Virginia LawyerVOL. 69/NO. 3 • October 2020 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

The Pro Bono Issue President-Elect Candidates Medical Malpractice Public Speaking without Anxiety Capital Punishment

Teirra M. Everette Senior Legal Counsel Dominion Energy

Virginia Lawyer The Official Publication of the Virginia State Bar October 2020 Volume 69/Number 3

Features GENERAL INTEREST Noteworthy

30 Medical Malpractice in the COVID-19 Era: How Will the Illusive VSB NEWS COVID-19 Standard of Care and Virginia’s Immunity Statutes Affect 38 Meet the President-Elect Future Cases? Candidates by W. Davis Powell 32 What Are You Afraid Of? The Art of Public Speaking Without Anxiety by Jim Lofton 34 Capital Punishment: A Review of the Proposed Legislative Reform to Virginia’s Death Penalty Laws by the Hon. Joseph A. Migliozzi and Rebecca Dattilo, Judicial Intern 41 New Virginia Lawyer Mail Dates 41 Virginia Law Foundation Grants $500K to Pro Bono and Rule of Law PRO BONO Projects for 2020 14 Letter from the Chief Justice of the Supreme Court of Virginia 41 MCLE Compliance Deadline by the Hon. Donald W. Lemons Reminder 42 Freddie Mac Receives 2020 Frankie 15 The Pro Bono Issue: Artfully Navigating a Time Muse Freeman Pro Bono Award When Pro Bono is Needed More Than Ever by Crista Gantz and Jennifer Fulmer 42 Bary Hausrath and Chip Clapp Co-recipients of the 2020 Lewis F. 16 Changing the Life of a Child with Your Law Degree Powell Jr. Pro Bono Award by Deirdre Norman 43 In Memoriam 18 In Her Own Words: Making Pro Bono Work by Teirra Everette and Deirdre Norman Departments 21 Pro Bono Heroes 6 Cartoon 22 Help Bring Justice for All to Rural Virginia by Deirdre Norman 40 Wellness 48 Book Review 24 The State of Pro Bono 2020 58 Professional Notices by David B. Neumeyer, Nicole Harrell, and David Greenspan 60 Classified Ads 25 Pro Bono Contributions by Virginia Lawyers in 2019 61 Advertiser’s Index 26 Pro Bono Pros: Three Pro Bono Organizations Serving Virginia by Kaylin Bowen Columns 28 A Legal Aid IDEA to Improve Racial Justice by Karl A. Doss 8 President’s Message 10 Executive Director’s Message VIRGINIA LAWYER REGISTER 12 Bar Counsel’s Message 44 Law Libraries 54 Disciplinary Summaries 45 Technology and the Future Practice 55 Disciplinary Proceedings of Law 56 Notices: A Roundup of News from vsb.org 47 Risk Management 62 The Last Word

Teirra M. Everette, senior legal counsel for Dominion Energy, and her son, Everette, photographed at the Arboretum office park in Richmond. Photo by Deirdre Norman. 3 Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2020–21 OFFICERS 15th Circuit Brian L. Buniva, President Allen F. Bareford, Fredericksburg Jay B. Myerson, President-elect Marni E. Byrum, Immediate Past President 16th Circuit www.vsb.org Karen A. Gould, Executive Director and R. Lee Livingston, Charlottesville Chief Operating Officer Palma E. Pustilnik, Charlottesville Editor: EXECUTIVE COMMITTEE 17th Circuit Deirdre Norman Brian L. Buniva, President Adam D. Elfenbein, Arlington ([email protected]) Jay B. Myerson, President-elect Jennifer S. Golden, Arlington Marni E. Byrum, Immediate Past President Gregory T. Hunter, Arlington Creative Director: Eugene M. Elliott, Roanoke Joshua D. Katcher, Arlington Caryn B. Persinger Stephanie E. Grana, Richmond William H. Miller, Arlington ([email protected]) Chidi I. James, Fairfax 18th Circuit Eva N. Juncker, Falls Church Barbara S. Anderson, Alexandria Assistant Editor: William M. Moffet, Abingdon Stacey Rose Harris, Alexandria Kaylin Bowen Eric M. Page, Richmond John K. Zwerling, Alexandria ([email protected]) CONFERENCE CHAIRS AND PRESIDENT 19th Circuit Conference of Local and Specialty Bar Advertising: LLM Publications Susan M. Butler, Fairfax Associations – Susan N. G. Rager, Coles Point Brian C. Drummond, Fairfax Grandt Mansfield Diversity – Sheila M. Costin, Alexandria ([email protected]) David J. Gogal, Fairfax Senior Lawyers – Margaret A. Nelson, Sandra L. Havrilak, Fairfax Lynchburg Chidi I. James, Fairfax Young Lawyers – Melissa Y. York, Richmond Douglas R. Kay, Tysons Corner VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) COUNCIL Daniel B. Krisky, Fairfax is published six times a year by the Virginia State Bar, Christie A. Leary, Fairfax 1st Circuit David L. Marks, Fairfax 1111 East Main Street, Suite 700, Richmond, Virginia Damian J. (D.J.) Hansen, Chesapeake Nathan J. Olson, Fairfax 23219-0026; Telephone: (804) 775-0500. Subscription 2nd Circuit Luis A. Perez, Falls Church Rates: $18.00 per year for non-members. This material Ryan G. Ferguson, Virginia Beach Susan M. Pesner, Tysons Corner is presented with the understanding that the publisher Jeffrey B. Sodoma, Virginia Beach Wayne G. Travell, Tysons Michael M. York, Reston and the authors do not render any legal, accounting, Bretta Z. Lewis, Virginia Beach or other professional service. It is intended for use by 3rd Circuit 20th Circuit Meredith B. Travers, Portsmouth R. Penn Bain, Leesburg attorneys licensed to practice law in Virginia. Because of Susan F. Pierce, Warrenton the rapidly changing nature of the law, information 4th Circuit 21st Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Gary A. Bryant, Norfolk G. Andy Hall, Martinsville a result, an attorney using this material must always Neil S. Lowenstein, Norfolk research original sources of authority and update 22nd Circuit 5th Circuit Eric H. Ferguson, Rocky Mount information to ensure accuracy when dealing with Thomas G. Shaia, Suffolk a specific client’s legal matters. In no event will the 23rd Circuit 6th Circuit Eugene M. Elliott Jr., Roanoke authors, the reviewers, or the publisher be liable for J. Daniel Vinson, Emporia K. Brett Marston, Roanoke any direct, indirect, or consequential damages resulting 7th Circuit 24th Circuit from the use of this material. The views expressed herein Benjamin M. Mason, Newport News Eugene N. Butler, Lynchburg are not necessarily those of the Virginia State Bar. The 8th Circuit 25th Circuit inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton William T. Wilson, Covington an endorsement by the Virginia State Bar of the goods 9th Circuit or services of the advertiser, unless explicitly stated 26th Circuit Susan B. Tarley, Williamsburg Nancy M. Reed, Luray otherwise. Periodical postage paid at Richmond, 10th Circuit Virginia, and other offices. 27th Circuit E. M. Wright Jr., Buckingham R. Cord Hall, Christiansburg 11th Circuit 28th Circuit Shaun R. Huband, Petersburg William M. Moffet, Abingdon POSTMASTER: 12th Circuit Send address changes to 29th Circuit P. George Eliades II, Chester D. Greg Baker, Clintwood VIRGINIA LAWYER MEMBERSHIP DEPARTMENT 13th Circuit 30th Circuit Dabney J. Carr IV, Richmond Greg D. Edwards, Jonesville 1111 E MAIN ST STE 700 Leah A. Darron, Richmond RICHMOND VA 23219-0026 31st Circuit Eric M. Page, Richmond Maryse C. Allen, Prince William Cullen D. Seltzer, Richmond MEMBERS AT LARGE Sushella Varky, Richmond Denise W. Bland, Eastville Eva N. Juncker, Falls Church Neil S. Talegaonkar, Richmond Lenard T. Myers, Jr., Norfolk Henry I. Willett III, Richmond Lonnie D. Nunley, III, Richmond Virginia State Bar Staff Directory Patricia E. Smith, Abingdon Frequently requested bar contact 14th Circuit Lisa A. Wilson, Arlington Craig B. Davis, Richmond Vacancy (3) information is available online at Stephanie E. Grana, Richmond www.vsb.org/site/about/bar-staff. Marissa D. Mitchell, Henrico

