaves in taille to hold the same in fee simple” by taille to hold the same in fee simple. which entails were abolished in 1776. Both of Preamble these are found in Henings Statutes at Large, I. WHEREAS the perpetuation of property in Volume 9, and are described in the following two certain families, by means of gifts made to them paragraphs. It is helpful to read verbatim the in fee taille, is contrary to good policy, tends to words used, both for their tenor and significance. deceive fair traders, who give a credit on the visi- ble possession of such estates, discourages the “CHAP. IX holder thereof from taking care and improving An Act for the revision of the Laws the same, and sometimes does injury to the Preamble morals of youth, by rendering them independent WHEREAS on the late change which hath of of and disobedient to their parents; and whereas necessity been introduced into the form of gov- the former method of docking such estates taille ernment in this country it is become also neces- by special act of assembly, formed for every par- sary to make changes in the laws heretofore in ticular case, employed very much of the time of force, many of which are inapplicable to the pow- the legislature, and the same, as well as the ers of government as now organised, others are method of defeating such estates, when of small founded on principles heterogeneous to the value, was burthensome to the publick, and also republican spirit, others which, long before such to individuals: change, had been oppressive to the people, could II. Be it therefore enacted by the General yet never be repealed while the regal power con- Assembly of the Commonwealth of Virginia, and tinued, and others, having taken their origin while it is hereby enacted by the authority of the same, our ancestors remained in Britain, are not so well That any person who now hath, or hereafter may adapted to our present circumstances of time and have, any estate in fee taille, general or special, in place, and it is also necessary to introduce certain any lands or slaves in possession, or in the use or other laws, which, though proved by the experi- trust of any lands or slaves in possession, or who ence of other states to be friendly to liberty and now is or hereafter may be entitled to any such the rights of mankind, we have not heretofore estate taille in reversion or remainder, after the been permitted to adopt, and whereas a work of determination of any estate for life or lives, or of such magnitude, labour, and difficulty, may not any lesser estate, whether such estate taille hath be effected during the short and busy term of a been or shall be created by deed, will, act of session of assembly...” assembly, or by any other ways or means, shall from henceforth, or from the commencement of The General Assembly then authorized the such estate taille, stand ipso facto seized, pos- establishment of a five member committee for sessed, or entitled of, in, or to such lands or slaves, the revision of the laws. On November 5, 1776, or sue in lands or slaves, so held or to be held as the General Assembly appointed the five mem- aforesaid, in possession, reversion, or remainder, bers to the committee (although over time the in full and absolute fee simple, in like manner as composition of the committee changed): if such deed, will, act of assembly, or other instru- Jefferson, Edmund Pendleton, George Wythe, ment, had conveyed the same to him in fee sim- George Mason, and Thomas Ludwell Lee. In allot- ple; any words, limitations, or conditions, in the ting responsibilities regarding the revisions,
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said deed, will, act of assembly, or other instru- the abolition of entails and primogeniture. The ment, to the contrary notwithstanding...” two reforms were widely separated in time, since one of them was effected immediately [entails in At the same time, back across the ocean, and 1776], and the other was not finally brought looking from an economic point of view, Adam about until nearly ten years later [primogeniture Smith wrote in The Wealth of Nations, published in 1785], but he coupled them in his own mind.” in 1776: “Laws frequently continue in force long Despite all of his writings, Jefferson pub- after the circumstances, which first gave occasion lished only one book during his lifetime, and a to them, and which could alone render them rea- relatively small one at that; its title was Notes on sonable, are no more...The right of primogeni- the State of Virginia. This compilation was writ- ture, however, still continues to be respected, and ten in 1781, corrected and enlarged in 1782, as of all institutions it is the fittest to support the printed in 1785 in a limited private edition and in pride of family distinctions, it is still likely to 1787 as a public edition. It was published in both endure for many centuries. In every other respect, French and in English. The book was a com- nothing can be more contrary to the real interest pendium of facts and answers to queries that had of a numerous family, that a right which in order been posed to American leaders by François to enrich one, beggars all the rest of the chil- Marbois, secretary to the French Minister to dren...Entails are the natural consequences of the America. It was written to project abroad the law of primogeniture. They were introduced to image of the United States in a favorable light, preserve a certain lineal succession of which the and Jefferson’s description in Notes of his success- law of primogeniture first gave the idea, and to ful first piece of legislation in the new Virginia hinder any part of the original estate from being General Assembly, passed in October 1776, abol- carried out of the proposed line either by gift, ishing entails, shows how much significance devise, or alienation...They are founded upon the Jefferson attached to the actual and symbolic most absurd of all suppositions, the supposition importance of the bill in disestablishing part of that every successive generation of men have not the old order in Virginia and therefore breaking an equal right to the earth, and all that it pos- another tie with the laws of England: “Slaves, as sesses; but that the property of the present gener- well as lands, were entailable during the monarchy ation should be restricted and regulated according [emphasis added]; but by an act of the first repub- to the fancy of those who died perhaps five hun- lican assembly [emphasis added], all donees in dred years ago.” Smith’s trenchant observations tail, present and future, were vested with the continued to be pertinent in England, but no absolute dominion of the entailed subject.” Sadly longer in Virginia. and tragically, although Jefferson’s bill abolished The elimination of primogeniture in Virginia entails in slaves, human slavery, itself the worst was finally accomplished through the work of the abomination of the old order, was not abolished Committee of Revisors, which presented its (notwithstanding the Emancipation report to the General Assembly in 1779 with a Proclamation) until December 6, 1865, when the proposed act which was finally passed in October Thirteenth Amendment to the United States 1785 in the form of “An act directing the course Constitution was ratified by the required number of descents,” that provided that at the first course of states (three fourths). In May 1782, in Chapter any real estate of inheritance of an intestate dece- XXI, the Virginia General Assembly passed “An dent would descend and pass in parcenary to his act to authorize the manumission of slaves,” kindred male and female, “To his children or which authorized the owners of slaves to emanci- their descendants, if any there be...” As before, a pate their slaves by “last will and testament, or by widow was entitled to a life estate in one-third any other instrument in writing...,” subject to cer- of the real estate. tain conditions. If the freed slaves were not of In volume 1 of his Jefferson work, Dumas sound mind, or were over the age of forty-five Malone observed about Jefferson: “In the course years, or males under the age of twenty-one years, of his legislative career he concerned himself with or were females under the age of eighteen years, the land question in all its more important then the liberating owner, or his estate, was phases, and he viewed all phases with the same responsible for the liberated slaves’ support and eyes; but the victories over landed privilege that maintenance. Under the authority of that act, he remembered most vividly in other years were there were many slaves who were freed (although
28 VIRGINIA LAWYER | April 2015 | Vol. 63 | SENIOR LAWYERS CONFERENCE www.vsb.org DOWNTON ABBEY AND THOMAS JEFFERSON: PRIMOGENITURE, ENTAILS, AND MORE not a large number in relation to the total num- the things for which he wished to be remem- ber of slaves held in Virginia at that time). In bered: “Author of the Declaration of American looking at some of the county and city will books Independence, of the Statute of Virginia for and deed books subsequent to the passage of the Religious Freedom, and Father of the University 1782 act, the author was struck by the expressed of Virginia.” On January 6, 1821, at age 77, and convictions of the testators and grantors who five years before his death, Jefferson began “to manumitted their slaves either immediately or make some memoranda and state some recollec- gradually, and by the language used by some of tions of dates & facts concerning myself, for my them in their deeds of emancipation or wills, own more ready reference & for the information sometimes making direct or indirect reference to of my family.” In that autobiography, Jefferson our Declaration of Independence and its princi- wrote this remembrance regarding the first bill ples, or to the enabling act, for example [note that that he introduced as a member of the new spellings and punctuation are as shown in the Virginia legislature, and the fact that he focused original documents and have not been corrected on it some forty-five years later illustrates its and modernized]: importance to him: “On the 12th. [of October, Norfolk City Deed Book 1, page 229, May 23, 1776] I obtained leave to bring in a bill declaring 1791 —“Know all Men by these presents that I tenants in tail to hold their lands in fee simple. In Thomas Newton the Younger for divers good the earlier times of the colony when lands were to causes me thereunto moving, Do by these pre- be obtained for little or nothing, some provident sents Manumit and Set free my Servant Man individuals procured large grants, and, desirous of Commonly called Frank Drake, And I do further founding great families for themselves, settled declare the said Negro Man Frank Drake to be them on their descendants in fee tail. The trans- liberated and set free to all intense & purposes, mission of this property from generation to gen- agreeable to the Act of General Assembly passed eration in the same name raised up a distinct set in the Year One Thousand Seven Hundred Eighty of families who, being privileged by law in the two Entitled “An Act to Authorize the perpetuation of their wealth were thus formed Manumission of Slaves.”...” into a Patrician order, distinguished by the splen- Chesterfield County Deed Book 11, page 517, dor and luxury of their establishments. From this February 11, 1789 - “Know all Men by these order too the king habitually selected his Presents that I Samuel Landrum of Chesterfield Counsellors of State, the hope of which distinc- County do believe that all Men are by Nature tion devoted the whole corps to the interests & equally free and from a clear Conviction of the will of the crown. To annul this privilege, and Injustice & Criminality of depriving my fellow instead of an aristocracy of wealth, of more harm Creatures of their natural Right do hereby eman- and danger, than benefit, to society, to make an cipate or set free the following Men, Women and opening for the aristocracy of virtue and talent, Children Viz...” Chesterfield County Deed Book 11, page 639, April 7, 1790 - “Know all Men by these “... the victories over landed privilege Presents that I Jordan Anderson of the County of Chesterfield seeing such an Insconsistancy that he remembered most vividly in betwixt our Declaration of Independence vizt other years were the abolition of That all men are equally born free and our Practice in holding a great number of our fellow entails and primogeniture. Men in the most abject Slavery especially those born since that Declaration and also seeing our which nature has wisely provided for the direc- Youths supported thereby instead of becoming tion of the interests of society, & scattered with useful Members of Society in our Commonwealth equal hand through all it's conditions, was are rather become a mere nuisance and Scandal deemed essential to a well ordered republic. To thereto: observing these things I do gradually effect it no violence was necessary, no deprivation emancipate and set free the following persons of natural right, but rather an enlargement of it vizt...” by a repeal of the law. For this would authorize On Jefferson’s grave marker at Monticello is the present holder to divide the property among his epitaph, which he wrote himself, that states his children equally, as his affections were divided; ” www.vsb.org SENIOR LAWYERS CONFERENCE | Vol. 63 | April 2015 | VIRGINIA LAWYER 29 DOWNTON ABBEY AND THOMAS JEFFERSON: PRIMOGENITURE, ENTAILS, AND MORE
and would place them, by natural generation on situation,” the simple response to which is that the level of their fellow citizens. But this repeal when decisions are made and actions taken that was strongly opposed by Mr. Pendleton, who was are morally right, the results are most often sim- zealously attached to ancient establishments; and pler and more straightforward than when the who, taken all in all, was the ablest man in debate decisions that are made and the actions taken are I have ever met with. He had not indeed the poet- morally wrong, when, indeed, the results are very ical fancy of Mr. Henry, his sublime imagination, complicated. The bittersweet words of the his lofty and overwhelming diction; but he was American poet, John Greenleaf Whittier, come to cool, smooth and persuasive; his language flow- mind: “For of all sad words of tongue or pen, the ing, chaste & embellished, his conceptions quick, saddest are these: ‘It might have been!’” acute and full of resource; never vanquished; for if Those were revolutionary acts, abolishing he lost the main battle, he returned upon you, entails in 1776 and primogeniture in 1785; but and regained so much of it as to make it a drawn then, there was revolution in the air, more than one, by dexterous manoeuvres, skirmishes in two centuries before Virginians watched detail, and the recovery of small advantages Downton Abbey on public television, and learned which, little singly, were important altogether. You about entailed property and primogeniture in never knew when you were clear of him, but were England through the first quarter of the twentieth harassed by his perseverance until the patience century. In some sense there is an irony in was worn down of all who had less of it than twenty-first century Virginians, whose ancestors, himself. Add to this that he was one of the most in the eighteenth century, were freed from primo- virtuous & benevolent of men, the kindest friend, geniture and entails (but who have struggled for the most amiable & pleasant of companions, centuries with human slavery and its aftermath) which ensured a favorable reception to whatever viewing fictional Englishmen who were struggling came from him. Finding that the general principle in the early twentieth century with primogeniture of entails could not be maintained, he took his and entails in a vestigial semi-feudal context. stand on an amendment which he proposed, instead of an absolute abolition, to permit the tenant in tail to convey in fee simple, if he chose I thank my wife, Susan V. Brown, and my son, it: and he was within a few votes of saving so Matthew R. O. Brown, for their help to me in my much of the old law. But the bill passed finally for writing this article; as always, their careful proof- entire abolition.” reading, thoughtful suggestions, and patient “Entire abolition”— One can only think encouragement were of great importance. In about what a blessing it would have been if there addition, I thank Matthew for his many years of had also been an entire abolition of human slav- loyal and dedicated assistance and research skills. ery at that time, or if, better still, there had never been human slavery at all. The apology that is often made is, “Yes, but it was a very complicated References: Boyd, Julian P., Editor. The Papers of Thomas Jefferson, Volume 1, 1760 to 1776. Princeton University Press, Princeton, New Jersey, 1950. Boyd, Julian P., Editor. The Papers of Thomas Jefferson, Volume 2, 1777 to 18 June 1779, Including the Revisal of the Laws, 1776 - 1786. Princeton University Press, Princeton, New Jersey, 1950. Boyd, Julian P., Editor. The Papers of Thomas Jefferson, Volume 3, 18 June 1779 to 30 September 1780. Frank Overton Brown Jr. is in private practice in the Princeton University Press, Princeton, New Jersey, 1951. Richmond and concentrates his practice in the areas of wills, trusts, estate planning, estate and trust administra- Boyd, Julian P., Editor. The Papers of Thomas Jefferson, tion, and related tax matters. He is a member of the Volume 4, 1 October 1780 to 24 February 1781. Virginia State Bar Senior Lawyers Conference. He is a fel- Princeton University Press, Princeton, New Jersey, 1951. low of the Virginia Law Foundation and is a fellow of the Boyd, Julian P., Editor. The Papers of Thomas Jefferson, American College of Trust and Estate Counsel. He is a recipient of the Virginia State Bar Tradition of Excellence Volume 5, 25 February 1781 to 20 May 1781. Princeton Award. He is Past Chair of the Senior Lawyers Conference University Press, Princeton, New Jersey, 1951. of the Virginia State Bar and has served on the Virginia State Bar Council.
