A Virginia View

President’s Page ...... L. Lee Bean 2

The Danger of Retaining A Will: A Virginia View ...... J. Rodney Johnson 4

Special Use Valuation of Farm Real Property ...... Dennis I. Belcher 7

Economic Evaluation of a Housewife 12

Virginia’s Model Jury Instructions For Criminal Cases ...... Stephen A. Saltzberg 16

From the Law Schools: A Look at Lawyer Competency ...... William B. Spong, Jr. 23

27 THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

President Past President L. Lee Be~n .. Jesse B. Wilson, III 2045 15th Street, North 4069 Chain Bridge Road Arlington, Virginia 22201 Fairfax, Virginia 22030

President-Elect Secretary- Treasurer Hugh L. Patterson A. Ward Sims 1800.Virginia National Bank Building P. O. Box 1029 Norfolk, Virginia 23510 Charlottesville, Virginia 22902

Chairman, Young Lawyers Section Chairman-Elect, Young Lawyers Section Charles F. Midkiff Thomas C. Brown, Jr. 1200 Mutual Building P. O. Box 338 Richmond, Virginia 23219 Fairfax, Virginia 22030

Direc.tor, John Marshall Fellows Program John Ritchie School of Law University of Virginia Charlottesville, Virginia 22901

Executive Committee (Other than Ex-Officio Members)

John. F. Kay, Jr., Chairman John L Walker, Jr. Lewis M. Costello P. O. Box 1122 P. O. Box 720 Box 2760 Richmond, Virginia 23208 Roanoke, Virginia .24004 Winchester, Virginia 22601

Gerald L. Baliles Thomas R. Watkins Joseph Adams Howell, Jr. P. O. Box 1640 Tower Box 60 P. O. Box 26544 Richmond, Virgifiia 23213 2101 Executive Drive Richmond, Virginia 23261 Hampton, Virginia 23666

John C. Wood George G. Grattan, IV Jackson L. Kxser P. O~ Box 369 Office .of the Legal Adviser 60 West Church Street Fairfax, Virginia 22030 Pavilion VIII, East Lawn Martinsville, Virginia 24112 University of Virginia Charlottesville, Virginia 22903 Volume VI Spring1980 Number 2

EDITORIAL BOARD

Appointed Members President’s Page.. David W. Parrish, Jr. L. Lee Bean Chairman Charlottesville The Danger of Retai~aing,A ~W,ill~: Vernon M. Geddy, Jr ]: Rodne9 Johnson Williamsburg ~Spedial -Use ,Valfi~tion of Farm: Thomas C. Gordon, Jr. Richmond DbhnisJ. Bel_cher Edward S. Graves Economic Evaluation of a Housewi[e~....,;A~..:,...v.~--,..’..’,~ Lynchburg N. Fayne Edwards and Robert W. ,PhHhps

E~-Officio M~mbers V~rg~ma s Model Jury Instrucuons _ L. Lee Bean ~ For Criminal Cases ...... ,;...:...:...... President Stephen A. Saltzburg Arlington Hugh L. Patterson From the Law_Sc-ools: . ,, "~ - - President-Elect A Look At Lawyer Competency. ;,-. ;..~..’..’. .... :~:~k ...... Norfolk William B: Spong; Jr. "" A. Ward Sims Secretary- Treasurer Bar Association ProCeedings - Charlottesville. ¯ The Winter ~"-meeting " ...... :.: ..... ~ .... Charles F. Midkiff ~nouncements ...... ~...... ~.:,.,.-,,~. ~ 32 Chairman, You.ng L, awyers Section YLS Chairman’s ,Report ...... , ...... ; Richmond Committee Re~rts ...... 1979 Report o[ Se~et~y-Treasurer~.’.. Editorial Staff Memorials: ...... : ..... ,...: ...... Charles E. Friend Editor The Virginia Bar Association Journal is published quarterly by The Virginia Bar Association as a service to the profession. Contributions are welcome, but the Bess Castle Wendell right is reserved to select material to be published. Publication of any article or Associate Editor statement is not to be deemed an’endorsement of the views expressed thereinby Douglas R. Maxwell the Association. The office of publication is located at 3849 W. Weyburn Road,. Richmend, Virginia 23235. Editor, Young Lawyers Contributions Membership dues include the cost of one subscription to each member of’ the Association. Subscription price to others, $8.00 per year; single copies $2.50. Second-class postage paid at University of Richmond, Virgirfia 23173. (ISSN 03fi0-3857) (USPS 093-110) resldent 5 Page

L. LEE BEAN

THE famed French philosopher, Alexis de Tocque- organized efforts of the local bar associations and the ville, stated in October 1889#: "If I were asked where I integrated Bar, have cooperated vigorously by sup- place the American aristocracy, I should reply, without porting programs which have led to an update of the hesitation, that it is not composed ~of the rich, who are model Code of Professional Responsibility--to be united together by no common tie, but t.hat it occupies known as the Rules of Professional Conduct--released the.judicial bench and bar." Honored to become the by the so-called Kutak Committe~ of the ABA on President of our Association on January 12, 1980, at January 30, 1980, public defender "and legal aid Wi.lliamsburg, I was the more reminded of this programs, group and prepaid legal service plans, observation .by de Tocqueville by the atmosphere of continuing legal, education, adequate judicial com- public distrust of attorneys which has been engendered pensation, j udicial selection commissions stressing la~, in large part as fallout from the comparatively recent membership public information programs, institu- rise in consumerism. tional advertising, pro bono, fee dispute commissions, I feel it is time for attorneys to go on the attack--to be clients’ Security funds and malpractice insurance. positive’ in "upholding an~d elevating the standard of Moreover, on December 27, 1979, the justice System honor, integrity and courtesy in the legal profession" Improvement Act of 1979 (LEAA reauthorization which phrase is part of the stated purpose of our legislation) became law. Amendments to that legisla- Association. We have been invblved in a somewhat tion all.ow our Association to become a more active agonizing re-appraisal of our profession. Self-exami- participant in advisory councils created by the Act and natibn and criticism are healthy as long as paranoia to take advantage of funding available under the does not develop. Positively speaking, therefore, let us legislation. look at the record. Returning for a moment to the proposed Rules of Attorneys in Virginia, with particular reference to Professional Conduct, hearings are scheduled for. our Association, but with due deference to other Atlanta on March 3. San Francisco on April 7 and New York City on May 5. Copies of the proposed Rules may be obtained by writing to the National Center for Professional Responsibility, 77 South Wacker Drive, Sixth Floor, Chicago, Illinois 60606. I urge each of you to obtain a copy of the proposed Rules, to study them and to make your suggestions known to the American Bar Association. A number of the provisions are controversial, such as mandatory pro bono, the standards established for the client-attorney relationship where the client is a business organization and circumstances in which the dictates of professional responsibility might compel disclosure in spite of the confidentiality of the attorney-client relationship. It is anticipated that the final draft of the proposed Rules will be submitted to the House of Delegates at the February, 1981, meeting of the ABA. Through our Association’s committee system-- which has been significantly strengthened by the thorough and inspiring work of now retired Director of Committee Activities Jack Ritchie--your Association will, I am confident, continue to make its voice heard in "cultivating and advancing the science of jurispru- dence, promoting reform in the law and in judicial Lorenzo Lee l~ean, Jr. attended Hampden-Sydney procedure" and "facilitating the administration of College and was graduated from the University of justice in this State," as our Association’s purpose Virginia Law School in 1941. clause states in part. Credit also goes to the Virginia Mr. Bean is presently a partner in the firm of Lawyers’ Wives and their local associations, who fund Bean, Kinney, Korman & Hylton, of Arlington, where he has been in the private practice of law for scholarships and who further programs of education, over thirty-two years. Mr. Bean is a member of the social welfare and philanthropy in support of the aims Phi Alpha Delta legal fraternity and the Omicron and purposes of the legal profession. Delta Kappa leadership fraternity. He is also an We deeply appreciate the dedicated work of our author and lecturer at law. interim Director of Committee Activities, A. Ward Mr. Bean was a founder and legal adviser to the national Orthopaedic Hospital for 20 years, a Sims, and Jack Ritchie’s direction of the outstanding founder and twice Chairman of the Northern Marshall Fellows program, in which law students from Virginia Advisory Board of the American Automo- our Virginia law schools assist in the legal research bile Association, former member and Chairman of needed by our committees. the Arlington County School Board, former mem- With the most able assistance of our President-Elect, ber of the Radford University Board of Visitors and co-founder and legal adviser of the Board of Hugh L. Patterson, who will be in charge of our CLE Missions and Church Extension of the Methodist programs at The Homestead in July and at Williams- Church, of which Church he is a former Lay burg next January, the members of our Executive Preacher. He is presently Chairman of the Advisory Committee under the leadership of Chairman John F. Board of the Washington-Lee Savings and Loan Kay, Jr., and our Past President, Jesse L. Wilson, whose Association. administration during the past year was an inspiration Mr. Bean is a member and former President of Arlington County Bar Association, a member and to us all, I pledge to you constructive and progressive former President of the Virginia Trial Lawyers Association programs for 1980. Association, and is a member of the American Bar Association, the American Trial Lawyers Associa- *The Green Bag, p. 414. tion and the Virginia State Bar. j. RODNEY JOHNSON

The Danger, of Retaining A-Will: A Virginia View

Except in topsy-turvy land, you can’t die be!ore you are conceived, or be divorced belore ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running .on a non-existent railroad. For substantially similar reasons, it has always been hereto!ore accepted, as a sort ol legal "axiom,’" that a statute ol limitations does not begin to run against a cause o! action beJore that cause ol action exists, i.e., beJore a judicial remedy is available to the plaintill. For a limitations statute, by its inherent nature, bars a cause oJ action solely because suit was not brought to assert it during a period when the suit, il begun in that t)eriod, could have been succegslully maintained; the plaintiff, in such a case, loses lor the sole reason that he delayedDbeyondthe time fixed by the statuteDcommencing his suit which, but Jot the delay, he would have won.~

NOTWITHSTANDING the general acceptance of discovered until long after the negligent act in the above:described axiom, the majority of American question has been committed. This is particularly ti~ue jurisdictions still continue the original common law where the injury in ques[ion arises out of the concept of a statute of limitations that begins to run negligent drafting of a will or other estate planning immediately upon the commission of a wrong, as. document which isn’t designed to become operative contrasted with the more modern rule that a statute of until some time in the future. Therefore it is argued limitations will not begin Until such time as the that to start the statute of limitations running upon injured party actually discovers theinjury or, in the the commission of the wrong, as opposed to the time exercise of due diligence, sh.ould have discovered the of discovery, is to effectively deny a remedy in the injury.2 Those jurisdictions adopting the modern typical case of negligent draftsmanship in a will. approach disregard what they refer to as the "techni- The case of Hawks v. Dehart,~ alleging medical cal" approach of the common law rule in order to malpractice in connection with leaving a surgical focus on more fundamental concepts of justice in- needle in a patient’s throat, has been interpreted by stead. The issue, as stated by this emerging modern some attorneys as rejecting.the discov~ery rule in all view, is whether a remedy shall be actually (vs. matters of professional malpractice. It has been theoretically) available to an injured party for a suggested, however, that the Hawks case is no/only reasonable period of time. It is recognized that in out of step with the developing law in Virginia’s many instances the existence of an injury will not be neighboring states but that it is also capable of being distinguished on its facts.4 - Regardless of what the Virginia rule might be in matters of legal malpractice, generally speaking, it would appear that when an injured beneficiary brings EDITOR’S NOTE: This article is based upon an article by an action against the draftsman of a negligently Professor Johnson which was published in 1979 in The drawn will the equitable principle announced in the Practical Lawyer, which has requested the following acknowledgment of the use of the original material: case of Caudill v. Wise Rambler, Inc.5 would require a "Copyright .1979 by the American Law Institute. different result. In this case, involving products Reprinted with the permission of The Practical Lawyer. Subscription rates $15.00 a year; $3:75 a single issue. ’The liability in connection with the sale of an automobile, Danger of Retaining a Will,’ by J. Rodney Johnson, the Court stated: appeared in the October 1979 issue, Vol. 25, No. 7." Obviously, since the plaintiff had not been injured at the time she purchased the car, she could not then maintain an action for her injuries. To say, then, that her right of action accrued before her injuries were received is to say that she was without remedy to recover damages for her alleged injuries. Such an unjust and inequitable result is not the purpose of statutes of limitation. They are designed to compel the prompt assertion of an accrued cause of action; not to bar such a right before it has accrued.6 The philosophy embodied in this quotation would seem to eliminate any possibility that the statute of limitations could begin to run against a beneficiary under a negligently drafted will until the death of the testator--it is only then that the beneficiary would have a cause of action.

Another Basis For Extending the Liability In addition to the foregoing, there is another basis for suspending the operation of the statute of limitations if the attorney who drafted the will is also serving as custodian of the will for his client. This additional basis is referred to as the "continuing relationship" or "continuous relationship" theory. Under this theory it is held that when there is an j. Rodney Johnson is a professor of law at the Uni- versity of Richmond Law School. He received a J.D. undertaking between two contracting parties which h’om William and Mary School of Law and an requires a continuation of services over a period of LL.M. from New York University School of Law. time, the statute of limitations does not begin to run He is the editor of Virginia Trust and Will Manual on the breach of a particular term thereof until the and the author of a number of articles in the fields of termination of the relationship out of which the estate planning and fiduciary administration. breach arose. The continuing relationship theory is not a novel idea and it is expected that this theory will be regularly advanced in future cases of attorney malpractice because, as stated by the Supreme Court, even if Virginia is a "general rule" jurisdiction (which in McCormick v. Romans and Gunn,7 "it is particu- follows the common law practice of starting the larly appropriate to an attorney-client agreement in statute of limitations upon the date of the wrong) the view of the trust and confidence inherent in that statute of limitations will not begin to run on a relationship." Under this continuing relationship negligent error contained in a will so long as the theory, then, the statute of limitations will not begin attorney retains the will in his custody. Only when the in a legal malpractice case until the relationship attorney-client relationship comes to an end, typically between the attorney and his client, out of which the at the client’s death, will the statutory period begin to alleged wrong arose, has terminated. run. Thus the attorney who also serves as custodian of his client’s will may truly have what some have Although McCormick did not involve legal mal- referred to as "liability for life." practice in connection with a will, it is quite easy to see how the continuing relationship theory can be A Basis For Expanding The Liability aptly argued in all of those cases where the attorney is also serving as the custodian of his client’s will. Even Moreover, the attorney who engages in the practice though all of the "legal" work has been completed, of serving as custodian of his client’s will, whether he the will has been executed, the fee has been paid, and be motivated by the highest ideals of service to his the file has been placed among the inactive, it can be client or by concern for an estate fee in the future, may argued that there is still a continuing relationship that thereby expose himself to a legal malpractice action exists between the attorney and his client because the even though the original document is error free. This attorney is serving as custodian for his client. Thus, possible further exposure arises out of FORMAL OPINION No. 210 of the American Bar Association’s attorney is not going to so seive, he should send a Committee on Professional Ethics which insulates an termination letter to the client immediately after the attorney from a charge of solicitation when he execution of the will (a) confirming that the will has initiates contract with a former will’s client by writing been delivered to the client, and (b) confirming that to advise the client of a change in the law or facts th~ client has assumed the reponsibility for initiating which might defeat his client,’s testamentary plan. any future review of the estate plan in the light of This opinion, in relevant part, reads as follows: changes in the law or in the client’s personal position. Ttie following form letter was developed by a Virginia Many events transpire between the date of making the will and the death of the testator. law firm to respond to several of the concerns The legal signifi~ance "of such occurrences described in this article as well as provide tax advice to are often of serious consequence, of which the client in connection with the attorney fees the testator may not be aware, and so the involved. importalace of calling the attention of the testator thereto is manifest. FORM It is our opinion that where the lawyer has rio reason to believe that he has been sup- Mr. and Mrs. John A. Smith planted by another lawyer, it is not only his 1000 Willortrust Road right, but it might even be his duty (emphasis Richmond, Virginia 23219 added) to advise his~ client 6f any change of Dear John and Mary: fact of law which might defeat the client’s ¯ I am enclosing an invoice for our services in testamentary purpose as expressed in the connection with preparation of your wills and a will.s separate invoice for our services in connection with estate planning and tax advice. The further problem foreseen for the attorney/custo- We are invoicing separately for estate planning and dian in. connection with this opinion is that the tax advice because the charge for this type of service is client’s estate or a beneficiary under client’s will will tax deductible on ~;our federal income tax return, and be in a strong position to "boot-strap" a theory of you should make an appropriate notation to include the bill for this service with your tax information for liability from the existence of the continuing relation- the year in which payment is made. The cost of "s~ip the lxi~,een ttm tesiatoi" ~-d attorney/cu.stodiah~- preparing the will is not tax deductible. The p!aindff.W.ou!d .firs~ argue that because of the We appreciate very much your confidence in .having custodianship involved there was a "continuing us do this work for you. The plan reflected by the wills relationship" during the period of the custodianship. ig, in our opinion, sound and in the best interest of your respective estates at this time. However, as I And then, because of this continuin.g attorney-client explained to you when you signed and received your relationship, thb attorney had a duty (see emphasized wills, you should have these wills reviewed whenever ¯ portion of OPINION 210, above) to keep the client there has been a material change in the value of your advised concerning major changes in the law that estate, a change in the beneficiaries, executors or might affect his estate plan.9 Query--If there is such a trustees ¯under.your wills, or a major change in the tax l~WS, and they‘ should be reviewed, periodically even duty, will the sending out of a simple form letter, with though you are unaware of any changes in the law or no follow-up, be regarded as satisfaction of that duty your situation. We regret that we are unable to vis-a-vis the Tax Reform Act of 1976?I° Or perhaps the automatically review your wills and ihe other will~ question should be posed a bit differently--Will the drafted by our office either on a periodic basis or with sending out of a simple form letter, with no follow- every change in the tax laws..I am sure you can up, be regarded by a jury as a satisfaction of that duty understand the burden that would be placed on us if ~;is-a-vi~ the major changes brought about by TRA we undertook to do this. However, we will be more than happy to meet with you, review your wills, or the further changes brought about in the Revenue answer your questions, and take whatever action is Act of 1978? necessary whenever you call upon us to do so. While it is not suggested that the foregoing analysis Cordially, of the problems inherent in the attorney serving as custodian is necessa.rily correct, it is suggested that I. M. Counselor these arguments will be advahced against the attor- IMC/abc ney/custodian. Thus, prudence suggests (1) that an FOOTNOT~ attorney give careful consideration to all .of the 1. Dincher v. Marlin Firearms Co., 198 F. 2d 821, at 82~, dissenting opinion of Judge Frank (2nd Cir. 1952). circumstances of a particular case before he agrees to 2. For a discussion of these theQries, see 18 ALR 3rd 978- serve as custodian and, (2) that in all cases where the (continuedon ¯ page 25) DENNIS I. BELCHER

Special Use Valuation of Farm Real Property

Introduction Requirements of Section 2032A

BEFORE the Tax Reform Act of 1976, real property, In general, farm real property may be valued at its regardless of its use, was valued at its fair market value "use valuation" under section 2032A if :the farm real for federal estate tax purposes. One of the most property is a major asset of the decedent’s estate, the important factors in determining fair market value of decedent or a member of his family owned and operated real property is the "highest and best use" of such the farm for five years immediately before the dece- property. In numerous instances, the highest and best dent’s death and the farm continues to be operated by a use of farm real property is for industrial and member of the decedent’s family for fifteen years after developmental purposes, which produces a fairmarket the decedent’s death. Specifically, the requirements are: value that has no relationship to the income produced 1. The decedent must be a resident of the’United by such property. States and the real property must be located in the Reacting to what it considered an inequitable United States? situation and to save the "family farm" from extinc- 2. On the date of the decedent’s death, the real tion, Congress added, in the Tax Reform Act of 1976, property must have been used as a farm for farming section 2032A of the Internal Revenue Code. Under purposes.5 that section, if certain requirements ar~ met, a personal "Farm" is defined rather broadly to include not only representative of an estate may elect to value farm real what is normally considered a farm but also nurseries, property for federal estate tax purposes at the use value greenhouses, orchards and timberlands.6 Subpara- of such property rather-than its fair market value2 graph (5) of section 2032A(e) defines "farming pur- (Although section 203~A is also available for real poses" to include cultivating the soil, raising any property used in any trade or business, this article agricultural crop, and the planting and cutting of focuses primarily on the application of section ~039A trees or the preparation (other than milling) of trees to farm real property.) fo~ market. - 3. At leagt twenty-five percent of the "adjusted Example of Estate Tax Savings value" of the decedent’s gross estate must consist of Under Section 2032A real property used for farming purposes and at least Most practitioners believe that valuation of real fifiy percent of the "adjusted value" of the gross estate property under section 2032A will play an important must consist of real property and personal property role in estate planning and estate administration. If used for farming purposes.7 section 2032A is used to its maximum, it is possible for It must be noted that the standard und£r this a husband and wife to pass $1,000,000 of farm real requirement is the "adjusted value of the decedent’s property free of any death taxes to their children.2 In the gross estate," and not the more frequently encountered largest estates this would represent a death tax savings "adjusted gross estate." Under section 2032A(b)(3), of $700,000. On a lesser scale, if a husband and wife "adjusted value of the decedem’s gross estate" is have estates totalling $1,350,000 and the benefits of defined as the value of the decedent’sogrdss estate less section 2032A are utilized fully, the death tax savings unpaid mortgages or any indebtedness in respect of are in excess of $345,000.s With the recent increase of real and personal property used for farming purposes. legal malpractice claims in the areas of estate planning Thus, it appears~that only secured loans (and not and estate administration~ the careful practitioner can unsecured crop loans) reduce the gross estate in see ihe potential liability if the benefits of section 2032A determining whether the estate meets the percentage are not explained fully to a client. requirements. In determining whether the estate meets the per- 6. The personal representative of the decedent’s centage requirements, the real ~property must be estate must file an election and an agreement within valued at its fair market value. This means that the the time allowed for filing the estate tax return farm real property must be appraised at its fair market including extensions.~2 value before the death tax returns are filed notwith- The election filed by the personal representative standing that section 2032A is elected. In addition, must identify the real propeity valued under section although personal property used for farming purposes 2032A. In addition, each person in being who has an is considered in determining whether the estate meets interest in the real property must sign an ’agreement the percentage requirements, the benefits of section consenting to personal liability for the potential 2032A are available only for real property. recapture of additional estate tax if a recapture event occurs.~3 (A recapture event occurs if the real property 4. At least five out of the eight years immediately is disposed of to a non-family member within fifteen preceding the decedent’s death, the decedent or a years after "the decedem’s death or if material partiCi- member of his family must have owned the farm real pation by a member of the decedent’s family ceases property and materially participated in the operation within that period.) Under the proposed regulations, a of the farm.8 person in being who has an interest in the real In order to meet the requirements of section 2032A, property includes the owners of remainder interests, either the decedent or a "member of the decedent’s the holders of powers of appointment, beneficiaries of family" must have materially participated in the a gift over in default of the exercise of a power of farming operation before the decedent’s death. A appointment and the trustees of trusts holding any member of the decedent’s family includes the dece- interest in the property.~4 dent’s ancestor or fineal descendant, a lineal descendant of a grandparen t of the decedent (for example, an uncle, aunt, brother, sister or cousin), the spouse of Valuation of Farm Real Property the decedent, or the spouse of a descendant of the Under Section o2032A decedent.9 Once the requirements of secti6n 2032A have been Material participation is defined under section met, there are two methods of valuing the farm real 2032A by reference to section 1402(a)(1.), the self- property. If the real property is used for farming employment tax. It is unclear whether the nonpay- purpoSe.s and there is comparable farm land in the ment of self-employment tax will be a conclusive locality being rented, the personal representative may presumption that the decedent or a member of his elect to use the "farm method" for valuing the family did not materially participate in the operation property.~ If there is no comparable farm land in the of the farm. Also, under the proposed regulations, a locality being rented, the personal representative must leasing arrangement where the de.cedent leased his use the "multiple factor" method)8 Under either farm real property to a non-family member for a stated method, the maximum reduction of the fair market cash amount will not meet the requirements of value of the real property is $500,000.~7 material participation.~° Farm Method 5. The real property, along with the personal Under the farm method, the value of farm real property used in meeting the percentage require- property is determined by dividing: ments, must pass from the decedent to a "qualified heir."n (i) the average annual gross cash rental for compar- Paragraph (1) of section 2032A(e) defines a qualified able land used for farming purposes and located in the , heir to be a member of the decedent’s family (which locality of the farm real property less the average annual State and local real estate taxes for comparable includes the decedent’s ancestor or lineal descendant, a lineal descendant of a grandparent, the spouse of the land, by decedent, dr the spouse of a descendant of the (ii) the average annual effective interest rate for all decedent.),Because of the requirement that personal new Federal Land Bank loans. property pass to a qualified heir, a specific bequest of In determining the above averages, the five most tangibles under the decec~ent’s will takes on even recent calendar years ending before the decedent’s greater significance. Also, a personal representative death are used. " should be cautioned against selling such property Under the proposed regulations, only rentals from during the administration of the estate. tracts of comparable properties that are rented solely