4 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org

October 2020 Corrections: Letters In our August issue, we misspelled the names of two Bar employees — one current and one former. They are Cameron Rountree, our current Send your letter to the editor to: deputy executive director, and Tom Edmonds, our former executive [email protected] or director and current member of the Clients’ Protection Fund Board. Virginia State Bar Virginia Lawyer Magazine Matthew John Schewe Jr. of Oakton passed away in May of 2020. 1111 E Main St., Suite 700 Richmond, VA 23219-0026 Edmonds In The Last Word, we meant to say, “chock full” not “chalk full.” Letters published in Virginia Lawyer may be edited for length and clarity We regret the errors. and are subject to guidelines available at www.vsb.org/site/ publications/valawyer/.

Jest Is For All by Arnie Glick

6 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org

President’s Message by Brian L. Buniva

“. . . with liberty and justice for all.”

IN 1886, MY GRANDMOTHER, that “the Feds” were in town, and they Some remarkable strong-willed people Lillian Maher, the eldest of 12, was intended to raid her tavern that night. like my grandmother fair reasonably born to my Irish immigrant great- She politely thanked the caller for the well, but they are few and far between. grandparents in a fourth floor walkup tip and proceeded to remove most of There remains a Justice Gap, with no tenement in Brooklyn, New York. She the inventory from the premises. Being legal representation for hundreds of attended school through the third a kindhearted woman, she decided to thousands of our low- and moderate- grade, learning how to “…read, sign “leave a few bottles behind so that the income fellow Virginians that legal aid me name, and count me money.” At boys wouldn’t be too disappointed.” simply lacks the resources to assist. the age of 11, she went to work as The raid occurred, the meager The unrepresented are deprived a seamstress in a sweatshop in the haul was seized, and a summons was of the promise of “justice for all” garment district. At age 16, Lilly was issued compelling my grandmother to emblazoned in our Pledge of described in a local newspaper as appear in court. There was no money Allegiance recited by school children “Pretty Lilly Maher the leader of the for legal representation, so Lilly did daily. At this time, given that there are strike” after leading a walkout from what so many low-income citizens only 160 full-time legal aid attorneys the factory for better pay and working do. She represented herself in court. in Virginia, the only partial solution is conditions. Accompanied by her three beautiful for the 32,000 plus active members of At 20, Lilly met and married her daughters, dressed in their Sunday the Virginia State Bar to stand as one, German immigrant husband, Peter best, she tearfully pled her case. The declare “this is not right” and volunteer Grau, and eventually started their judge seemed sympathetic to her two percent of their professional family, with my mother being the plight but applied the law and imposed time to pro bono representation per youngest born in 1918. Shortly after a fine of $25, which at the time, was a Rule 6.1 of the Rules of ProfessionaL my mother’s birth, Pete contracted rather stiff penalty. My grandmother Conduct promulgated by the Supreme tuberculosis from which he would let out a howl of sorrow, ushered her Court of Virginia. eventually die in 1929. At age 40, a daughters from the courtroom and Even if every licensed attorney widow with three children ranging was heard to exclaim, “$25? I’ll make in our Commonwealth did devote 2 from 11 to 15, my grandmother was that up at lunch.” A short time later, percent of their professional time to barely surviving. Social Security and Prohibition was repealed. the righteous cause of closing the other government social assistance While on balance the outcome for Justice Gap, there would still be a programs were not yet available as she my pro se grandmother was tolerable, sizable problem. However, together shouldered so many responsibilities. that was rarely the case then, and it is we can make a substantial difference Low-income citizens, particularly rarely the case today. As many before in the lives of many of our fellow women, had few opportunities for me have noted, access to justice is a citizens along with upholding the security. With the wolf howling at fundamental and essential right in a foundational principle of ensuring that her door, Lilly decided to go into democratic society. The Justice Gap the Rule of Law governs the lives of business for herself. She opened a is the difference between the level of our Commonwealth and nation. small tavern, or speakeasy, in Tenafly, civil legal assistance available and the My friends and colleagues, the New Jersey, her adopted home, and amount that is necessary to meet the need for our help has never been although the 18th Amendment to the needs of low-income people. greater. COVID-19 has increased the United States Constitution prohibited Nearly a hundred years ago, need exponentially. Please, please join the sale of alcoholic beverages at that the poor were forced to fend for me and hundreds, if not thousands, of time, everyone, including the local themselves in court without the other Virginia lawyers in contacting constabulary, enjoyed Ma Grau’s assistance of legal counsel. The a legal aid society office to volunteer neighborhood tavern. same fate befalls between 300,000 your time. You will be richly rewarded One day Ma Grau received a phone to 500,000 low income households and blessed. q call from the local police advising her today in the Commonwealth alone.