30 VIRGINIA LAWYER | April 2015 | Vol. 63 | SENIOR LAWYERS CONFERENCE www.vsb.org DOWNTON ABBEY AND THOMAS JEFFERSON: PRIMOGENITURE, ENTAILS, AND MORE
Boyd, Julian P., Editor. The Papers of Thomas Jefferson, /20080914030942/http://etext.lib.virginia.edu/to Volume 6, 21 May 1781 to 1 March 1784. Princeton c/modeng/public/JefVirg.html. University Press, Princeton, New Jersey, 1952. Jefferson, Thomas. Notes on the State of Virginia Boyd, Julian P., Editor. The Papers of Thomas Jefferson, Manuscript, Coolidge Collection of Thomas Jefferson Volume 7, 2 March 1784 to 25 February 1785. Manuscripts at the Massachusetts Historical Society, Princeton University Press, Princeton, New Jersey, 1952. Boston, Massachusetts; www.masshist.org /thomasjeffersonpapers/notes/. Boyd, Julian P., Editor. The Papers of Thomas Jefferson, Volume 8, 25 February 1785 to 31 October 1785. Jefferson, Thomas. Autobiography. Libertyonline Princeton University Press, Princeton, New Jersey, 1953. .hypermall.com/Jefferson/Autobiography.html. Brewer, Holly. “Entailing Aristocracy in Colonial Keim, C. Ray, “Primogeniture and Entail in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Virginia”, The William and Mary Quarterly, Third Reform ”, The William and Mary Quarterly, Third Series, Vol. 25, No. 4 (Oct. 1968), Series, Vol. 54, No. 2 (Apr. 1997), pp. 307-346, Stable http://www.jstor.org/stable/1916798. URL: http://jstor.org/stable/2953276. Malone, Dumas, Jefferson the Virginian, Volume 1, de Tocqueville, Alexis. Democracy in America. New Jefferson & His Time, University of Virginia Press, York and Toronto: Everyman’s Library, Alfred A. Charlottesville, Virginia: 2005. Knopf, 1994. Morris, Thomas D., Southern Slavery and the Law, Ford, Paul Leicester, Editor. The Works of Thomas 1619 - 1860, The University of North Carolina Press, Jefferson, G.P. Putnam’s Sons, New York and London, Chapel Hill, North Carolina: 1996. 1904, oll.libertyfund.org. Smith, Adam. An Inquiry into the Nature and Causes Hening’s Statutes at Large, Being a Collection of all of the Wealth of Nations. New York: The Modern the Laws of Virginia from the first session of the Library, 1994. Legislature, in the Year 1619, Vols. 1 through 13, Statutes at Large of Virginia, From October Session vagenweb.org/hening. 1792, To December Session 1806, Inclusive, In Three Jefferson, Thom as. Notes on the State of Virginia. Volumes, (New Series), Being A Continuation of Electronic Text Center, University of Virginia Library, Hening, Vol. I, By Samuel Shepherd, Richmond, Charlottesville, Virginia; web.archive.org/web Virginia, 1835.
Access to Justice Hero Are you providing service to someone who can’t afford legal representation, is your law firm, or another attorney you know? We’d like to tell the members of the Virginia State Bar about it. We’d also like to hear about work lawyers have done on special pro bono projects, or any access to justice program or issue that needs assistance. The VSB is continuing its focus on access to justice by regularly raising awareness of outstanding service by pro bono, legal aid, and indigent defense lawyers. So send us your story — 400 words or less — about access to justice, along with a photo. We’ll pick the best and feature it in Virginia Lawyer. E-mail your stories to us at [email protected]. By the way, the Access to Justice/Pro Bono pages of the VSB website at http://www.vsb.org/site/pro_bono have begun featuring a Volunteer Lawyer Spotlight. Please send a brief “blurb” (3 to 5 sentences and a photo) about an outstanding contribution by a volunteer lawyer or law student. The Special Committee on Access to Justice will update the spotlight each month. Please send your “blurbs” to [email protected].
www.vsb.org SENIOR LAWYERS CONFERENCE | Vol. 63 | April 2015 | VIRGINIA LAWYER 31 Senior Citizens Law Day in Eastern Henrico County
The Senior Citizens Law Day program, hosted by Kimberly A. Pinchbeck, of Kimberly A. Antioch Baptist Church on New Market Road in Pinchbeck, PC: “Medicaid, Veterans Aid and eastern Henrico County on November 7, 2014, Attendance, and Knowing Your Rights as a was planned and coordinated by Karl A. Doss, Nursing Home Resident”; Terry L. Whipple, Virginia State Bar director of Access to Legal M.D., of American Self Orthopedics: “Seniors’ Services, Frank O. Brown Jr. of the VSB Senior Health Issues — Preserving Your Health”; and Lawyers Conference, and his son, Matthew Doss: “Access to and Eligibility for Legal Aid R. O. Brown, both of Frank O. Brown Jr., PC, and Pro Bono Legal Services.” in Henrico County. The program was titled: F. Warren Haynie Jr., of Lottsburg, the VSB “A Gift to Seniors — Senior Citizens Law Day — Senior Lawyers Conference Senior Citizens Law Knowing Your Rights —An Informative Program Day chair, also attended. About Legal Issues Facing Senior Citizens.” All attendees received a resource packet The community service program was pat- containing information for seniors, including a terned on the format developed by Senior Lawyer copy of The Senior Citizens Handbook. Antioch William T. Wilson, of Covington, and was open to the public at no charge. Among the volunteers Baptist Church and The Elders of Grace of making presentations and their topics were: Antioch Baptist Church provided lunch for Frank O. Brown Jr.: “Getting Your Affairs In speakers and attendees. Order”; Officer David Leber of the Henrico Police The program was a cooperative pro bono Division: “Protecting Yourself Against Crime”; effort among many who are interested in the David Hominik, of the Virginia Division for the welfare of Virginia’s senior citizens, including Aging: “Protecting Yourself Against Scams, Fraud, Antioch Baptist Church, the VSB, the Senior and Identity Theft”; Nathan A. Kottkamp, of Lawyers Conference, the Virginia Division for McGuireWoods LLP: “Advance Directives and the Aging, members of the legal profession, law Knowing Your Rights as a Hospital Patient”; enforcement, and the medical profession.
32 VIRGINIA LAWYER | April 2015 | Vol. 63 | SENIOR LAWYERS CONFERENCE www.vsb.org The Honorable Buford M. Parsons Jr.
by The Honorable L. A. Harris Jr.
Model Jury Instructions. In 1983 Buford was elected as a judge of the Circuit Court of the County of Henrico where he served for sixteen years before retiring in 1999. I was fortunate to get to know Buford On November 28, 2014, the Honorable Buford M. Parsons when I joined the Henrico Circuit Court Parsons Jr., passed away after a brief and unex- in 1990. We not only became colleagues on the pected illness. Buford turned 81 while he was hos- bench but developed a strong social relationship pitalized and was survived by his wife of fifty-five where we were able to participate in each other’s years, Susan Hudson Parsons, and his son, John family events and traveled together on a number W. Parsons, who practices law in Richmond. He of occasions. I knew Buford to be a “people” per- was predeceased in death by his son, David M. son where he enjoyed his relationships with his Parsons. He was reared and educated in his many friends and colleagues. Until his death, he beloved Northside of Richmond. After graduation would arrange to have lunch several times a year from high school, Buford entered the University with his former “young” associates who had of Richmond. He took a two-year interruption become extremely successful in the legal commu- from school to serve in the Army as a military nity. I knew Buford as a mentor and a person who police officer. Francis E. Howard, brigadier gen- understood the legal system. He not only under- eral of the United States Army, described his ser- stood the law, he understood how it worked with vice in a 1956 letter to Buford’s parents: “You have people, and he was respectful of those who every reason to be proud of your son. He is one of appeared in his courtroom. Most of all I knew the most outstanding young soldiers with whom I Buford as a true friend who I miss every day. We have been associated in my thirty-two years of are proud and lucky to have had him. service. He is the neatest, most immaculate non- commissioned officer in my command.” After his service, Buford completed his undergraduate education at the University of Richmond in 1958 and graduated from T. C. Williams School of Law at the University of Richmond in 1962 and began practicing with the law firm of May, Garrett, Miller, Newman and Compton. The firm eventually became Miller and Parsons. During his legal career he was actively The Honorable L. A. Harris Jr. served as an assistant com- engaged as a trial attorney in all courts in the monwealth’s attorney for the County of Henrico from 1976 through 1979. From 1979 through 1987 he was engaged in Richmond area where he tried more than 500 the private practice of law as a solo practitioner and subse- jury trials. He was very active in various bar asso- quently as a partner in the firm of Bischoff, Bondurant, ciations and twice served as honorary vice presi- Harris & Newsom in Richmond. In 1987 he was appointed as commonwealth’s attorney for the County of Henrico dent of the Richmond Bar Association. He was and was elected to serve as a judge of the Henrico County selected by the Supreme Court of Virginia to General District Court in 1988. In 1990 Judge Harris was serve on the Model Jury Instructions Committee elected to serve on the Henrico Circuit Court and contin- ues to be a judge of that court. He has served several terms from 1978 to 1983. He was very proud of his as chief judge and serves as a member of the Virginia involvement in the drafting of the first edition of Criminal Sentencing Commission. www.vsb.org SENIOR LAWYERS CONFERENCE | Vol. 63 | April 2015 | VIRGINIA LAWYER 33 Virginia Advance Health Care Directives and the Virginia Health Care Directive Registry by Victoria J. Roberson illustration by Madonna Dersch
Advance Health Care Directives spouse or blood relative, however it’s have become a staple element of any probably prudent to use witnesses other complete state plan. The Virginia Health than the named agents. The AD does Care Decisions Act, VA Code § 54.1-2981 not have to be notarized, but for the rea- et seq., provides that any adult capable of sons covered below, notarization may be making an informed decision may make advisable. A suggested form of written an advance directive (AD) concerning AD is provided in VA Code § 54.1-2984. health care treatment, including the Practitioners should be aware of the refusal of treatment. An AD also typically available options and resources to build appoints an agent to make health care on this basic form, so that the final doc- decisions for the client in the event the ument accurately reflects the client’s client becomes incapable of making an wishes, and ensures that those wishes informed decision. A written AD must will be understood and carried out. It be signed by two witnesses over the age may be time for lawyers to update their of eighteen. Witnesses may include a practices to consider the following:
34 VIRGINIA LAWYER | April 2015 | Vol. 63 | SENIOR LAWYERS CONFERENCE www.vsb.org VIRGINIA ADVANCE HEALTH CARE DIRECTIVES AND THE VIRGINIA HEALTH CARE DIRECTIVE REGISTRY
Default Authority (VA Code § 54.1-2986). Do above, that is made by the client while in a termi- clients understand who will be able to make deci- nal condition, and which conflicts with an exist- sions for them under the statutory hierarchy if he ing AD, can operate as a revocation of the terms or she is determined to be incapable of making an of the written AD. informed decision and has not made an AD? Does that person share the client’s moral, reli- Cremation/Burial (VA Code § 54.1-2818.1). A gious, or other beliefs regarding quality of life and person may name the agent they wish to make end-of-life decisions? the visual identification of their body prior to cremation in an AD. A person may also name an Anatomical Gifts (VA Code § 32.1-291.5). The agent to make arrangements and be responsible client can authorize an agent to make anatomical for their remains, including cremation, in their gifts. The AD should specify whether this includes AD or a separate writing (VA Code § 54.1-2825), gifts of organs to living persons only, for example, however the AD or other writing must be nota- or is the gift expanded to include gifts of tissue or rized, and the named agent must also accept the eyes for research and education? Does the gift designation in writing. extend to a gift of the entire body for purposes of serving as a cadaver? Is there a family member Reciprocity (VA Code § 54.1-2993). An AD with a health crisis to whom they want to make validly executed in another state shall be deemed a specific gift? valid in Virginia, but will be construed under Virginia law. A Virginia AD will most likely be Health Care Research (VA Code § 54.1-2983.1). recognized in other states, but notarizing the The AD can authorize an agent to approve par- client’s signature may prove to be valuable if the ticipation in a health care study to increase sci- client is attempting to use the AD in another entific understanding of the client’s condition, state that requires notarization. even if there is no medical benefit to the client. Does the client want to include this, or specifi- Advance Health Care Directive Registry (VA cally prevent it? Code § 54.1-2995). As a result of legislation intro- duced in 2008, the Virginia Department of Health Oral Directives (VA Code § 54.1-2983.1). If the administers a secure and confidential electronic declarant is in a terminal condition, the AD can registry where Virginia residents can store their be oral, but must be made in the presence of the AD, HealthCare Power of Attorney, or attending physician and two witnesses. This can Declaration of Anatomical Gift free of charge. be critical if the client’s wishes change along with The registry may be accessed through www.vir- their circumstances, and end-of-life decisions giniaregistry.org. Clients simply register online, become a reality. choose a user name, password, and PIN, and then may upload their AD for storage. Documents may Binding Instructions (VA Code § 54.1-2986.2). be submitted by the client, or his or her legal rep- A client can explicitly provide in the AD that resentative or designee. In addition, licensed certain choices regarding health care decisions are health care providers can access the registry for binding, or that an agent’s authority to make cer- the purpose of locating an AD for patients who tain decisions is binding, even if the client later are comatose, incapacitated or otherwise mentally objects to those choices or decisions during a or physically incapable of communicating. time in which he or she has lost capacity. This is Although it is possible to remove the AD once an important addition to the code for clients submitted, it is preferred that all ADs stay on file, dealing with recurring periods of diminished with the latest date being the controlling docu- awareness or ability to understand their circum- ment. The client can also provide his or her user stances, such as dementia or mental illness. There name, password and PIN to selected individuals, are safeguards contained in the statute concerning including health care providers, by e-mail notifi- these provisions that involve the client’s attending cation available on the website. Currently, approx- physician or licensed clinical psychologist. imately 3,000 Virginia residents have established accounts with the registry, offering a new cer- Revocation (VA Code § 54.1-2985). The AD can tainty and security to ensure that their wishes are be revoked in whole or in part by a signed, dated carried out. writing, or by physical destruction, or by oral expression to revoke. An oral directive, discussed Advance Directives continued on page 36 www.vsb.org SENIOR LAWYERS CONFERENCE | Vol. 63 | April 2015 | VIRGINIA LAWYER 35 VIRGINIA ADVANCE HEALTH CARE DIRECTIVES AND THE VIRGINIA HEALTH CARE DIRECTIVE REGISTRY
Advance Directives continued from page 35 Available Resources: 1. Virginia State Bar website — www.vsb.org/ Search term: “Advance HealthCare Directive.” Conclusion 2. ABA Consumer’s Toolkit for Health Care It is advisable for attorneys to address with clients Advance Planning — www.americanbar.org. the importance of issues associated with an AD. 3. Virginia Hospital and Healthcare Association The following steps may help attorneys provide website, including their brochure “Your Right ADs that more closely address each client’s indi- to Decide.” www.vhha.com/healthcaredeci- vidual needs: sionmaking.html Revise the client questionnaire to ask more 4. Five Wishes — www.agingwithdignity.org questions about the AD options found in other /legal_Virginia.php. forms, and continue information gathering dur- ing the initial client visit. Revise and expand the statutory AD form to address all of the clients’ available options. Make available to the clients the applicable statutes concerning end of life decisions and the statutes referenced within the AD itself. Compile a list of resources for clients who want to learn more in order to make more informed decisions concerning their AD. A sample list of important resources is included at the end of this article. Advise clients to communicate. Disclose the Victoria J. Roberson is a founding partner of Roberson, existence of the document and where it is kept Shepard & Turner PLC, an estate planning and trust and to family members; provide copies to their estate administration practice located in North Chesterfield. Her practice is concentrated in the areas of estate planning, physicians, and talk with their appointed agent trust and estate administration, and estate and gift tax plan- and family members about the choices made in ning. She is a member of the board of the Trusts and Estates Section of the Virginia Bar Association and serves the AD. on its Legislative Committee. She also serves on the board Encourage clients to consider the use of the of the Commonwealth Community Trust. She is a member Virginia Advance Healthcare Directive Registry of the Chesterfield County Bar Association, a past Chair of the Board of Governors of the Trusts and Estates Section of and to grant access to their registry information the Virginia Bar Association, and a former member of the to agents and their health care providers. Estate Planning Council of Richmond.