"8 for cash can be used.is Thus, if all comparable property in the locality is leased on a share-cropping arrangement, the farm method of valuation cannot be used. Also, the gross cash rental and local property taxes of comparable properties are used and not the actual values from the property being valued. The proposed regulations require specific identification of the comparable real properties by name of owner and name of lessee.19 An example of a calculation under the farm method is as follows: Assume farm real property located in Rockingham County with a fair market value of $1,500 per acre. Comparable properties in Rocking- ham County are rented on a cash basis for $40 per acre. Local real property taxes are $4 per acre. If the decedent died in 1978, the value of the farm real property under section 2032A is: $40 - $4 8.86% = $406

Thus, subject to the limitation that the value of the property cannot be reduced by more than $500,000, the fair market value of the property in this example is reduced from $1,500 per acre to $406 per acre. Dennis I. Belcher is associated with McGuire, Woods g: Battle in Richmond. Mr. Belcher received The Internal Revenue Service has published the his B.A. from William and Mary and his J.D. degree average annual effective interest rate for all new from the T. C. Williams School of Law of the Federal Land Bank loans for estates of decedents dying University of Richmond. Mr. Belcher is a member of in 1978 and 1979.20 the Editorial Board of The Virginia Lawyer.

Multiple Factor Method however, the farm method offers much more certainty For real property other than real property used for of value than the multiple factor method. farming purposes, farm real property for which there is no comparable land from which the average annual Recapture of Tax gross cash rental can be determined, and farm real If within fifteen years after the decedent’s death, a property if the personal representative elects not to use qualified heir who inherited property valued under the farm method, the multiple factor method of section 2032A disposes of any interest in the property valuing real property under section 2032A must be to someone who is not a member of the family of the used. Under this method, five factors are used in qualified heir, or if the qualified heir ceases to use the determining the value of the real property31 Those real property for the qualified use (as a farm for factors are: farming purposes), the benefits of section 2032A are 1. capitalization of income, "recaptured" and an additional estate tax is im- 2. capitalization of the fair rental value, posed3~ If a recapture event occurs within ten years 3. assessed land values where use value assessment after the decedent’s death, the amount of the tax for farmland or closely held business is used, recaptured is an amount equal to the lesser of (i) the 4. comparable sales where nonagricultural use is tax savings from originally valuing the property not a significant factor in the sales price, and under section 2032A and (ii) the difference between the 5. any other factor that fairly values the farm or fair market value of the property at the time of the closely held business value of the property. recapture and the value of the property under section 2032A at the time of the decedent’s death. If within At this time it cannot be determined which of the fifteen years following the decedent’s death there is an above factors are the most important. As one can see, involuntary disposition of farm real property valued under section 2032A and the proceeds from the improvements used in operating or maintaining the disposition are invested in the remaining real prop- farm real property (such,as roads., ponds and tenant erty, there is no recapture as to the amount rein- houses) "under section 2032A. One must be aware, vested,23 The recapture tax is due within six months however, that by valuing property under section after the recapture event occurs and a qualified heir is 2032A, all buildings and other improvements (for personally liable for his or her share of the additional example, barns, poultry houses and dairys) located on tax. the real property will have a low income tax basis for If the recapture event occurs between the tenth and depreciation purposes. To avoid this, it should be fifteenth years following the date of the decedent’s possible to elect’valuation under section 2032A for death, there is a phaseout of the potential amount of only real property and not buildings and improve- tax that can be recaptured. The amount of the ments. However, there is no clear authority on this potential recapture tax is reduced 1/60th each month point. following the tenth year after the decedent’s death.24 Valuing farm real property under section 2032A Also, if. the qualified heir dies without having decreases the value of the decedent’s interest in his disposed of the farm real property or convertedit to a closely held business (farm) for purposes of the nonqualified use, the recapture liability ceases. election provisions allowing the payment of estate taxes in installments. Thus, if property is valued Problems ,4ssociated with S.ection 2032,4 under section 2032A, in some instances, the benefits of A significant problem with section 2032A arises if sections 6166A (ten-year installmentt payments) and following the decedent’s death there is a disposition by 6166 (five-year deferment and ten-year installment the. qualified heir of the farm real property to a non- payments after the deferment) .may not be available. family member. If this occurs, not only does the Because of the increased interest rates takin’g effect in qualified heir incur an additional estate tax (because February of 1.980, however, the benefits under these of recapture) but, according to most commentators, sections are not as great as t.hey once were.27 the qualified heir’s income tax basis in the property is Another problem under section 2032A concerns the not increased but remains the section 2032A value as agreement that must be filed with the death tax return. reported in. the decedent’s death tax return35 The As pointed out above, each person in being who has rationale for this view is that there is no provision for an interest in the real property valued under section adjusting the income tax basis of the real property 2032A must execute an agreement consenting to after payment of the additional estate tax. One may personal liability if recapture of the benefits under take the position, however, that the income tax basis section 2032A occurs. According to the proposed of the property is increased by the amount of the regulations, the agreement must be binding on all additional estate tax paid. At this point, however, it is parties under local law. If a minor or other incompe- not clear whether that position will be successful. tent has an interest in the real property, there i~ a Another problem associated with a recapture of the questi.on who executes the agreement on his or her benefits of section 2032A concerns the payment of the behalf. Under Virginia law, it is believed that neither a additional estate tax in installments. Because the legal nor natural guardian may have the power to imposition of the additional tax is not a continuation bind. a minor or other incompetent to a contract of the estate tax on the decedent’s estate, the Internal concerning real property. Revenue Service presently takes the position that the There are special problems arising with special use installment payment provisions under sections 6166 valuation and timberlands. One such problem is and 6166A are not available. whether the growing timber is a growing crop and Originally when section 2032A was enacted, it was should be valued separately from the underlying land. unclear whether farm real property may be valued Another problem is how an individual materially under section 2032A if the highest and best use of the participates in growing timber. Although there are property was for agricultural purposes. However, the problems in this area, the valuation of timberlands Internal Revenue Service has put that question to rest. will be a major use of section 2032A in Virginia. In a news release, the Service has stated that farm real property may be valued under section 2032A notwith- Planning Considerations standing that its highest and best use is for agricul- .In planning during lifetime to make use of section tural purposes?6 2032A in the client’s estate, several considerations It is permissible to value residential buildings and should be kept in mind.

10 Because .valuation under section 2032A is not section 2032A should prove tO be very beneficial in the available for lifetime gifts, clients should be advised future. not to make lifetime gifts of real property that can be valued under section 2032A upon death. In addition, if. FOOTNOTES the client has substantial non-farm assets, it is 1. For inheritance tax purposes, Virginia has enacted a statute important to plan c.arefully the creation of debt and. similar to section 2032A. See, Virginia Code § 58-155.1. Because of the repeal of the inheritance tax, the Virginia statute will only have the purchase of assets. application to estates of decedents who die before January 1, 1980. Also, if the client contemplates retiring from his 2~ This assumes that husband and wife each own equal undivided interests in farm real property valued at $1,000,000 and farming operation, special arrangements should be that the property passes directly to their children without being made with the new operator so that the client taxed in the surviving spouse’s estate. continues to meet the material participation reqiaire- 3. The savings of $345,000 assumes that husband and wife each ments of section 2032A. It is important that leases and has an estate of $675,000 and that death occurs after the unified credit has been phased in fully. employment contracts contain the proper provisions. 4. I.R.C. § 2032A(a)(1) and § 2032A(b)(l). Also, decisions will have’to be made concerning the 5. I.R.C. § 2032.A(b)(2). benefits of social security and the self-employment tax 6. I.R.C. § 2032A(e)(4). 7. I.R.C. § 2032A(b)(1)(A) and (B). as they relate to material participation. 8. I.R.C. § 2032A(b)(I)(C). In addition, when the client transfers his farm 9. I.R.C. § 2032A(e)(2). 10. Prop. reg. § 20.2032A-3(a). operation to a corporation, partnership or trust, the 11. I.R.C. § 2032A(b)(1). transaction must be structured carefully so that the 12. I.R.C. § 2032A(a)(I)(B). (The personal representative must requirements of material participation continue to be include in the election the following information: (i) dec~dent’s name and taxpayer identification number; met. Under the proposed regulations, there are special (if) relevant qualified use; rules concerning material participation and indirect (iii) items of real property specially valued; ownershipY8 These rules must be examined carefully (iv) fair market valu~ of specially valued real property; before any transfer is made. (v) adjusted value of all real property used in a qualified use; (vi) items of personal property passing to a qualified heir of The last planning consideration mentioned con- the decedent and usedin a qualified use; cerns the client’s estate planning, documents. Ob- (vii) adjusted value of thegro~s estate; viously, it is important that if section 2032A is to be (viii) method used in determining special value; (ix) copies of written appraisals; used the real property must pass to a member of the (x) date on which property was acquired and on which the client’s family. But with equal importance is that the quahfied use commenced; burden of paying the death taxes attributable to the (xi) any periods during which property not used for qualified use; and property (including any additional estate tax imposed (xii) name, address, taxpayer identification number and becaus~ of recapture) fall on the beneficiary who relationship to the decedent of each person having an interest in receives the property. The use of a non-apportionment the property. See, prop. reg..§ 20.2032A-8(a)(2). 13. I.R.C. § 2032A(d)(2). clause in a will without careful thought is never 14. Prop. reg. § 20.2032A-8(c)(2). advisable and is particularly true in this area. 15. I.R.C. § 2032A(e)(7). 16. I.R.C. § 2032A(e)(8). 17. I.R.C. § 2032A(a)(2). Conclusion 18. Prop..reg. § 20.203~A-4(b)(l.). 19. Prop. reg. § 20.2032A-4(b)(2). Although the requirements of section 2032A are 20. Rei, enue Ruling 79-189, I.R.B. 1979-25, 9. many and complex, the benefits are significant and 21. I.R.C. § 2032A(e)(8). 22. I.R.C. § 2032A(c). wi~h the proper planning and counsel many’ of the ¯ 23. I.R.C. § 2032A(h). problems can be avoided. The lack of final regulations " 24. I.R.C. § 2032A(c)(3). under sectiofi 2032A, rulings from the Internal Reve- 25. I.R.C. § 1014(a)(3). 26. I.R. 2160 (Sept. 10, 1979). nue Service and caselaw makes the role of tax advisor 27. Revenue Ruling 79-366, I.R.B. 1979-45,16. to farmers a very challenging one. In any event, 28. Prop. reg..8 20.2032A-3(e).

11 N. FAYNE EDWARDS ROBERT W. PHILLIPS

.Economic Evaluation of a Housewife

Introduction earn in the market place. If a family decides that the WITH increasing fre~quency economists have been wife should work at home instead of pursuing a job in the market place, then the family must have decided appearing as expert witnesses in personal injury and that the wife’s time value in the home is equal to or wrongful death cases.-Most of these cases involve exceeds her potential wage in the market place. individuals with a work hist6ry that can be documented as to wages or salaries received and hours In case of disability or death of the housewife, there worked, i.e., their productive value can be determined are additional economic losses to the family that are in’the market sector. More recently the economist has not considered in the opportunity cost method. The been called on to develop, economic analyses for opportunity cost method determines only the eco- individuals who .do not have a stated wage or work nomic losses that relate directly to the time the wife schedule and, therefore, individuals whose economic would normally have spent working in the market- contribution cannot be easily documented. The pro- place. A woman who is emplbyed outside the home ductive value of these individuals is not evident in the will still perform certain household duties. Studies market sector. have shown, as would be expected, that.housewives The housewife is an example of such an individual. employed outside the home do not work as many No one will argue that a housewife does not have an hours performing household services as do house- economic value; but the method of determining this wives not so employed.~ However, the studies do show economic value is not as well developed or defined as that the typical market employed housewife still it is for the more conventional case where there exists performs certain basic household services, such as plentiful employment data--data for the individual, shopping, cleaning, laundering and cooking. These the firm, and the industry. additibnal economic losses are evaluated using the market cost concept explained below. Methodologies of Estimation Economists ha~,e derived several methods of esumat- Market Cost Method ing the economic value of household services. How- The market cost method assumes that the house- ever, some of these methods, while theoretically hold services lost by the family as a result of disability sound, require assumptions that make them inappli- or death of the homemaker are replaced by employing cable in most "real world" situations. Of the several someone from outside the home. There are two ways methodologies developed there are two approaches to approach the question of replacement. One ap- that are theoretically sound and do lend themselves to proach assumes that the lost household services are "real world" application. replaced by employing one individual, i.e., a full time housekeeper. The second, approach assumes that Opportunity Cost Method lost household services are replaced by hiring a market Many economists believe that the opportunity cost replacement [or each separate housekeeping function. concept is the .most fundamentally accurate method of The housewife’s typical work day is broken down by determining the economic value of work performed by time spent performing various [unctions and then a housewife. This method.assumes that the unit value market wage rates are applied to each function. These of a person’s time spent performing housework is two methods will show approximately the same equal to the potential wage that the same person could economic value for the lost household services be-

12 cause, according the the Virginia Employment Com- mission, all domestic workers are covered by the same federal minimum wage.2 However, the first approach--a full time housekeeper--appears to be more realistic (particularly in a death case) because it does not require the husband to break up a typical work day for his wife into jobs performed and time spent on each job. The housekeeper approach also avoids the problem of placing a value on several replacements, who possess different degrees of skill, and who are to be used in small increments on an hourly, daily or weekly basis. In light of the Virginia Employment Commission statement above, the exactness indicated by the second approach may be more apparent than real and the extra details do not seem to be justified by the results.

Work Time

Any methodology used in determining the economic value of a housewife must incorporate a time factor for the normal or typical workday or workweek. In a disability case the obvious source is the housewife herself, but in a death claim this information must be Dr. N. Fayne Edwards graduated from Virginia furnished by the husband, and he may or may not be Polytechnic Institute and State University in 1960 able to provide a realistic approximation of the actual with a B.S. degree in Business Administration. He work time of his deceased wife. For this reason the received his Ph.D. in Economics from the Univer- sity of Kentucky in 1968. Dr. Edwards is presently economist will want to compare the husband’s data on Professor of Economics, E. Claiborne Robins work time with data contained in the several studies School of Business, University of Richmond. He is that have focused upon the units of time spent by the author of several articles in the areas of labor housewives on household tasks. and manpower economics and economics as it The functions of a housewife are many and varied. relates to the legal profession. Dr. Edwards has been an expert witness in numerous personal She provides family care and dietician services; per- injury and wrongful death cases involving loss of forms shopping, cooking, dishwashing, laundry, and income. sewing services; maintains the house and its grounds, and commonly provides chauffeur and home management services. The amount of time an individual housewife spends on these tasks is a function of certain less physical tasks, but the total time demand for the family characteristics. Hall and Schroeder3 found the housewife has not changed. following family characteristics have a significant Of the several sources reviewed, Walker and Gauger6 effect on the homemaker’s work load: size of family, age provided the most comprehensive data and a portion of of homemaker, amount of time homemaker worked their data is presented in Table 1. The table shows the outside the home, presence and age of children, and average daily time spent by both housewives who are presence of dog or cat. The same authors indicated that employed outside the home and those who are not. For certain housing characteristics also affect the work housewives with no children living in the home, hours load: size of house, presence of dishwasher, location of are broken down by the age of the housewife and for children’s play areas, and amount of work space in housewives with children in the home, hours are kitchen and laundry. It has also been found, in separate broken down by the age of the youngest child. The studies by Walker4 and Vanek5 that despite the many information contained in Table 1 should not be additional conveniences available to today’s house- substituted for more personalized work data for a wife, she still spends as much total time performing particular housewife; however, the data can be used as a household tasks as did her counterpart 50 years ago. supplemental source and may be helpful as a bench- The "mix" of the time use has changed and there are mark.

13 Present Dollar Value of Lost Household Services The above information will allow for the calCula- Depending on the circumstances involved in a tion of the total dbllar economic loss. However, since the actual loss will. occur over time it is necessary to particular case, one of the methodologies or a combina- reduce the dollar’ loss to present dollar values. In tion of the two can be used to calculate the total economic loss. The wage rates used in the computa- determining present value of a future stream of tions are obtained in the ~arket sector regardless of economic benefits, it is necessary to determine a sum of money which, if received (oday, would be equiva- which methodology is employed. The time factor that is incorporated into the computation is provided by the lent in value to the total dollar economic loss which wife (disability case) or husband (death case).. Supple- will occur over the plantiff’s or decedent’s life. The present value of the future losses is obtained by mental time factor data, contained, in the studies discounting the annual future loss at whatever interest referred to above, may also be helpful. The economist will .also refer to life expectancy tables for the rate is deemed appropriate for investing funds. The appropriate time period to be used in the calculations. annual present values are then summed to. obtain the current total present value of the future losses. TABLE 1 The choice of the discount rate to be used in the A~erage ’Dfiily ~’ime by Housewife in All Household Work above calculation is a crucial variable. One can invest funds in assets that promise to yield.widely varying Number of Not Employed Employed returns over time. The difference in the returns Children Ageof Wife Outside Home Outside Home (interest rates) obtainable from such assets is directly Hours Hours and positively rela~ed to the degree of risk associated 0 Under 25 5.1 3.5 with holding them. In selecting an appropriate 25-39 5.9 3.6 discount rate for personal injury and wrongful death 40-54 6.2 4.3 cases, there is widespread agreement among econ- 55 and over 5.4 4.3 omists that the rate should be reflective of the rate Age of obtainable from assets characterized by a high degree Youngest Child of safety of principal and income. Maximiz.ing the rate 12-17 7.0 5.0 of return or some other investment objective is 6-11 6.9 5.7 secondary to the assurance that income will be 2 -5 6.8 4.6 available in future years and can act as a substitutefor 1 7.5 (a) the losses resulting from the disability or death. Thus, Under 1 8.3 (a) one should select a discount (interest) rate that would be obtainable from investing in assets that have a low 12-17 7.1 4.8 degree of default risk and a high degree of safety of 6-11 7.4 5.4- income. 2-" 5 8~2 6.2 1 8.8 6.2 An Illustration Under 1 9.5 (a) Assume the decedent, who resided in Richmond, 12-17 6.7 3.8 Virginih, was a full time housewife, age 30, at the time 6-11 (a) (a) of her wrongful death. She had two children, age 6 2- 5 8.0 7.5 and 10. Also assume that she had no plans.of seeking 1 8.8 (a) work outside the home. Her husband was age 32 at the Under 1 10.1 (a) time of her death. Given these circumstances, the ~bjective of the economist would be to provid~ an 12-17 (a) (a) econohaic analysis that would establish the present 6-11 "8.0 5.3 value of the economic loss (value of services the 2-5 9.1 (a) decedent would have provided her husband and 1 8.7 (a) " children as a wife and mother) suffered by the family Under 1 10.5 (a) as a result of the wrongful death of.the decedent. (a) Sample size less than 10 households. The economist would need to answer the following

S6urce: E~tracted from data presented by Kathiyn E. Walker and questions before computing the present value of the William H. Gauger in their article, "Time and Its Dollar monetary losses: Value in Household World," Family Economic Review, Fall, 1973, Table 1, p. 10. (a) the claimable time period for losses

14 (b) the average number of hours the decedent spent per day or week performing household-mother duties (c) the market wage rate that would have to be paid someone from outside the home to replace (where possible) these services (d) the appropriate discount rate to use in reducing the future losses to present dollar value. Assume the economist finds or calculates the following answers to the four questions.