8 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Confidential help for substance abuse problems and mental health issues. For more information, visit https://vjlap.org or call our toll free number 24/7: 1-877-545-4682 Lawyers Helping Lawyers is now Virginia Judges and Lawyers Assistance Program Executive Director’s Message by Karen A. Gould Virtual Pro Bono: You Can Do It In Your Pajamas

VIRTUAL PRO BONO ALLOWS care workers tending to COVID-19 Greater Richmond Bar Foundation interested attorneys to help low-in- patients, as a thank you from the legal (GRBF) come Virginians and their community community for, and in recognition of, The GRBF’s has two pro bono at a time when social distancing and their service and sacrifices during this programs that lend themselves well to isolation are the new normal, and time. Virtual Wills for Heroes events virtual lawyering. First, the Pro Bono when many people are struggling with are currently being coordinated for Clearinghouse links volunteer attor- myriad issues related to COVID-19. healthcare providers in Richmond and neys with established nonprofit organi- Please consider helping the un- Hampton Roads. zations in need of legal representation derserved with their legal problems The YLC and VBA YLD partnership on a variety of transactional matters. during this unprecedented pandem- recently did a virtual wills clinic for Second, the Justice Server, www. ic. The following are a quick tour essential healthcare workers and had justiceserver.org offers state-wide cases of some virtual pro bono programs over 100+ wills, powers of attorney and and referrals that enables attorneys to currently available to lawyers in the advance medical directives executed accept and work on pro bono cases Commonwealth of Virginia: virtually without ever having to be face- from their computer. to-face with a client. Currently, there are cases in a Virginia Free Legal Answers variety of areas of increasing de- The ABA’s Free Legal Answers Qualified Legal Service Providers mand due to the economic impacts allows lawyers to answer legal ques- (legal aid and other nonprofit legal of COVID-19: uncontested (no fault) tions from low-income Virginians in service organizations) divorces (which can be done remotely a private forum. Virginia Free Legal The VSB maintains a regularly-up- and through the mail), housing issues, Answers, virginia.freelegalanswers.org, dated list of regional and statewide protective orders, and estate planning. provides an easy and safe way to en- programs that have been approved Attorneys in the Danville, gage in pro bono during the pandemic, by the VSB as official Qualified Legal Hampton, Petersburg and Richmond as the services are offered exclusive- Services Providers, as well as contact areas can provide third-party neu- ly online through the Q&A portal information for their pro bono coor- tral pro bono assistance to qualified administered by the VSB. Service is dinators who will help support your tenants through the Eviction Diversion anonymous, and attorneys are cov- volunteer lawyering work. www.vsb. Program. The GRBF has recently ered by the ABA/NLADA malpractice org/docs/QLSP_list.pdf revamped the program to engage policy. volunteer lawyers remotely to assist VPLC Statewide Eviction Legal prescreened tenants and their land- Wills for Heroes Helpline lords enter into payment plans to avoid Local bars or any group of lawyers The Virginia Poverty Law Center eviction. Interested volunteers should might consider a virtual wills clinic operates the statewide toll-free register for JusticeServer and express in partnership with hospitals in their eviction helpline, 1-833-NOEVICT interest in this opportunity. local communities. www.vsb.org/site/ (1-833-663-8428) for people specifical- conferences/ylc/wills-for-heroes ly facing the loss of their homes. Visit VSB Emeritus Membership The Commonwealth’s Wills for their website, vplc.org/learn/covid- In the February 2018 Virginia Heroes Program, sponsored by the 19-civil-legal-response-in-virginia/, Lawyer, I discussed in this column a Virginia State Bar Young Lawyers for more information about volun- rule change to the emeritus member- Conference, The Virginia Bar teering, and user-friendly guides and ship rule effective March 1, 2018, that Association Young Lawyers Division, resources, including Know Your Rights made it easier for retired members to Virginia CLE, and the Virginia Law as a Tenant During the COVID-19 provide legal services pro bono, if they Foundation has expanded its pool Outbreak pamphlet and FAQs for un- were ready to restrict their practice of eligible clients to include health- employment and other claims. Executive Director continued on page 49

10 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Got an Ethics Question?

The VSB Ethics Hotline is a confidential consultation service for Virginia lawyers. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the “Email Your Ethics Question” link on the Ethics Questions and Opinions web page at www.vsb.org/site/regulation/ethics/. Bar Counsel’s Message by Renu M. Brennan and Elizabeth K. Shoenfeld

Protecting the Public from Lawyers Who Have Not, Will Not, or Are Unlikely to Discharge Their Professional Duties to Clients, the Public, the Legal System, and the Profession

“THE QUESTION IS NOT WHAT though Ayer knew the parties did not and then by failing to correct his punishment may the offense warrant, have a signed settlement agreement. missteps when presented with an but what does it require as a penalty to Ayer also failed to respond to writ- opportunity to do so. Further, the the offender, as a deterrent to others, ten discovery, even though his client board found that Ayer’s filing of and as an indication to laymen that had provided responses to Ayer, and discovery responses two years after the courts will maintain the ethics of Ayer billed his client for preparing the his client gave him the informa- the profession.” Maddy v. First District responses. Approximately six months tion and only after a compel order Committee, 205 Va. 652, 139 S.E.2d 56 after Ayer’s client provided Ayer with violated Rule 1.1. (1964). the responses, opposing counsel Diligence: The board found The disciplinary system, including moved to compel the same. Ayer did Ayer did not exercise reasonable the district committees, disciplinary not tell his client about the motion diligence throughout the repre- board, and three-judge courts, decided to compel. After an order compelling sentation, particularly noting his several cases this year that highlight responses was entered more than one handling of the discovery responses the core principles of self-regulation: year later, Ayer sent opposing counsel and the fact that Ayer’s client was protection of the public, the judicial the responses his client had provided still not divorced over four years system, and the profession. Two cases him almost two years earlier, without after he hired Ayer. [Ayer’s] failure demonstrate that the failure to meet giving his client the opportunity to re- to adequately communicate with minimal ethical obligations of compe- view, revise, and update the responses. [client] also exhibits his lack of tence, diligence, and communication Ayer’s client testified that Ayer failed commitment and dedication to the can result in the suspension or revoca- to communicate and respond to him, interests of [client].”6 tion of the privilege to practice law. and that Ayer was difficult to reach. Communication: The board found In the Matters of Sammy Edward Although Ayer claimed he regularly Ayer’s failure to communicate with Ayer1: After a day-long hearing, communicated with the client, the his client evidenced his lack of the board revoked2 Ayer’s license to board did not find this claim credible. commitment and dedication to his practice law for lack of competence, Ayer ultimately moved to withdraw client’s interests. The board found diligence, and failure to communicate as counsel, representing that it was a Ayer violated Rule 1.4(a) by failing in two uncontested divorces, and for joint motion of Ayer and his client, to promptly respond to his client’s lack of candor and trust accounting when in fact his client did not consent requests for information and by re- violations in a third matter for which to the withdrawal. As of the February peatedly failing to take or respond legal representation was not required. 2019 disciplinary hearing, Ayer’s client to calls and emails and to send cor- Case No. 1: Ayer, representing was still not divorced. The board found respondence to the correct address. a husband, filed for divorce on the Ayer did not take responsibility for his Critically, Ayer did not notify his grounds that the parties had no minor actions, instead blaming the client. client of the motion to compel filed children and had lived separate and The board found Ayer violated Rule against him and his withdrawal apart for more than six months, even 1.1 (Competence)3; 1.3(a) (Diligence)4 from representation. though Ayer knew that the parties had and 1.4(a) (Communication) 5: Case No. 2: Wife hired Ayer for only been separated for three months. Competence: The board con- an uncontested divorce in April 2015. Even after wife filed an answer request- sidered that Ayer practiced as a As of February 2019, Ayer’s client ing denial of relief because the statu- domestic relations attorney and the was not yet divorced, and she was not tory ground had not been met, Ayer case was relatively straightforward. receiving spousal support or any of her did not correct the complaint. The Ayer violated Rule 1.1 by filing a husband’s military benefits, to which complaint also requested ratification of divorce complaint that failed to sat- she was entitled. In the complaint, a property settlement agreement even isfy the jurisdictional requirements, Ayer failed to request spousal support