What Seniors Need to Know.
The Senior Citizens Handbook is an invaluable resource with just about everything a senior would want to know about the law and a compendium of community- service organizations that provide senior services.
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.
36 VIRGINIA LAWYER | April 2015 | Vol. 63 | SENIOR LAWYERS CONFERENCE www.vsb.org Russell Alton Wright by Fielding L. Williams Jr.
Russell Alton Wright, age 87, died on January 28, the Little League World Series, 2015. The day before his death, despite being in losing to Japan in the champi- bed and suffering from what was his terminal ill- onship game. He served as chair ness, he carefully reviewed a draft contract on of the Virginia State Water behalf of his church. This was typical of Al Control Board and at the time of Wright. He viewed the practice of law as a profes- his death was on the Henrico sion, and he felt it was his responsibility as a Board of Zoning Appeals, where, lawyer to help others with the tools he had for many years, he had been chair. acquired, regardless of the circumstances. The He was a captain in the Navy Reserve. He was also primary motivation for him was professionalism, a high ranking and passionate Mason. Long after not remuneration. his retirement he made regular visits to the Al received both his law and bachelor of arts Masonic Home to give advice to the residents and degrees from the University of Virginia. Prior to to help them in any way he could. college he served as a seaman in the US Navy, Above all else, Al treasured, and was devoted and between college and law school he served for to, his family. He always found a way to put fam- three years as a Navy officer. As an undergraduate ily first. An example is how he supported the he was in the Naval Reserve Officer Training swimming career of his teenage daughter. She was Corps, the Glee Club, and the Raven Society. He quite good, which necessitated her participation practiced law for close to fifty years with Williams in swim meets not just locally but all over the Mullen and its predecessor firm. During his state. Al would drive her to a meet, and between career he devoted himself with boundless energy her events Al would sit in their car in the parking and passionate loyalty to his clients, whether lot, doing work for clients or other causes. This large or small, in good times and bad. He also was before the days of laptops, iPads, smartphones, was a leader in his firm, both formally, as man- or even cell phones. It was just Al, a legal pad, a aging partner, and informally, as a mentor to pencil, and a Dictaphone. younger lawyers. Al Wright’s life and career are to be admired. He also dedicated his abilities to serving his He brought honor to the Virginia bar and to the church, his community, his state, and his country. legal profession, of which he was so proud. I am He served not only as a member of organizations honored and proud to have been his law partner but also as a leader. One wonders how he could and his friend. do so much, so well. None of his many activities were for self-aggrandizement. They arose from his desire to help others. His roles at his church included, without lim- itation, chair of the board of trustees, member of the choir (and of the hand bell choir) and Sunday School teacher. He was chair of the board of trustees of the Greater Richmond Y.M.C.A. and of the Tuckahoe Family Y.M.C.A. His leadership helped lift the latter organization from its location Fielding L. Williams Jr. is a partner in the Williams Mullen in a trailer to the thriving entity it is today. Al also law firm in Richmond, where his practice consists largely of estate planning and estate and trust administration. He also was president of the Tuckahoe Little League and represents individuals and small corporations. A fellow of played a major role in the creation of its facility. the American College of Trust and Estate Counsel, he also is a member of the Richmond Estate Planning Council and He was the proud commissioner of the Tuckahoe a member and past-president of the Trust Administrators’ Little League Nationals, the team that made it to Council of Richmond. www.vsb.org SENIOR LAWYERS CONFERENCE | Vol. 63 | April 2015 | VIRGINIA LAWYER 37 Noteworthy > VSB NEWS Highlights of the February 28, 2015, Virginia State Bar Council Meeting
At its meeting on February 28, 2015, Court of Virginia regarding Standards Approval of Rules in Richmond, the Virginia State Bar for Minimum Malpractice Coverage The VSB Council amended and Council heard the following significant When Disciplinary Charges Heard by a approved by a vote of 36-23 amend- reports and took the following actions: Three-Judge Panel Result in a Finding ments to Rules 1.1 (Competence) and of Criminal Conduct Involving Loss of 1.6 (Confidentiality) of the Virginia Adoption of Rule 5.8 by the Supreme Client Property, and Establishment of Rules of Professional Conduct. The pro- Court of Virginia District Committees. The proposed rule posed rule changes will be presented to The Council was informed of the adop- changes will be presented to the Supreme tion of Rule 5.8: Procedures for Lawyers the Supreme Court of Virginia for its Leaving Law Firms and Dissolution of Court of Virginia for its consideration. consideration. Law Firm, effective May 1, 2015. The Other proposed amendments rule codifies a number of the suggestions regarding district committee members’ Justice Kelsey Resolution from LEOs on departing lawyers’ obliga- address of record, reciprocal discipline, The Council unanimously approved tions into more concrete steps to follow. reinstatement procedures, and disclosure the resolution honoring Justice D. of exculpatory evidence were either Arthur Kelsey’s acce ssion to the Approval of Amendments to the Rules withdrawn by the Standing Committee Supreme Court of Virginia. The Council unanimously approved on Lawyer Discipline or tabled for addi- amendments to the Rules of the Supreme tional review. Jerrauld C. Jones Presented with the Carrico Professionalism Award
The Virginia State Bar Criminal Law touched the lives of many in a consis- Section has presented its 2015 Harry L. tently positive way.” Carrico Professionalism Award to The Jones was appointed to the Norfolk Honorable Jerrauld C. Jones of the Juvenile and Domestic Relations Court Circuit Court of the City of Norfolk. in 2005 by Governor Timothy M. Kaine. Virginia State Bar President Kevin The governor appointed him to the E. Martingayle presented the award circuit court in 2008 and the General February 13, 2015, during the section’s Assembly elected him to a full eight- 45th Annual Criminal Law Seminar in year term in 2009. Jones was elected to the Virginia Williamsburg. The award was named for The Honorable Jerrauld C. Jones (middle), his wife, House of Delegates from the 89th the former Virginia Supreme Court chief Lynn Simons Jones (left), and their son, Jerrauld “Jay” Distric t and was re-elected eight times. justice who promoted the ideals of pro- Jones (right). He was a member of the House Rules fessionalism during his forty-two years Committee. on the state’s highest court. Jones earned his bachelor’s degree In his letter nominating Jones, from Princeton University in 1976 and Martingayle wrote that, “I have seen his law degree from the Washington and Judge Jones function as a legislator, Lee University School of Law in 1980. lawyer and member of the judiciary. He He served as the first African-American practice until 2002 when Governor Mark is consistently focused, prepared, kind, law clerk to the Supreme Court of Warner appointed him state director of insightful, compassionate and intelli- Virginia. He later returned to Norfolk juvenile justice. He also served on the gent. He has been one of the finest leg- and served as an assistant common- State Advisory Group on Juvenile Justice islators, lawyers and judges I have had wealth’s attorney before opening his pri- and the Governor’s Advisory Committee the pleasure of knowing, and he has vate law practice. He stayed in private on Juvenile Justice.
38 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org PEOPLE < Noteworthy Retired Magistrate Judge B. Waugh Crigler Receives the Virginia State Bar Leadership in Education Award
B. Waugh Crigler, retired US Magistrate dent and founder of the Section on the Judge for the Western District of Education of Lawyers, William R. Rakes, Virginia, has been named the recipient a senior partner with the Roanoke firm of the William R. Rakes Leadership in of Gentry Locke. Education Award from the Virginia The award, which is underwritten State Bar Section on the Education of by Gentry Locke, is to be presented June Lawyers in Virginia. 18, 2015, at the Virginia State Bar’s The award recognizes an individual annual meeting in Virginia Beach. who has demonstrated exceptional lead- Crigler has a long and distinguished ership and vision in developing and career as a lawyer, judge, and teacher. He implementing innova tive concepts to has served as a faculty member for the improve and enhance the state of legal VSB’s Harry L. Carrico Professionalism education, and in advancing relation- Course since 1995. In 1998, he was ships and professionalism among appointed to the bar’s Standing members of the academy, the bench, Committee on Professionalism, and and the bar within the legal profession later became its vice chair. He helped to B. Waugh Crigler in Virginia. develop a curriculum for a professional- In nominating Crigler, retired Judge ism program that was instituted in all J. Martin Bass, of the 15th Judicial law schools in the commonwealth in September 2013, after thirty-two years Circuit of Virginia, wrote: “As much as 2000. He served as chair or co-chair of on the bench, Judge Crigler retired, and anyone I have known in my years as a the Law School Professionalism Program in January 2014, he joined The lawyer and a judge, (Crigler) has made until 2003, and remains an active faculty McCammon Group as a neutral. and continues to make significant con- member for the program. Crigler and his wife Anne will cele- tributions not only to the education of Crigler has served on the board of brate forty-five years of marriage in June Lawyers, but also to enhancing mean- governors of the State Bar’s Litigation 2015. They have three children and five ingful collaboration among the three Section since 2009. In 2006, he was grandchildren. constituencies of the legal profession elected to the board of governors of the in the commonwealth…. He has made State Bar’s Section on the Education of our profession stronger and better Lawyers in Virginia, and has served as suited to meet the needs of a changing vice chair since 2010. While serving on society by being himself, a consummate these boards, Judge Crigler has written professional.” numerous articles advancing trial skills Attorney William E. Glover wrote and professional and ethical practice. that Judge Crigler’s “actions derive from He received a B.A. in History from deep and thoughtful rumination on Washington & Lee University in 1970, what it means to be a Virginia lawyer, and a law degree from the University and how to communicate that to law of Tennessee College of Law in 1973. students — many of whom are inclined Following graduation from law school, to dismiss professionalism as etiquette Crigler served as a law clerk to the Hon. training and nothing more. Judge Robert L. Taylor in the Eastern District Crigler’s emphatic insistence on the of Tennessee and later practiced in value of professionalism to our clients, Culpeper. In October 1981, the Hon. the bar, the bench and to our commu- James C. Turk appointed Crigler as nities resonates as heartfelt and funda- United States Magistrate Judge for the mentally true. Any law student or Western District of Virginia. In 1991, young lawyer who hears him discuss it Crigler was named by the chief justice is fortunate.” of the United States as a member of the The award was established in 2012 Criminal Rules Advisory Committee to honor former Virginia State Bar presi- on which he served until 1997. In www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 39 Noteworthy > PEOPLE Betty Moore Sandler Honored for Lifetime Achievement in Family Law
Betty M. Sandler, a principal of Nichols Sandler has been a board member Zauzig Sandler PC in Woodbridge, has and vice chair of the Family Law Section been named the 2015 winner of the of the Virginia Trial Lawyers Association, Betty A. Thompson Lifetime and a board member and officer of the Achievement Award by the Virginia VSB Family Law Section. She also is past State Bar’s Family Law Section. president of the Virginian chapter of the The award recognizes and honors American Academy of Matrimonial an individual who has made a substan- Lawyers. tial contribution to the practice and She is a past president of the administration of family law in the McLean Bar Association and was the Commonwealth of Virginia. It will be founding president of the Prince presented at the Annual Family Law William County Bar Foundation. Seminar April 23 at The Jefferson Hotel Sandl er also serves as a substitute judge in Richmond. in the Juvenile and Domestic Relations Sandler has practiced family law District Courts of Virginia. She has since 1986, primarily in Northern authored many articles on family law Betty M. Sandler Virginia. She has been active in the matters for the Virginia State Bar and Prince William County Bar Association, Virginia Trial Lawyers Association pub- the Arlington Bar Association, and was lications and she regularly participates said, “No one I know has been more instrumental to starting the Prince as a panelist and moderator for active and involved in family law related William Family Law Section. She also Continuing Legal Education seminars matters than Betty Moore Sandler.” served as chair for the Prince William on domestic relations and ethics. Sandler is a graduate of the Bar Association Committee on In his letter nominating Sandler for University of Kentucky and the Professionalism. the award, attorney Carl J. Witmeyer II University of Kentucky College of Law. Local and Specialty Bar Elections
Bristol Bar Association Fredericksburg Area Bar Association Roanoke Chapter, Federal Bar Sheri Ann Hiter, President Catherine Miller Saller, President Association Joseph James Curcio, Vice President Bruce Collier Phillips, President-elect Joshua Charles Johnson, President Jennifer Ann Baker, Secretary-Treasurer Thomas Woehrle, Secretary Phillip Verne Anderson, President-elect Stephen Gray Judy, Treasurer Joshua Forrest Pescud Long, Chesapeake Bar Association Robert Timothy Eckstrom, Vice President Wilfredo Bonilla Jr., President Assistant Secretary Abigail Elizabeth Murchison, Secretary Erin Leigh Evans-Bedois, President-elect Joel William Young, Assistant Treasurer Travis Alan Knobbe, Treasurer Melissa Jackson Howell, Secretary Larachelle Fularon Wood, Treasurer The Prince William County Bar Salem-Roanoke County Bar Ryan Carson Samuel, Executive Officer Association, Inc. Association Jennifer Beth Zary, President Bryan Lee Meadows, President Criminal Defense Bar Association of Jeanice Bowden Wiethop, President-elect Sarah Jane Newton, 1st Vice President the 28th Circuit Sarah Jean Knapp, Secretary Peter Sean Lubeck, 2nd Vice President Matthew Lanham Felty, President Robert Paul Coleman, Treasurer Mary Patricia McKenna, Heather Renee Howard, Vice President John Donald Whittington, Director Secretary-Treasurer Sheri Ann Hiter, Secretary-Treasurer Arthur vonKeller IV, Director Nanda Elizabeth Davis, Judge Advocate Douglas Bradley Marshall, Director John Stuart Koehler, Mark Thomas Crossland, Director Corresponding Secretary
40 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org PEOPLE < Noteworthy Colleen M. Quinn Receives Family Law Service Award