Claimable Time Period

The decedent was 30 years of age at the time of death and had a life expectancy of 47.5 years (Virginia Code). However, the husband who was age 32 at the time of his wife’s death, had a shorter life expectancy of 39 years. The maximum claimable time period for losses would then be limited to the husband’s life expectancy of 39 years.

Average Number of Hours

Assume that the information supplied by the husband corresponds to the average hours shown in Table 1. The average daily loss in hours of household services would be as follows: Dr. Robert W. Phillips received his B.A. degree from Denison University, his M.B.A. from Ohio 1-6 years after death--7.4 hours (youngest child University and his D.B.A. in Finance, Economics reaches 12 years of age) and Insurance from Indiana University. 7-8 years after death--7.1 hours (oldest child reaches Dr. Phillips is an Associate Professor of Finance age 18 and is assumed to leave home) and has been Chairman of the Finance Department since 1979 of the E. Claiborne Robins School of 9-12 years after death--7.0 hours (youngest child Business at the University of Richmond. reaches age 18) His primary researach and consulting interests 13-25 years after death--6.2 hours (decedent would are financial management and valuation. have reached age 55) 26-39 years after death--5.4 hours (husband’s life expectancy). Discount Rate Market Wage Rate Information presented above is sufficient to calcu- Domestic service workers are covered by the federal late the total monetary value of the lost services, which minimum wage, which is presently $2.90 per hour. will occur over the 39-year claim period. It is This means that future wage increases for domestic necessary, however, to discount the total monetary loss workers must be at least equal to the rate of increase in in order to determine the sum of money which, if the minimum wage. Congress enacted the federal received today, would be equivalent in value to the minimum wage in 1938 and set the wage at $0.25 per total loss. hour. Between 1938 and 1979 (41-year period) the The discount rate used to calculate the present value minimum wage has increased at an average com- of the total economic loss was 6.8%. The rate of 6.8% is pound rate of 6.1% per year. the average annual yield on depository savings (sav- In researching the question of the market wage rate, ings and loan associations, mutual savings banks and it was found that many domestic workers receive commercial banks), U.S. government bonds, state and wages up to $3.50 per hour (see footnote 2). Therefore, local bonds, and corporate (AAA) bonds for the last in calculating the monetary value of the lost services, five years. both the legal minimum wage of $2.90 and the present The final calculations incorporate the 6.1% wage market established maximum wage of $3.50 were used. trend and the 6.8% discount rate, which, in effect, A wage trend of 6.1% was used with both wage rates. (continued on page 26)

15 STEPHEN A. SALTZBURG

Virginia’s Model Jury Instructions For Criminal Cases

"The result is something of which the Commonwealth can be proud; the product is something that ever~ lawyer involved in an~ wa~ .in criminal cases will use on a regular basis."

LAST year marked an event of great importance to than’ the preparation of instructions for simple .civil the administration of criminal justice in the Com- cases. But the committee that drafted the Virginia monwealth: the publication of Model Jury Instruc- instructions began with the more difficult part of its tions for criminal cases. The model instructions are work, criminal cases, and has now turned its attention the product of five years’ work, from 1975 to 1979, by to completing instructions for civil litigation. five accomplished judges, six leading lawyers, and two This is not the first set of jury instructions to be dedicated law professors.~ All. of the committee mem- offered to lawyers in the Commonwealth. Even before bers donated their time and their proven abilities to the model instructions appeared, commercial sets were the jury instruction project. The result is something of available and seemed to be popular among trial which the Commonwealth can be proud; the product lawyers and judges. Several sets have been available in is something that every lawyer involved in any way in Virginia for years.2 But with the publication in 1979 of criminal cases will use on a regular basis. instructions prepared by an outstanding pool of all" Virginia has now become part of the movement tO parts of the state’s legal profession, which was improve the way in which juries are instructed that assembled by the ChiefJustice of the Supreme Court began a half century ago in California. Since then of Virginia, the Commonwealth has taken a step only a few states have done without model instruc- forward. It has joined the ranks of states with the best tions of one sort or another. Although the names in the Way of modern, complete, accurate and helpful given to the instructions differ in various places-- instructions,a some term their instructions "model," some call them Why is this effort so significant? There are more "uniform," and others use words like "pattern," answers to this question than space permits me to "standard," "recommended," or ."approved"--the ap- "include. But I shall suggest a few of the most proach in most places is very similar. Some states hax;e important reasons for saluting the completion of the confined themselves to instructions for civil cases, jury instruction project for criminal cases. probably because preparation of instructions to cover First, the instructions can save precious lawyer and common criminal offenses has been more difficult court time by providing a ready source of authority concerning the law that should be used in all jury trials in the Commonwealth, and thus the instructions EarroR’s NoxE: The article herewith was prepared b~, can reduce the research costs normally associated with ProIessor Saltzburg [or the Association’s Criminal Law Committee, and was forwarded to the Journal for litigation and spare both litigants who use and publication by the Committee’s Chairman, James R. taxpayers who fund the court’s expense. Second, the McKenry, Esquire, Who noted: "When Professor Saltz- instructions can improve the quality of jury verdicts burg circulated the ai’tide at the Criminal Law Committee meeting in Williamsburg, the members determined that and their trustworthiness by as.suring that jurors will his views were representative of those held by the entire be better educated on the law that they are asked to Committee; thus, the Committee wishes to support the apply in a case. Third, the instructions can further the points raised in the article." substantive aims of the legislature by assuring that the The article is published here as a public service. The views expressed in the article do not, o[ course, necessarily law is accurately, as well as clearly, stated to the jury. represent the views o[ the Journal or o| The Virginia Bar Fourth, by stating the law in a clear and correct Association. manner, the instructions promote even-handed application of legal concepts. Fifth, model charges can

16 help to reduce the number of appeals in which a claim of error with respect to jury instructions is made. Sixth, the care with which the model language was chosen makes it somewhat less likely that appeals that are taken will be successful. Seventh, the development of model instructions, the formation of a committee to monitor them, and the looseleaf format selected for the model set by the drafters and the publisher (Michie/ Bobbs-Merrill Co.) represent a commitment to con- tinual updating and constant improvement of jury instructions, which should assure that model charges never will be outdated. Eighth, the instruction~, identify areas of criminal law that are too complicated or too confusing for juries at the present time. This may lead to needed law reform efforts at the legislative level. Ninth, the commentary accompanying the instructions should serve as an outstanding source for legal research on all aspects of substantive criminal law. Tenth, the straightforward statement of the elements comprising various offenses may prove to be an excellent tool for educating novice prosecutors, and even police and sheriffs, as to the exact definition of

various crimes. Eleventh, the Supreme Court of Stephen A. Saltzburg is a Professor of Law at the Virginia may find that handy volumes of jury instruc- University of Virginia Law School, where he has tions are useful to it when it is asked to interpret taught since 1972. He has written two books in legislation, since the gloss that it chooses to put upon Evidence and has just authored a new book in Criminal Procedure. In 1979, the Alaska Supreme a statute is a gloss that eventually will find its way into Court adopted an evidence code drafted by Profes- jury instructions. It is a good argument that appellate sor Saltzburg, and he and another University of courts should pay attention to the problems that trial Virginia professor are at work on jury instructions judges will have in instructing juries when they write for the State of Alaska. In addition to his teaching appellate opinions. Twelfth, prosecutors and defense duties, Professor Saltzburg handles a number of counsel both may get a better understanding about the cases as appointed trial and appellate counsel when asked to do so by Federal and State courts. He is an variance between the perceived benefits of establishing active member of the Criminal Law Committee of various defenses and degrees of offenses and the real the Virginia Bar Association and has headed the costs associated with promoting complications in the John Marshall Associates at the University of law that must be explained to lay jurors. The list Virginia for several years. could go on and on. Whether the potential advantages of model jury instructions actually will be achieved in Virginia, and lawyers throughout the Commonwealth and refined to what extent, will depend in large measure on how their product in light of the responses they received, well the drafters did their work. I believe that they did and they made some efforts to test the instructions on an outstanding job, as I will explain briefly in a few non-lawyers to assure that they would be understand- moments. Before doing so, I would like to note that able. what I perceive as the drafters’ success is no accident. As a result the instructions are well organized, Throughout the five years that the committee worked supported by numerous citations to relevant cases and on the instructions, the members met regularly, they statutes, and bolstered by the inclusion of various utilized law school talent to obtain in-depth research helpful caveats on the problems that lawyers and on the criminal law, they brought vast experience in judges are likely to face in implementing the model the criminal justice system with them. They examined jury instructions. the completed work in the many states that already One of the outstanding accomplishments of the had model jury instructions and learned from others’ committee is the organization of the instructions. mistakes, they sought the opinions of judges and Although there are numerous instructions that fill

17 ,two volumes, it is a rather simple matter to find the be demonstrated. To save space, I have omitted the instructions on any offense in which one is interested. background material for the instructions on second Volume I begins with a table of contents that details degree murder and voluntary manslaughter. the various instructions that are included in it and that sketches the material found in Volume II. The Instruction No. 3 table of contents is followed by a useful chapter called Homicide--First Degree Murder "H6w To Use This Book." This in turn is followed by The defendant is charged with the crime of first another chapter relating some of the i~istory of the d~gree mtirder. The Commonwealth must prove model jury movement in the United States. With the beyond a reasonable doubt each of the" following preliminary material out of the way, Volume I offers elements of that crime: introductory instructio~as on issues, that are likely to (1) That the defendant killed (name of person); arise in many criminal cases, regardless of the offense and (2) That the killing was malicious; and charged. Then Volume I turns to particular classes of (3) That the killing was willful, deliberate and offenses. premeditated. Volume II begins with another table of contents, [That the killing occurred by poison [lying in which details what the second volume of the instruc- wait; imprisonment; starving; in the commis- tions contains, and briefly outlines the material in the sion of, or attehapt to commit rape, arson, first volume as well. It continues to provide instruc- robbery, burglary or abduction].] tions for various criminal offenses, and for certain I.f you find from the evidence that the Common- defenses as well. At the end of Volume II are two wealth has proven bdyond a reasonable doubt each of the above elements of the offense as charged, then you indices and one table, all of which should help the shall find the defendant guilty and fix his punishment user find correct jury instructions with little difficulty. at: The first index is a standard subject matter index and (1) Imprisonment for life; or runs almost twenty pages. The second inde~ is a (2) A term of imprisonment of not less than twenty- stat’utory index; it indicates where various sections of (20) years. the Code of Virginia are covered in the jury instruc- If you find the Commonwealth has failed to prove tions. It runs ten pages. Finally, there is a table~etting any one or more of the elements of the offense beyond a reasonable doubt, then you shall find the defendant forth the cases cited in the various notes that accom- not guihy. pany the jury instructions. This is afiother course Of entry into the multitude of instructions. It is difficult to imagine that the drafters could have provided more MEMORA NDUM useful tools for users to find instructions in which STATUTE: § 18.2-32. they are interested. CASES: Whi’teford v. Commonwealth, 27 Va. (6 The same careful organization that is evident in the Rand.) 721 (1828): Commonwealth v. Jones, 28 Va. (1 overall structure of the two volumes also is evident in Leigh) 654 (1829); McDafiiel v. Commonwealth, 77 the structure of particular sectigns of each volume. For Va. 281 (1883); Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978); Thompson v. Common- example, when homicide is covered, beginning at wealth, --Va. --, 247 S.E.2d 707 (1978). page 427 of Volume I, the section begins with an CAVEAT: Alternate element (3) in the model in- individual table of contents. Following the table of cludes felony-murder in the attempt to commit rape, contents is a Scope Note w.hich explains what instruc- arson, robbery, burglary or abduction. All other tions are included in the section, and how they relate felony-murders are punishable under a different stat- to one another. Also, the Scope Note indicates whether ute. See Instruction No. 9 as to second degree feloriy- instructions have been omitted and why. Following murder. In reviewing a trilogy of cases involving confeder- the Scope Note the instructions begin. To illustrate ates the Court held in Haskell, supra, that Virginia the typical way in w~hich an instruction is presented, I would follow the majority rule, namely: "... that the include several homicide instructions ’below. felony-murder statute applies where the killing is so Homicide is chosen for purposes of illustrating how closely related to the felony in time, place and causal the committee did its work, not because there is connection as to make it a part of the same criminal anything unique about these instructions. The first enterprise." This is the res gestae doctrine as it applies to felony-murder.. After an attempted robbery the degree murder instruction is accompanied by tl~e defendants attempted to escape the vigorous resistance background material that appears with the instruc- of the vic’tim. One defendant killed the victim. The tion, so that the organization .of each instruction can Court noted that escape is not an element of the crime

18 of attempted robbery and held it was for the fact ~inde; ¯ (1) That the defendant killed (name of person); and to determine in each case whether the Offense had been (2) That the killing was malicious. terminated within the purview of the statute. Thus a If you find from the evidence that the Common- defendant’s efforts to escape raise a factual issue in wealth has proven beyond a reasonable doubt each of each case. It was found to make no difference that one the above elements of the offense as charged, then you or more defendants did not intend that the victim be shall find the defendant guilty and fix his punishment killed. Participation in the attempted robbery made at a term of imprisonment of not less than five (5) them responsible. By dictum the Court includes years nor more than twenty (20) years. killing done in flight from the scene to avoid if you find the Commonwealth has failed to prove detection. any one or more of the elements of the offense beyond Where first and second degree murder are possible a reasonable doubt, then you shall find the defendant verdicts, it is error to fail to instruct the jury that every not guilty. unlawful homicide is presumed to be murder in the second degree. Pannill v. Commonwealth, 185 Va. Instruction No. 11 244, 38 S.E.2d 457 (1946). See also Instruction No. 7, this section. Homicide--Voluntary Manslaughter The defendant is charged with the crime of volun- COMMENT: At common law, a person was guilty of tary manslaughter. The Commonwealth must prove murder when he or she unlawfully killed another beyond a reasonable doubt each of the following human being with malice aforethought, either express elements of that crime: or implied. Whiteford v. Commonwealth, supra. The common law did not distinguish between first and (1) That the defendant killed (.name of person); and second degree murder; it was the legislature that (2) That the killing was the result of an intentional created the distinction. Yet no court in Virginia has act; and traced the process by which the common law defini- (3) That the killing was committed while in the tion has evolved into the present statutory language. sudden heat of passion upon reasonable provo- When malice is present, there are two ways that a cation [in mutual combat]. defendant can be guilty of first degree murder. The If you find from the evidence that the Common- first is when the killing itself is willful, deliberate, and . wealth has proved beyond a reasonable doubt each ~f premeditated. McDaniel v. Commonwealth, supra. the abov~e elements of the offense as charged, then you The second is when the killing is by poison, etc., or shall find the defendant guilty’and fix his punishment when the killing occurs during the commission of or at: the attempt to commit rape, etc., all of which is il) A t~rm of imprisonment of not less than one(l) covered by § 18.2-32. In this latter type of first degree year nor more than ten (10) years; or murder, the Commonwealth does not have to prove (2) Confinement in jail for not more than twelve that the killing was in any way willful, deliberate, or (12) months; or premeditated’. Commonwealth v. Jones, supra. (3) A fine of not more than $1,000; or In ThompsOn v. Commonwealth, -- Va. --,-247 (4) £oniinement in jail for not more than twelv~ S.E.2d...7.07 (!.9.78), two jurors read a newspaper article. ..(1.2.) months ond a.fine of not more than $1,000. regarding a defendant who was charged with first- If you find the Commonwealth has failed to ~rove degree murder. Although the article noted that the any one or more of the elements of the offense beyond defendant was Qn probation for rape and that the a reasonable doubt, then you shall find the defendant police had received numerous phone calls from not guilty. witnesses to the shooting, which had occurred at ~ softball game, the court held that the reading of the The instruction on first degree murder illustrates article was not prejudicial to the defendant so as to very well the efforts made by the committee to state the warrant a mistrial. The court also said that the prejudicial impact of any media information brought dements of an offense as clearly as possible. Other to the jury’s attention is a matter within the sound instructions, omitted here, define the word "mali- discretion of the trial court. cious" and the term "wilfull, deliberate and premedi- Collateral Source: 9B M.J., Homicide §§ 17-21, 82, tated." It would be nice if certain of these terms did 133 (1977). not .have to be used and if simpler language, which might be more readily understandable by a jury, could Instruction No. 8 be used in its place, but the first degree murder Homicide--Second Degree Murder instruction serves to remind us of the basic dilemma (Other than Felony Murder) that confronts anyone drafting model jury instruc- The defendant is charged with the crime of second tions: There is a trade-off between devotion to classic degree murder. The Commonwealth must prove legal doctrine and .statutory language on the one beyond a reasonable doubt each Of the following hand, and clarity and simplicity of expression on the elements of .that crime: other hand. In the area of criminal law, where so

19 much attention is paid to precise language and to grade of the offense, then you m. ust resolve that doubt careful distinctions between classes and elements of in favor of the defendant, and find him guilty of the lesser offense. offenses, drafters of instructions find that if they try to For example., .i_f.ygu.,h_a__v.e a reasonable doubt as to depart from traditional language in order to make whether he is guilty of capital murder or first degree, their charge to the jury simpler and clearer, they run murder, you shall find him guilty of first degree the risk of inviting challenges to their instructions on murder. If you have a reasonal61e doubt as to whether the ground that subtle shades of difference in the law he is guilty of-first degree murder or second degree are being eroded through muddy language. Thus, it is murder, you shall find him" guilty of second degree murder. If you have a reasonable doubt as to whether understandable that the committee chose to use the he .is guilty of second degree murder or voluntary language that is most familiar in the law of homicide ¯ manslaughter you shall find him guilty of voluntary in Virginia. manslaughter. If you ha~,e a reasonable doubt as to The background-material that follows this instruc- whether he is guilty of voluntary manslaughter or tion is typical of that prepared by the Committee. The involuntary manslaughter, you shall find him guilty of involuntary manslaughter. If you have a reasonable statute to which the instruction relates is the first doubt as to whether he is guilty at all, you shall find , citation. Cases that are relevant follow, and sugges- him not guilty. tions to trial judges and lawYers on how to use this instruction, how it relates to other instructions and In my view this in_struction does not make it as clear what problems may be presented by the instruction to the jury as it should exactly what it is to do with come next. One ~riticism’that can be leveled at the lesser included offenses. It is very important that a jury committee is that in some instances its comments seem understand the relationship of first degree murder to to be ~onger than necessary. For example, the reference the lesser offenses, and that the jury focus on the to the Thompson case at the end of the comment differences between the levels of offenses. One of the seems to be unimportant. But, in defense of the difficulties that one encounters in drafting jury committee, i~ might be observed that the committee instructions is that there are two kinds of cases: those plainly was trying to be as helpful as possible, and it - in which the charge itself is se~onci degree murder and may well have concluded that it makes sense to raise those in which second degree murder is a lesser points that might not be very relevant, but that might included offense. The instruction provided by the be of interest to some lawyers in some cases. committee should work better in the first kind of case. The instructions on second degree murder and on Similarly, when voluntary ma’nslaughter itself is the voluntary manslaughter highlight one of the nice charge, the instruction provided by the committee touches of the committee’s approach. Note that in all should work very well. But when first degree murder is three homicide instructions the first element that is the charge and thdre are lesser included offenses that explained to the jury is that the defendant killed .also are to be covered in the jury instructions, there is a someone else. Then the instructions go on to explain good argument that more care should be taken to the kind of killing or state of mind or condition of the work the various instructions together. defendant at the time of the killing that the govern- In future years; one. of the things the committee ment must prove. The effort is to present things in migl~t w’~nt to consider is providing additional approximately the same ~rder in each instruction so instructions to cover complicated cases, instructions that the jury will have an easier time putting together that integrate the various levels of offenses and that the various instruction~. The Committee should be endeavor to make the distinctions between the degrees commended for its attempt to write the instructions in of offenses as clear as possible to a lay person. a uniform manner to enhance understanding. It is not m~ intention here to poim outthe failings Although I am delighted to praise the committee for of the committee’s product. As with any effort, this thiseffort, I believe that it was not entirely successful. one is not perfect. I do igant to point out, however, Consider, for example, the instruction that the com- that the development~and publication of a set of model mittee provides for a case in which first degree murder instructions marks the beginning of improvement, and lesser included offenses are to be charged. The not the end. As was noted above, the instructions and instruction is as follows: accompanying legal material should provide a ready Instruction No. 14 reference source for criminal lawyers and trial judges. But, as ~lway~, trial judgesand trial lawyers mustkeep HomicidemDoubt as to Grade of Offense ¯ Ybuh~ve l~e-en-i-n~tru~te~l-~n-~-o~-~~a~r~-ne grade 0~ up with changes in the law. No matter how well ,homicide and if you have a reasonable doubt as to the supplemented the instructions will b~, there will be time gaps between decisions by the" courts .or enact- acts of violence that would:constitute a continuihg ments by t~ legislature and amendment or supple- serious threat to society, mentation of the instructions. Lawyers must keep up- and/or to-date on their own toassure that they do not use his conduct in committing the offense is outrageously instructions that are no longer proper at trial. Also, or wantonly vile, horrible or inhuman in that it involved torture [depravity of mind; aggravated bat- lawyers must be especially careful in the early years to tery to the victim beyond the minimum necessary to read the new instructions with care to insure that any accomplish the act of murder] errors or inadequacies that remain in the final product and having considered the e~;idence in mitigation of are removed. Furthermore, the"best lawyers always the offense, unanimously fix his punishment at death. will be looking to expand the law and to improve it, which may mean arguing for modified jury instruc- FOREMAN tions and for instructions on new points. OR It should be noted that Chief Justicb .I’Anson We, the jury, ’on the issue joined, having found the "commended" the instructions to the bench and bar. defendant guilty of (here set out statutory language of But the Supreme Court of Virginia is not making use the offense charged) and having considered all of the of the instructions mandatory. There is room for evidence in aggravation and mitigation of such argument that instructions should be modified to offense, fix his punishment at imprisonment for life. meet the needs of a particular case. As time passes, there will not only be room but also a need for FOREMAN argument that instructions must be changed or OR modified to meet changes in the law. We, the jury, on the issue joined, find the defendant ¯ Let me illustrate why it is important to know what not guilty. the current state of the law is and to pay close attention to the language chosen by the committee in FOREMAN the e_arly years of using the model changes. Instruction number 11 in the general instructions, I find this form to be most confusing. The form states that "[e]very person is presumed to intend the suggests that the jury is to take every word, every natural and probable consequence of his acts." phrase, and every paragraph and to decide whether it Although the committee drafted its instruction before finds them to be correct beyond a reasonable doubt. the Supreme Court of thee United States held that such Surely this is not intended, but that does appear to be an instruction is improper? there were enough lower the task set forth for the jury. Asguming that a jury court decision~ to put the committee on notice that will understand that it is only to consider the basic this instruction might be a problem. Yet, the com- propositions that are asserted in the various para- mentary prb~,ided by the committee does not so graphs and not each word, the problem remains that. indicate. Only the well prepared lawyer would catch the jury is going to have great difficulty in dealing the error. with the "and/or" language in the middle of the first Consider also, the jury verdict form provided by the basic instruction that is provided. Also, the jury may committee for capital cases in which a bifurcated not understand whether it is to cross out material only proceeding is mandated by statute. in the first instruction or also in the alternative instructions that are provided. Perhaps the biggest Homicide -- Capital Murder -- Form Finding problem is that the third alternative instruction states COMMONWEALTH that the jury finds the defendant not guilty. "It seems as v. . Case No ...... though the first two instructions assume that the jury (Name of Defendant) Date ...... has already found the person guilty. This must be the case in Virgi.nia before the jury in a capital case can ALTERNA TIVE JUR Y VERDICTS consider the sentence. Thus, the third alternative Cross out any paragraph, word or phrase appears to me to be most inappropriate. This is one which you do not find beyond a reasonable doubt form that must be improved, and it should be We, the jury, on the issue joined, having found the improved quickly, because capital cases require the defendant guilty of (here set out statutory langua, ge of greatest care in instructing the jury. Other improve- the offense charged) and having found that, after consideration of his pas~ criminal f~c6rizl that ments can be suggested, and it will be counsel’s job to there is a probability.’that he would commit criminal make the suggestions.