12 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Bar Counsel’s Message

or equitable distribution, and instead unable to get in touch with Ayer not tell the client that she did not need referenced that any agreement be af- during the representation. At one a lawyer to obtain a restricted license. firmed, ratified, and incorporated, but point the client resorted to leaving Ayer told the client that $350 of the not merged, into any decree, despite notes on Ayer’s car. While still repre- $500 was to pay a filing fee, when he the fact that the divorce was contested senting the client, Ayer changed law knew that no filing fee existed. Ayer and no agreement was reached. Ayer firms and did not tell her. Ayer’s file failed to communicate with his client notified client that he went to court did not contain evidence of any com- and to promptly comply with her in April 2017 for entry of the divorce munication with the client after April requests for information. On more decree even though he never provid- 2017. The board found Ayer violated than one occasion, Ayer told her that ed the client the decree. Ayer sent a his duties of competence, diligence, a court date was scheduled when in motion for entry of the decree, which and communication. fact no date was scheduled. The client Ayer never filed, directly to the client’s Case No. 3: Ayer accepted repre- called the court and was told that husband, whom Ayer knew was repre- sentation and a $500 fee to restore a nothing had been filed on her behalf. sented by counsel. client’s driving privileges after a three- The client obtained a restricted license As in the first case, the client was year suspension of her license and did Bar Counsel continued on page 49

DISCIPLINARY STATISTICS FY 2020 (July 1, 2019, to June 30, 2020)

The Office received 3,091 complaints in FY 2020, equating to 9.8 percent of Virginia’s 31,693 active lawyers. In FY 2019, the Office received 3,123 complaints against Virginia’s then 32,870 lawyers (9.5 percent). While complaints were trending up from July 1, 2019 until the March 2020 COVID-19 outbreak, complaints declined after the outbreak until June 30, 2020. Overall, complaints were down 32 from last year, however, the percentage of complaints relative to the number of active lawyers was slightly higher than last year, because the number of active lawyers decreased by 1,177. Seventy-nine percent of the complaints (2,440 of 3,091) were screened out early in the review process. The disciplinary sta- tistics below reflect that 473 cases were dismissed by Bar Counsel, the Subcommittees, Disciplinary Board, and Circuit Courts, and 128 lawyers received private (54) or public (74) discipline. Of the 74 lawyers publicly disciplined, 20 lawyers received public reprimands or admonitions; 20 lawyers were suspended; and 34 lawyers’ licenses were revoked.

ADMONITION without TERMS 1(1) BAR COUNSEL 331

ADMONITION with TERMS 2(3) SUBCOMMITTEE 125 DISTRICT COMMITTEE 0 REPRIMAND without TERMS 7(7) BOARD17 12 REPRIMAND with TERMS 10(10) CIRCUIT COURT 5 CASES DISMISSED BY: SUSPENSION 20(36)

CONSENT to REVOCATION 16(25) ADMONITION 27(32)* PUBLIC DISCIPLINE

LAWYERS WHO LAWYERS RECEIVED REPRIMAND with TERMS 14(15) REVOCATION by AGREEMENT 1(1)

REPRIMAND without TERMS 9(10) REVOCATION following HEARING 10(19)

DISMISSAL DE MINIMIS18 2(2)

PRIVATE DISCIPLINE PRIVATE DISMISSAL EXCEPTIONAL 2(2)

LAWYERS WHO LAWYERS RECEIVED CIRCUMSTANCES

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 13 14 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org PRO BONO IN 2020

rtfully navigating a time when pro bono is needed more than ever. PRO A The Rules of Professional Conduct highlight the impor- tance of pro bono to our profession, but the promise of “Equal Justice Under Law” underlines why we should care about access to justice as Americans. The promise of BONO “justice for all” reflects a shared value that is central to our government and society. As attorneys we can transform this value into action by devoting ourselves to the Bar’s mission to advance access to legal services. IN Civil unrest and racial divides persist as we examine our 2020 ability to actualize our democratic value of equal justice for all people. The pandemic continues to test our coun- try, communities, families, and businesses. The economic impact of COVID-19 has widened the justice gap. In these trying times, we might find inspiration in reflecting upon our two most recently departed U.S. Supreme Court Justices: The Hon. Ruth Bader Ginsburg and The Hon. Antonin Scalia. During their lives, both took the opportunity to comment on the connection between access to legal services and justice. The late U.S. Supreme Court Justice Scalia once noted that “without access to quality legal representation, there is no justice.” And, addressing attendees of the Pro Bono Institute Conference in 2014, the late Justice Ginsberg said, “Lawyers have a license to practice law, a monopoly on certain services. But for that privi- lege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities.” Hope lies within our noble profession. As lawyers we are in a unique position to address the jus- tice gap to ensure the Rule of Law is upheld and that our system of justice works for everyone. We are empowered to use our skills and talents to be change makers, to heal divides, and to come together— even as we remain physically distant—to honor our foundational promise of equal justice by delivering quality legal services to those in need. In this issue we explore and celebrate access to legal services and pro bono in Virginia. We also spot- light a few people and programs providing noteworthy contributions to the same. We know more of you are out there making access to justice a reality in our communities. The Virginia State Bar is incredibly grateful to everyone who has given—time, talent, financial support, encouragement—to the Access to Legal Services cause. Thank you. Q