Colleen M. Quinn, partner in Locke & Quinn founded the Adoption and Quinn in Richmond, has been named Surrogacy Law Center as a resource for the 2015 recipient of the Family Law people navigating their options for creat- Service Award presented by the Virginia ing a family. She is a fellow on the board State Bar’s Family Law Section. of the American Academy of Adoption The award recognizes people and Attorneys and the American Academy organizations that have improved family, of Assisted Reproduction Technology domestic relations, or juvenile law in Attorneys. She is also the co-author of Virginia. It is to be presented April 23 at the fifth edition of the Virginia CLE the section’s Annual Advanced Family Adoption Procedures and Forms book. She is a member of the American Law Seminar at the Jefferson Hotel in Association for Justice, the Virginia Trial Richmond. Lawyers Association, the Richmond Bar Quinn was nominated by Sherry A. Association, the Metropolitan Richmond Fox, awards chair of the Metropolitan Women’s Bar Association, the Richmond Richmond Women’s Bar Association. Women’s Business Consortium, and the Colleen M. Quinn “(Quinn) is an exceptional attorney who National Association of Women Business has dedicated herself to helping people Owners. build their families through her adop- She also is an active community at the J. Sargeant Reynolds Paralegal tion and surrogacy practice,” Fox wrote. volunteer and has provided domestic Studies Program. She also volunteers at “It is her tireless work in this area that violence training and education to vari- the YMCA and at her church. makes her the ideal recipient of this ous organizations. Through internships Quinn is a graduate of the College award. … What truly set s her apart is at her firm, she mentors students at the of William and Mary and has her law her passion for helping her clients and law schools of William and Mary, the degree from the University of Virginia the personal investment she makes in University of Virginia, the University of School of Law. each and every case she handles.” Richmond, and Howard University, and
Local and Specialty Bar Elections Have You Moved? Tidewater Chapter, Federal Bar Donald Cameron Beck Jr., Secretary Association Brian Nelson Casey, Treasurer To check or change your address of Mark Edward Warmbier, President record with the Virginia State Bar, go Erin Quinn Ashcroft, President-elect Virginia Law Foundation to the VSB Member Login at Susan Roussel Blackman, Vice President John Daniel Epps, President https://member.vsb.org/vsbportal/. Robert Paul Stenzhorn, Secretary Irving M. Blank, President-elect John Christian Gardner, Treasurer Miss Lucia Anna Trigiani, Vice President Go to “Membership Information,” where your current address of record is Virginia Association of Criminal Winchester-Frederick County Bar listed. To change, go to “Edit Official Defense Lawyers Association Address of Record,” click the appropri- John Raymond Maus, President Timothy Martin Mayfield, President David Bernard Hargett, President-elect David Lee Hensley, President-elect ate box, then click “next.” You can type Glen Franklin Koontz, Secretary Renae Reed Patrick, Secretary your new address, phone numbers, and Mary Louise Costello Daniel, Treasurer email address on the form. Virginia Association of Defense Contact the VSB Membership Attorneys Department ([email protected] or Kathleen Mary McCauley, President Carlyle Randolph Wimbish III, (804) 775-0530) with questions. President-elect www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 41 Noteworthy > PEOPLE James C. Roberts 1932–2015
James C. “Jim” Roberts, former president Roberts was one of the founders of of the Virginia State Bar, March 8, 2015. the Central Virginia Legal Aid Society Mr. Roberts was born March 29, 1932, in and was a Legal Aid volunteer for many Taylorsville, NC. He was a graduate of years. He also served on the University of Hampden-Sydney College and the T.C. Virginia School of Nursing Advisory Williams School of Law at the University Board, Medical College of Virginia of Richmond. Foundation, The University of Virginia Upon graduation, he joined Tucker, Health Foundation, State Fair of Virginia Mays, Moore & Reed. The firm later Board, Virginia Military Institute Board, became Mays & Valentine and then Commission on the Future of Virginia’s Troutman Sanders, where he was man- Judicial System, Chesapeake Bay aging partner. Foundation, Westminster Canterbury of Mr. Roberts was president of the Richmond Board, and Virginia Richmond Bar Association in 1977 and Commonwealth University Health president of the Virginia State Bar in System. 1980–1981. “I think we can safely say that there He was a recipient of the Harry L. will never be another lawyer quite like Carrico Professionalism Award and the Jim Roberts,” said Irving M. Blank, for- James C. Roberts Tradition of Excellence Award from the mer Virginia State Bar president. “He bar, and the Richmond Bar Association’s excelled at every level and in every aspect lawyers, old lawyers, students, and any Hunter W. Martin Professionalism of the practice of law. Additionally, he needy cause.” Award and the Robert R. Merhige Jr. seemed to have endless energy and time Outstanding Achievement Award. for the legal community, legal aid, new In Memoriam
Michael Francis Blair Erika Bechstein Kussy Got an Ethics Bristol Alexandria Question? May 1947 – January 2015 March 1946 – September 2014 The VSB Ethics Hotline is a confi- James MacGregor Collins Dennis O. Laing dential consultation service for Alexandria Richmond members of the Virginia State Bar. December 1963 – October 2014 March 1946 – September 2014 Non-lawyers may submit only Jacqueline M. Gordon Colonel Patrick Andrew O’Hare unauthorized practice of law ques- Vienna Richmond tions. Questions can be submitted December 1956 – January 2015 December 1944 – February 2015 to the hotline by calling (804) 775- 0564 or by clicking on the blue Jimmy Gonzalez Dion Francis Richardson “E-mail Your Ethics Question” Pembroke Pines, Florida Lynchburg box on the Ethics Questions and February 1972 – November 2014 August 1955 – December 2014 Opinions web page at http://www Pamela L. Kopp .vsb.org/site/regulation/ethics/. Olney, Maryland October 1960 — February 2015
42 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Law Libraries Virginia Records and Briefs: An Online Research Tool by Suzanne Corriell
Over the years, there has been more readily accessible electronic availability of records and briefs filed in various courts. Attorneys and students have tra- ditionally used briefs and records (or appendices) of cases to distinguish the case presented from formerly established case law. The briefs present the attor- neys’ arguments and rationale based on prior case law, while the record contains many of the exhibits, motions, and wit- ness examinations. These materials can be incredibly effective teaching tools for both students and practitioners. Many attorneys and public users are aware of PACER, the federal portal that enables users to access court filings for a modest fee. Lexis and Westlaw offer many briefs and related court filings, for a more robust fee; Bloomberg Law also provides access to numerous federal and state filings. But did you know that many Virginia records and briefs are available for no cost? The Muse Law Library at the University of Richmond School of Law has undertaken a project to inventory its holdings of the Supreme Court of Virginia records and briefs, dating back as far as 1852, and provide access to the inventory records available online. For more recent cases (since 2008), the records and briefs are available online. briefs identified by party and, where In 2008, the Supreme Court of Through an online portal at http:// necessary, by record number. The pagi- Virginia began requiring electronic sub- law2.richmond.edu/librarytech/varb/, nation of each piece is also noted; this missions of records and briefs instead of researchers can search the library’s hold- can be particularly helpful when plan- print copies. Because of this, the ings to determine what records and ning to copy documents, as appendices University of Richmond can now allow briefs are available in the library in print. may run into the hundreds of pages. users to directly access materials online. Researchers can search by using the Each case analysis also includes For these more recent cases, beginning Virginia Reports citation or by case notes, which may include references to with Volume 277 of the Virginia Reports, record number, as assigned by the related decisions, occasional explana- a direct link to a compressed .zip file that Supreme Court of Virginia. tions of case history or arrangement, contains all of the briefs and appendices Each individual case analysis also and alerts to anomalies in the scope, for- is provided. Wherever they may be, users includes a list of the records and briefs mat, or arrangement of the library’s set held by the Muse Law Library. Each piece of the records and briefs. of the set is identified separately, with [See image above] Research continued on page 45 www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 43 Technology and the Practice of Law How Lawyers Can Manage Their Technology Well by Sharon D. Nelson and John W. Simek © 2015 Sensei Enterprises Inc.
Can lawyers actually manage their tech- when software asks more) and because are not, find someone who is (and if nology (instead of it managing them)? we tend to want/need new features in you find competence — hold it close, Buying, implementing, replacing, and our technology. You may be able to because it is darn rare). securing technology are huge challenges stretch the lifespan of some equipment — especially when you have billable — servers, printers, multi-function Kick the Tires! work to do. And yet, technology is the machines, etc.— o five years. It is rare to find software that doesn’t most important part of a law firm today Second, let’s acknowledge that come with a thirty-day free trial, so for — at least after the carbon-based units. lawyers are terrible about budgeting. heaven’s sake kick the tires first and see if Make yourself a list of all the equipment the software will work for you. Just as What Are Lawyers Doing Wrong? you own, when it was placed in service you might explore a lot of houses before Rare is the solo/small firm that does an and who has the devices (this will need you find the one you want to call home, annual review of its technology. Firms updating each year). For the most part, you need to be comfortable (especially tend not to plan, but rather to buy tech- experts recommend that you plan on with an expensive or significant-to-your- nology when a new need arises, when a refreshing your technology, with the practice purchase) that the product is a partner demands the latest cool tech toy, exceptions mentioned above, every good fit for you. or when something breaks. In our world, three years. That means you need to If there’s not a thirty-day free trial, we call that the “Break/Fix” method of budget for replacing 1/3 of your tech- the odds are good that you can get an (not) managing technology. nology each year. At the outside, budget online demo — those are also very For the most part, lawyers don’t even for replacing 1/4 of your technology instructive — and you can ask tons of have a list of all the equipment they own. each year. questions or ask to have particular fea- They don’t know when it was placed in The ultimate and often seen night- tures demonstrated. service—they may think about this mare is a “big bang” purchase of almost Try before you buy — and caveat briefly in terms of depreciating capital all the technology because everything is emptor because the legal tech world is expenses at tax time, but not in terms of so out of date. This is a major hit to the full of snake oil. planning to replace technology. law firm wallet. It is far less painful to do And, God help them, they often this over time. Security and Ethics—It’s a New World listen to a vendor they just happen to And don’t be cheap in your buying If you haven’t read the changes to Model run into at a conference or someone decision because you’ll regret it — Rule of Professional Conduct 1.6, who persistently stalks them with a deal lawyers need “business class” machines including the comments, now is a good that sounds too good to be true (hint: that can handle a lot of software being moment to make a strong cup of coffee it is). A lot of decisions are made used at once. As we have wryly observed, and do so. With the tsunami of data quickly because lawyers are in such a lawyers have zero patience with slow breaches that we’ve seen in the past cou- hurry to get back to practi cing law. computing. ple of years, even staid and traditionalist Understandable, but it often results in Hopefully, you have a relationship law firms have awakened with a start and poor decisions being made. with a trusted IT consultant. Listen to are scrambling to shore up their data the consultant when it’s time to pur- security. Getting Yourself Organized chase. Don’t just willy nilly buy things The #1 answer to most basic secu- First, let’s stress an important point: because you think you’ve found a great rity questions is “encryption is your Technology has a life span. For most deal or because a vendor promises you friend.” Strong encryption has not been computers, laptops, tablets, smart- the moon for a song. Your colleagues broken, even by the NSA. Your laptops, phones, etc., that tends to be about three can be a good source of validation as computers, tablets, smartphones, and years. That does NOT mean that the well. But know what you don’t know backups should all be encrypted. devices will cease to work. It just means and find someone who can lend a Lawyers believe encryption is hard. that we tend to replace them that often hand. Remember that Model Rule of It used to be, but no longer. You don’t because performance will deteriorate as Professional Conduc t 1.1 now includes need to understand the mathematics we ask more of our devices (specifically being competent with technology. If you behind encryption, you just need to have
44 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Technology and the Practice of Law an IT pro get encryption set up. For keeps folks away from your business net- them data, but it’s fundamen tally example, if you need to encrypt e-mail, work. Easy peasy for your IT consultant garbage because it’s encrypted with the you can install a product like Zixcorp to set one up. user’s encryption key. (which we are seeing more and more in law firms) and encryption is as simple as To Cloud or Not to Cloud? Final Thoughts clicking on an “Encrypt and Send” but- Every state that has weighed in on Clearly, we could go on and on about ton — from within Outlook. If you want lawyers using the cloud to store data has managing technology. The real point to encrypt an attachment (Word or fundamentally said it is fine, so long as here is that technology should indeed be PDF) just put a strong “open” password the lawyer is reasonably careful to ensure managed — and this is not an ad hoc on it (simple instructions can be found the security of the data. We still have a process. If you haven’t gotten your arms in “Help”) — just don’t put the password lot of holdouts who are not comfortable around a process for managing your in the accompanying e-mail. Yes, we’ve with the cloud. We were long called technology, it’s time to roll up your seen that. Good grief. (with good reason) “cloud curmud- sleeves and get to work. In all aspects of your tech planning geons”— but we finally came around and review, consider security. Want to to the stark realization (hat tip to Jim allow employees to bring their own Calloway here) that most clouds pro- devices and connect to your network? tected data better than most lawyers. Bad idea. They may be carrying mal- Still, to return to our “encryption” ware and infect your network. Is BYOD theme, it is important that you make (Bring Your Own Device) cheaper? sure that your confidential data is pro- NEVER if you have a data breach. We’ve tected. That means that the data has to heard folks argue that mobile device be encrypted in transit and at rest. management solves the problem. MOST IMPORTANTLY, you have to be Maybe, but the price of that manage- the one who holds the decryption key. ment has soared in the past several years In the case of the iCloud, Dropbox, — far beyond the reach of small law OneDrive, Box, Google Drive, the terms firms. Buying and issuing work devices of service make clear that these providers makes the management of their security have master decryption keys. This is one Nelson Simek far easier — and employees have noth- reason we like SpiderOak, which is ing to say about how you choose to designed so that it has “zero knowledge” Sharon D. Nelson and John W. Simek are the president and vice president, respectively, of manage them. — you have the only knowledge of the Sensei Enterprises Inc., a digital forensics, infor- If your firm has a wireless network, decryption key. Sure, if someone shows mation security, and information technology it should also have a guest network that up with legal paperwork, they can give firm based in Fairfax.