21 As I have indicated, every.work has its de’fects, and virtually the entire criminal law of Virginia. this set of jury instructions is no exception. But it Second, I hope that as time goes by serious thought would be wrong to focus too much attention on things will be given to providing some sort of.~entencing that could have been done better and things that are guidelines to .juries as long as they are to sentence in not quite perfect. To the credit of the committee, it criminal cases,s It is striking how rriuch care we take invites those who use ~he instructions to make in instructing jurors ori the exact meaning of every recommendations for._i_mp_r.ov._e_ment. The..qommittee word, phrase or element of a criminal offense, and indicates that it is going to keep up-to-date, that it is". how little guidance we give the jury in’sentencing. No going to follow th’e legislation passed’by the General one would dream of sending a case to the jury without Assembly and the decisions of the Supreme Court of specific instructions on the law, but sending instead a Virginia. The committee explicitly asks those who general instruction that the j ury should decide whether think they have better instructions or additional the defendant is guilty or innocent as it deems instructions that they have used over the years to appropriate. Is it necessary that in sentencing we limit forward them to the publisher, to be fgrwarded ourselves to such a general instruction? We no longer eventually to the committee. And the committee do so in capital cases, and there may be lessons to learn requests those who catch errors to submit them from the guidance we now give the jury when a immediately to the publisher so that the product can capital offense is before it. be improved. This indicates that the committee is Finally, I thi~k that it is time (hat the Common- seek!ng to take. good work and t~) make it better. wealth consider whether it should join the many states At the moment, a colleague and I are writing jury (more than one third) that already have adopted inst~-uctions for the state of Alaska. Thus, I have versions of the Federal Rules of Evidence. Many of the become acutely aware of the difficulty in drafting jury advantages associated with model jury instructions-- instructions that are accurate on the law and under- e.g., saving lawyer and judge research time, reducing standable to lay triers of fact. I know how hard it is to the number of appeals and reversals on appeal, a.nd read appellate opinions ~nd to take them and the providing even-handed justice--have been recognized statutes they address and to come up with language in igther jurisdictions as the law of evidence has been that captures the law laid down there. It is a tedious clarified through the use of a uniform set of rules. Not job; the distinctions we lawyers draw when we talk to only are the Federal Rules of Evidence in existence, each other are by their very technifial nature difficult but the second version of the Uniform Rules of to put into lay terms, which makes drafting instruc- Evidence also is available. These have proved popt~lar tions a frustrating job. Yet, when the job is done with elsewhere, and additional states are in the process of care, as the Virginia Model Jury Instructions are, the now ratifying sets of rules to cover their trial courts. A end. product is an !mproved criminal, justice system. set of evidence rules would work well with a set of jury I have not attempted to review every instruction for instructiong to provide more efficient, fair and even- its accuracy and to critique each one to see whether it handed justice in the future. is as clear as it might be. Rather, I marvel at the work Whether we move in these directions or not, there is that has already been completed. I join with those no doubt in my mind that the Model Jury Instructions judges and lawyers who already have used the instruc- .will improve the handling of criminal cases in tions in thanking the committee for the marvelous job Virginia. Their promulgation should remind us that that it did and for the very useful product it has put in we need not settle for what has been’, but can set our our hands. And, in looking towai-d-the future, I note sights on what should be. In criminal cases, with the my personal hope that we take the two volume set of classic state versus individual confrontatiori, aspiring instructions, we now have and move forward in several toward ~hat should be has been a hallmark of our different directions. American development, especially in the last fifty Fi~t, I hope that we take the invitation of the years. committee seriously and work to improve the instruc- With these instructions, the Virginia criminal tions over time as we learn which of them work well justice system has taken a solid step forward, like a and which do not, that we seek to add to them so that child asserting itself after a period of growth and they are even more complete in the future than they preparation. Now that we know we can walk, it is now are,. and that we continue to update the commen- time to see how far we are willing to travel. tary so that the two volume set of instructions continually will be an up-to-date reference source on (continued on page 26) WILLIAM B.. SPONG, JR.

A Look At Lawyer Competency.

best academic jobs. in America in the first year of instruction and one of the worst jobs in the last two EDITOR’S NOTE: The following is the edited typescript years. Perhaps for that wisdom, shared by many of his of an address, delivered by Dean Spong to the Council of ¯ the National Center [or State Courts in Williamsburg, colleagues, Dean Cramton was appointed chairman of Virginia on December 7, 1979. Because it directly con- an ABA Task Force on Lawyer Competency. That fronts the issue of the role of the law schools in enhancing group has just released its report entitled, Lawyer lawyer competence, it is printed here for the information Competency: The Role 9[ the Law Schools. Among its of the readers of the Journal. recommendations, the Task Force. concluded that educating for lawyer competency should ifivolve the development of certain fundamental skills: the ability THIS year, we have been observing t.he Bicentennial to analyze, the ability to do legal research, the ability of establishment of the first chair of law in the United to write effectively and the ability to communicate States. On Decen~ber 4, 1779, Thomas Jefferson, then orally. These fundamental skills should be combined Governor of Virginia, saw his suggestion that a chair with the traditional law school mission of imparting of law be established at William and Mary become a knowledge about law and legal institutions. Such reality when George Wythe, under whom he had skills and knowledge must be supported by disci- studied, was named Professor of Law and Police. plined work habits, p~rsonal integrity and congcien- Wythe brought a wide experience to his professorship. tiousness. In sum, the Task Forces report calls for a A signer of the Declaration of Independence, he had significantly greater or different law school role. served both as a member and Clerk of the Virginia Despite opposition by the law school to parts ~f the House of Burgesses, a member and Speaker of the Devitt report and opposition to being told what to Virginia House of Delegates, and was considered one teach, many law schools are moving toward othe goals of the foremost lawyers in Virginia. Professor Wythe of.the Devitt report and those of the ABA Task Force. employed the lecture method of teaching and in 1780 For instance, at William and Mary, we are conducting instituted Moot Court sessions for his students, as well a year-long faculty study of our curriculum. We have as mock legislative sessions. The present day concern~ adopted a three-year required program for developing of Chief Justice Burger and the Devi~tt Commission oral and written skills. We have instituted a course in were shared by Wythe who required simulated trial intensive legal writing. Wb are no,~ conducting a experience for his pupils. nationwide search for a professor.to direct and develop Until recent years historians overlooked Wythe’s a program to make maximum use of our electronically greatness. Yet few, if any, can match his accomplish- equipped Moot Court facility. We have a clinical ment of having taught law to Thomas Jefferson, John professor working with students to improve skills in Marshall and Henry Clay. ne.gotiating, counseling and interviewing. The questions that may have concerned Wythq An answer to the question of who to teach does not when he began his professorship 200 years ag6 remain come easily, .at least not so easily as in earlier days. with us: What to teach? Who to teach? A few years ago Until the end of the second World War, most law Dean Roger Cramton of the ,Cornell Law School schools would take all who appeared and asked for observed that the law schools were doing one of the admission. During the nineteenth century it was ,not

25 150 places. Our most recent entering class had a median grade point average of 3.3 and a median LSAT score of 648. We are not comfortable with our emphasis upon these objective standards. I believe those in legal education would agree with the desirability of the ABA Task Force’s first recommendation that in the admissions process, law schools weigh writing and oral skills, diligence, motivation and dependability in addition to the traditional criteria of the grade point average and the aptitude test. However, for State supported law schools, perhaps more vulner- able to law suits by unsuccessful applicants, brought in the era of affirmative action and Bakke, it is difficult to stray too far from objective standards. Who to teach and what to teach relate directly to the problems of lawyer competency, to unfavorable public perceptions and the expressed concerns of Chief Justice Burger and others. In discussing what to do about lawyer competency, an industrial term, "quality control" has often been employed. Where are the points of quality control where law schools, practicing attorneys and judges might act to raise the level of lawyer competency? We have talked about the first William B. Spong, Jr. is Dean and Dudley Warner two: the admissions process and the requirements of a Woodbridge Professor of Law at the Marshall- three-year law school education. Wythe School of Law of the College of William and Mary. He attended Hampden-Sydney College Let us assume that most law schools are able to raise and received his LL.B. degree from the University the level of lawyer competence. It is unlikely that all of Virginia. Dean Spong is a former member of the law schools can do so to a degree that the traditional Senate of Virginia and the United States Senate. academic backup--the bar examination--may be done Prior to moving to Williamsburg he practiced law away with. The bar examination is the third point of in Portsmouth. Dean Spong is a Past President of quality control. As you know, a task force of the the Virginia Bar Association and a Fellow of the American Bar Foundation. Conference of Chief Justices is now working on bar admissions. There appears to be empirical data, compiled by statisticians rather than legal educators, that would support a finding that the multi-state, necessary to have any preliminary academic training. multiple choice examination is "fairer" than the more In this century the prerequisite for law school admis- subjective essay type of examination. There are many, sion moved from two to three years of prior academic however, in legal education who have reservations work. Finally, after the second World War, an about the multi-state examination. Allow me to undergraduate degree was required. Today, there has express two of them that relate to lawyer competency been a dramatic rise in the number of women and the recommendations of Dean Cramton’s task applicants and a corresponding increase in applica- force. In most states, the bar examination is a tions by those who do not intend to practice law. combination of essay questions, prepared by court Moreover, there is an abundance of applicants who are appointed bar examiners, and the multi-state test, not certain what they wish to do. President Derek Bok consisting of 200 multiple choice questions, prepared of Harvard, a former law dean, recently observed that by the National Conference of Bar Examiners and "... law school has always been the last refuge of the scored by the Princeton Educational Testing Service. able, ambitious but vocationally uncertain student." These questions cover subjects that comprise most of These factors have made the admissions process more the core law school curriculum: Constitutional Law, complicated. Torts, Contracts, Real Property, Evidence and Crimi- At Marshall-Wythe over the past three years, we nal Law. It is questionable if multiple choice queries have received an average of over 2,000 applications for can be sufficiently related to the substance of those

~4 subjects, or if they can reflect the uniqueness of state Perhaps huma~ nature is such that the drafters o.f the laws, particularly in areas’such as evidence and real present Code expected too much. property. Secondly, if the raising of lawyer compe- I have been reading preliminary drafts of the tency levels is to be done by the sharpening and testing forthcoming report of the Kutak Commission, charged of fundamental skills--skills such as analyses and with drawing new rules of professional responsibility. written communications, and if the bar examination Their approach to self regulation appears less hypo- is to be an academic backup to legal education--a critical. The Commission’s early drafts, by silence second test of substantive knowledge and fundamental about self regulation of competency, could lead one to skills--it is difficult to believe that a multiple choice conclude that much respomibility tot.dealing with, in- examination will accomplish that purpose in subject compency will rest with the judiciary; that hope for areas that are the very core of the law school most iml~rovement will depend upon future develop- curriculum. ments such as expanded continuing legal education The fourth and remaining chance for quality programs, peer review, special examination for prac- . control is after the lawyer has been graduated, has tice. before certain courts and examinations for passed the bar examination and is practicing. This is specialists. when the lawyer will either practicq competently or, We do live in a consumer oriented society. These are by not .doing so, contribute to a negative public times when confidence i~ the legal profession and our perception of a legal profession that today is suffering system of justice is waning. Lawyer incompetency is a slings and arrows from a consumer oriented society. source of exacerbations along with trial delays, high What is there o~hqr than the market place and gro~;ing costs and inadequate delivery of legal services. Lack of malpractice suits to expose lawyer-incompetency? competence by practicing attorneys reflects upon the "Since repeal-of Prohibition, the greatest, form of law schools, but also upon the practicing bar and mass hypocrisy could be the perpetuated myth that the judiciary. To assure the public that more lawyers will practicing bar regulates itself to weed out incompetent be more competent will require the best.efforts of all lawyers. The Code of Professional Respon.sibility charged with responsibility for legal education and mandates this but it is a mandate that goes unheeded. the administration of justice. For organizations such " Each year, when representatives of the Virginia State as the National Center for State Courts, the problems Bar, charged v~ith implementing requirements of the facing, the legal profession today represent a~n oppor- Virginia Code of Professional Responsibility, visit our tunity for service. For those of the practicing bar such law school, .I ask if they~know of any instance where a problems require continui.ng self appraisal. For those Virginia lawyer has ,rel~orted another for incompe- in the judiciary, public concerns about our legal tence. Thus far, I have heard of no such instance. system present an opportunity for leadership.

The Danger of Retaining A Will: quite clear to a client thiot]~h past ~)riiien communications that hi bears the responsibility ’for returning to the attorney for any review A Virginia View of his plan, whether necessitzited by changes in the law or otherwise, the failure.to notify a client of vital changes in the tax laws affecting (continued [torn.page 6) his plan would appear to be not only a breach of the attorney’s ethical responsibilities, but also possible grounds for a malpractice "When Statute ofLimitatiOns Begins To Run Upon Action Against lawsuit." A [ortiori, if there is a "continuing relationship" between Attorney for Mal.p.r.~tctice." the attorney and the client for whom he drafted the will in question, 3. 206 Va. 810 (1966). the liabilities foreseen by Keydei are of much greater likelihood. 4. Lahy, "Perpetuities, Privity and Professional Liability," 2 U. Note also the language of Surrogate Regan in Estate of Buettner Rich. Law Notes 203 (1966). (Surrogate’s Court, Erie County, Buffalo,’ N.Y., 11/6/78) CCH Par. 5. 210 Va. 11 (1~69): 13,300, a case raising the question whether the new "mini-max" 6. Id. at 12. marital deduction of TRA ’76 would be obtained under a pre TRA 7. 214 Va. 144, at 149 (1973). will providing for the "maximum" marital deduction where the 8. In INFORMAL OPINION No. 661, July 12, 1963, the testator died prior to 1/1/79--." ... it would do well for attorneys to Committee had occasion to refer back to this ruling and stated "We notify such clients as have drafted pre- 197.7 wills containing marital adhere to this rulifig, which we consider applicable to estate plans deduction formula clauses as to the Tax Reform Act changes to in general." determine if the clients want to take advantage of the new $250,000 9. Should this theory of liability seem far-fetched to the re.ader, minimum in these cases where the 50% deduction would be less than he is referred to Keydel, "Explaining.the Tax Reform Act of 1976 t6 $250,000. Clients," The Practical Lawyer, Vol. 23, No. 2 (March 1977), 11, at 10. Eor the suggested form that an appropriate letter might take, page 12, where the author notes t.hat "(u)nless it has been made see K~ydel, op. cit, note 9. Economic Evaluation Martin Murphy, "The Value of Time Spent "in Home" Production," The American Journal o] Economics and Sociology, Vol. 35, (continued ]rom page 15) (1976), pp. 191-197. result in reducing the present value annual loss by .7% Chong S. Pyun," "The Monetary Value of a Housewife," The A~erican Journal o] Economics and S6ciology, (July 1969), pp. (.007) per year. The calculations show the pi.ese~t 271-284. value of the economic loss suffered by the decedent’s John P. Robinson, "The ’New Home Economics’: Sexist, Unrealis- family to range from $214,749 to $259,155.- " tic, or Simply Irrelevant?" Journal o] Consumer Research, Vol. 4, (June 1977), pp. 178-181. Harvey S. Rosen, "The Monetary Value of a Housewife: A Re- Conclusion placement Cost Approach," The American Jdurnal o] Economics and Sociology, Vol. 33, (January 1974), pp. 65-73. When calculating future losses, or for that matter, Joann Vanek, "Time Spent in Housework" Scientific American, dealing with future events in any form, one cannot (November 1974), pp. 116-120. avoid uncertainty. However, by employing ~orrect Kathryn E. Walker, "Homemaking Still Takes Time," Journal o] Home Economics, Vol. 61, No. 8, (October 1969), pp. 621-624. methodology, factual data and sound statistical meth- Kathryn E. Walker and. William H. Gauger, "Time and Its Dollar ods, a rational and logical solution can be determined Value in Household Work," Family Economics Review, (Fall despite the uncertainty. An economist, following the 1973.), pp. 8-13. basic methodology outlined in this article, can reduce speculation to a minimum and provide a firm foundation upon which to base the estimation of the economic losses resulting from the wrongful death or disability of a ’housewife.

FOOTNOTES, Virginia’s Model Jury... 1. Thdse studies are referenced individu.ally latei in the text. 2. The Federal minimum wage establishes the lowest wage rate, (continued [rom page 22) but the Virginia Employment Commission reports that many

domestic workers in the Richmond, Virginia area receive up to F~3OTNOTES $3.50 per hour. l? The first eigl~t members ol me committee, appointed by Chief 3. Florence Turnhall Hall and Marguerite Paulsen Schroeder, Justice I’Anson in February, 1975, included three Judges: J. Aubrey "Time Spent on Household Tasks," Journal o[ Home Economics, Mathews (Chairperson), Paul D. Brown, and George M. Coles. Also 62, No. 1, Jan. 1970, pp. 23-29. included were five lawyers: Cary L. Branch, Murray J. Janus, 4. Kathryn E. Walker, "Homemaker Still Takes Time," Journal Royston Jester, llI, J. Frederick Larrick and William B. Poff. The o] Home Economics, 61, No. 8, Oct. 1969, pp. 621-24. committee asked Kenneth R. Redden, Professor of Law at the 5. Joann Vanek, "Time Spent in Housework," Scientific Ameri- University of Virginia~ and James Phemister, Associate Professor of can, Nov. 1974, pp. 116-20. Law at Washington and Lee, to work" with it. Professor Redden 6. Kathryn E. Walker and William H. Gauger, "Time and’Its served as Reporter for the criminal instructions. Judge Robert K. Dollar Value in Household Work," Family Economics Review, Fall Woltz joined the committee in 1976. When Judge Coles died in 1973, pp. 8-13. 1976, Judge E. Ballard Baker took his place on the committee. When Mr. Larrick died in 1978, his place was taken by Buford M Parsons, REFERENCES Jr. Wendyce H. Brody, "Economic Value of a Housewife," Research 2. See, e.g., E. Abbott gc E. Solomon, Instructions for Virginia and Statistical Note, Note No. 9 (August 1975). and West Virginia (2d ed. 1962); M. Doubles, E. Emroch gc R. N. Ffiyne Edwards, "Selecting the Discount Rate in Personal Injury Me~hige, Virginia Jury Instructions (1964). and Wrongful Death Cases," Journal o] Risk and Insurance, Vol. 3. For a criticism of many model instructions, see Nieland, XLII, No. 2 (June 1975), pp. 342-345. Pattern Jury Instructions: A Critical Look at a Modern Movement N. Fayne Edwards, ".The Economist As An Expert Witness in to Improve the Jury System (1979). Personal Injury and Wrongful Death Cases," The Virginia Bar 4. See Sandstrom v. Montana, 99 S. Ct. 2450 (1979). Unfortu- Association Journal, Vol. III, No. 4 (Fall 1977), pp. 16-20. nately th~ error in imtruction 11 is repeated elsewhere in comments Marianne A. Ferber and Bonnie G. Birnbaum, "’The ’New Home to Instructions. See, e.g., Comment to Homicide Instruction 6, at Economics’: Retrospects’ and Prospects," Journal o[ Consumer 451. Resd~rch, V,~I. 4, (June 197"7), pp. 19-28. 5. I have worked with the Attorney-General of Virginia to Florence T. Hall and Marguerite P. Schroeder, "Time Spent on develop an appropriate statute. The Criminal Law Committee of Household Tasks," Journal o] Home Eco.nomics, Vol. 62, No. i, The Virginia Bar Association has backed the idea of more (January 1970), pp. 23-29. uniformity in sentencing. Oli Hawrylyshyn, "The Value.of Household Services: A Survey of Empirical Estimates," The Review o[ Income and Wealth, Vol. 22, (June 1976); pp. 101-131.