Crista Gantz is the VSB’s director of Jennifer Fulmer is the Pro Bono Access to Legal Services. In this role she Managing Attorney at Legal Services of develops, promotes, and coordinates the Northern Virginia and chairs the VSB’s VSB’s pro bono and access to justice ini- Access to Legal Services Committee. tiatives. She oversees the VSB Standing Previously she clerked for the Committee on Access to Legal Services, Honorable David F. Pugh in Newport a statewide access to justice body. She is News Circuit Court. She served on the also a member of the Virginia Access to boards of the VSB’s Young Lawyers Justice Commission and the state admin- Conference and the Fairfax Bar istrator for Virginia Free Legal Answers. Associations Young Lawyers Section. Gantz received her law degree from the She graduated from George Mason University of Richmond and her under- School of Law and received her under- graduate degree from The University of graduate degree from the College of North Carolina, Chapel Hill. William and Mary. www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 15 Changing the Life of a Child with Your Law Degree by Deirdre Norman

“Anyone who does anything to help a child in his life is a hero to me.” ­–Fred Rogers

ari Hommel has been a special edu- the law is complicated, but the presence of a Mcation teacher, a school board attor- lawyer can make a huge difference. We have ney, and an advocate for special education lawyers with no experience in special ed mak- students for 25 years, but she still believes that ing tangible differences in a child’s life.” you can do as good a job as she can when it Deane cites by way of example an attorney comes to helping children who have special at a large law firm who volunteered to help a education placement issues. first grader who was on home instruction be- Hommel said when special education cause of repeated suspensions. Because of this students and their parents or guardians need pro bono work, done by a lawyer whose prac- help working with schools to assess the best tice has nothing to do with special education, educational plan for the student, any lawyer that first grader now has an IEP to improve – whether a tax, a trusts and estates, or real his chances of obtaining the best education property lawyer – makes the process better possible for him. simply by being at the table. Molly McShane, director of the Child “Lawyers are hard wired for collabora- Advocacy Pro Bono Project at the LAJC, tive processes,” Hommel said. “Lawyers are understands that some lawyers may be uneasy trained in refocusing and rephrasing what is volunteering to help a child and then failing. being discussed around a table, and suddenly But she said that the process is not a zero-sum parents who don’t feel heard or who haven’t game: “Free, appropriate, public education is wanted to adapt their desires to what is most such a fluid thing – a lawyer can make a huge appropriate for their child are able to make an difference and even smaller deltas make a big agreement.” difference to a kid. A lawyer is in a unique The Legal Aid Justice Center (LAJC), position to help parents limit the scope.” based in Charlottesville and with of- Concurs Deane, “You don’t just get one fices around the Commonwealth, runs bite of the apple. You can go back and try Virginia’s largest children’s law program, the again, and in any case, parents do better with YouthJustice Program, and assists low-income a lawyer on their side.” parents and guardians when their children Unsurprisingly, when it comes to their with special education issues need help children with special education issues, parents with placements to better help them learn. are often reluctant to give in when any of their Obtaining an Individual Education Plan (IEP) expectations are not fully met. Hommel said, can cost from $500 to $30,000, depending understandably, “Parents are often trying to on the complexity, according to Hommel. get the Cadillac when the school district is Lawyers who are willing to volunteer with offering the Ford.” LAJC can bring those same services to low-in- In these situations, when the school come special education students, simply by districts can’t possibly give everything to donating a few hours of their time monthly everyone because of costs and staffing issues, for a short period. volunteer lawyers facilitate the proceedings by Youth Justice Program Legal Director using their existing negotiation skills to assist Rachael Deane for the LAJC said, “Some of people with understanding and ultimately

16 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org PRO BONO IN 2020

making equitable compromises. “Parents feel intimidated by the process. But I don’t know any lawyers who are intimidated by processes or paper- work,” Hommel said. “The school district will often have a team of people across the table and the parent is alone. Lawyers aren’t afraid to ask questions, they make sure proce- dures are implemented correctly, and they excel at timelines and making meetings fair.” Hommel, who has now retired from her private practice of 25 years to do solely pro bono cases, recently assisted a parent whose fifth grade son was repeatedly being sent out of class for misbehaving in school, and who had grown to hate school to the point he was refusing to go. Both the school and the parent had reached an impasse, with each blaming the other for the child’s issues. ..suddenly parents who don’t feel heard...are able to make an agreement.

Through Hommel’s advocacy, the child was able to see a psychiatrist who diagnosed an anxiety issue relating to the child’s struggle to read: He was intentionally getting kicked out of class any time he thought he was going to be asked to read. With Hommel as her advocate, the parent was able to compromise with the school and her son received accom- modations as well as help with anger management, coping skills, and the understanding that he needed to continue to do his work. He is now doing fine as a middle school student, and perhaps the trajectory of his education, and thus his life, was altered by Hommel’s 30 hours of pro bono assistance over the course of eight months. In partnership with the disAbility Law Center of Hommel Virginia, LAJC will provide extensive support for pro bono lawyers taking these cases and LAJC will also provide mal- practice insurance. Deane, McShane, and Hommel all agree that the current and post-COVID landscape for special ed- ucation students will be rife with opportunities for lawyers to assist as both the schools and the parents attempt to find the best path forward for children as they navigate closed schools, virtual learning, and myriad other issues relating to learning, therapy, and counseling. Said McShane, “COVID has upended how these services are delivered and what free and appropriate public education now looks like. These issues are difficult without COVID, but even worse with COVID.” Lawyers interested in learning about pro bono opportu- nities with the Youth Justice Program at the Legal Aid Justice Center should contact Molly McShane (molly@justice4all. org) or Miriam Torian ([email protected]). Q Deane McShane www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 17 Teirra Everette, Senior Counsel, Dominion Energy In Her Own Words: Making Pro Bono Work by Deirdre Norman