Research continued from page 43 wishing to subscribe to this service should contact HeinOnline. can click on the Download link to For additional information on the immediately obtain these documents. Court records and briefs project, [See image on page 43] please see John R. Barden, Appellate In 2006, a consortium of Virginia Records and Briefs After the Case Is academic law libraries, plus the Over, Va. Law., at 23 (Dec. 2002). Suzanne Corriell is associate circuit librarian Virginia State Law Library, launched a at the United States Court of Appeals for the digital version of Supreme Court of Fourth Circuit. She is a past-president of the Virginia briefs available through Virginia Association of Law Libraries. HeinOnline. HeinOnline’s coverage includes briefs, as well as appendices corresponding to cases decided before volume 130 of Virginia Reports. Those
www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 45 CLE Calendar
Introduction to Virginia’s Sentencing Register by completing the form and Guidelines submit to the commission. Space may be Virginia State Bar Six-hour seminars approved for six CLE limited. Purchase manual separately. Harry L. Carrico credits, July 8, Abindgon (Virginia $125 fee waived for judges, common- Higher Education Center); July 10, wealth’s attorneys, P&P, public defend- Professionalism Course Charlottesville (Virginia Center for ers, and staff. May 14, 2015, Hampton Transportation Innovation & Research). July 16, 2015, Roanoke Virginia Lawyer publishes at no charge notices Details at http://www.vcsc.virginia.gov August 27, 2015, Richmond /training.html. The introduction semi- of continuing legal education programs spon- sored by nonprofit bar associations and gov- September 2, 2015, Alexandria nar is designed for the attorney or crimi- December 2, 2015, Richmond nal justice professional who is new to ernment agencies. The next issue will cover July 13 through August 28. Send information Virginia’s sentencing guidelines. The by June 2 to [email protected]. For other CLE See the most current dates and seminar will begin with general back- opportunities, see Virginia CLE calendar and registration information at ground information and progress to “Current Virginia Approved Courses” at http://www.vsb.org/site detailed information on scoring each of http://www.vsb.org/site/members/mcle-courses /members/new. the guidelines factors to include changes. or the websites of commercial providers.
Virginia CLE Calendar Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.
April 14 April 22 April 29 Employment Law Mediation Contempt of Court: A Lesson in Legal Everything a Bankruptcy Attorney Webcast/Telephone History Should Know About ... Essential 2–4 PM Video — Tysons Corner Practice Pointers in All of the 9 AM–12:15 PM Fundamental Areas April 15 Video — Tysons Corner 17 Things Lawyers Learn (Often the April 23 8:30 AM–3:45 PM Hard Way) 31st Annual Advanced Family Law Live — Seminar: The Most Effective Strategies April 29 Charlottesville/Webcast/Telephone for Working with and Utilizing Expert Handling and Responding to OSHA NOON–2 PM Witnesses Citations in Virginia Live — Richmond Webcast/Telephone April 16 8:30 AM–4:15 PM 10 AM–NOON Tom Spahn on Ethical Issues Related to Civil Rights and Diversity April 24 April 30 Live — Charlottesville/Webcast/ 17 Things Lawyers Learn (Often the 45th Annual Criminal Law Seminar Telephone Hard Way) 2015 NOON–2 PM Webcast/Telephone Video — Abingdon, Fredericksburg, 10 AM–NOON Harrisonburg, Norfolk, Richmond, April 20 Roanoke, Tysons Corner Handling and Responding to OSHA April 28 8:15 AM–4:45 PM (RICHMOND VIDEO Citations in Virginia Everything a Bankruptcy Attorney BEGINS AT 9 AM) Live — Charlottesville/Webcast/ Should Know About ... Essential Telephone Practice Pointers in All of the May 1–3 NOON–2 PM Fundamental Areas The Douglas W. Conner 36th Annual Video — Abingdon, Alexandria, Advanced Estate Planning and April 21 Charlottesville, Norfolk, Richmond, Administration Seminar Contempt of Court: A Lesson in Legal Roanoke Live — Williamsburg History 8:30 AM–3:45 PM (RICHMOND VIDEO FRIDAY: 12:55–5:35 PM; SATURDAY: 8:30 Video — Alexandria, Charlottesville, BEGINS AT 9 AM) AM–1 PM; SUNDAY: 8:30 AM–12:35 PM Norfolk, Richmond, Roanoke 9 AM–12:15 PM
46 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org CLE Calendar
May 1 May 13 Recent Developments in Federal Recent Developments in Federal Construction and Government Construction and Government Contracts Law Contracts Law Live — Webcast/Telephone Charlottesville/Webcast/Telephone 10 AM–NOON NOON–2 PM May 14 May 5 24th Annual Employment Law Update Special Needs Trusts and Medicaid Seminar Video — Alexandria, Charlottesville, Live — Richmond Richmond, Roanoke 8 AM–4:30 PM 9 AM–4:15 PM May 18 May 6 What Can Lawyers Learn from Special Needs Trusts and Medicaid Actors?SM Control in the Courtroom Video — Norfolk, Tysons Corner Live — Richmond 9 AM–4:15 PM 9 AM–4:30 PM
May 6 May 19 Modern International Dispute 33rd Annual Real Estate Practice Resolution Seminar Live — Live — Williamsburg Charlottesville/Webcast/Telephone 8:30 AM–3:40 PM NOON–3:15 PM May 19 May 7 Modern International Dispute 24th Annual Employment Law Update Resolution Seminar Webcast/Telephone Live — Fairfax NOON–3:15 PM 8 AM–4:30 PM May 20 The VSB E-News May 12 33rd Annual Real Estate Practice 33rd Annual Real Estate Practice Seminar Seminar Live — Fairfax Have you been receiving the Live — Roanoke 8:30 AM–3:40 PM Virginia State Bar E-News? The 8:30 AM–3:40 PM May 20 E-News is a brief monthly sum- May 12 Trial Advocacy Highlights: Theory of mary of deadlines, programs, rule Business Valuation for Estate, Gift, and Advocacy, Openings and Closings, Income Taxes Direct and Cross, and Experts changes, and news about your Live — Video — Alexandria, Charlottesville, regulatory bar. The E-News is Charlottesville/Webcast/Telephone Danville, Richmond 10–11:30 AM 8:30 AM–4:30 PM (RICHMOND VIDEO emailed to all VSB members. If BEGINS AT 9 AM) your Virginia State Bar E-News is May 12 Business Valuation and Classification May 20 being blocked by your spam filter, of Property for Equitable Distribution What Can Lawyers Learn from contact your email administrator in Divorce Actors?SM Control in the Courtroom Live — Live — Dulles and ask to have the VSB.org Charlottesville/Webcast/Telephone 9 AM–4:30 PM domain added to your permis- 1–2:30 PM sions list.
www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 47 CLE Calendar
May 20 May 28 June 8 Ethics Update for Virginia Lawyers 31st Annual Advanced Family Law Spousal Support Update 2015 2015 Seminar: The Most Effective Strategies Live — Webcast/Telephone for Working with and Utilizing Expert Charlottesville/Webcast/Telephone NOON–2 PM Witnesses NOON–2 PM Video — Tysons Corner May 21 8:30 AM–4:15 PM June 9 Trial Advocacy Highlights: Theory of 33rd Annual Real Estate Practice Advocacy, Openings and Closings, May 28 Seminar Direct and Cross, and Experts Economic Damages for Corporate Video — Lynchburg Video — Abingdon, Norfolk, Roanoke, Litigation 8:30 AM–3:40 PM Tysons Corner Webcast/Telephone 8:30 AM–4:30 PM 10–11:30 AM June 9 12th Annual Advanced Seminar for May 21 May 29 Guardians Ad Litem for Children — Business Valuation for Estate, Gift, and Best Practices in Circuit Court: An 2012 Income Taxes Interactive Judges’ Forum for Video — Abingdon, Alexandria, Webcast/Telephone Tidewater-Area Litigators Charlottesville, Norfolk, Richmond, 10–11:30 AM Live — Virginia Beach Roanoke 12:45–5:15 PM 9 AM–4:30 PM May 21 Business Valuation and Classification June 2 June 10 of Property for Equitable Distribution Representation of Children as a 33rd Annual Real Estate Practice in Divorce Guardian Ad Litem — 2014 Qualifying Seminar Webcast/Telephone Course Video — Abingdon, Charlottesville, 1–2:30 PM Video — Abingdon, Alexandria, Danville, Dulles, Hampton, Richmond, Charlottesville, Norfolk, Richmond, Roanoke May 26 Roanoke 8:30 AM–3:40 PM (RICHMOND VIDEO 31st Annual Advanced Family Law 8:30 AM–5:15 PM (RICHMOND VIDEO BEGINS AT 9 AM) Seminar: The Most Effective Strategies BEGINS AT 9 AM) for Working with and Utilizing Expert June 10 Witnesses June 3 12th Annual Advanced Seminar for Video — Dulles, Fredericksburg, Representation of Children as a Guardians Ad Litem for Children — Harrisonburg Guardian Ad Litem — 2014 Qualifying 2012 8:30 AM–4:15 PM Course Video — Tysons Corner Video — Tysons Corner 9 AM–4:30 PM May 26 8:30 AM–5:15 PM Economic Damages for Corporate Litigation June 3 Live — Tom Spahn on Ethical Issues Related to Charlottesville/Webcast/Telephone Civil Rights and Diversity 10–11:30 AM Webcast/Telephone NOON–2 PM May 27 31st Annual Advanced Family Law June 4–5 Seminar: The Most Effective Strategies 67th Virginia Conference on Federal for Working with and Utilizing Expert Taxation Witnesses Live — Charlottesville Video — Abingdon, Alexandria, FRIDAY: 8:50 AM–5:15 PM; SATURDAY 8:45 Charlottesville, Norfolk, Richmond, AM–4:30 PM Roanoke 8:30 AM–4:15 PM (RICHMOND VIDEO BEGINS AT 9 AM)
48 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Virginia Lawyer Register
DISCIPLINARY PROCEEDINGS
CIRCUIT COURT Respondent’s Name Address of Record Action E ective Date Michael Arthur Perry Glen Burnie, MD Suspension—1 year September 24, 2014
DISCIPLINARY BOARD Respondent’s Name Address of Record Action E ective Date Lorenzo Lee Bean III Sterling, VA Revocation March 16, 2015 Harry P. Friedlander Mesa, AZ Suspension—60 days January 2, 2015 Joseph Wheeler Rasnic Jonesville, VA Revocation February 13, 2015 Mark Anthony Sgarlata McLean, VA Revocation January 23, 2015 Michael Alan Ward Fairfax, VA Suspension—1 year February 22, 2015 Nicholas Caron Smith Mt. Holly, VA Public Reprimand w/Terms February 3, 2015
DISTRICT COMMITTEES Respondent’s Name Address of Record Action E ective Date Tinya Lynnette Banks Norfolk, VA Public Reprimand w/Terms March 16, 2015 Darlene Rife Langley Springeld, VA Public Reprimand w/Terms January 26, 2015 Sabina Nunn Wighington Fredericksburg, VA Public Reprimand w/Terms January 23, 2015
Suspension—Failure to Pay Disciplinary Costs E ective Date Lied Christopher John Dumler Scottsville, VA February 4, 2015 Dale Eugene Duncan McLean, VA February 24, 2015 Mark Richard Galbraith Reston, VA March 12, 2015 Lucy Ivano Staunton, VA February 9, 2015 Robert E. Kowalsky Jr. Chesapeake, VA February 19, 2015 Marcus Noah Perdue III Covington, VA February 5, 2015 Charles Albert Price Annandale, VA February 24, 2015 Jorge Antonio Rodriguez Mundelein, IL February 9, 2015
Suspension—Failure to Comply with Subpoena E ective Date Lied Sherman Owen Halstead Jr. Colonial Heights, VA March 13, 2015
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Disciplinary Summaries e following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the Virginia Supreme Court Part 6, ¶ II, e. Jan. 1, 2000) or another of the Supreme Court Rules. Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s Oce at (804) 775-0539 or [email protected]. VSB docket numbers are provided.