26 ~ ~Bar~lssoeiatio~ ~Proceedings

The Winter Meeting ...... 28

Announcement CLE Programs Scheduled ...... 39

YLS Chairman’s Report ...... ; ...... 33

Committee Reports ...... ~5

1979 Report of Secre.tary-Treasurer ...... 46

Memorials ...... 48 certificated security, told the morning ses’sion that the paper crunch ’revealed the stock certificate to be The Winter Meeting "disfunctior~al." Aronstein asserted that the number of paper transactions necessary to the transfer of stock delays the transfer, confuses both issuer and purchaser and, in the" light of technological advances, isn’t necessary.. Aside from scholarly treatment of proposed changes "The problem is," said Aronstein, "that because the in Article VIII of the Uniform Commercial Code, a stock certificate has become the common way to deal detailed examination of the legal rights of children with the transfer of equity interest in corporations, an and the lengthy spaces between the rungs of the entire legal system has been built up on it." associate’s ladder to the partnership’s inner sanctum, Aronstein said the ABA Committee on Stock Certifi- the most remarkable aspect of the 90th meeting at cates recommended that state, rather than federal, law Williamsburg was its timing with respect to weather. would provide the most suitable vehicle for change. Less than a week before the arrival of the VBA, Specifically, the committee endorsed a state law au- Williamsburg had been buried under a blanket of thorizing corporations to issue stock not evidenced by snow incredible in its depth. Enough of it remained certificate. At the same time, Aronstein said, the when the Executive Committee arrived Thursday committee rejected any mandatory statute to abolish afternoon, January 10th, to indicate the kind of chaos stock certificates. that might have descended along with the snow had it "The provisions of Article VIII that deal with been deferred only a few more days. uncertificated securities are designed to provide the °What the Williamsburg snowstorm did was drape rules for those people who want to use them," the colonial restoration in a mantle of white, thus Aronstein said. "They do not impose any duties on providing a uniquely attractive setting for the meet- anybody else’." ing. Those who trudged through the snow to reach Arofistein’s position was assailed, although with Christiana Campbell’s or Chowning’s on Thursday friendly restraint, by Peter Coogan, a professor at the evening were well rewarded. The restored colonial University of Georgia School of Law. Coogan had settlement was never more appealing. written an article for the Harvard Law Review.in reply The weather was only incidental, however. Wil- to one by Aronstein published earlier in the same liamsurg in January, 1980 was to be enjoyed when time periodical. permitted. The VBA schedule didn’t allow much in the Referring to the certificate registration system which way of leisure. Aronstein said would replace certificated securities, There were, of course, the meetings of the Associa- Coogan said that there are seven registration methods tion and Young Lawyers Section committees and the other than that.mentioned by Aronstein through which conference of local bar associations. Interspersed with a transfer takes place and which never get onto the these were .gatherings involving the executive com- registration system at all. mittees of both. "That’s one of my basic problemi," said Coogan. Too, there were the purely social events; the Michie "How does a person know what he’s buying where the Company reception Friday evening and the pleasantly registration system.is in effect--but ou.t of commis- tumultuous gathering provided by Richmond’s First sion?’ and Merchants National Bank prior to Saturday Thus, Coogan said, the buyer ultimately will come night’s banquet. back to the issuer for some statement as to what the Friday afternoon’s general session brought the VBA issuer’s records show about the transfer. into direct contact with the controversy over the Finally, Coogan referred to the doctrine of negoti- proposed revision of Article VIII of the Uniform ability for securities. "The prime element [of the Commercial ~ode. The’essence of the debate is whether doctrine] is the merger of the obligation into the piece the traditional stock certificate, curling in a safe deposit of paper," said Coogan. "How you could merge the box, should be eliminated in the interest of ending the obligation into a non-existent piece of paper I don’t "paper crunch" of the ’70s. quite see." Martin Aronstein, the Philadelphia lawyer whose The third member of the UCC panel was Charles C. name has become synonomous with that school of Miller, of King and Spalding, Atlanta, Georgia. Miller legal thought which would permit elimination of the suggested that electronic transfer of securities might

¯ provide some of the safeguards, but that Article VIII,as asset(ion that.the rights of children are still, at best, a presently drafted, does not allow for such a system. murky legal issue. The general session Friday afternoon turned next to "We don’t really know what the rights of children are a discussion of the Legal Rights of Children. Panelist al’l about," Wadlington said, "and we’re not taking Richard Podell, a Milwaukee attorney who specializes great pains to figure out what they are." in domestic problems, suggested that the.success of the What Wadlington said, in effect, was that the time is motion picture "Kramer v. Kramer" might have a out of joint. positive effect. "Kramer v. Kramer," Podell thought, This is a time, he said "of identity crisis for children might create, in a limited way, a new public conscious- associated with the problems of family breakdown, ness of the ramifications of divorce. divorce, remarriage or re-something with or without Podell traced the changing history of the legal righ.ts . legal officiation. of children. Prior to the’19th century, he said, a woman ’~It is a time when we’re all concerned about personal was ra.rely given legal recognition as a person. Then, autonomy; not being reduced to a number. It is also a courts begaia to suggest that "children of tender years" time when sex discrimination is a legitimate concern. It in custody cases, "should be left with the mother." is a time when we are trying--not too desperately, I The landmark case was Helms v. Franciscus in 1803. fear--to depart from our long-standing trend toward prolonging adolescence, lowering the age to 18 for Podell quoted the Court: "Yet, even a court of common law will not go so far as to hold nature in contempt and voting, for example." snatch helpless, puling infancy from the bosom of an "It’s also a time of litigation; children are going to affectionate mother and place it in the coarse hands of court." Wadlington cited Zapeda v. Zapeda in which an illegitimate child sued his natural father for cat/sing ,the father." his illegitimacy and the subsequent problems that All that has changed with the passing years. Now, status created for the son. said Podell, many states adhere to the doctrine of the best interests of the child although in most states, Concluding, Wadlington_said: "The presstires to even look at the material~n children have not been too Virginia included, courts have usually interpreted the strong. We have, of course, done some things in the last child’s best interests to be with the mother. year or two in Virginia: the new Juvenile Court Podell suggests ho,~ever, that the courts acknowl- revision is part of it. But we still have so.m~ny edge today that the mother is either a blue collar inconsistencies that it is really.rather amazing to me." worker, or at least involved in social, cultural, athletic "It seems to me," he said, "that what we’re going to or political activities that ~reate a different relationship see--increasingly--are more cases brought in court to between her and her children. challenge this, and I think some of them ultimately are "Indeed, if ’Kramer v. Kramer’ had taken place in going to be successful." Wisconsin (Podell’s home state) today, the husband Ireland’s ~outhful (40) ambassador to the United would have been awarded custody of the child, not the States, Sean. Donlon, entertained VBA members and mother." said Podell. their families at Friday night’s banquet, but he also left Ih Podell’s view, society--and the courts--are taking them with sombre thoughts. a far more objective approach to the question of child Donlon, who despite his comparative youth, is a custody today. "We are taking into consideration the veteran of Eire’s Department of Foreign Affairs, told moral backgrounds of the parties, the criminal rec- his audience he brought "bothgood ne~’and bad ords-if any--religiou+ views and the attitudes of th~ news" about Ireland. custodial parent toward visitations by the non-custodi- His good news consisted of a series of laugh- al parent." provoking anecdotes about the Ould Sod and the role Beyond that, said the Milwaukee attorney, courts are of the Irish American in the politics of the United taking advantage of psychological and sociological States. He emphasized Ireland’s intense efforts to reports, joint custody programs and, in Wisconsin and attract American capital. some other states, the principle of guardian ad litem. "We attract to Ireland," he said, "manufacturers and The latter legal concept assures that children are corporations who wish to "use Ireland as a bas~ to represented by attorneys in cases where custody is an expand their operations overseas and particularly to issue. expand their markets in Europe." University of Virginia Law School professor Walter Ambassador Donlon then turned to what he said J. Wadlington followed Podell ’to the dais with an most of the world refers to as ~’Irish violence." The Irish

Republican Army, he said, is a group that is unpopular in Ireland. "Because Irish terrorists have.failed to win either a nouncements political or a popular mandate," said Donlon, "they’ve turned to the American Irish community and sought to~ win for themselvesin this country a respectability and a moral support and, indeed, a physical support which is CLE Programs Scheduled not available to them in Ireland." He add6d: "I regret to say that to an extent they have Peter C. Manson, Director of Contin.uing Legal succeeded." Education, Announces the following CLE Seminars Donlon then said ~hat frequently the weapons used for the spring and summer: to shoot down victims of the Irish violence are American-made and that the money which finances Construction Law terrorism tn Ireland is frequently American money. --Formation of the Construction Contract "And above all," the ambassador continued, "--and --Changes in the Contract; Delays, Interruptions, this. may surprise you as much as it shocked .and and Breaches sickened me, there are elected representatives in this country who identify with the terrorists in Ireland." --Mechanics’ Liens; Bond Claims; Miller Act Claims The Irish ambassador added: "In fairness to many of --Organization of the Construction Case those involved, it is something which has arisen out of "the extraordinary good will which people in your Roanoke ...... April 17, 1980 country have for my country, but it is a good will which Tygons Corner ...... April 18, 1980 is not always matched by a knowledge of the realities of Richmond ...... " ...... April 24, 1980 life in Ireland today." Norfolk ...... : ...... : ...... Saturday morning, the Conference Center audi- April 25, 1980 torium was notice.ably popula.ted by younger members Advariced Estate Planning of the Bar to hear a Question and Answer session on Tides Inn, Irvington ...... April 27-29, 1980 the role--and the rights--of law firm associates. The panel of five featured John J. Osborn, the lawyer- Real Estate Law turned-author of "The Paper Chase" and the TV Norfolk ...... May 8, 1980 series which it spawned.. With Osborn were attorneys Ward Bower, of Ardmore, Pennsylvania and Raymond Richmond ...... May 9, 1980 E.. Mabus, Jr., of Washingto.n, D.C. As catalysts, Alexandria ...... May 15, 1980 Richard L. Will’ia~ms of McGuire, Woods and Battle, ol Roanoke ...... May 16, 1980 Richmond and a lawyer placement specialist from New York, Lois Weiner, of Genesi.s Management Corpora- Tax Exempt Financing tio~ filled out the panel_. _. RichmOndL~ ...... : ...... May 23, 1980 While the general tenor of the Saturday panel was light, largely due to Osborn’s wit, it was clear that the 4th Annual Summer School for Lawyers future of the capable, ambitious law school graduate University of Virgini~ Law School, today--thrust into a competitive and crowded envi- Charlottesville ...... May 26-29, 1980 ronment-is a major concern, not only for the young- ster but the profession as well. ABA/NITA Trial Advocacy Course The 90th meeting ended Saturday afternoon with the Washington ge Lee Law School, selection of Hugh Patterson as the Association’s Lexington, Virginia ...... July 8-17, 1980 President-elect and the installation of L. Lee Bean as President for the current year. (An intensive nine-day course for lawyers with 1 to 5 years of trial practice experience)

DON MURRAY At the annual meeting of the Association in Williamsburg on January 12, 1980, the following officers and executive committee members were elected:

Chairman, Charles F. Midkiff, 1200 Mutual Building, Richmond, Virginia 23219. Chairman-Elect, Thomas C. Brown, Jr., P.O. Box 338, Fairfax, Virginia 22030. Secretary-Treasurer, Clifford A. Cutchins, IV, 1400 Charles It. Midkiff is a Partner in the Richmond Ross Building, Richmond, Virginia 23219. firm of Christian, Barton, Epps, Brent and Chap- pell. Mr. Midkiff is a graduate of Old Dominion College and received a J.D. degree from the College Executive Committee of William and Mary in 1970. Blue Ridge Division, J. E. Wetsel, Jr., P.O. Box 2760, Winchester, Virginia 22601. Capitol Division, Patricia M. Schwarzschild, 1400 Ross Building, Richmond, Virginia 23219. panelists on the topic of Law Firm Associates--Their Potomac Division, John A. C. Keith, 4020 Univer- Role, Rights, and Regulation. The attendance at this sity Drive, Fairfax, Virginia 22030. panel discussion was one of the best experienced in Southwest Division, Whittington W. Clement, P.O. recent years with the Williamsburg Conference Center Box 962, Danville, Virginia 24541. auditorium nearly filled to capacity. The panelists Southside Division, Elizabeth S. Woodruff, P.O. included John J. Osborn, author of The Paper Chase, Box 749, Abingdon, Virginia 24210. and panelist-moderator Judge Richard L. Williams Tidewater Division, Paul D. Fraim, 700 Newtown who both offered provocative commentaries on law Road, Norfolk, Virginia 23502. firm associates. Valley Division, H. Allen Glover, Jr., P.O. Box 720, The activities of the weekend meeting were capped Roanoke, Virginia 24004. by the traditional dance on Saturday night. The At Large, B. Waugh Crigler, 122 W. Cameron success of this function reflects the excellent work of Street, P.O. Box 712, Culpeper, Virginia 22701. William G. Hancock. At Large, Benjamin B. Cummings, Jr., 300 Virginia The 1980 Bar year will use as its springboard the Mutual Building, Petersburg, Virginia 23803. excellent programs developed during 1979 and the At Large, William L. S. Rowe, P.O. Box 1535, Section will also embark upon new programs to serve Richmond, Virginia 23212. the public and the practitioner. There are 28 active At Large, Stephen H. Watts, II, P.O. Box 2350, committees of the Young Lawyers Section which are Richmond, Virginia 23218. briefly described immediately following this report. During the course of the year these committees will be Patricia M. Schwarzschild, Chairman of the Meet- highlighted both in the Journal as well as a new ings Committee, assembled a distinguished group of publication entitled the YLS Newsletter. In assisting practicing attorneys, the September ing-room-only audiences and provides a visible inter- Seminars/Bridge’the-Gap Committee will expand its face between the Bar and Virginia citizens. functions to embrace ten metropolitan areas in the ’ In cooperation with the YMCA, the Model Judici- Commonwealth of Virginia. In September of each ary Committee conducts a course for school-age year, in conjunction with the Continuing Legal children on trial and appellate advocacy. The school- Education Committee, Bridge-the-Gap classes are age children compete at the local level in mock trials conducted, for new practitioners and for attorneys who and the final elimination rounds are conducted in wish to familiarize themselves with other fields of Richmond in the chambers of the Virginia Supreme legal practice. Gregory N. Stillman, the committee Court. Under the able leadership of D. Alan Rudlin, chairman, performed admirably last year incoordinat- the Model Judiciary Committee is currently conducting these seminars and is already organizing the ing mock trials with increased participation from forthcoming prograni;,. local "schools. The course outline for the Bridge-the-Gap seminars Several new pi’ograms are underway for the current is The Virginia Lawyer. During 1979, this publication Bar.year including a Committee whose members will underwent extensive revision under the leadership of appear on television and radio programs designed to Joseph R. Mayes. Additional revisions and.several answer questions of the public on specified legal new chapters are expected in 1980 as part of the topics. Rodham T. Delk, Jr., committee chairman, is Section’s continuing efforts to make this publication obtaining commitments from regional coordinators to an invaluable reference tool. conduct this program in major metropolitan areas The Section will also concentrate its efforts on thrgughout the Commonwealth. service to the public. A pilot program in Petersburg, Public awareness of the many programs offered by Virginia is underway to assist in tenant-landlord the Young Lawyers Section is coordinated through disputes through the voluntary arbitration process. the efforts of the Law Day and Public Relations This project has the endorsement of local judges and, Committee chaired by James P. McElligott..Last year," if public acceptance is received, it will be expanded this committee produced two television announce- into other areas having a high percentage of residen- ments publicizing the Law Everyone Should Know tial rental units. Dale W. Pittman, chairman of the course as’ well as the Model Judiciary program. These" Consumer ,’l flairs Committee, is obtaining the as- thirty-~econd television spots were narrated by the sistance of Petersburg attorneys to act as arbitrators distinguished actor E. G. Marshall with the coopera- and we thank him for his initiatives. tion of CBS studios. The Association has provided the Uneven starewide treatment and recognition ac- Section with additional funding for the production of corded by local judges of tfi~ VASAP program was two more thirty-second television announcements and studied in 1979 by the Section’s Criminal Law and production is in the preliminary stages. Corrections Committee. In 1980, the Committee The Association and the Young Lawyers Section are drafted legislation which would provide a more even- continuing, indeed strengthening, their efforts to serve the diverse needs of the public and the practitioner. handed approach to administering this program. Under the leadership of B. Waugh Crigler, this Should you wish to participate on one of the Committee is currently studying the need for uniform committees listed below, and you are urged to do so, rules of procedure in the General District Court please correspond directly with the respective, chair- system. man..Suggestions for new projects, furthermore, should be directed to Barbara Tessin Jones, P.O. Box The Environmental Law Committee, chaired by 1122, Richmond, Virginia 23208. Robert E. Smartchan, will be conducting mini- seminars for laymen pertaining to environmental law Respectfully submitted, and regulation. This new program has already CHARLES F. MIDKIFF received support, from various building and trade Chairman associations. The first seminars will be conducted in the Tidewater area. The Section’s award-winning project of teaching a free course on "Law Everyone Should Know" will be 1980 VBA YLS Committee Chairmen conducted again this year on a statewide basis. /1B,’I/YLD Liaison: David Craig Landin, McGuire, Woods gc Battle, P.O. Box 1191; Charlottesville, Virginia Historically, this program has been taught to stand- 229O2.

34 Award o] Ach-ievement: Lawrence H. Framme III, Little, Morris g: Butcher, 1200.Ross Building, Richmond, McGuire, Woods & Battle, 1400 Ross Building, Richmond, Virginia 23219; and Michael E. Harman, Browder, Russell, Virginia 23219. Little, Morris gc Butcher, 1200 Ross Building, Richmond, Bridge-the-Gap: Gregory N. Stillman, Hunton & Wil- Virginia 23219. liams, Suite 1301, First Virginia’Bank Tower, 101 St. Paul’s Law Day and Public Relations: James P. McElligott, Blvd., Norfolk, Vir_ginia.23510. McGuire, Woods g: Battle, 1400 Ross Building, Richmond, Family Law: Donald W. Lemons, Minor, Parker, Virginia 23219. Fenderson, Pollard g: Press, Ltd., 5511 Staples Mill Road, Speakers Bureau: Charles E. Land, Canoles, Mastracco, Richmond, Virginia 23228. Martone, Barr ge Russell, 1530 Virginia National Bank Consumer A]]airs: Dale W. P~ttman, ~’etersl~urg Legal Building, Norfolk, Virginia 23510; and Henry C. Land III, Aid Society, Inc., Suite 505, Community Bank Building, 303 Cameron Street, Alexandria, Virginia 22314. Petersburg, Virginia 23803. Special Issues and Projects: Barbara Tessin Jones, Mays, Criminal Law and Corrections: B. Waugh Crigler, Lea, Valentine, Davenport & Moore, P.O. Box 1122, Richmond, Davies, Crigler 8c Barrell, 122 W. Cameron Street, P.O. Box Virginia 23208. 712, Culpeper, Virginia 22701. Supreme Court Film: Wilson R. Trice, First 8c Merchants The Directory: Moira K. Donoghue, Hunton & Williams, National Bank, P.O. Box 27025, Richmond, Virginia 23261. P.O. Box 1535,.R:ichmond, Virginia 23212. VBA Journal: Douglas R. Maxwell, Christian, Barton, Coordination o] YLS Activities: H. Allen Glover, Jr., Epps, Brent ~c Chappell, 1200 Mutual Building, Richmond, Woods, Rogers, Muse, Walker ge Thornton,Blake Building; Virginia 23219. P.O. Box 720, Roanoke, Virginia 24004. Virginia Lawyer: Joseph R. Mayes, Mays, Valentine, Disaster Legal Assistance: Thurston R. Moore, Hunton & Davenport 8c Moore, P.O. Box 1122, Richmond, Virginia Williams, P.O. Box 1535, Richmond, Virginia 23212. 23208. Environmental Law: Robert E. Smartchan, Kauffman Youth and the Law: Benjamin B. Cummings, Cummings, and Oberndorfer, Virginia National Bank Building, One I’~ooley g: Dicks, 300 Virginia Mutual Building, Petersburg, Commercial Place, Norfolk, Virginia 23510. Virginia 23803. Law School Liaison: C. Torrence Armstrong, Boothe, Long Range Planning: John A. C. Keith, 4020 University Prichard gc Dudley, 711 Princess Street, P.O. Box 11~)1, Drive, Fairfax, Virginia 22030. Alexandria, Virginia 22313. "Call Law" Feasibility Study: William L. S. Rowe, Legal Services to the Public: J. E. Wetsel Jr., Kuykendall, Hunton & Williams, P.O. Box 1535, Richmond, Virginia Whiting, Costello 8c Hanes, P.C., ¯ P.O. Box 2760, 23212; and Stephen H. W~tts II, Commonwealth Natural Gas Winchester, Virginia 22601. Pipeline Corporation, P.O. Box 2350, Richmond, Virginia Meetings: Patricia M. Schwarzschild, McGuire, Woods gc 23218. Battle, 1400 Ross Building, Ri~:hmond, Virginia 23219. Call a Lawyer/Television and Radio: Rodham T. Delk, Membership: Robert W. Wooldridge, Boothe, Prichard & Jr., Delk g: Barlow, 229 Main Street, P.O. Box 367, Smithfield, Dudley, P.O. Box 338, Fairfax, Virginia 22030. Vir.ginia 23430. Membership Participation: Paul D. "Fraim, Rixey gc YLS Newsletter: Becky A Powhatan, Kaufman and Heilig, 700 Newtown Road, Norfolk, Virginia 23502. Oberndorfer, Virginia National Bank Building, One Model Judiciary: D. Alan Rudlin, Hunton & Williams, Commercial Place, Norf61k, Virginia 23510; and William R. P.O. Box 1535, Richmond; Virginia 23212. Derry Jr., Mays, Valentine, Davenport ge Moore, P. O. Box Moot Court: William R. Allcott Jr., Browder, Russell, 1122~ Richmond, Virginia 23208.

where a question is called for a vote in which directors present have an interest; and (b) to clarify the extent to which a Committde Repots corporate board of directors may delegate its authority to a committee of directors; and 4. To monitor changes in and developments with respect to the Model Corpora- Report of the Committee on next .fall to make a recommendation as to tion Act. Finally, the Committee wishes to ex- Business Law whether or not the changes should be adopted. press its thanks to its former chairman, The Committee has also undertaken the Andy McThenia. His leadership and To the Virginia Bar Association: following projects: friendship have made it a pleasure to be a The Committee was pleased to present to 1. A study of the impact of the new part of the Business Law Committee. Bankruptcy Act on business and banking. the Association a program in Williamsburg Respectfully submitted, on the proposed changes to Article 8 of law in Virginia; the Uniform Commercial Code. The Com- 2. Monitoring of developments in the Robert L. Burrus, Jr. mittee recommended and the Executive action challenging the Virginia corporate Richard H. Catlett, Jr. Committee approved support of a study takeover statutes; Page D. Cranford resolution by the Virginia Legislature to 3. Support for proposed changes to the James S. Cremins consider the proposed changes in more Virginia Stock Corporation Act to (a) state F: Claiborne Johnston, Jr. depth. The Committee hopes to work with the manner in which a quorum is deter- Talfourd H. Kemper the study commission and be prepared by mined at a meeting of a board of directors Angus H. Macaulay, Jr.