eirra Everette serves on the VSB Access to Are there any other lawyers in your family? TLegal Services Committee and balances a There is one other lawyer in my family. My commitment to pro bono with a busy career second cousin on my mom’s side of the family as senior counsel for Dominion Energy, practices mass tort law in California. My mom, headquartered in Richmond and serving 7 Carolyn Geeter, is a retired special education million customers over 20 states. She studied teacher. political science and sociology at Ohio University before obtaining a dual master’s I read that you wanted to be a lawyer degree in public administration and a J.D from since you were five years old. What Cleveland State University’s Cleveland-Marshall inspired that? College of Law. Her career began with a law I think I was inspired by my love of reading. school clerkship at Dominion Energy in Ohio, I read lots of books about how lawyers such as and Everette has stayed with Dominion Energy Thurgood Marshall, Constance Baker Motley, since then. Her commitment to pro bono began and Johnnie Cochran made an impact on our in law school but was deepened by the need to society. These individuals and others were able advocate for her own son, Everette, who was to bring about social change using the law. born during her last year of law school. Their contributions to society encouraged me to pursue the practice of law at a young age. I also I know you grew up in Cleveland and did think growing up in the 1990s with the advent the dual degree program in law school. of Court TV and highly televised trials, such as Were you always the studious type? Were OJ Simpson’s case, further piqued my interest you always the good kid in school? in becoming a lawyer. Watching lawyers think Yes. I’m originally from Cleveland, Ohio. on their feet while advocating for their client I moved to Richmond in 2017. I guess I’ve fascinated me. It made me want to follow in always been the studious type. I have loved their footsteps and make a difference. school and learning, even at a young age. I was a very avid reader as a preschooler according Today, you are Senior Counsel at to my mom and it set the foundation for a Dominion, so obviously you have a busy lifetime of learning. As far as being the “good career. How do you find the time to do pro kid” in school, I wouldn’t go that far. I attended bono? Catholic school during elementary school, and I have always made time to do pro bono I can recall several times where I got into some work. I started in law school, volunteering with trouble, despite being a good student. It was the Black Law Students Association to assist mostly for things like talking without raising my disadvantaged youth in the city of Cleveland hand or the one time I glued a girl to her chair with preparing for U.S. citizenship exams. I also in first grade. However, after elementary school worked in the area of housing law, assisting low- I was on the straight and narrow and rarely had income clients who faced issues ranging from problems in school. housing discrimination to land title issues. Once I passed the bar, I convinced the I would be remiss if I did not ask what Dominion Energy Law Department in prompted the chair gluing episode and Cleveland to fully staff a pro bono clinic in our what happened next? community that served the re-entry (formerly No comment! *laughs* incarcerated) population on a monthly

18 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org basis. There, we provided legal advice on drivers’ license reinstatement, child support, expungements, and housing just to name a few. When I moved to Richmond, I immediately got involved with pro bono efforts in the wake of Hurricane Harvey. I organized and provided training to other Dominion Energy attorneys so that they could provide brief legal advice to those devastated by the hurricane in the state of Texas. The great thing about this program was that attorneys were able to provide legal advice in their free time as it was not a scheduled pro bono clinic. I think the flexibility of this effort contributed to more participation. As individuals, we make time for what we find important. I have always understood the importance of giving back to my community, especially to those who are less fortunate than me. It costs you nothing but time to make a difference in the life of an individual or family.

I understand that you began your work in special education pro bono through the Medical Legal Partnership (MLP) at VCU Health. How did you get involved with this program? I got involved with the MLP through Dominion Energy’s partnership with McGuire Woods and meeting several special education pro bono advocates, such as Ali Fannon and Allison Held, who asked me to join their efforts. I have a connection to special education law because my mom is a retired special education teacher and I have a son who is on the autism spectrum. Advocating for him to receive access to the general education curriculum for many years fueled my desire to help other families who may not have access to advocates or legal Teirra and her son, Everette. services. Once I expressed my interest in getting involved, I literally a difference. A lot of the time I spend working with my current got a case the following week! Working with my current family family is late in the evening or on the weekends due to their reminds me why we need more attorneys to provide pro bono schedule. So, once I get my son to sleep, I am researching or on service to special education law. It is an area of practice where a teleconference or Zoom call preparing to assist with the next if parents do not have the funds to pay for an advocate or an steps in their journey. That is what works for my schedule, but attorney, the child suffers. Many parents are not aware of the everyone is different and there are enough cases that allow for rights they and their special needs children have under federal a range of commitment. and state law, guaranteeing access to a free, appropriate, public Lastly, I don’t think you should worry about failing a child. education (FAPE). The MLP provides special education training and has resources if lawyers have a question. The only way we fail a child is by not You are a very busy person. Yet you still find time to providing pro bono services at all. do pro bono and work on the VSB Access to Justice Committee. What do you say to lawyers who are afraid If you would like to discuss, tell me about your own to try to do what you do? What if a lawyer is afraid child and how parenting him made you want to help of the time commitment of a pro bono case, or even others. worse, afraid of failing a child? My son Everette, who is now 11 years old, is on the Again, I believe we make time for that which is important autism spectrum. We had a very long journey obtaining to us. For me, that is social justice, children, and special the appropriate special education services for him. Everette education. The time commitment involved in these cases can was not diagnosed with autism until he was seven years be as little or as much as an attorney wants to give. There are old, approximately 4–5 years after children with autism are many facets of a special education matter that can range from typically diagnosed. The school district we were in attributed providing brief one-time advice to handling a case all the his needs for support to “behavioral issues” rather than way to due process. I think it just depends on an individual’s behaviors typically associated with children on the spectrum. schedule and willingness to commit the time needed to make As a result, he was placed in a very restrictive educational www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 19 I have always understood the are being made about special educational services. I also realized that parents of color and low-income parents importance of giving back to my were particularly impacted by the lack of access to special education advocacy services as they are the least likely to be community, especially to those educated about the special education process and the rights afforded to parents and their children during the process. who are less fortunate than me. One of my first advocacy actions for families after It costs you nothing but time to my experience with my son was to speak at a national autism conference on how families of color are impacted make a difference in the life of by discrimination in the special needs community. My discussion included how disparities in education, health, an individual or family. law enforcement, and other institutions contributed to the preschool to prison pipeline for many young boys of color. environment with children whose needs were significantly The preschool to prison pipeline is the disproportionate different than his. I started off with my own advocate as a tendency of children from disadvantaged backgrounds parent who was new to special education, and although I am to become incarcerated, because of increasingly harsh a lawyer, I was relatively uninformed about special education school and municipal policies. These policies are shown to law. I remember our advocate telling me that we had to allow particularly impact boys of color with special needs as early the school district to “fail the child” before things would get as preschool. An example of this is a study that finds that better. I refused to allow my son to fail in order for him to Black preschool children are 3.6 times as likely to receive receive the appropriate services he needed. one or more out-of-school suspensions as white preschool I pulled him out of school for a period and home children. I found it particularly troubling that children as schooled him while I began the process of preparing a young as 4 were being suspended from school for what were due process action against the school district. I also hired relatively minor infractions, with little to no support. a special education lawyer to assist with negotiating the appropriate services for my son. The lawyer was ultimately Tell me about the intersection of being an in-house able to get Everette in a less restrictive educational counsel lawyer, a mom, and an advocate for others. environment, but the district still refused to accept his Do you find it difficult to balance everything? Any autism diagnosis and provide proper accommodations. secrets for those who want to stick a toe into the pro Ultimately, I had to file a due process action against the bono waters, but may be afraid? district in order to obtain appropriate services for Everette. I think being an in-house attorney, a mom, and an I filed without the benefit of a special education lawyer advocate have worked together well. I have been with because such actions can cost upwards of $50,000. I Dominion Energy since my last year of law school, almost became my own advocate for my son, learning everything 11 years. One thing I can say is that other attorneys in the I could about special education law using resources such Dominion legal department have been very supportive of as Wrightslaw, to bring me up to speed. I was determined me as a parent and as an advocate for others. When I was to see my son receive the services he needed no matter the actively working on my due process action and had to home cost. My determination paid off as the district settled with school Everette, I was allowed flexibility within my position me, allowing Everette to receive the services he desperately to spend time on ensuring that my child’s educational needs needed. For the first time in years, my son was finally placed were met. My supervisors are parents as well and appreciate in a general education setting with the support he needed the need to be there for your children, especially during to succeed. As a naturally bright child, he thrived and did difficult times. As previously mentioned, most attorneys exceptionally well, far exceeding the expectations that the within the legal department at Dominion are also committed district had for children with his set of needs. to pro bono service in the community so everyone has Parenting Everette made me realize that there are other been very supportive of me providing advocacy support to parents out there who are experiencing the same struggles special needs families. I appreciate my Dominion family I faced, if not worse. Most of these parents do not have the being an extension of my biological family in the sense that luxury of being able to afford a dedicated advocate, let alone I have always felt supported and valued in my personal and a special education attorney to advocate on their behalf. professional endeavors. Many of these parents don’t even realize that they do not For those who want to stick a toe into the pro bono water have to agree with the district about what is best for their but may be afraid, I would say jump in, the water is great! child as it relates to special education services. I have always There are so many opportunities for attorneys to provide said that “I am the subject matter expert on my child” and pro bono service beyond donating money. The need in our I believe that is true for all parents. We know our child communities outweighs the number of attorneys. I think best, and our input should be considered when decisions an attorney who is afraid to get involved with pro bono