CIRCUIT COURT Mark Anthony Sgarlata Michael Arthur Perry McLean, Virginia Glen Burnie, Maryland 15-000-100482 11-053-085637, 11-053-087095, 11-053-088168, 12-053- Eective January 23, 2015, the Virginia State Bar Disciplinary 091441, 13-053-083155 Board revoked Mark Anthony Sgarlata’s license to practice Eective September 24, 2014, the Circuit Court of the County law based on his conviction of a felony in the Circuit Court of Fairfax, Virginia, suspended Michael Arthur Perry’s of Loudon County. Mr. Sgarlata’s license was summarily license to practice law for one year for violating professional suspended on September 25, 2014. Rules Part 6, § IV, ¶ 13-22 rules that govern safekeeping property. is was an agreed www.vsb.org/docs/Sgarlata-031615.pdf disposition of misconduct charges. RPC 1.15(a)(1),(b)(5) www.vsb.org/docs/Perry-031715.pdf Michael Alan Ward Fairfax, Virginia DISCIPLINARY BOARD 12-051-091819 Lorenzo Lee Bean III Eective February 22, 2015, the Virginia State Bar Disciplinary Board suspended Michael Alan Ward’s license Sterling, Virginia to practice law for one year for violating professional rules 15-070-101069 that govern competence, diligence, communication, and On March 16, 2015, the Virginia State Bar Disciplinary misconduct. RPC 1.1, 1.3(a,b), 1.4(a-c), 8.4(a-c) Board revoked Lorenzo Lee Bean III’s license to practice law based on his adavit consenting to the revocation. Mr. Bean www.vsb.org/docs/Ward-031615.pdf admits that the disciplinary charges against him are true and that he could not successfully defend against them. Rules Nicholas Caron Smith Part 6, § IV, ¶ 13-28 Mt. Holly, Virginia www.vsb.org/docs/Bean-031715.pdf 14-060-097508 On February 3, 2015, the Virginia State Bar Disciplinary Harry P. Friedlander Board issued a public reprimand with terms to Nicholas Caron Smith for violating professional rules that govern Mesa, Arizona diligence, communication, safekeeping property, declining or 15-000-101182 terminating representation, bar admission and disciplinary Eective January 2, 2015, the Virginia State Bar Disciplinary matters, and misconduct. is was an agreed disposition of Board suspended Harry P. Friedlander’s license to practice misconduct matters. law for sixty days based on his sixty-day suspension by the RPC 1.3(a,b), 1.4(a-c), 1.15(a)(b)3-5)(c)(1)(2)(i,ii)(3)(4), 1.16(a) Supreme Court of Arizona. is was an agreed disposition of (1)(d)(e), 8.1(c,d), 8.4(a,c) misconduct charges. Rules Part 6, § IV, ¶ 13-6(H) and 13-24 www.vsb.org/docs/Smith-031815.pdf www.vsb.org/docs/Friedlander-031915.pdf DISTRICT COMMITTEES Joseph Wheeler Rasnic Tinya Lynnette Banks Jonesville, Virginia 15-101-099667 Norfolk, Virginia On February 13, 2015, the Virginia State Bar revoked Joseph 15-021-100489 Wheeler Rasnic’s license to practice law based on his adavit On March 16, 2015, the Virginia State Bar Second District consenting to the revocation and his conviction of a felony in Subcommitee issued a public reprimand with terms to Tinya the United States District Court for the Western District of Lynnette Banks for violating professional rules that govern Virginia. In consenting to the revocation, Mr. Rasnic admits competence, diligence, and communication. is was an that the disciplinary charges against him are true and that he agreed disposition of misconduct charges. RPC 1.1, 1.3(a), could not successfully defend against them. Rules Part 6, § IV, 1.4(b) ¶ 13-28; RPC 1.15, 5.3, 8.4 www.vsb.org/docs/Banks-031715.pdf www.vsb.org/docs/Rasnic-031615.pdf
50 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Virginia Lawyer Register
DISTRICT COMMITTEES Sabina Nunn Wighington Darlene Rife Langley Frederiscksburg, Virginia Springeld, Virginia 14-060-098309, 14-060-098323, 14-060-099356, 14-060-099200 14-051-096398 On January 23, 2015, the Virginia State Bar Sixth District On January 26, 2015, the Virginia State Bar Fih District, Subcommittee issued a public reprimand with terms to Section I Subcommittee issued a public reprimand with Sabina Nunn Wighington for violating professional rules that terms to Darlene Rife Langley for violating professional rules govern diligence, communication, safekeeping property, and that govern diligence, communication, and declining or bar admission and disciplinary matters. is was an agreed terminating representation. is was an agreed disposition of disposition of misconduct charges. RPC 1.3(a), 1.4(a), 1.15(a)(b) misconduct charges. RPC 1.3(a), 1.4(a-c), 1.16(a)(2) (1-5)(c)(1)(2)(i,ii)(3)(4)(d)(2)(3)(i-iv)(4), 1.16(a)(2)(c)(d), 8.1(a)(b) www.vsb.org/docs/Langley-031615.pdf www.vsb.org/docs/Wighington-031615.pdf
Notices to Members COMMENTS SOUGHT ON PROPOSED LEGAL ETHICS OPINION 1876 AMENDMENTS TO RULES e Standing Committee on Legal Ethics has issued LEO e Standing Committee on Legal Ethics is seeking public 1876 as nal: “Ethical Obligations Of A Prosecutor Who Plea comments on proposed amendments to Rules 5.5[1a] Bargains With An Unrepresented Defendant Whom e and 8.3(e) of the Virginia Rules of Professional Conduct. Prosecutor Has Been Informed Is A Noncitizen Subject To Comments should be submitted in writing to Karen A. Gould, Deportation Under Immigration Law Upon Conviction Of Executive Director, Virginia State Bar, 1111 E. Main Street, e O§ense Which Is e Subject Of e Plea O§er.” Suite 700, Richmond, VA 23219-3565 or publiccomment@vsb. www.vsb.org/docs/LEO/1876.pdf org, no later than the end of the business day on May 4, 2015. Details: CRIMINAL DEFENSE SEMINAR www.vsb.org/pro-guidelines/index.php/rule_changes/ Space is still available in the webcast locations for the 11th item/prop_5-5_and_8-3e Annual Indigent Criminal Defense Seminar Advanced Skills for the Experienced Practitioner. You may register for the May 1 event for webcasts in Weyers Cave and Wytheville. COUNCIL APPROVES AMENDMENTS On February 28, the Virginia State Bar Council approved and will present to the Supreme Court of Virginia for its approval ADMINISTRATIVE SUSPENSIONS the following new proposed paragraph 13.4: Standards for e following members of the Virginia State Bar were Minimum Malpractice Coverage When Disciplinary Charges administratively suspended on October 15, 2014, for failure Heard by a ree-Judge Panel Result in a Finding of Criminal to comply with the Rules of the Supreme Court of Virginia, Conduct Involving Loss of Client Property. Part Six, Section IV, Paragraphs 11 and/or 16, 18, 19; or the www.vsb.org/docs/prop-13_4-050914.pdf Code of Virginia, Sections 54.1-3912 or 54.1-3913.1. ese attorneys were notied of their suspensions using their last e Council also approved and will present to the Supreme address of record with the Virginia State Bar; however, in Court of Virginia for its approval the following proposed some instances, this has not been e§ective. To assist the amendments to paragraph 13-4E: Establishment of District Virginia State Bar in re-establishing contact with these Committees. attorneys, anyone having knowledge of the present location and practice status of persons on this list should contact the www.vsb.org/docs/prop-para-13-4E-0914.pdf VSB Membership Department. e list was published on February 27, 2015. e Council also amended and approved by a vote of www.vsb.org/site/members/administrative-suspensions 36–23 amendments to Rules 1.1 (Competence) and 1.6 (Condentiality) of the Virginia Rules of Professional Conduct. e proposed rule changes will be presented to the Supreme Court of Virginia for its consideration. www.vsb.org/pro-guidelines/index.php/rules/client-lawyer- relationship
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New Rule 5.8 Governs Noti cation to Clients When Lawyer Leaves Law Firm by James M. McCauley, Ethics Counsel e Supreme Court of Virginia has adopted a new rule In short, Rule 5.8 is intended to protect the aected clients requiring a departing lawyer and/or his or her rm to notify by prohibiting unilateral contacts with clients prior to the clients of the lawyer’s departure and the client’s options for announcement of a departure or dissolution, providing continuation of the representation. Because of the fact that an opportunity for the lawyers to “meet and confer,” and lawyers are ethically required to keep clients reasonably requiring notice to the aected clients of their right to choose informed in regard to the handling of their legal matters, the who continues the representation. frequency with which lawyer departure issues are raised on the The new rule also adopts a default rule in the event a Ethics Hotline, and the acrimony and disagreement that o en client fails to respond to a noti cation letter: accompanies a lawyer departure or rm dissolution, the Ethics Committee recommended, and the Supreme Court of Virginia In the event that a client of a departing lawyer fails to has adopted, a new Rule of Professional Conduct that explicitly advise the lawyer and law rm of the client’s intention dictates how and under what circumstances clients must be with regard to who is to provide future legal services, notied. e Supreme Court adopted Rule 5.8 (Procedures for the client shall be deemed a client of the law rm Notication to Client When a Lawyer Leaves a Law Firm or until the client advises otherwise or until the law rm 4 When a Law Firm Dissolves) on February 27, 2015, but the new terminates the engagement in writing. rule does not go into eect until May 1, 2015. In the event that a client of a dissolving law rm fails Notice must be given only to those clients on whose to advise the lawyers of the client’s intention with matters the departing lawyer has been primarily responsible. regard to who is to provide future legal services, the No communications about the lawyer’s departure may be client shall be deemed to remain a client of the lawyer made until the departing lawyer and the rm have rst who is primarily responsible for the legal services to conferred, or attempted to confer, in order to reach an the client on behalf of the rm until the client advises agreement about client notication. If an agreement cannot otherwise.5 be reached, either the departing lawyer or the rm may ere are, of course, numerous business and legal issues that communicate unilaterally with the aected clients about arise when a lawyer announces his or her intent to leave a the lawyer’s departure and oer the client the choice of: (1) rm. Rule 5.8 does not resolve those issues, but rather focuses migrating with the departing lawyer; (2) choosing another solely upon the lawyers’ duty of communication with the lawyer in the rm to continue the representation; or (3) aected clients when a lawyer announces his or her departure choosing another lawyer other than the departing lawyer or from the rm. For example, the rule does not address the rm. disputes between the departing lawyer and the rm over the Virginia’s new Rule 5.8 (http://www.vsb.org/pro- division of fees and expenses on matters that the departing guidelines/index.php/rule_changes/item/new_rule_5.8) lawyer will be taking with her. is based on Florida RPC 4-5.8 and is not derived from an Comment [1] to Rule 5.8 explains: ABA Model Rule of Professional Conduct. To date, Virginia and Florida are the only states that have adopted a rule of Upon the departure of a lawyer or the dissolution professional conduct on lawyer departure notication to of the law rm, the client is entitled to notice that clients. Other state bars, including Virginia, have addressed clearly provides the contact information for the the issue through advisory legal ethics opinions.1 Rule departing lawyer and information about the ability 5.8 adopts guidance from Virginia legal ethics opinions and willingness of the lawyer and/or rm to continue 1332,2 1506 and 18223 on the departing lawyer’s and rm’s the representation, subject to Rule 1.16. obligations, but expresses more concrete steps to follow. e new rule does not change the committee’s interpretation of a Comment [2] provides: lawyer’s obligations in these circumstances, but it does make If continued representation by the departing clear that these are now requirements, not suggestions, and lawyer and/or by the law rm is not possible, the establishes default rules for situations where the lawyer and communication shall clearly state that fact and rm cannot agree on how to proceed, or where the client does advise the client of the remaining options for not respond to the required notication. LEO 1506 concluded continued representation, including the client’s that Rule 1.4 of the Virginia Rules of Professional Conduct right to choose other lawyers or law rms. required the departing lawyer and her rm to communicate with the aected clients. If the departing lawyer had primary For example, if the departing lawyer is court- responsibility for a client’s matter, that client should be given appointed in a criminal case, he or she will continue timely notice of the lawyer’s departure and advised of the the representation of that client unless permitted options from which the client may choose. to withdraw or replaced by the court; so in those situations, the notication letter should inform the
52 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Virginia Lawyer Register
client of that fact. ere may be other situations obligation, along with responsible members of the rm who as well where the client’s options or right to select remain, to notify clients in whose matters the departing counsel may be restricted; for example, in cases lawyer has played a principal role, that he or she is leaving where an insured has contractually agreed to allow the rm.) an insurer to appoint counsel. 2. LEO 1332 recommends that the lawyer and rm send a Depending on the client’s election, the departing lawyer joint letter that: or another lawyer in the law rm may have a duty to (1) i denties the withdrawing attorneys; notify the court if they have a client in litigation and, (2) i denties the eld in which the withdrawing attorneys if counsel of record before a court, may be required to will be practicing law, gives their addresses and le a motion to withdraw or a motion for substitution telephone numbers; of counsel if their representation of that client has been (3) p rovides information as to whether the former rm terminated. See Comment 5 to Rule 5.8 citing Rule will continue to handle similar legal matters, and; 1.16(c). While Rule 5.8 reinforces the client’s right to (4) e xplains who will be handling ongoing legal work choose counsel, such choice may implicate obligations, during the transition. including a requirement to pay fees for services 3. LEO 1822 reiterated LEO 1322’s advice and adds that: previously rendered and costs expended in connection 1) t he notice should be limited to clients whose active with the representation as well as a reasonable fee for matters the lawyer has direct professional responsibility delivering a copy of the client’s le. See Comment [4] to at the time of the notice (i.e., the current clients); Rule 5.8 citing Rule 1.16(e). 2) t he departing lawyer should not urge the client to sever its relationship with the rm, but may indicate Endnotes the lawyer’s willingness and ability to continue her 1. Ky. Bar Ass’n Op. 424 (2005)(discussing the duty to responsibility for the matters upon which she currently notify and that joint notication is preferable but not is working; always practical); Philadelphia Bar Ass’n Prof, Guidance 3) t he departing attorney must make clear that the client Comm. and Pa. Bar Ass’n Comm. on Legal Ethics and has the ultimate right to decide who will complete or Prof. Resp., Joint Formal Op. 2007-300(rearming earlier continue the matters; and conclusion that the departing lawyer and the rm each 4) t he departing lawyer must not disparage the lawyer’s bear an obligation to notify clients of departure and “if former rm. one fails or refuses to do so, the other one must.”). See also 4. Rule 5.8 (d). ABA Formal Op. 99-414 (1999) (taking the position that a lawyer leaving a law rm for another is under an ethical 5. Rule 5.8 (e).