35 Walter J. McGraw versity School of Law, Chairman of the A. Abolish the°defense of governmental Robert H. Powell, III Committee of the National Conference of J. Waverly Pulley, III immunity with respect to medical mal- Commissioners on Uniform State Laws practice actions only. Wellford L. Saunders, Jr. which prepared the Uniform Comparative B. Recommend to the General Assembly William Tracey Shaw Fault Act and Professor Victor Schwartz; Donald E. Showalter Chairman of the task force of the Com- that they study the possibility/ of enacting R~bert E. Stroud merce Department on product liability¯ legislation providing for a state tort claims’ act. George W. Taylor, Jr. During the year, various meetings of the Virginia H. Hackney, Chairman subcommittees were held from time to time, C. Abolish sovereign immunity with re- and positions were formulated which were spect to medical malpractice and recom- in turn reported to the full committee for mend a study with a view to abolishing sovereign immunity entirely by the crea- Report of the Committee on its acceptance or rejection¯ (A list of the membership of the various subcommittees tion 6f a state tort claims act. Civil Litigation .is attached¯) The final subcommittee meet- A motion was made and seconded that ings were held at Tides Inn on the after- this com~nittee adopt the third possibility To The Virginia Bar Association: noon of November 16, 1979, while the full outlined by Chairman Moriahan and rec- The Committee on Civil Litigation met committee met on the morning of No- ommend to the General Assembly that the at the January, 1979, annual meeting in vember 17, 1979. In attendance at the defense of sovereign immunity be abolished Williamsburg, nineteen committee mem- meeting were fifteen members of the Com- with respect to medical malpractice and bers attending. At that time, it was agreed mittee on Civil Litigation¯ While many of that we further recommend that the Gen- that the committee again would ope~rate the fifteen could properly be considered to eral Assembly stUdy the entire s’overeign through a number of subcommittees, which have been wearing two hats and speaking immunity problem with a view towards during the year would give consideration for more than one bar group, there were adoption of a state tort claims act. The to a variety of topics and report to the also eleven other invited persons who were motion was amended to add that the aboli- full committee at a fall meeting. At that able to attend¯ tion of governmental immunity with re- meeting in the fall the full committee would A report of the actions taken by the spect to medical malpractice would be decide, on any actions to be reported for committee at that time is as follows: limited to $100,000.00 of required insur- approval by the Executive Committee of ance coverage similar to other state legisla- the Virginia Bar Association. I. Governmental and Charitable Immunity: tion covering school bus operations and the The following subcommittees, with their The Committee considered legislation.to like. The motion was passed as amend.ed chairmen, were appointed: Title 8.01, Tim establish that doctors practicing at state with 11 votes in favor and 9 against. Ellis, chairman; Medical Review Panels, hospitals can be subject to a suit for negli- In view of the closeness of the vote, it Fred Alexander, chairman; No-fault, Ed gence. A new section to the Code of Vir- was decided to separate the matter and Taylor, chairman, Charitable and Sovereign ginia, Section 8.61-581.21, has’been pro- vote on each part: Immunity, Charles Geschicter, chairman; posed which would provide that the de- A. On the question of only recommend- Comparative Fault, John Oakey, chairman. fense of governmental immmaity would ing legislation to abolish sovereign immu- At the initial meeting of the year, it was not be a defense in medical malpractice nity with respect to medical malpractice further agreed to continue the practice of cases. A large number of cases has arisen cases, the vote was 7 for and 12 against. ’the preceding year and to invite to the out of the University of Virginia Hospital B., On the question of recommending fall meeting the members of the correspond- concerning whether various employees of ing committees of the Virginia State Bar, legislative study with a view toward setting that hospital have sovereign immunity. up a state tort claims act, the com.mittee the Virginia Trial Lawyers Association, and Under Lazohorn, an intern .was held by the voted unanimously to recommend such a the Virginia Association of Defense At- Supreme Court to have sovereign immu- study. torneys, and further to invite, at their own "nity. Now, in the case of ]ames v. ]ames expense, except for mileage and luncheon (cert. granted July 1978) the question of II. Medical Malpractice Report. expense, certain members of the General whether or not a staff doctor has sovereign It was reported that: Assembly of Virginia. These invitations immunity is before the Virginia Supreme A. As of August 31, 1979: were extended subsequently. Court. The purpose of the above bill is to In accordance with the objectives of resolve the confusion in this area and to 238 claims had been filed the committee and the positions authorized remove the defense of sovereign immunity 57 claims were withdrawn by the Executive Committee, t~e relevant from malpractice cases. Under this bill, no 14 claims were dismissed bills before the General Assembly at its distinction will be drawn between the type 103 claims were concluded 1979 session were closely followed, the of health care provider and particularly 63 claims remained pending views of the Association were presented as no distinction will be drawn concerning Of the 103 claims concluded: 82 or appropriate, and no action was taken in whether a particular health care provider 79.6% were resolved in favor of the health the General Assembly contrary to those is an independent provider or an em- care provider. 13 or 12.6% were for plain- views. ployee. At the end of the report, Jimmy tiff. 4 or 3.8% found that the health care Because of the study being made of the Morris and Hal McVey questioned whether provider was negligent but that negligence Uniform Comparative Fault Act, at the or not we should attack sovereign immu- was not the proximate cause of plaintiff’s request of President Elect Lee Bean the nity piecemeal. They both expressed the ~njurles. 4 or 3.8% found that the matter Committee arranged a panel to present an opinion that we should grapple with the involved a jury issue not requiring expert analysis ~f both the Uniform Comparative entire problem at one time and recommend op~mon. Fault Act and the Model Products Liability a tort claims act for Virginia. Chairman B. Areas for change as recommended by Act at the summer meeting of the As- Tom Monahan reviewed the various possi- VTLA: sociation. Included in that panel were bilities before the committee which were 1. Professor John W. Wade of Vanderbilt Urti- Clarify the standard of care, Section as follows: 8.01,581.20 of the Code of Virginia,

36 to make clear that nonresident ex- V. Title 8.01 under which voluntary nonsuits can be perts may testify if they know the taken. A. CONSIDERATION OF AN OFFER OF JUDO- statewide or local standard of care. MENT RULE OR STATUTE Committee Action: The full Committee 2. Clarify the malpractice statute to Issue: Consideration whether Title 8.01 accepted the recommendation of the Sub- make it clear that a plaintiff is" to be or the Rules of the Supreme Court of Vir- committee to recommend legislation to permitted to go before the panel with- ginia should be amended or revised to in- amend Va. Code § 8.01-380 to permit vol- out an expert. elude an offer of judgment statute or rule untary nonsuits only as 15ermitted by Rule similar in effect and purpose to Rule 68, 41, Fed. R. Civ. P. A motion to recom- C. It was the consensus of the committee Fed. R. Civ. P. mend legislation to bring the Virginia that it was premature to go back to the statute in line with Rule 41, Fed. R. Civ. legislature particularly with regard to 8.01- Committee Action: Members of the Com- P., passed the full Committee with some . 581.20 as that statute was just passed July mittee discussed various aspects of the op- dissenting votes. 1, 1979. Accordingly, no action was taken eration of Federal Rule 68, the ~analogous with regard to the VTLA report but we rule in the English system, and some of E. CLARIFICATION OF SERVICE STATUTE will study the medical malpractice panel the existing state analogous rules. Com- Issue: Consideration whether any clarifi- results carefully over the next year to de- mittee members also suggested that con- cation is needed to Va. Code § 8.01-288. termine what changes, if any, need to be sideration be given to whether Va. Code Committee Action: Both the Subcom- made in the medical malpractice review § 8.01-421 already served the purpose of mittee and the full Committee concluded law. an offer of judgment rule. In general, the full Committee accepted the recommenda- that Va. Code § 8.01-288 needs no clarification and is entirely satisfactory in its HI. Comparative Fault. tion of the Subcommittee to have this matter studied after submission to the Com- present form. It was reported for the subcommittee mittee of a memorandum to be prepared F. AMENDMENT TO VA. CODE § 8.01-5(b) that the comparative fault subcommittee by-the Chairman of the Subcommittee. was deadlocked between the plaintiff bar Issue: Consideration whether Va. Code and the defense bar as to the need for a B. REPEAL OF PROHIBITION OF ,SUMMARY § 8.01-5(b) should be amended to include comparative fault statute with the defense JUDGMENT BASED ON DEPOSITIONS "casualty" as well as liability insurance. bar committee members being generally Issue: Consideration whether there should .Committee Action: The full Committee against any comparative fault statute. How- be a repeal of Va. Code § 8.01-420 which concluded that this revision or amendment ever, as between the pure form of com- prohibits summary judgment to be based was unnecessary and might well be confus- parative fault statute and the modified or on depositions absent agreement of the ing. Wisconsin form of comparative fault statute, parties. it was generally agreed that the modified G. CLARIFICATION OF STATUTES GOVERNING form was better. The pure form of com- Committee Action: The full Committee CAPACITY TO SUE AND DISABILITY accepted the recommendation of the Sub- parative fault statute has been adopted by Issue: Consideration whether any clarifi- committee and voted with only one dis- 9 states and 25 or 30 have adopted the cation is necessary in connection with the senting vote to recommend repeal of Va. modified or Wisconsin form of comparative manner and capacity in which persons under Code § 8.01-420. fault statute. There are two types of modi- disabilities and convicts can sue and can be fied comparative fault statutes, one of which sued. C. CLARIFICATION OF THIRD PARTY PRAc- provides that the plaintiff can recover only "riCE RULE Committee Action: The full Committee if he is less than 50% negligent and the accepted the recommendation of the Sub- other if he is not more than 50% negligent. Issue: Consideration whether there should committee that this matter be stu~lied by The Committee recommendation was to be a clarification to the third party prac- request that this matter be studied by a tice rule to eliminate the confusion over Subcommitee members for possible specific recommendations at the next meeting of legislative study committee. Motion was whether a third party claim can be an made and seconded that we recommend to inchoate one. Such a clarification would the full Committee. the legislature that a legislative study com- serve to bring the state rule in line with H. UsE OF DEPOSITIONS AT TRIAL mittee study a modified or Wisconsin type the federal rule. Some circuit courts now Issue: Consideration whether any clarifi- of comparative fault statute with a view refuse to permit third party motions for cation is necessary to Rule 4:7 with respect towards possible change into law. The mo- judgment on the ground that the third tion did not carry. party plaintiff, at the time of the third to whether a deposition of a party can be party action, has not yet suffered any dam- introduced at trial as evidence for any pur- IV. Products Liability. age as a result of the original plaintiff’s pose notwithstanding the presence and action. availability of the party to be called as a Hal McVey reported for the products witness. liability committee that Delegate Philpott Committee Action: The full Committee Committee Action: Both the full Com- has a bill before the legislature to limit accepted the recommendation of the Sub- mittee and the Subcommittee concluded liability where a manufacturer parts with committee to seek legislation to clarify the that this matter is worthy of further study an item a specific number 6f years ago third party practice rule, Rule 3:10, to to ascertain whether clarification is in fact prior to injury. Hal was not certain of the clarify that a third party claim can be an necessary. number of years and thought that this inchoate claim. would be a type of statute of limitations for I. CLARIFICATION OF DOCTRINE OF ELEC- D. AMENDMENT OF NONSUIT STATUTE goods manufactured many years ago. He TION OF REMEDIES was unaware of any significant litigation in Issue: Consideration whether there should Issue: Consideration whether the doctrine the products liability field and the com- be a revision or amendment to Va. Code of election as adumbrated in Strickland mittee took no further action. § 8.01-380 to narrow the circumstances v. Dunn, 219 Va. 76 1978), Travelers v.

37 Obenshain, 219 Va. 44 (1978) and Good- tolled without regard to whether the action state. Eight of thes~ programs were offered stein v. Weinberg, 219 Va. 105 (1978) re- was commenced by warrant or motion for in multiple locations. The fifteen programs quires study, clarification or change. judgment. Members of the Subcommittee made use of 116 lecturers and resulted in will draft a specific legislatiV~ proposal in Committee Action: The Subcommittee a total of 44 opportunities for lawyers to and full Committee concluded that this this regard to provide that where a motion attend CLE programs. Registrations as of matter is worthy of further study to con- for judgment is utilized irt the General December 1, 1979, totaled 7,123. sider whether there is in fact a need for Disirict Court, the action is deemed filed In addition to the institutes, the Com- clarification. and the statute of limitations tolled at the mittee published two new handbooks dur- time the motion for judgment is filed with ing the year, and sales of handbooks totaled J. REVISION OF PERMISSIBLE VENUE the officer authorized to issue process. 1,796. There follows a listing of the insti- Issue: Consideration whether Va. Code tutes presented and further information § 8.0’1-262 dealing with permissible venue M. STATUTE OF LIMITATIONS FOR CML RIGHTS AC~O~S concerning handbooks and other activities should be revised or amended to delete per- of the Committee. missible venue where a person has his Issue: Consideration whether a specific principal place of employment. statute of limitations should be adopted with respect to 42 U.S.C..§ 1983 actions. Institutes, Seminars, and Lectur~ers. Committee Action: The full Committee, on a split vote, voted to recommend legis- Committee Action: The full Committee (1) Dissolving .a Marriage. (one day) lation to delete principal place of employ- decided to table suggestions for adopting a December, 1978 : Roanoke, Alexandria, ment as permissible venue. specific statute of limitations with respect Richmond and Norfolk; Robert J. Surovell, to § 1983 actions. Fairfax; Edward W. Taylor, Richmond; K. GARNISHMENT SERVICE ON MANAGING Jerrold G. Weinberg, Norfolk; Harry °P. EMPLOYEE OF CORPORATION N. LONG ARM SERVICE IN DIVORCE CASES Anderson, Jr., Richmond; Paul M. Lipkin, Issue: Consideration whether Va. Code Issue: Consideration whether and to what Norfolk. Registrations: 999. § 8.01-513 should be amended to preclude extent the long arm jurisdiction, should be (2) Administrative Law Process. (one applicable in certain domestic relations service on a ’,managing employee" when day) January, 1979: Presented in conjunc- that person is also the judgment debtor. cases. tion with the Annual Winter Meeting of Committee Action: The full Committee Committee Action: The full Committee The Virginia Bar Association in Williams- accgpted the recommendation of the Sub- agreed that this matter should be studied burg. T. Rodman Layman, Richmond; committee that legislation be recommended by the Subcommittee and that a report Michael W. Maupin, Richmond; William to preclude service in a garnishment case should be made by the Subcommittee at the H. King, Jr., Richmond; D. Patrick Lacy, on a "managing employee" when that per- next session. Jr.~ Richmond; Gerald L] Baliles, Rich- son is also the judgment debtor. In par- At the conclusion of the fall meeting, mond; Warwick R. Furr, II, Williamsburg. .ticular, the full Committee approved rec- those present expressed an interest in hav- Registrations : 91. ing a similar meeting in the fall of 1980 to ommending the following specific provision (3) Avoiding Common Errors in Prac- to be added to the end of the existing pro- submit to the full committee and to guests ticing Law. (afternoon program) This vision : the results of the work of the ~ul~commit- program featured four half-hour videotapes tees. Hopefully, arrangements can be made [P]rovided, however, that service on the entitled "Preventing Legal Malpractice" at the Tides Inn satisfactory to all. corporation shall not be made upon a produced by the American Bar Association. The work of the committee has led to registered agent, officer or managing February, 1979: Roanoke, Tysons Corner, employee of such corporation if such certain recommendations and much has been carried over for further study. Since Richmond and Norfolk. James R. Wrenn, registered agent, officer or managing Jr., Richmond; Henry H. Whiting, Win-. the committee has in part as:its objective employee is also the judgment debtor. dhester; S. Beryl Adler, Norfolk. Registra- the anticipation of trends in the law, and tions: 469 lawyers; 203 non-lawyers. L. PENDENCY OF ACTION IN DISTRICT in part the improvement of the existing COURT system, such a carry-over is inevitable. In (4) Ninth Annual Criminal Law Semi- Issue: Consideration whether Va. Code the interim, the chairman again wishes to nar. (one day) This seminar was presented § 16.1-86 should be revised or amended to thank all of those members of- the com- in cooperation with the Section on Criminal eliminate the distinction between the pen- mittee who have participated in its ac- Law of the Virginia State Bar. February, dency of an action commenced by warrant tivities in the past year and anticipates 1979: Sheraton Motor Inn, Fredericksburg. and one commenced by motion for judg- equal success in the year to come. James C. Roberts, Richmond; Hon. Wil- ment. Currently, this provision provides liam W. Sweeney, Lynchburg; Hon. Paul Respectfully submitted, that an action commenced by warrant shall D. Brown, Arlington; Andre A. Moenssens, be deemed brought when the memorandum Thomas V. Monahan, Chairman Richmond; James E. Kulp, Richmond; is filed with the clerk so long as the war- William D. Dolan, III, Arlington. Registra- rant is subsequently properly served and tions: 470. returned. By contrast, a civil action com- (5) Commercial Law--Update 1979. menced by motion for judgment is deemed Report of the Joint Committee on (one day) March, 1979: Roanoke, Alex- brought not on the date of filing, but on the Continuing Legal Education andria, Richmond and Norfolk. Thomas G. day the motion is served on the defendant. Johnson, Jr., Norfolk; Denis J. Brion, Lex- Committee Action: The full Committee To The Virginia Bar Association: ington; Stanley M. Franklin, Alexandria; voted to recommend an amendment of Va. Since the last annual report of this Com- Andrew W. McThenia, Jr., Lexington; Code § 16.1-86 to make uniform the’time mittee made on December 1, 1978, fifteen Dewey B. Morris, Richmond. Registrations: when an action is deemed to have com- programs have been organized and pre-. 501. menced and the statute of limitations sented in various locations throughout the (6) Estate Planning Techniques--1979.

38 (one day) April, 1979: Roahoke, Tysons Rudlin, Richmond; E. Gerald Tremblay, Pa.; J. Ronald Trost, Los Angeles, Calif.; ,Corner, Richmond and Norfolk, C. L. Charlottesville; Murray J. Janus, Rich- John W~ Edmonds, III, Richmond. Regis- Dimos, Fairfax; Stanley L. Samuels, Nor- mond. Administrators: Professors Joseph trations : 70. folk; Harry J. Warthen, III, Richmond; J. Kalo, Chapel Hill~ N. C., and James M. Thomas S. Word, Jr., Richmond. Registra- Phemister, Lexington. Registrations: 24. (15) Evidentiary Problems in Virginia tions: 774. Courts. (one day) November, 1979: Abing- (11) Septenlber Seminars. In September don, Roanoke, Tysons Corner, Richmond, (7) The New Bankruptcy Relorm Act. of this year seminars were presented in Staunton and Norfolk. Charles E. Friend, (one day) May, 1979: Richmond, Roa- eight places in Virginia with the dual pur- Buies Creek, N. C.; Paul E. Sheridan, Ar- noke, Tysons Corner and Norfolk. Hon. pose of aiding new lawyers in "bridging- lington; Charles B. Flannagan, II, Bristol; Hal J. Bonney, Jr., Norfolk; Benjamin C. the-gap" from law school to the practice of Samuel W. Hixon, III, Richmond; James Ackerly, Richmond; Richard W. Hudgins, law and alerting all lawyers to recent de- A. Eichner, Richmond; Anthony F. Troy, Newport News; Hon. H. Clyde Pearson, velopments in the law. In each location, the Richmond; Ronald M. Ayers, Roanoke; Roanoke; Stanley J. Samorajczyk, Arling- seminars consisted of a three day program Jay T. Swett, Charlottesville; Robert T. ton; Harry J. Shaia, Jr., Richmond; Hon. combining lectures and videotapes in a Hall, Fairfax; Conrad M. Shumadine, Nor- Blackwell N. Shelley, Richmond; Hon. uniform schedule. The lecturers were local folk. Registrations: 800 (estimated) Martin V. B. Bostetter, Jr., Alexandria. practitioners speaking on basic practice in CLE Bulletin. The Joint Committee has Registrations: 943. general areas of the law. The videotapes continued to publish the Virginia CLE presented experts in these general areas (8) 31st Annual Virginia Con[erence Bulletin. The Bulletin is designed not only discussing the principal developments oc- on Federal Taxation. (three days) Pre- to promote current CLE program Offerings curring during the past year. The seminars sented in cooperation with McIntire but also to furnish information about avail- School of Commerce and the School of were sponsored by the Young Lawyers Sec- able CLE publications and provide e~rly tion of The Virginia Bar Association. The Law of the University of Virginia, Char- notice of future programs. As a service to Joint Committee provided administrative lottesville. Bernard Barnett, New York, the Virginia Bar, the Bulletin contains di- assistance. Registrations: 504. N. Y.; Dean C. Cameron, Chicago, Ill.; gests of the recent decisions of the Virginia Hollis A. Dixon, Tucson, Ariz.; Martin D. (12) Environmental Law. (two day) Co- Supreme Court and digests of selected Ginsburg, New York, N. Y.; George R. sponsored by the Marshall-Wythe School opinions of the U. S. Court of Appeals for Hinnant, Richmond, Va.; Ralph A. Muoio, of Law, College. of William and Mary. the Fourth Circuit.. Washington, D. C.; Herbert M. Paul, New The co-sponsorship of the institute by the Handbooks. In December, 1978, tile com- York, N. Y.; William T. Prince, Norfolk, Marshall-Wythe School of Law was sup- mittee published a multi-author handbook Va.; Sol Schwartz, San Antonio, Tex.; ported by the Virginia Environmental En- entitled Landlord-Tenant Law and Prac- Sherwin P. Simmons, Tampa, Fla.; Jesse dowment. October, 1979: Williamsburg. tice (561 pages). It was edited by Ed- B. Wilson, III, Fairfax, Va.; Howard L. Turner T. Smith, Jr., Richmond; Andrea ward S. Hirschler and Jay M. Weinberg. In Braitman, Philadelphia, Pa.; George L. S. Bear, Washington, D. C.; R. Leonard June, 1979, the Committee published an- Cohen, Atlanta, Ga.; Victor F. Foti, Roa- Vance, Richmond; William L. Rosbe, other multi-author handbook entitled noke, Va.; Herbert P. Haschke, Jr., Dallas, Richmond; David S. Bailey, Richmond; Family Law (302 pages). It was edited by Tex.; Jack S. Levin, Chicago, Ill.; Con~ R. Norman Larsen, Newport News; Gerald L. Walter J. Wadlington. Several other hand- Namorato, Washington, D. C.; John. S. Baliles, Richmond; Patrick M. McSw~eney, books are in production: Advising Small Pennell, Chicago, Ill.; Edward D. Ryan, Richmond; John M. Daniel, Richmond; Business Clients, Vol. II; Residential Real Cleveland, Ohio; William G. Shenkir, Thomas W. Mullen, Jr., .Waynesboro; Estate Transactions (revising the 1975 edi- Charlottesville, Va.; Emerson G. Spies, Denis J. Brion, Lexington; David E. tion) ; Workmen’s Compdnsation (revising Charlottesville, Va..; Walter H. Wingfield, Evans, Richmond; William F. Gilley, the 1976 edition); Separation and Divorce Atlanta, Ga. Registrations: 579. Richmond; Reginald P. Hayden, King (revising the 1976 edition); and a ~new (9) 5th Annual Recent Developments in George Co.; Timothy G. Hayes, Richmond; text on Administrative Law. In addition, the Committeepublished a 1979 Supple- the Law Seminar. (one day) Presented in Ronald Vann, Norfolk; Manning Gasch, conjunction with the Annual Meeting of Jr., Richmond; Roger Chaffee, Richmond; ment to the 1975 edition of De[ending Criminal Cases in Virginia Handbook. In the Virginia State Bar. June, 1979: Vir- Laurens H. Rhinelander, Charlottesville. ginia Beach. Presiding Chairman, Senator Moderator: George Walker, Williamsburg. a joint effort with the Young Lawyers Sec- James Harry Michael, Jr., Charlottesville. Registrations: 117. tion of The Virginia Bar Association, the Committee published a complete revision Joseph E. Ullrich, Lexington; Robert E. (13) Beating Inflation in the Practice o[ of Th~ Virginia Lawyer, A Basic Practice Scott, Charlottesville; J. Rodney Johnson, Law. (one day) October, "1979: Roanoke, Handbook, in August, 1979. Richmond; W. Wade Berryhill, Richmond; Richmond, Tysons Corner and Norfolk. Your Committee is appreciative of the Jack E. Greer, Norfolk; Stephen R. Larson, John G. Iezzi, Richmond; Rodham T. initiative and ability demonstrated by Pro- Richmond; Joseph C. Wool,, Jr., Rich- Delk, Jr., Smithfield; Albert L. Moses, Co- fessor Peter C. Manson, Director of this mond; Lawrence D. Gaughan, Lexington; lumbia, S. C.; Bradford W. Hildebrandt, Committee, Mr. Gardener G. DeMallie, Richard A. Williamson, Williamsburg. Union, N. J.; James E. Brill, Houston, Tex. Jr., Assistant Director, and Mr. Peter J. Registrations : 282. Registrations : 298. Kenny, Assistant Director, Handbooks, and (10) ABA/ NITA Trial Advocacy C. ourse. (14) lOth Ann. ual Advanced Business by their office staff. The work of this Com- (an intensive nine day program) July, Law Seminar. (two day) Presented in co- mittee has prospered under their able. lead- 1979: Washington and Lee University Law operation with Section on Business Law, ership. School, Lexington. Hon. Norman K. Moon, Virginia State Bar. November, 1979: The Respectfully submitted,’ Lynchburg; David A. Schneider, Rich- Tides Inn, Irvington. Hon. Blackwell N. mond; Hon. Charles S. Russell, Arlington; Shelley, Richmond; George M. Treister, Richard F. Pence Thomas V. Monahan, Winchester; Henry Los Angeles, Calif.; Stephen R. Larson, Richard E: Walck C. Morgan, Jr., Virginia Beadh; D:~Alan Richmond; Leon S. Forman, Philadelphia, John F. Kay, Jr.