20 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org PRO BONO IN 2020

work would be pleasantly PRO BONO HEROES surprised to find that there One group of attorneys stands out in their is a variety of areas where exemplary dedication to Virginia Free Legal help is needed. You can Answers (FLA) clients. They have answered at least select a practice area that 15 questions on the FLA portal, earning a pin and special certificate from the VSB in recognition of is within your comfort their distinguished service. zone, whether you are a transactional attorney or a Since its launch in August of 2016, the combined litigator. If you are hesitant forces of more than 400 Virginia FLA volunteers have achieved great things for Virginians in need. to step outside your comfort • 3,000+ clients served zone and try something • 3,300+ questions answered new, be assured that there • 1,100+ pro bono hours contributed is plenty of training offered and support from attorneys Donald Beck Richmond Alexander Berman Arlington County who have more experience Ann Brogan Norfolk in the area that you may be Ann Callaway Fauquier County considering. Almost all pro Elaine Cassel Fairfax County bono opportunities also offer Richard Chidester Giles County some level of malpractice Julie Currin Henrico County Kolleen Daniels Chesapeake insurance for attorneys so Paul Dryer Waynesboro that is an added layer of Robert Freed Richmond Teirra Everette, with her son and her mother, Carolyn Geeter. security. At the end of the Chanel Gray Chesapeake day, I think the benefits of Virginia Grigg Richmond contributing to pro bono efforts outweigh the potential risks that may make an Wynn Harding Harrisonburg Suzan Herskowitz Winchester attorney hesitate to get involved. Carole Hirsch Falls Church Meredith Jacobi Chesapeake Who do you credit for giving you your sense of energy, and your Lisa Kaas Fairfax County commitment to community? Jason Livingston Richmond I credit my mother and other mentors who have supported me along the Barbara Marmet Fauquier County Rysheda McClendon Stafford County way from elementary school to present day for giving me my sense of energy David McKelvey Roanoke and commitment to community. I have always been taught that I am not Laura McQuesten Virginia Beach limited in my opportunities and that I have an obligation to give back to the Lee Noble Fairfax County community. My mother was a special education teacher who gave back to her Rixon Rafter Fairfax County students by purchasing school supplies and resources that the school could not Nancy Reed Page County Dan Rosenthal Henrico County otherwise provide because the district was underfunded. She also contributed Susan Ruppel Fauquier County through volunteer opportunities at church. I was always involved in those Donnie Salyers Washington County efforts growing up and it shaped my perspectives on volunteerism and my Charles Samuels Richmond responsibility to the community at large. Betty Scott Portsmouth Lorrie Sinclair Loudoun County Tammy Sossei Henrico County Lastly, what is something about you that few people would guess? Henry Su Arlington County Your hobby, childhood achievement or failure, or anything else that Joanna Suyes Richmond you would like to share. William Tucker Charlottesville I think one thing that few people would ever guess about me is that I love Elizabeth Urrutia Arlington County to color. I know that sounds weird, but I got into coloring as a stress reliever Nichole Vanderslice Chesterfield County Jonathan Wallis Campbell County several years ago. I learned about adult coloring books and have been hooked Neal Walters Charlottesville ever since. Anytime I feel overwhelmed or just need to unwind, I can pull out a Nathaniel Webb Newport News coloring book and my favorite set of colored pencils or markers and just escape. Martin Wegbreit Richmond I have even encouraged several of my friends to pick up coloring as a stress William Wilder Fairfax County reliever. It is such a simple activity that we typically think of as being reserved Reiss Wilks Richmond John Williams Williamsburg for children, but I’ve found it to have value beyond my childhood years. Q David Zobel Virginia Beach Interested in joining the cause? Lawyers interested in pro bono opportunities to help children with special needs Register today at should contact the Legal Aid Justice Center (https://www.justice4all.org/). In https://virginia.freelegalanswers.org the Richmond area, Allison Held of the VCU Health MLP may be reached at or contact [email protected]. [email protected] and (804) 874-3972. www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 21 Help Bring Justice for All to Rural Virginia by Deirdre Norman