Rule 5.8 Procedures For Noti cation to Clients When a Lawyer Leaves a Law Firm or When a Law Firm Dissolves. (a) Absent a specic agreement otherwise: (b) When no procedure for contacting clients has been agreed upon: (1) Neither a lawyer who is leaving a law rm nor other lawyers in the rm shall unilaterally contact (1) U nilateral contact by a lawyer who is leaving a clients of the law rm for purposes of notifying law rm or the law rm shall not contain false or them about the anticipated departure or to solicit misleading statements, and shall give notice to the representation of the clients unless the lawyer and clients that the lawyer is leaving the law rm and an authorized representative of the law rm have provide options to the clients to choose to remain conferred or attempted to confer and have been a client of the law rm, to choose representation by unable to agree on a joint communication to the the departing lawyer, or to choose representation clients concerning the lawyer leaving the law rm; by other lawyers or law rms; and and (2) U nilateral contact by members of a dissolving (2) A lawyer in a dissolving law rm shall not law rm shall not contain false or misleading unilaterally contact clients of the law rm unless statements, and shall give notice to clients that the authorized members of the law rm have conferred rm is being dissolved and provide options to the or attempted to confer and have been unable to clients to choose representation by any member of agree on a method to provide notice to clients. the dissolving law rm, or representation by other lawyers or law rms.
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(c) Timely notice to the clients shall be given promptly obligations to their rms that are outside the scope of either by agreement or unilaterally in accordance these rules. with Rule 5.8(a) or (b). [2] While this rule requires the departing lawyer and (d) In the event that a client of a departing lawyer the law rm to confer in order to make a joint fails to advise the lawyer and law firm of the communication to the departing lawyer’s clients, client’s intention with regard to who is to provide the duty to communicate with clients and to future legal services, the client shall be deemed avoid prejudicing the clients during the course of a client of the law firm until the client advises representation requires prompt communication otherwise or until the law firm terminates the when the lawyer primarily responsible for those engagement in writing. clients is leaving the rm. See, e.g., Rules 1.3(c), 1.16(d) and 1.16(e). If continued representation by (e) In the event that a client of a dissolving law firm the departing lawyer and/or by the law rm is not fails to advise the lawyers of the client’s intention possible, the communication shall clearly state that with regard to who is to provide future legal fact and advise the client of the remaining options services, the client shall be deemed to remain a for continued representation, including the client’s client of the lawyer who is primarily responsible for right to choose other lawyers or law rms. the legal services to the client on behalf of the firm until the client advises otherwise. [3] For purposes of the notication required by this rule, “client” refers to clients for whose active matters the COMMENT departing lawyer has primary responsibility. [1] Although there may also be signicant business and legal issues involved when a lawyer leaves a [4] While clients have the right to choose counsel, law rm or a law rm dissolves, this rule addresses such choice may implicate obligations. Those the rights of the clients to be fully informed and obligations may include a requirement to pay able to make decisions about their representation. for legal services previously rendered and costs Accordingly, the rule emphasizes both the timing expended in connection with the representation and the content of the required notice to clients. as well as a reasonable fee for copying the Upon the departure of a lawyer or the dissolution client’s file. See Rule 1.16(e). Some clients may of the law rm, the client is entitled to notice be limited in their ability to choose counsel. For that clearly provides the contact information for example, when the lawyer is appointed by a court the departing lawyer and information about the to represent a client, the appointed lawyer is ability and willingness of the lawyer and/or rm to responsible for the representation until relieved or continue the representation, subject to Rule 1.16. replaced by the court. Either the departing lawyer or the law rm shall [5] Lawyers involved in either a change in law rm take appropriate steps in accordance with Rule 1.16 composition or a law rm dissolution may have regarding the client’s le, and any other property, duties to notify the court if they represent clients in including advanced legal fees. Nothing in this rule litigation. In either case, a lawyer who is counsel of or in the contract for representation may alter the record before a court must le a motion to withdraw ethical obligations that individual lawyers have to a or a motion for substitution of counsel if he no longer client as provided elsewhere in these rules. Any client represents the client. See Rule 1.16(c). notication agreement, whether pursuant to this rule or otherwise, must also comport with Rule 5.6(a). E ective date—is rule and commentary thereto Lawyers may also have duciary, contract, or other becomes eective May 1, 2015.
54 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org FORTY-FIFTH ANNUAL
Criminal2015 Law Seminar
Recent Developments in Criminal Law and Procedure • Tips from the Bench – Effective Appellate Advocacy DNA Evidence – Interpretation and Indexes • Ethical Issues in the Practice of Criminal Law Interviews and Interrogations – Understanding Best Practices
www.vsb.org/site/sections/criminal
Video Replay April 30 Approved 7 MCLE Credits (including 1.5 ethics credit)
VIRGINIA CLE ® AND VIRGINIA STATE BAR
Call for Nominations Award of Merit Competition The VSB Conference of Local Bar Associations (CLBA) recognizes outstanding projects and programs of Virginia bar associations. Bar Association of the Year Award The CLBA recognizes a member bar association that has best fulfilled the attributes member associations strive to attain. The CLBA encourages applications that demonstrate the impact bar associations have made on their communities and the legal profession. Local Bar Leader of the Year The CLBA recognizes past and presently active leaders in their local bar associations who have continued to offer important service to the bench, bar and public. The award serves as a continuing monument to the dedication of local bar leaders. It also serves to emphasize the importance of close cooperation between the Virginia State Bar and local bar leaders. VSB Conference of Local Bar Associations nominations are due April 24, 2015. Awards will be presented at the CLBA Annual Meeting and Breakfast in June at Virginia Beach. More information at www.vsb.org/site/conferences/clba/view/clba-awards. Professional Notices Guantanamo Prosecutor Returns to Practice in Roanoke by Linda McElroy
“When your nation calls, you answer,” is tory and then on to law school at the lized to serve in Kuwait for one year. “I a motto that Virginia attorney Dirk B. University of Richmond. did my time in Kuwait, and thought ‘well Padgett shared with his oldest son as the “When I got out of law school, I that’s it,’” he said. Then in 2007 he was young man contemplated military ser- wanted to be an Army JAG (Judge recalled to Iraq as part of an Army unit. vice, and one by which the elder Padgett Advoc ate General Corps), but they He was charged with helping the coun- himself has lived. wanted to send me where the needs of try establish a judicial system working in Having spent much of his legal the Army were. So as I left the room and the rule of law section. career in the military, including assisting turned the corner, someone whispered Not long after arriving home, with the prosecution of terrorists in to me that if I really wanted to be a JAG, Padgett again asked for orders and went Guantanamo Bay, Padgett’s love affair I should join the Navy.” back to active duty, but this time state- with the mountains of western Virginia He went to Naval officer training side. Padgett served in the DC Office has led him to set up shop once again in school in Newport, RI, and his first of the Chief Prosecutor Military his hometown of Roanoke. assignment was at Norfolk Naval Station Commission for the Department of Padgett was one of five children in Oceana as a defense lawyer. In his words, Defense. As team chief he prepared cases his family and admittedly the resident he “was not popular” because of his 92 against eighteen detainees in party animal. He was more like his percent success rate with the administra- Guantanamo Bay. grandfather, the storyteller, than his tive separation board. Just two years out As part of the commission team, no-nonsense, fire captain father, he of law school, Padgett was making such Padgett was the lead prosecutor for the explained. waves that he was appointed a special Ibrahim al-Qosi case. Qosi had been “I got into a lot of mischief when I assistant US attorney in the Norfolk Osama Bin Laden’s bodyguard and dri- was younger,” he said. “So much so, that Division Eastern District, alternating ver. The case was the first guilty plea in March 1980, my father sat me down between the JAG and US attorney’s agreement under the commission, and and asked me, ‘What are you going to offices. paved the way for the prosecution of do with your life?’ He gave me three After his active duty service with the similar cases against the detainees. options — college, military, or get a job, JAG ended, Padgett returned to Roanoke “I was proud of the work we did, but whatever I chose, I had to leave his and joined a firm, focusing on criminal and we were able to establish a lot of house.” cases. But he missed being a prosecutor. procedures,” he said. A week later and with high school So in the mid-1990s, he joined the What makes Padgett most proud is graduation fast approaching, Padgett Botetourt County Commonwealth the impact his military career apparently decided to join the Army. He was sta- Attorney’s Office on a part-time basis, had on his son, Isaac, who decided to tioned first in Germany and then went and a little over a year later, joined the follow in his father’s footsteps as a mili- on to various parts of world as part of Bedford County Commonwealth’s tary serviceman. Isaac joined the the 101st Airborne Division. But after Attorney’s Office. Marines in 2012. He wanted to be on two and a half years, he had an “We put people away for thousands the front line. “He always heard from epiphany. of years and really wanted people to me, ‘If you aren’t infantry, you’re noth- “I remember being in Panama going know that this was Bedford County and ing,’” Padgett said. “So he joined the through a mangrove swamp, I had an we weren’t going to put up with violent Marines, was offered electronic com- M60 in my hands, leaning against a tree. crime and drugs,” he said. munications, but instead took infantry. I saw a snake go by in the water and I Padgett enjoyed his time back home He remembered — when your nation said to myself, ‘This sucks, I’m going to in Virginia, but he felt his military ser- calls, you answer.” law school.’” vice was not over. It was even more evi- Padgett went to college on the G.I. dent after September 11. As a member of bill, eventually earning a degree in his- the Navy Reserves, his unit was mobi-
56 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org Professional Notices
William E. Berlin has joined Hall, Lindsay M. Jefferies has joined Atwill, Christopher M. Okay has opened a solo Render, Killian, Heath & Lyman’s Troxell & Leigh PC in Leesburg as an practice, Chris Okay, Attorney at Law, in Washington, DC, office as a shareholder. associate. She will head the firm’s newly Staunton. He will focus his practice on His practice consists of counseling and added domestic relations and family law banking law, business law, litigation, and defending hospitals, health systems, practice group. eminent domain/condemnations. physicians, and other health care providers in federal and state antitrust Odin, Feldman & Pittleman is expand- Ronald G. Reel, formerly an assistant enforcement agency investigations, as ing its Bankruptcy & Creditor’s Rights commonwealth’s attorney in well as litigation involving mergers and Practice, adding Alexander M. Portsmouth, Virginia Beach, and Prince acquisitions, joint ventures and provider Laughlin and Lauren Friend McKelvey. William County, has left government networks, exclusionary conduct by dom- They previously were part of the Wiley service to open a private law practice in inant firms, and provider-payer con- Rein bankruptcy group that separated Virginia Beach specializing in criminal tracting provisions. from that firm at the end of December defense. 2014. The two join practice head Donald Thomas M. Cusick has become a share- F. King who serves as Chapter 7 Trustee Thomas E. Snyder has joined Inman & holder in the Fairfax firm of Colten in Bankruptcy for the Eastern District Strickler PLC and will focus on acquir- Cummins Watson & Vincent PC. He of Virginia. ing, selling, and financing business and joined the firm in 2009. His focus is commercial real estate, including real family law. Jennifer McCammon has joined Bean, estate development, commercial leases, Kinney & Korman PC as an associate. business contracts, capital formations, John F. Duffy has joined Hughes She represents individuals in divorce and franchising, and financing. Hubbard & Reed as of counsel. other family law matters. She also has experience with general civil litigation Lindsey A. Flaherty has joined Inman matters in state and federal court. & Strickler PLC and will practice in the areas of general civi l and criminal liti- Katharyn Christian McGee will join Professional Notices gation, family law, and workers com- Duane Morris LLP in directing pro E-mail your news and high- pensation. bono initiatives at as associate pro bono counsel. resolution professional portrait Lynn E. Hawkins has been named a to [email protected] for publica- shareholder of Bean, Kinney & Korman Petty, Livingston, Dawson & tion in Virginia Lawyer. PC. She was previously an associate of Richards announces that Professional notices are free to the firm. She focuses her practice in Chad A. Mooney has been VSB members and may be family law, representing parents and named a principal of the edited for length and clarity. children in matters such as divorce, firm, where he will continue equitable distribution of property, to emphasize civil litigation. Mooney alimony, child support, and custody. The firm also welcomes Amy Miles Kowalski as an Hector I. Hernandez Sr. has joined the associate. She previously Note New Telephone Number law office of Matthew Muggeridge in practiced in the litigation Fredericksburg, practicing civil and department of the Kowalski commercial litigation, family, immigra- McGuireWoods law firm in For confidential, tion, and employment law. Northern Virginia, concentrating in free consultation commercial litigation. She will handle Hunton & Williams LLP has announced employment and commercial litigation available to all Virginia attorneys the formation of a multidisciplinary as well as other litigation-related matters. on questions related to legal Energy Sector Security team to assist malpractice avoidance, claims repair, clients with the legal complexities associ- Nathan C. Mortier has professional liability insurance issues, ated with growing cyber and physical become a partner at Mellette and law office management, call threats facing energy companies. This PC Attorneys at Law. Since Fairfax County lawyer, John J. team is being led by cybersecurity part- joining the firm as an asso- Brandt, who acts under the ner Paul Tiao, energy partner Kevin W. ciate, he has distinguished auspices of the Virginia State Bar at Jones, and energy regulatory partner himself in the areas of Mortier Linda Walsh, and includes lawyers from health care law and repre- (703) 281-2600 x101 a wide range of practice groups within sentation before licensing boards. the firm. www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 57 Classified Ads
RENTALS
ENJOIX ST. CROIX—15% LAWYERS DISCOUNT!! U.S. Virgin Islands. Classified Ads – Print and Online Completely Renovated Fully Air Conditioned Villa! Our agent will greet Classified advertisements are $2.00 per word for nonmembers, and you at the airport and take you to our $1.50 per word for VSB members with your bar ID#. As a service to our spectacular villa, “The Islander,” with members, there is no charge for advertisements up to 50 words for breathtaking Caribbean views, located full-time job openings. Online only classifieds run for 30 days. in most desirable and prestigious east island location. Our unique architec- Contact Linda McElroy at [email protected] turally designed home now includes four or visit http://www.vsb.org/site/publications/rates. MBR suites — the most recent also has a kitchen, office area, TV viewing area and patio. Villa has private pool, all ameni- ties. Walk to gorgeous sandy beach, snor- keling and two restaurants. Tennis, golf, sport fishing and scuba dive five minutes away. Our on island agent will provide “Not in Good Standing” Search Available at VSB.org everything to make your vacation per- fect. Owner gives lawyers 15% discount! The Virginia State Bar offers the ability to search active Virginia lawyers’ names Call Terese Colling, (202) 347-9060 or to see if they are not eligible to practice because their licenses are suspended or e-mail [email protected] revoked using the online Attorney Records Search at http://www.vsb.org Check out the website for the villa at /attorney/attSearch.asp. The “Attorneys Not in Good Standing” search function was designed in stcroixvacations.com, and conjunction with the VSB’s permanent bar cards. enjoystcroix.com and go to You Tube Lawyers are put on not-in-good-standing (NGS) status for administrative – The Islander St. Croix to watch reasons — such as not paying dues or fulfilling continuing legal education new video. requirements — and when their licenses are suspended or revoked for violating professional rules. The NGS search can be used by the public with other attorney records searches —“Disciplined Attorneys” and “Attorneys without Malpractice Insurance”— to check on the status and disciplinary history of a lawyer.