39 Frank O. Meade sation in situations involving "condemna- of Judge Henry Tazewell to the Virginia Philip M. Sadler tion blight," a term referring to the depres- Supreme Court. This was done by the James Wm. H. Stewart sion of property values that often occurs donor, Mrs. A. J. Davis, at the bicenten- Terrence Ney prior to the time of taking because of a nial celebration of the Virginia Supreme Robert E. Scott, Jr. market-place awareness that urban renewal Court. The Chairman o~ the Committee Robert E. Shepherd, Jr. or other large projects involving exercise of was present and expressed the appreciation Robert M. Rolfe eminent domain power are under active of the Bar Association to Mrs. Davis. Gregory N. Stillman consideration by public bodies. Work is still being done in attempting to Henry C. Morgan, Jr., Chairman The Committee was aided in its work get copies of portraits of other ~Judges but by the valuable assistance of Janet Dunlop no concrete achievements have been re- and Rebecca Smith, Marshall Fellows, who alized. prepared reports on "Condemnation Blight With the election by the General As- Report of the Committee on --Problems of Valuation" and "Condemna- sembly of a new Justice of the Supreme Criminal Law tion Proceedings in Virginia." In addition Court, it will be the Committee’s responsi- to consideration of these reports the Com- bility to arrange for a portrait of this Jus- To The V, irginia Bar Association: mittee reviewed pre~ious unsuccessful at- tice and its presentation to the Court. It is tempts to modify the "commissioner" sys- The Committee on Criminal Law of estimated that this will cost $3,500.00. tem in Virginia and also considered two The Virginia Bar Association has, during studies entitled "Condemnation Procedure Respectfully submitted, the calendar year 1979, been extremely Alternatives for Virginia" (1972) and active. The Committee has met bi- Stuart B. Campbell, Jr., Chairm~n "Condemnation: Who Should Sit in Judg- monthly and has had excellent attend- ment" (1976) authored by Dennis Merrill of the Virginia Highway Research Council. The Committee has reaffirmed its en- On the question of "condemnation dorsement of improving the existing sys- blight" the Committee identified apparent Report of the Committee tem of sentencing. inconsistencies between the Relocation As- on the Judiciary The~ main thrust of the year has been sistance and the Real Property Acquisition on the establishment of a Statewide Grand Policies Act of 1972 and the statutes per- To The Virginia Bar Association: Jury. Proposed legislation has been drafted taining to measuring just compensation in The primary concern of the Judiciary and the Marshall Fellows have been uti- urban renewal undertakings and agreed to Committee continues to be the enactment lized to perform the applicable research. request an interpretation by the Attorney of legisla_tion promoting merit selection of The Billo will be introduced in the 1980 General’s office before proceeding further. judges. The Committee has agreed with. General Assembly. As to the adec~uacy of the "commis- the corresponding committee of the Va. We have also studied the "witness in- sioner" system, a subcommittee consisting State Bar, with the endorsement of the convenience" problem. Various proposed of John Rust and Hugo Blankingship for- executive committees of that organization rule changes involving witness attendance mulated recommendations for statutory and our own, to support a revised version are being examined with positive sugges- changes which were approved in concept of a judicial selection bill previously intro- tions forthcoming. by the full Committee. The principal legis- duced in the Senate by Senator Parkerson. The Committee will review the Model lative change recommended is the substitu- The primary thrust of the revision would Jury Instructions and prepare an article tion of an impartial system of selecting be to introduce a greater element of local for the Spring issue of The Virginia Bar eminent domain commissioners for the ex- participation in the selection of circuit and Association Journal. isting system of selecting them from a panel, general district court judges. The Committee has received and com- the membership of whicl~ is degignated by The previous chairman, Mr. "~homas R. mended the Report of Waugh Crigler on the litigants. A draft of proposed legislation Watkins, Mr. Timothy Oksman, Chairman "Collation and Analysis of The. Virginia implementing the changes approved by the of the Virginia State Bar Judiciary Com- Bar Association’s VASAP Questionnaire." Committee is being prepared by John Rust mittee, and I met with Senator Parkerson It has been a distinct pleasure to chair for cohsideration at the Mid-Winter meet- and Mr. Marshall Cook, a !egislative as- this Committee. ing in January, 1980. sistant, in Richmond to discuss the sug- Respectfully submitted, gested revisions. Senator Parkerson indi- Respectfully submitted, cated a willingness to adopt the proposed James R. McKenry, Chairman A. Hugo Blankingship revisions as a part of his bill to be offered Andrew J. Ellis, Jr. before the Senate in the forthcoming ses- Donald C. Kilgore sion. Mr. Cook is working on a final draft John H. Rust, Jr. for the purpose. In turn the representatives Report of the Committee on Joseph M. Spivey, III of the bar units undertook to lobby Eminent Domain John E. Donaldson, Chairman strenuously for the passage of the bill. The point of difficulty would appear to be the To The Virginia Bar Association: House Courts of Justice Committee, and ¯ it is contemplated that every member of The Committee on Eminent Domain that committee will be personally con- during 1979 continued its evaluation of the Report of Committee on Honoring tacted. statutory eminent domain scheme in Vir- Members and Judges ginia. Primary attention was given to the Respectfully submitted, adequacy of the "commissioner" system in To The Virginia Bar Association: The Honorable William F. determining just compensation and to the During the year the Committee was able .Parkerson Jr. issue of properly measuring just compen- to finalize the presentation of the portrait Mr. Toy D. Savage, Jr.

4O Mr. Hugh L. Patterson Beach on September 24. The program for William B. Poff Mr. Thomas R. Watkins the conference included lectures on the William E. Rachels, Jr. Mr. A. Ward Sims following topics : Raymond R. Robrecht John M. Ryan T. T. Lawson, Chairman 1. Legal Standards Established by the Jay T. Swett NLRB and the Courts Governing Conduct Paul M. Thompson in Union Organizational Campaigns. Louis C. Denny White J. D’Amico, Regional Attorney, Fifth Re- Report Of the Committee on Labor James P. Whyte, Jr. gion, National Labor Relations Board, Bal- Relations and Employment Law timore, Maryland. W. Carter Younger Hill B. Wellford, Jr., Chairman To The Virginia Bar Association: 2. Conflicting Al~rmative Action Re- The Committee on Labor Relations and quirements Under Federal EEO Laws. Employment Law met on three occasions in Charles Morgan, Jr., Charles" Morgan, Jr. 1979. At the initial meeting which was and Associates, Washington, D. C. Report of Committee on Legal held at the conference center in Williams- 3. Effective Trial Advocacy: A View Education and Admission burg, Virginia on January 12, the Com- from the Bench. The Honorable D. Dortch to the Bar mittee determined that it would sponsor Wai’riner, United States District Court, for the ninth consecutive year a Confer- Eastern District of Virginia. To The Virginia Bar Association: ence on Labor Relations to be held in 4. A Survey "o[ Recent Labor and EEO Virginia Beach on September 24 and 25, During the year th.e Committee f6cused Decisions by the Courts in the Fourth Ju- 1979. Committee assignments regarding the on the following subjects: dicial Circuit. Report by the Committee on selection of the site for the conference, and 1. Law Readers. At the request of the Labor Law. the selection of topi(s and speakers were Association, the General Assembly has di- made and a second meeting of the Commit- 5. A Review of the Supreme Court’s rected the Virginia Advisory Legislative tee was scheduled for May 11, 1979 in Rich- 1979 Anti-Discrimination Decisions. Doug- Council (the VALC) to study the Vir- mond. A tentative program for the annual las E. Ray, Assistant Professor of Law, ginia statute that permits a person to read conference was also approved,’and a new The T. C. Williams School of Law, Rich- law, rather than attend law school. The Subcommittee for Arbitration and Media- mond, Virginia. VALC has held two public hearings to tion was appointed to be chaired by 6. The Expanding Role o[ Arbitration: da~e. The Legal Education Committee James P. Whyte, Jr. Joseph B. Geyer and An Alternative Forum [or the Resolution was represented at both hearings and Mr. Jay Levit were appointed to serve on the of Claims Traditionally Litigated in the Jesse Wilson made a presentation on be- Program Subcommittee; Jay T. Swett and Courts. James P. Whyte, Jr. Arbitrator, half of the Association at the initial hear-. Bayard Harris were appointed as co-chair- Williamsburg, Virginia; Richard I. Bloch, ing. men of the Current Decisions Subcommit- Arbitrator, Washington, D. C. It now appears that the VALC will tee; and Lawrence C. Musgrove was named recommend significant changes in the Law 7. Significant Decisions of the NLRB to serve on the Legislative Subcommittee. Reader Program. Entry into the Law Under Chairman Fanning. Thomas N. The second meeting of the Committee Reader Program likely will be conditioned Taylor, Assistant Vice President, Com- was held at the John Marshall Hotel in upon evidence of admission to an ABA- merce Clearing House, Inc., Tampa, Richmond, Virginia on May 11, 1979. The accredited law school. In addition, each Florida. chairman reported that several speakers had applicant will have to satisfy the Board of accepted the Committee’s invitation to par- 8. The Newport News Shipbuilding and Bar Examiners that he has a legitimate ticipate in the annual conference. A motion Dry Dock Case. Andrew M. Kramer, Sey- reason not to attend a regular law school. was madd, seconded, and passed unani- farth, Shaw, Fairweather & Geraldson, Finally, it appears that the VA~-,C will mously that the Committee’s name be Washington, D. C. and Carl B. Frankel, recommend that each law reader be re- changed from the Committee on Labor Associate General Counsel, United Steel- quired to pass a special examination rela- Law to the Committee on Labor Relations workers of America, AFL-CIO, CLC, tively early in his program of study. and Employment Law. This change was Pittsburgh, Pennsylvania. 2. Practice o[ Patent, Copyright "and intended to more accurately reflect the area Tho Committee continues to view its Trademark Law. The Committee. has given of substantive law with which the Com- sponsorship of an annual conference as a careful consideration to proposed changes mittee is primarily concerned. The Com- very positive and educational activity. in the Virginia Code that would eliminate mittee also received a report on the Plans are now under way for a tenth an- restrictions on the scope of practice that EEOC’s new conciliation and fact finding nual conference to be held in Charlottes- presently are imposed on an applicant for a procedures. ville, Virginia in September, 1980. Virginia license who has practiced patent, The third and final meeting of the Com- Respectfully submitted, copyright and trademark law in another mittee was held in Virginia Beach in con- state under a general license. The pro- junction with the Committee’s annual con- Stanley G. Barr, Jr. posed changes have been approved by the ference. It was suggested that the chairman J. Robert Brame, III Committee and have received the endorse- initiate contacts with the chairmen of the Joseph B. Geyer ment of the Association’s Executive Com- labor law sections of South Carolina, North Thomas E. Glascock mittee. Carolina, West Virginia and Maryland for James A. Harper the purpose of discussing the feasibility of Bayard E. Harris 3. Assistance in Legal Ethics Courses. For co-sponsoring a regional conference on la- James G. Harrison the third year, members of the Committee bor relations and employment law. D. Patrick Lacy, Jr. have participated in the ethics classes at Approximately seventy (70) members of Jay J. Levit T. C. Williams School of Law. These ap- the bar association attended the Commit- Melvin R. Manning pearances are intended to make the ethics tee’s ninth annual conference in Virginia Lawrence C. Musgrove course more interesting by exposing the

41 student to ethical problems that frequently Matthew N. Ott, Jr. Vincent L. Parker are encountered in practice. The Com- Carl F. Bowmer Thomas G. Johnson, Jr. mittee hopes that this program can be ex- Reno S. Harp, III Joseph A. Leafe tended to "the other law ~schools in the state. J. Robert Brame, III Hunter W. Sims, Jr. The Committee also was asked to study Allen C. Goolsby, III A. Jackson Timms the desirability of a requirement that eli- John S. Barr J. Edward Moyler, Jr. gibility for the Bar examination be condi- Roderick B. Matthews Homer C. Eliades tioned on certification of the completion Walter F. Witt, Jr. J. W. Hornsby; Jr. of certain "basic" law courses. South Caro- Mark S. Dray Donald N. Patten lina recently adopted such a requirement. Jane Lee Schwarzschild W. Dean Short After careful consideration, the Committee William H. McVey,. III, Chairman David N. Montague decided it was opposed to the establish- Charles H. Anderson ment of such a requirement and elected Frank M. Slayton not to pursue the subject. Edward W. Early Respectfuliy submitted, Report of the Committee on Louis C. Shell George W. Farley Daniel L. Carrell Membership and Admissions Charles M. Davison Clifford A. Cutchins, IV William H. King, Jr. John E. Donaldson To The Virginia Bar Association: Wallace B. Stockdon Thomas A. Edmonds At the request of the Executive Com- R. Kenneth Wheeler M. Langhorne Keith mittee, the Membership and Admissions Rodney E. Williams Daniel T. Murphy Committee has been .considering possible James Ashby, III Emerson G. Spies amendments to the Constitution and By- H. Harrison Braxton, Jr. W. Scott Street, III Laws of the Association as they relate to Ralph M. Whitticar, III . Archibald Wallace, III disciplinary actions with respect to mem- Brian J. Donato Francis N. Crenshaw bers. Proposed amendments have been J. Robert Yeaman, III ~ W. Brown Martin, Jr. submitted to the Executive Committee for Edward M. Holland W. Tayloe Murphy, Jr. its approval and it is anticipated that W. Forbes Ramsey W. Taylor Reveley, III amendments to the Constitution and By- Elizabeth Land Lewis Edward F. Rodriguez Laws will be submitted to the membership Robert T. Hall William McClure Schildt for action at the mid-winter meeting of the _Gerald I. Katz Roy L. Steinheimer, Jr. Association in Williamsburg. Gerald R.. Walsh Timothy J. Sullivan During the past year, the Committee on William S. Robertson Allen C. Goolsby, III, Chairrhan Membership and Admissions, in conjunc- R. Reid Young, Jr. tion with the Young Lawyers Section, con- Gary L. Bengston tinued its efforts in the recruitment of new John Lee Hopkins members. The Young Lawyers Section Michael K. Smeltzer Report of tl~e Committee on helps us recruit those who have just been Lapsley W. Hamblen, Jr. admitted to the Bar. With the assistance of Legislative Liaison Henry M. Sackett, III Ward Sims, we had planned to reproduce Philip H. Miller To The Virginia Bar Association: and distribute to our Committee lists of Benjamin M. Butler all Association members so that the names The committee’s primary function is one Henry C. Clark could be checked against lawyers in each of liaison to various committees of the Bar James L. Hutton Association of the General Assembly of community and thus identify lawyers who William W. Eskridge are targets for recruitment. Unfortunately, Virginia. During the 1979 session the com- James P. Jones however, it turned out to be too expensive mittee, with the help of Professor Rodney Susan Bundy Johnson of the University of Richmond to duplicate the lists and we have decided Carl C. Gillespie, Jr. to use, instead, a ~embership directory that attempted to distribute to the committees Robert T. Winston, Jr. of the Bar Association proposed legislation is being prepared, by Mr. Sims and which George G. Grattan, IV, Chairman affecting laws with which such committees should be available shortly. were concerned. Several of those commit- In addition to its responsibilities for re- tees, either through their respective chair- cruitment of members, the Committee con- men, or members designated by the chair- tinued to carry on its responsibilities for Report of the Special Committee on the admission of new members. After proc- men, did express views on bills considered Procedures Under Virginia by the General Assembly. essing, investigating, and approving appli- Water and Air Laws The committee will meet prior to the cations, the Committee submitted 113 ap- 1980 session to discuss what assistance plicants to the Association for election at the winter meeting of the .~ssociation at members might be to the various commit- To The Virginia Bar Association: tees of the Bar Association and will be Williamsburg, and 84 applicants for elec- Since our mid-year.report to the AS- prepared to function in the same capacity tion to membership at the summer meeting sociation, the procedural rules being con- in which it functioned during the 1979 ses- at the Greenbrier. sidered for adoption by the State Water sion. Respectfully submitted, Control Board have been under review by Respectfully submitted, a Task Force of the Board. Allen J. Gordon At its December meeting, the State William G. Broaddus Edward T. Caton, III Water Control Board, on the recommenda~ Angus H. McCauley, Jr. Benjamin J. Levy tion of its Task Force, decided to publish