ADVERTISER’S INDEX
ALPS Corporation ...... 5 Geronimo Development Corporation ...... back cover L. Steven Emmert...... 7 VSB Staff Directory McAdoo Gordon & Associates ...... 9 Minnesota Lawyers Mutual Insurance Company ...... 7 Frequently requested bar contact National Legal Research Group ...... 47 information is available online at Jeffrey M. Summers ...... 5 Norman Thomas, PLLC ...... 9 www.vsb.org/site/about/bar-staff. Taylor Long Properties ...... 6 Virginia State Bar Members’ Insurance Center ...... inside front cover
58 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org 77th Annual Meeting A N N UA L 77 MEETING VIRGINIA STATE BAR JUNE 18-21 2015 VIRGINIA BEACH
We invite you to come back to the new Annual Meeting. We’ll be easy to find, at the same beautiful beach, but at new hotels, with a new format, and new events. We’ve worked hard to bring you the best of the old with a splash of the new. Come and rediscover your Annual Meeting. Annual Meeting brochures were mailed in early April. Complete Annual Meeting informa- tion, including online registration, forms, and hotel information and links, is available on the Virginia State Bar website at http://www.vsb.org. If you have not received a brochure and/or need more specific information, please contact the Virginia State Bar, Bar Services Department at (804) 775-9400 or [email protected]. All information on the follow- ing pages is tentative and subject to change. Please refer to VSB.org for updates.
Schedule of Events
WEDNESDAY, JUNE 17 FRIDAY, JUNE 19 NOON 7:00 A.M. Executive Committee Holiday Inn Yoga by the Sea Beachfront Sheraton 2:00 P.M. 7:30 A.M. Annual Meeting Registration Sheraton Oceanfront Run in the Sun – 5K Run Boardwalk Sponsor: Virginia Lawyers Weekly; YLC 6:30 P.M. Council Reception & Dinner Sheraton Oceanfront 7:30 A.M. Conference of Local Bar Associations Sheraton Oceanfront THURSDAY, JUNE 18 Annual Meeting & Awards Breakfast 8:00 A.M. 7:45 A.M. Annual Meeting Registration Sheraton Oceanfront Annual Meeting Registration Sheraton Oceanfront 8:30 A.M. 8:30 A.M. Council Meeting Holiday Inn VADA Board Meeting Princess Anne Country Club 8:45 A.M. – 4:30 P.M. 9:00 A.M 41st Recent Developments Seminar Sheraton Oceanfront Lawyers Helping Lawyers Oceanaire Resort (separate registration with VaCLE) Board of Directors Meeting 11:45 A.M. 9:00 A.M. – 11:00 A.M. Fore Diversity Golf Tournament Virginia Beach National SHOWCASE CLE I Hilton Oceanfront Fundraiser for Diversity Conference Contracts Gone Bad: The Litigator’s Wish List for Transactional Lawyers 5:00 P.M. Rakes Leadership in Education Award Hilton Oceanfront 9:00 A.M. – 11:00 A.M. SHOWCASE CLE II Sheraton Oceanfront (by invitation) Budding Issues: The Changing Marijuana Landscape Sponsor: Gentry Locke 5:30 P.M. 10:30 A.M. Bill W. Meeting Oceanaire Resort Virginia Law Foundation Princess Anne Country Club Meetings & Lunch 6:30 P.M. Opening Reception for All Attendees Sheraton Oceanfront 10:30 A.M. Sponsor: VSB Members Insurance Center Virginia Legal Aid Project Directors Sheraton Oceanfront 11:45 A.M. Section & Conference Joint Luncheon Hilton Oceanfront (ticketed event)
JUNE 18–21, 2015 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 59 77th Annual Meeting
Schedule of Events
FRIDAY, JUNE 19 SATURDAY, JUNE 20 11:45 A.M. Virginia Legal Aid & Oliver Hill Sheraton Oceanfront 9:45 A.M. – 11:45 A.M. Pro Bono Awards Luncheon SHOWCASE CLE V Sheraton Oceanfront Sponsor: ALPS Judiciary Squares 11:45 A.M. YLC Membership & Fellows Sheraton Oceanfront 10:00 A.M. Reception & Annual Meeting (ticketed event) Brunch for 50-Year Award Recipients Sheraton Oceanfront Sponsor: Senior Lawyers Conference 1:00 P.M. Virginia Women Attorneys Assn. Sheraton Oceanfront 10:00 A.M. Annual Meeting 18th Annual Sandcastle Contest Beachfront Sheraton NOON 1:30 P.M. – 3:30 P.M. Raffles & Closing Reception Sheraton Oceanfront SHOWCASE CLE III Hilton Oceanfront Cash Bar Caveat Emptor: International Mergers & Acquisitions 1:00 P.M. Tennis Tournament Princess Anne 1:30 P.M. – 4:30 P.M. Sponsor: MichieHamlett Country Club SHOWCASE CLE IV Sheraton Oceanfront Blind Spot: Hidden Biases of Good People 1:00 P.M. David T. Stitt Memorial Beachfront Sheraton 3:00 P.M. – 4:00 P.M. Family Bingo Sheraton Oceanfront Sponsor: Glover & Dahnk Special Events 4:45 P.M. VLF & VWAA Joint Reception Hilton Garden Inn (by invitation) Bingo – A Family Favorite! 5:00 P.M. Take a break from the beach and bring your family to the YLC Membership Casual Reception Hilton Oceanfront Sheraton Oceanfront Hotel on Friday afternoon for lots of fun Sponsor: Virginia CLE and prizes! 5:30 P.M. Boardwalk Art Show & Festival Bill W. Meeting Oceanaire Resort This year our meeting coincides with the 60th Annual 6:00 P.M. Boardwalk Art Show! For more information, visit Children’s Dinner Hilton Oceanfront http://www.virginiamoca.org/. Virginia Beach offers so much (ticketed event) to explore that it’s hard to fit it all into one visit. Go to www.vbfun.com to discover all the things to do in the area! 6:00 P.M. President’s Reception Hilton Oceanfront Athletic Events 7:00 P.M. 5th Annual Fore Diversity Golf Tournament to support the Banquet & Installation of President Hilton Oceanfront Diversity Conference — Thursday, June 18, Virginia Beach (ticketed event) National. Sponsor: The McCammon Group 34th Annual Run in the Sun — Friday, June 19, 7:30 a.m. on 9:15 P.M. – 12:00 A.M. the Virginia Beach Boardwalk — Sponsors: Virginia Lawyers Dance & Entertainment Hilton Oceanfront Weekly and Young Lawyers Conference Featuring Doc Scantlin and His Imperial Palms Orchestra Sponsor: Edward L. Weiner 13th Annual Tennis Tournament — Saturday, June 20, 1:00 p.m. at Princess Anne Country Club — Sponsor: MichieHamlett SATURDAY, JUNE 20 31st Annual David T. Stitt Memorial Volleyball Tournament 7:00 A.M. Saturday, June 20, 1:00 p.m. Sheraton Beachfront — Sponsor: Yoga by the Sea Beachfront Sheraton Young Lawyers Conference 7:45 A.M. Early Morning Yoga by the Sea Annual Meeting Registration Sheraton Oceanfront Friday and Saturday mornings. 8:00 A.M. Law School Alumni Breakfasts Sheraton Oceanfront Visit the Virginia State Bar website for more details and (ticketed event) registration at http://www.vsb.org/special-events 9:00 A.M. /annual-meeting/index.php General Session & Awards Sheraton Oceanfront Continental Breakfast Buffet
VIRGINIA STATE BAR • 77TH ANNUAL MEETING
60 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org 77th Annual Meeting
Showcase CLE Programs
FRIDAY & SATURDAY / JUNE 19 – 20 SATURDAY, JUNE 20 / 9:45 A.M. – 11:45 A.M. 7.0 MCLE Credits, .5 Ethics (pending) Judiciary Squares-Recent Developments in Virginia VSB sections and conferences have collaborated with statewide Law bars and other legal organizations to sponsor these programs. Sheraton Oceanfront, Ocean Grand Ballroom There will be morning and afternoon tracks at the Sheraton and Hilton Oceanfront on Friday, and a morning program following (2.0 Hours, including .5 Ethics pending) the General Session at the Sheraton on Saturday. Your Annual Sponsored by the Young Lawyers Conference Meeting registration fee includes these programs; your badge will serve as your admission ticket. You must be registered for the Back by popular demand! This fun, non-traditional CLE program is Annual Meeting to receive CLE credit for any program on Friday or modeled on the popular game show, Hollywood Squares, which Saturday. follows the rules of the familiar childhood game, Tic, Tac Toe. Nine judges and justices from across the Commonwealth will FRIDAY, JUNE 19 / 9:00 A.M. – 11:00 A.M. serve as squares and answer questions from two contestants Budding Issues: What Virginia Lawyers Need to Know covering a broad range of recent developments affecting Virginia About the Changing Marijuana Landscape practitioners. Both contestants and audience members will have to decide Sheraton Oceanfront, Ocean Grand Ballroom (2.0 Hours) whether the esteemed panel of judicial squares is telling the truth Sponsors: Criminal Law, Bankruptcy Law, Corporate Counsel, or leading us into judicial traps for the unwary. Family Law, and Health Law Sections Contracts Gone Bad: The Litigator’s Wish List for Panel: Transactional Lawyers Hon. LeRoy F. Millette, Jr., Justice, Supreme Court of Virginia, Williamsburg Hilton Oceanfront, Ballroom A&B (2.0 Hours) Sponsors: Litigation, Business Law and Real Property Sections Hon. William C. Mims, Justice, Supreme Court of Virginia, Richmond FRIDAY, JUNE 19 / 1:30 – 4:30 P.M. Hon. Glen A. Huff, Chief Judge, Court of Appeals of Virginia, Blind Spot: Hidden Biases of Good People Virginia Beach Sheraton Oceanfront, Ocean Grand Ballroom (3.0 Hours) Hon. Tanya Bullock, Judge, J&DR District Court, Virginia Beach Sponsor: Virginia Diversity Foundation. Other partners include, Millennium Diversity Initiative, Inc.; VSB Diversity Conference, Hon. Lawrence B. Cann III, Judge, General District Court, Senior Lawyers Conference, Corporate Counsel Section, and Richmond Access to Legal Services Committee; VWAA; Asian Pacific Hon. Gerald Bruce Lee, Judge, U.S. District Court, Eastern District, American Bar/VA; Burnett & Williams; Zavos Juncker Law Group Alexandria PLLC; McGuireWoods; and Venable LLP. Hon. Stephen C. St. John, Chief Judge, U.S. Bankruptcy Court, Norfolk FRIDAY, JUNE 19 / 1:30 – 3:30 P.M. Hon. John M. Tran, Judge, 19th Judicial Circuit Court, Fairfax Caveat Emptor: What You Need to Know About Hon. Victoria A.B. Willis, Judge, 15th Judicial Circuit Court, Stafford International Mergers and Acquistions MODERATOR: Hilton Oceanfront, Ballroom A&B (2.0 Hours) Sponsors: International Practice, Antitrust Law, Business Law, Hon. Stanley P. Klein (Ret.), Senior Counsel, Blankingship and Corporate Counsel and Intellectual Property Sections Keith, Fairfax.
Raffles and Prizes Don’t Miss
There will be plenty of raffles and prizes for both adults and Any of the Fun! children at this year’s meeting. The raffle collection will be donated by our prize sponsors. Look for the raffle display list- ing the prizes and sponsors in the registration area of the Visit the Annual Meeting website Sheraton Oceanfront Hotel. Raffle entry forms will be distrib- uted in your Annual Meeting registration badge packet. www.vsb.org Drawings for all raffles and sponsored prizes will be announced at the Closing Reception on Saturday, June 20, at Download Now — Annual Meeting mobile app! Noon, in the Grand Ocean Foyer of the Sheraton Hotel. You (visit the iTunes store or Google play) must be present to win!
JUNE 18–21, 2015 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 63 | April 2015 | VIRGINIA LAWYER 61 77th Annual Meeting
Annual Meeting Sponsors
ALPS JuryMatters Inc. Sensei Enterprises, Inc. Virginia Law Foundation Asian Pacific American The McCammon Group Rupen R. Shah VSB Members’ Insurance Bar Assn/VA McGuireWoods Sheraton Oceanfront Hotel Center Bischoff Martingayle PC Millennium Diversity Stephen David Stone Virginia Women Attorneys Association David P. Bobzien Initiative, Inc. Team USA Men’s Ice Hockey Weiner, Spivey & Miller PLC Burnett & Williams MichieHamlett Tour Plan International, Inc. George and Meryl Weiner Stephen J. Cannella Old Friends Invitational Hon. George D. Varoutsos Young Lawyers Conference Conference of Local Bar Assns. Golf Classic Venable LLP Zavos Juncker Law Group PLLC Diversity Conference ParisBlank Virginia CLE Gentry Locke William L. Schmidt & Assoc. PC Virginia Diversity Foundation Glover & Dahnk Senior Lawyers Conference Virginia Lawyers Weekly
Now Available! Annual Meeting Mobile App
Download the VSB Events App from iTunes or Google Play.
Hotel Locations
tretrtreeteeetett 3939th9th9th SStreet The Hilton Oceanfront, Sheraton Oceanfront, and Holiday Inn North Beach will anchor our events this year, with additional options for overnight accommodations (see below). This
variety of choices o ers something for everyone! treet 33838th SStreet
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VIRGINIA STATE BAR • 77TH ANNUAL MEETING
62 VIRGINIA LAWYER | April 2015 | Vol. 63 www.vsb.org
“A QUOTATION IS MORE THAN A COINCIDENCE.”
~ Applicant’s Appeal Brief February 3, 2014, p. 11 Serial No. 11/153,594 U.S. Patent and Trademark Office
Patent Number 8,805,781 was issued August 12, 2014.
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