42 the proposed procedural rules for public Committeei continuing study in regard to Report of the Committee on comment. We are advised by the Attorney uniform sentencing and state wide grand Professional Responsibility General’s office that a letter will be sent jury by the Criminal Law Committee; a by .the Staff of the Board to the Special comparative study of disciplinary proce- To the Virginia Bar Association: Committee in mid-January forwarding the dures in other states and study on adver- The work of the Committee on Profes- current draft of the proposed procedural tising and solicitation by lawyers by the sional Responsibility focused on the study rules and soliciting the comments of the Professional Responsibility Committee; and of proposals to include public members Special Committee within 45 days. De- a program to be presented on the uniform (n.on-lawyers) in the disciplinary process pending on the interest shown by the pub- probate code by the Wills, Trusts and in Virginia and a related proposal to estab- lic in the proposed rules, the Board may Estates Committee. lish a policy-making board directly under then decide to hold a public hearing. The An evaluation of the John Marshall Pro- the .Virginia Supreme Court to oversee and. Special Committee will submit written gram indicates that this program is a suc- suggest improvements in the disciplinary comments on the proposed rules and, if a cess and has been a benefit "to the com- system. hearing is held, appear at the hearing to mittees and the students of the law schools Much of the work of the Committee was support its suggestions. The Special Com- involved. There are. still some problems in performed by a subcommittee consisting of mittee will, of course, be mindful of pro- regard to full utilization of the students Jack Spain, Leigh Middleditch, Peter Man- vision 2.7 of the Association’s By-laws. who volunteered for this program and ad- son and chaired by Willia.m Ellyson. Ross ministrative procedures will be adopted MacKenzie, Editor of the Richmond News Respectfully submitted, which should help this situation. Leader, also was appointed as a member Gerald Baliles All committees are urged and encouraged of the subcommittee and participated both W. Wade Berryhill 1 to make full use of the John Marshall in its deliberations and in the deliberations James N. Christman Fellow .Program. Students in all of our law of the full committee in the meeting in David E. Evans schools have responded enthusiastically and Charlottesville on April 13, 1979. Richard M. Foster with good results to requests from com- Two Marshall Fellows, Ms. Donna Cal- Laurens H. Rhinelander mittees to do research and studies for them. lander and Mr. Barry Hitner, students at James E. Ryan This is not only a valuable resource for a the University of Virginia, summarized the Michael W. Maupin, Chairman committee, but it also is to the students a provisions of state laws and rules providing beneficial .involvement with the profession for. inclusion of public members in the at an early stage. Arrangements for use of disciplinary process. They also conducted John Marshall Fellows should be made a literature search on the subject. Report of. the Committee on through the Director of the Johu Marshall The Hart Survey in Virginia indicates Projects Fellows Program, John Ritchie, School of that public confidence in the profession suf- Law, University of Virginia, Charlottesville, fers in general and in comparison with Virginia 22901. other professions and occupations. In the To The Virginia Bar Association: Another resource for committees in ap- last five years, the number of states pro- This committee was formed in 1977 to propriate instances is the Division of Legis- viding for public participation in the dis- initiate the execution of projects which lative Services, P. O. Box 3-AG, Richmond, ciplinary process has grown from about will further the aims and goals of the As- Virginia 23208. John Banks, Director, ad- eight to over 20. The Committee is not sociation in the fields of law reform and vises that, although the Division can not aware of any substantial dissatisfaction with public information, including research and plough new. ground in studies outside of the the participation of public members in ’any activity, in areas of special interest. This is Legislature, it may be of help in specific of these states. To the contrary, the change to be done by keeping abreast of develop- instances by (1) sharing data that it has appears to be regarded quite positively. ments in the substantive law, law reform, readily available, (2) fu~’uishing reports on The Committee .felt that the disciplinary the administration of justice and the prob- studies completed, (3) briefing on studies process would be substantively improved lems facing the legal profession and public being conducted, and (4) suggesting sources and the public perception of the profession and from this to suggest project.s for ex- of data. would be enhanced by inclusion of a mi- isting Association committees or ad hoc Any suggestions for projects "from any nority of public members both at the District committees. In addition to members of the committee or individual of the Association Committee level and at the Board level in Association, members of the faculty and would be most welcomed and will be given Virginia. The Committee felt that great student body in the law schools in the careful consideration. care must be exercised in choosing appro- Commonwealth have been utilized to ac- Respectfully submitted, priate people to serve in these capacities complish these purposes. A member of the John A. Banks, Jr. and that some procedures might have to be faculty of each law school serves on the L. Lee Bean devised to prevent the workload from dis- committee. couraging public members who, it was felt, W. Wade Berryhill Meetings were held to review" and evalu- David C. Landin should not be asked to undertake the basic ate the various projects and programs of Charles F. Midkiff investigatory function, in any event. the standing and special committees. The Frederick L. Kirgis, Jr. The Committee also felt that the dis- work of these committees will be con- ciplinary process in Virginia presently suf- John Ritchie, tained in the reports, but some of the high- Stephen A. Saltzburg fers from lack of uniformity in policy direc- lights are: A comprehensive report from Gordon R. Smith tion and it "would be desirable to create a the Wetlands Study Committee; a program Richard E. Walck new’ policy-making board directly under to be presented by the Business Law Com- the Supreme Court of Virginia. Jesse B. Wilson, III mittee on Article 8 of the Uniform Com- Emerson Spies The Committee voted to endorse the mercial Code; a study and report on legis- recommendation of the Virginia State Bar Jack E. Greer, Chairman lation concerning joint tort’ feasors .and Committee regarding advertising. However, comparative fault by the Civil Litigation the Committee felt that the recommenda-

43 tion of the Virginia State Bar Committee mittee voted to monitor the effects of Sec- hoped that early in 1980 the Committee regarding in-person solicitation went further tion 55-70.1 and to continue, to review the will be able to develop some specific topics than required by present decisions of the draft legislation prepared by Professor Kir- for this purpose. United States Supreme Court. The Com- gis. If the need for comprehensive legisla- The Committee continues to explore the mittee felt that in-person communication tion appears to exist in the future, we will possibility of developing some sort of com- for personal gain was, in fact, objectionable at that time ask the Executive Committee pendium on specific laws, rights and bene- from the standpoint of the public as well to support Professor Kirgis’ bill in the Gen- fits affecting the elderly. Of course, before as the" profession on a number of grounds eral Assembly. undertaking this project it wants to be sure and that Virginia should attempt to adopt that such material is not available from Respectfully submitted, a rule which would ban in-person com- other sources. munication for commercial purposes insofar John H. Ariail, Jr., Chairman as constitutionally possible. Respectfully submitted, The chairman of the Committee was C. Cotesworth Pinckney, asked to convey the sense of the Commit- Chairman tee’s report to th.e Executive Committee of Report of Committee on the Association and this was done at the meeting of the Executive Committee in Special Issues of Importance Richmond on May 26, 1979. The Chairman also presented the Committee’s findings re- ’To The Virginia Bar Association: Report of the Committee on garding public involvement in the dis- During the year 1979, the Committee on Taxation ciplinary process to a meeting of the mem- Special Issues of Importance considered a bers of the Conference of Local Bar Asso- number of topics but focused its efforts in To The Virginia Bar Association: ciations at a meeting at the John Marshall three specific areas. As part of its continuing objective to in- Hotel in Richmond on September 21, 1979. It has undertaken to prepare a pamphlet volve more individuals in the affairs of the Respectfully submitted, on the functions, responsibilities and liabili- Association, your Committee welcomed six ties of directors and trustees of charitable new members at the beginning of 1978, Randolph W. Church, Jr., and other community and nonprofit organi- namely, James B. Hoover, Louis A. Mez- Chairman zations. It is hoped that the pamphlet may zullo, Robert S. Parker, Jr., William L. S. be distributed throughout the state as a Rowe, Harold E. Starke, Jr., and Bruce C. service of the Bar Association. Stockburger. Thurston Moore has done "a comprehen- Well a_ttended and productive meetings Report of the sive review of the Hart Survey and the of the Committee were held in Williams- Real Estate Committee three lawyer-layman conferences to ascer- burg on January 12, 1979, and at White tain what response the Association might Sulphur Springs, West Virginia, on July 27, take to the information developed by these 1979. The Committee is particularly in- To The Virginia Bar Association: endeavors and whether or not they raise debted to Mrs. Warthen, Messrs. Little, The primary activity of the Real Estate any particular issues which should be fur- Parker, Rowe and Wool and the Honorable Committee in 1979 was the review and ther studied by the Committee on Special Archibald A. Campbell for their participa- study of a proposed Homeowner Warranty Issues of Importance. His conclusion is that tion at these two meetings. Statute. Work on this bill began under the the Survey and the conferences indicate During the year, Mr. Rowe was ap- direction of Professor Frederic L. Kirgis, that the image problem of lawyers as a pointed and made a significant contribution Jr., of Washington and Lee University and whole is greater than any fundamental sub- to the work of the Practices and Procedures the Marshall Fellows of the Francis Lewis stantive problems in the profession but that in the Collection and Administration of Law Center of Washington and Lee in the Association appears to have concen- State Taxes Study Committee. The Study 1978 in response to the case of Bruce trated its efforts more on substantive re- Committee, made up of Messrs. Archibald Farms, Inc. v. Coupe, 219 Va. 287 (1978). form. He concludes that the primary prob- A. Campbell (Chairman), Herbert H. Bate- In the Bruce Farms case the Supreme lem in all the areas addressed by the con- man, Edwin S. Cohen, Lewis. M. Coste.llo, Court of Virginia held that there was no ferences--disciplinary procedures, fee de- Lee F. Davis, Jr., State Tax Commissioner implied warranty from a builder-vendor of termination, specialization, appearances and W. H. Forst, William B. Hopkins, Joseph a residential building in Virginia and in- actual conflicts of interest, ethical prob~. A. Leafe and William L. S. Rowe, resulted vited the legislature to deal with the problems, advertising, and the paper and pro- primarily from the Report of "the Joint lem. While the Committee was reviewing cedures of the legal process--is one of pub- Task Force produced by a subcommittee the draft legislation, a bill was introduced lic relations and communications. For this of members of your Committee and their into the legislature which Was codified as reason he has suggested the Association counterparts on the Board of Governors of Section 55-70.1, Code of Virginia 1950 (as consider whether public television presen- the Virginia State Bar’s Taxation Section. amended). This bill, while in the Com- tations migh~ be desirable. Recognizing the The Committee’s support and the Task mittee’s opinion inadequate in many re- efforts of the Young Lawyers’ Section in Force’s Report w~re in turn the genesis of spects, is an attempt to deal with the this area, he suggests considering whether HJR 342, which established the Study warranty problem. As a result of Section or not the Association should expand its Committee. It is anticipated that the 55-70.1 and some concerns of members of efforts by purchasing broadcast time on Study Committee’s work will result in a the Committee about the remedies, par- commercial stations to run forms of institu- legislative proposal and new or revised tax ticularly the right of recision, which are tional advertising. laws which will substantially improve Vir- found in Professor Kirgis’ bill, the Com- Members of the Committee are exploring ginia’s present laws dealing with tax ad- mittee at its January meeting felt that it with various newspapers in the state the ministration and procedure. could not support the bill before the possibility of publishing from time to time In an effort to carry out its directive in General Assembly in this term. The Corn- columns by representative lawyers. It is the resolution adopted by the Executive

44 Committee duri.ng its January meeting, presently being considered by the .Congress. fessional and. social activities in conjunction your Committee continued to establish and The results of this survey were forwarded with some significant event in the restora- work on various projects in cooperatio~ to Senator Byrd who is Chairman of the tion of Temple Bar. American Express was with its counterparts on the Board of Gov- Subcommittee on Taxation and Debt Man- retained to develop the logistical plans to ernors of the Virginia State Bar’s Taxation agement of the Senate Finance Committee. support such a program and to offer op- Section. It is hoped that this effort (where Other plans and projects of your Com- tional post-London tours. Unfortunately it appropriate) will reduce otherwise dupli- mittee for next year include working with was not until April 3, 1979 that the entire cated .energies and expenses while assur- the Department of Taxation to develop a package for a July British tour was sub- ing that the responsibilities of your Com- procedure for the dissemination of all pub- mitted by American Express. It was the mittee are met and carried out.’ lished Virginia Circuit Court decisions and unanimous opinion of the members of the The major 1979 undertaking of the orders dealing with tax matters and a proj- committee that it would be unwise to rec- Committee was the organization (on a ect in cooperation with the Employee ommend approval of the proposed trip trial basis) of a Joint Legislative Review Plans/Exempt Organizations’ office of the because of the extremely shgrt lead time Subcommittee. The purpose of this Sub- District Director in Richmond relating, to then available, and because it would not committee is to review and comment on the avoidance of the inadvertent disqualifi- be a service to the membership nor reflect (without, in most instances, supporting or cation of employee retirement plans. favorably on the Association to endorse a opposing them on their merits) all tax bills rather expensive trip with an itinerary and Respectfully submitted, filled prior to the January 1 preceding a agenda less than distinctive in character. legislative session and any other major tax Eric Adamson The committee remains convinced, how- bills (at the Subcommittee’s discretion) to Lewis Costello ever, that periodic custdm planned tours be considered by the General Assembly Allan Donn with appropriate professional and social during the session. Bob Parker and Birch James Hoover interchanges with our foreign counterparts Douglass agreed to co-chair this important Waller Horsley have much appeal and that it should con- organizational effort. Although the Com- John Lee tinue its efforts to arrange such in future mittee’s effort on this project has to date George Little years. met with less than an overwhelming em- Louis Mezzullo At its April meeting the committee brace by the General Assembly, we hope Robert Nusbaum agreed to recommend to .the Executive that the work of this Subcommittee will William Obei’ndorfer Committee approval of a three "weeks become an important part of the work of Robert Parker Peoptes Republic of China Air/Sea Cruise the Committee and be of service to the Malcolm Ritsch with departure on September 28, 1979, Department of Taxation, the General As- Frank Rogers subject to obtaining evidence that the cruise sembly and, most importantly, the citizens William Rowe ship offered satisfactory standards of safety, of Virginia. Harold Starke service and comfort. Even with the co- During 1979, Messrs. Rowe and Donn Bruce Stockburger operation of the Virginia Port Authority also represented the Committee at the William Strickland and the Coast Guard it was difficult to get 72nd Annual Conference on Taxation, Albert Taylor any information regarding the standards of jointly sponsored by the National Tax As- Woodrow Turner the ship because it was jusy beginning ser- sociation and the Tax Institute of America, Sally Warthen vice under new operators with its initial and a meeting of the Regional Lawyers’ Joseph Wool cruise scheduled for April 16, 1979. In Liaison Committee, respectively. These Mark Dray, Chairman May, however, some published reports indi- meetings were held in Oklahoma City, cated that there might be deficiencies in Oklahoma, and Philadelphia, Pennsylvania. the cruise ship operation. For this~ reason We were particularly happy to be able to the committee recommended that the As- send .a representative to the NTA-TIA Report of the Committee on Tours sociation not conclude any commitment to meeting as State Tax Commissioner Wil- sponsor the September 28 tour. liam H. Forst served as President of this In the fall of 1978 the committee rec- To The Virginia Bar Association: organization during 1979. Reports filed by ommended, as an experiment, that the Messrs. Rowe and Donn were published in The committee has been active through- Association sponsor a low-budget eight day the November 1979 issue of the VSB out 1979 with accomplishments which trip to Rio as an alternative to the deluxe Tax.ation Section’s Newsletter. It is believed should be considered salutary despite be- type trips which have traditionally been that your Committee’s involvement in these ing largely negative in character. offered. The departure date was January national and regional meetings is good for The principal efforts of the committee 27, 1979, the response limited, and the the Association. were directed toward a custom planned comments generated largely negative. Messrs. Ritsch and Parker also repre- British tour for the summer of 1979 simi- sented your Committee at joint meetings lar to the one offered in 1977 and an air- Respectfully submitted, attended by representatives of the two tax sea tour of the peoples Republic of China Mavis C. Cobb committees of our two State bar groups, in the fall. Each of these efforts, however, George M. Cochran the Virginia Society of CPAs, the Depart- concluded with a recommendation to the E. Waller Dudley metn of Taxation and the Internal Revenue Executive Committee that it not be under- John S. Edwards Service~ Although the Committee’s efforts taken in 1979. W. Gibson Harris to participate in these meetings have been As was noted in the annual report for John L. Walker, Sr. somewhat frustrated by our counterparts in 1978, the committee obas had the active Thomas H. Willcox, Jr. the accounting profession, we are continu- interest and assistance of Mr. T. Tyndale Jesse B. Wilson III ing to try to work these problems out. Daniell, Administrator of "the American Duncan Cocke, Chairman Your Committee also participated in a Foundation for Temple Bar, in undertak- survey regarding the Tax Court legislation ing to arrange a series of distinctive pro-

45 Report of the Commlttee on informed that legislation was being intro- for enactment in this Commonwealth: a Wills, Trusts, and Estates duced extending the present statute con- sub-committee under the chairmanship of ceming the loss of one convicted of mur- Mr. Henneman, working upon ArtiCle II of der of his rights in property held jointly To The Virginia Bar Association: the Uniform Probate Code, Parts 1-4; one with tliE victim; and made several sugges- uniter the chairmanship of Mr. Donaldson, Meetings of the Committee were held on tions concerning what was assumed to be working on Parts 5-10 of the same Article July 27, 1979, at White Sulpher Springs; the proposed legislati6n. II; one under the chairmanship of Mr. October 20, 1979, at Washington and Lee The project of a seminar in advance Warthen, working in the area of Article Law School; and January 11, 1980, at estate planning to be held at Tides Inn in IV; and one under the chairmanship of Williamsburg. April whs reported to be progressing satis- Mr. Alford, working in the area of Article There are being presented to the General factorily, with a sub-committee cooperating V. It is hoped that several of these reports Assembly for consideration at the 1980 with Peter Manson upon speakers, top!cs, will be ready for consideration by the full term legislation in the fields of ownership and planning. committee during the Spring. of accounts in the names of husband and Four sub-committees are continuing their Respectfully submitted, wife, and the enactment of the Uniform work of reviewing various areas of the Uni- Disposition of Community Property Rights form Probate Code to consider whether any Edward S. Graves, Chairman at Death Act. The Committee was also of its provisions should be recommended

1979.Report of Secretary Treasurer

Annual Winter and Summer Meetings. Finances. Izisted below are the dates and places for the annual OPINION OF CERTIFIED PUBLIC ACCOUNTANTS winter and summer meetings through 1984: January 16, 1980 The Executive Committee July 17-20, 1980 ...... The Homestead ,The Virginia Bar Association

January 9-I1, 1981 ...... Williamsburg Gentlemen: We have examined the statement of assets, liabilities anal fund July 16-19, 1981 ...... The Greenbrier balance resulting from cash transactions of The Virginia Bar As- sociation as of December 51, 1979 and the related statement of January 22-24, 1982 ...... Williamsburg revenues and expenses resulting from cash transactions for the year then ended. Our examination was made in accordance with July 22-25, 1982 ...... The Homest~-ad generally accepted auditing standards and accordingly included January 14-16, 1983 ...... Williamsburg such tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances. July 28-31, 1983 ...... The Greenbrier As more fully described in Exhibit C, significant accounting policies, the Association prepares its financial, statements on the January 13-15, 19.84 "...... Williamsburg basis of cash receipts and disbursements. Accordingly, the financiM statements are not intended to present financial position and results July 19-22, 1984 ...... The Homestead of operations in conformity with generally accepted accounting principles. In our opinion, the financial statements referred to above present fairly the assets, liabilities, and fund balance arising from cash transactions of The Virginia Bar Association as of December 31, 1979 and the recorded cash receipts and disbursements for the year then ended in accordance with the cash basis method of accounting applied on a basis consistent with that of the preceding year. Salley, Weissinger and Company Certified Public Accountants

46 EXHIBIT A Secretarial Salaries ...... 15,161.92 Director of Committee Activities 12,740.00 THE VIRGINIA BAR ASSOCIATION STATEMENT OF Office Expenses ...... 6,881.22 ¯ASSETS, LIABILITIES AND FUND BALANCE Telephone ...... 4,444.16 RESULTING FROM CASH TRANSACTIONS President Elect’s Expenses ...... 3,263.17 DECEMBER 31, 1979 President’s Expenses ...... 2,751.48 Payroll Taxes ...... 2,767.34 Assets Postage and Mailing List Mainte- Cash Account Balances: nance ...... 2,429.10 Virginia National Bank Checking Account Num- Travel ...... 1,673.03 ber 119-5133-8 ...... $ 4,155.92 Legal and Accounting ...... 750.00 United Virginia Bank Checking Account Number Public Relations ...... 685.31 10-82-574 ...... 50.~)0 Total Operating Expenses ...... $ 66,142.77 First and Merchants National Bank 5~ % Pass- Meeting knd Conferences--Schedule B-I ...... 47,870.64 book Savings Account Number 10-13343-9 ...... 11,137.59 Publication of "The Bar Journal" ...... L. 31,512.64 United Virginia Bank 5~% Savings Account Young Lawyers ...... 12,166.94 Number 1461-001933-02 ...... 19,701.43 Contribution to National Center for State Courts... 10,804.31 United Virginia Bank 11.9% Certificate of Deposit Committees ...... 7,370.16 Number 62-00608681 ...... 35,000.00 Purchase of Office Equipment ...... 67.60 First Virginia Bank 12.086% Certificate of De- Total Expenses ...... $175,935.06 posit Number 2375 ...... 21,836.00 Excess of Revenues Over Expenses~...... $ 24,921.42 Total Assets ...... $ 91,880.94

Liabilities and Fund Balance

Liabilities: EXHIBIT B-I Unremitted Payroll Taxes Withheld ...... $ 846.64 Fund Balance: THE VIRGINIA BAR ASSOCIATION Balance, January I, 1979 ...... $ 66,112.88 SCHEDULE OF REVENUES AND EXPENSES Excess of Revenues Over Expenses OF MEETINGS AND CONFERENCES --Exhibit B ...... 24,921.42 FOR THE YEAR ENDED DECEMBER 31, 1979 Balance, December 31, 1979 ...... 91,034.30 Net Total Liabilities and Fund Balance ...... $ 91,880,94 Revenues Expenses Revenues 1979 Winter Meeting ...... $13,021.00 $ 1,268.51 $11,752.49 1979 Summer Meeting ... 12,959.00 22,165.88 ( 9,206.88) EXHIBIT B 1980 Winter Meeting ... 14,428.00 23,886.57 ( 9,458.57) Other Conferences ...... -- 549.68 ( 549.68) THE VIRGINIA BAR ASSOCIATION Totals ...... STATEMENT OF REVENUES AND EXPENSES $40,408.00 $47,870.64 ($ 7,462.64) RESULTING FROM CASH TRANSACTIONS FOR THE YEAR ENDED DECEMBER 31, 1979

Revenues: EXHIBIT C Dues: Current ...... $146,033.00 THE VIRGINIA BAR ASSOCIATION New Members ...... 3,015.60 SIGNIFICANT ACCOUNTING POLICIES Total Dues ...... $149,048.00 DECEMBER 31, 1979 Meetings and Conferences--Schedule B-1 ...... 40,408.00 The Virginia Bar Association employs the cash .receipts and Interest ...... 6,027.72 disbursements method of accounting in maintaining its financial Sponsorship of Trips ...... 3,364.76 records wherein revenues are recognized when received in cash American Bar Association Contribution ...... 1,500.00 rather than when the right to receive them is accrued and expenses Sale of "The Bar Journal" ...... 508.00 are recognized when paid rather than when the liability is incurred. Total Revenues .: ...... $200,856.48 Fixed assets are written off when purchased. Consequently, no depreciation is computed herein. The Association is a tax-exempt organization under section Operating Expenses: 501 (c) (6) of the Internal Revenue Code. Therefore, no provision Secretary-Treasurer’s Salary ...... $ 12,596.04 for income taxes is shown in these statements.

47 The Associ~ttion notes with deepest regrets the passing of tile following members :

Gordon Hutson Andrews ...... 1920 - 1979

Lawrence W. Douglas (Life Member) ...... 1900 - 1979

John B. Duval (Life Member) ...... " .... 1980

Paul H. Gantt ...... 1979

Spencer G. Gill, Jr. (Judicial Member) 1979

Upton Hill Richards ...... 1914 - 1979