ver a third of all lawyers in the United States In fact, rural America has been poorer than metro Owork in just three states: California, New America for decades. In data that tracked poverty York, and Texas, according to the American Bar from 1959 to 2018, the Economic Research Service of Association’s 2020 Profile of the Legal Profession. the U.S. Department of Agriculture found that rural The remaining 66 percent of lawyers are spread poverty has been greater than metro poverty for over throughout the other 47 states, but in numbers that 60 years. In 1959, the poverty rate for rural America leave some areas with a high concentration of lawyers was almost 35 percent while the metro poverty rate (Fairfax County has over 5,000 lawyers), while other was around 16 percent. Though the gap began closing areas have virtually no lawyers: some rural Virginia around 1970, even by 2018, the rural poverty rate was counties have less than 10 lawyers for the entire still higher than the metro rate. Today, rural America county (and only one Virginia lawyer lists Greensville has lost industries, jobs, and the most valuable re- as home). Not surprisingly, the dearth of lawyers in source: people. Outmigration has caused significant rural areas creates access to justice issues that are population loss in almost 35 percent of rural U.S. more difficult to solve than they are in those areas counties. where lawyers are plentiful. Lawyers in rural America are older and fewer than their metro counterparts, and yet rural Americans still need lawyers. The 2017 Justice Gap Report by the ... only 14 percent of rural Legal Services Corporation found that “three-quar- ters of America’s low-income rural residents faced at least one civil legal problem in a year, while nearly Americans can get help with a quarter of rural residents experienced six or more civil legal problems in a year.” Despite their legal their legal needs. needs, which range from health to finance to employ- ment issues, only 14 percent of rural Americans can get help with their legal problems. Across the country, rural areas have vastly differ- Thanks to technology, lawyers from metro areas ent people and landscapes, but they share many of who are interested in helping rural Virginians via pro the same problems. In Legal Deserts: A Multi-State bono may now do so from their own locales. Said Perspective on Rural Access to Justice, published by the Carico, “The McGuireWoods firm in Richmond has Harvard Law & Policy Review in 2018, the authors consistently taken pro bono cases to represent clients noted that “Compared to our nation’s metropolitan in our service area and is one of several partners areas, rural America suffers disproportionately from that we value. We greatly appreciate all those private poverty, poor health outcomes, the opioid epidemic, attorneys who are enrolled in our Private Attorney educational deficits, and environmental degradation, Involvement program and who handle pro bono among other challenges.” matters for the clients we refer.” Joseph R. Carico, Executive Director of the Carico also pointed to the Appalachian School Southwest Virginia Legal Aid Society (SVLAS), of Law (ASL) in Grundy as an emerging and im- commented, “Our service area is located in the heart portant partner in identifying and assisting clients of Appalachia. Poverty has been an historic chal- in the Appalachian region. In 2020, SVLAS began a lenge for the region. Those suffering from poverty Medical-Legal Partnership with ASL to supervise law in our rural communities already feel isolated. They students who provide legal assistance to furloughed shouldn’t feel further isolated when it comes to our medical workers resulting from the pandemic. justice system. For that reason, legal representation is SVLAS also hosted an ASL student this summer crucial to ensuring a fair and inclusive justice system under a fellowship funded by Equal Justice Works. for those who need it most.” The law student assisted with a new project called the

22 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org PRO BONO IN 2020

Appalachian Center for Hope that will provide a broad range of rehabilitative services to those in the region suffering from opioid use disorder and substance use disorder. Lawyers interested in volunteering for rural cases may access the JusticeServer (justiceserver.org) to register and select from cases by jurisdiction, legal area, and/or specific Legal Service Organization (LSO) to volunteer their legal services in cases ranging from uncontested divorces to the drafting of legal documents such as wills and powers of attorney. Q

Image reproduced with permission from the American Bar Association 2020 Profile of the Legal Profession. Lawyers by County 8 Prince Edward 1 dot=10 lawyers James City 28 King and Queen 2 Prince George 15 King George 12 Prince William 341 King William 10 Pulaski 35 Accomack 28 Cumberland 3 Lancaster 43 Radford 23 Albemarle 57 Danville 74 Lee 20 Rappahannock 17 Alexandria 1,675 Dickenson 15 Lexington 51 Richmond City 3,707 Alleghany 3 Dinwiddie 8 Loudoun 749 Richmond County 4 Amelia 14 Emporia 11 Louisa 25 Roanoke City 604 Amherst 19 Essex 13 Lunenburg 6 Roanoke County 12 Appomattox 14 Fairfax City and County 5,198 Lynchburg 217 Rockbridge 2 Arlington 1,659 Falls Church 546 Madison 20 Rockingham 24 Augusta 25 Fauquier 132 Manassas 306 Russell 30 Bath 8 Floyd 9 Manassas Park 5 Salem 66 Bedford 79 Fluvanna 22 Martinsville 44 Scott 19 Bland 2 Franklin City 10 Mathews 9 Shenandoah 34 Botetourt 25 Franklin County 29 Mecklenburg 22 Smyth 25 Bristol 55 Frederick 17 Middlesex 18 Southampton 14 Brunswick 10 Fredericksburg 264 Montgomery 116 Spotsylvania 43 Buchanan 35 Galax 9 Nelson 24 Stafford 85 Buckingham 7 Giles 15 New Kent 20 Staunton 76 Buena Vista 3 Gloucester 36 Newport News 305 Suffolk 99 Campbell 29 Goochland 43 Norfolk 854 Surry 4 Caroline 18 Grayson 7 Northampton 12 Sussex 7 Carroll 19 Greene 9 Northumberland 21 Tazewell 65 Charles City 3 Greensville 1 Norton 17 Virginia Beach 1,097 Charlotte 6 Halifax 31 Nottoway 9 Warren 48 Charlottesvlile 601 Hampton 164 Orange 52 Washington 105 Chesapeake 319 Hanover 148 Page 18 Waynesboro 26 Chesterfield 520 Harrisonburg 181 Patrick 11 Westmoreland 19 Clarke 23 Henrico 594 Petersburg 50 Williamsburg 241 Colonial Heights 34 Henry 5 Pittsylvania 19 Winchester 149 Covington 12 Highland 2 Poquoson 7 Wise 57 Craig 2 Hopewell 31 Portsmouth 127 Wythe 29 Culpeper 55 Isle of Wight 32 Powhatan 25 York 63

www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 23 The State of Pro Bono 2020 by David Neumeyer, Nicole Harrell, and David Greenspan

” will forever be something between dozens more. The top ten include those needs that “2020 a bad memory and a curse word, received the most provider votes for “strong need.” but not in the world of pro bono work providing They are: access to justice for low-income Virginians. 1. Wills/Estates For the last ten years, the Chief Justice of the 2. Divorce/Separation/Annulment Supreme Court of Virginia has hosted a biennial 3. Private Landlord/Tenant Pro Bono Summit, a judicial proceeding attended by 4. Advance Directives/Powers of Attorney full Court, in which pro bono leaders from across 5. Custody/Visitation the Commonwealth, coordinated by the Pro Bono 6. Adult Guardian/Conservatorship Council of the Virginia Bar Association, have briefed 7. Support the Court on the status of existing programs and new 8. Collection (Including Repossession developments such as the statewide online portal for Deficiency/Garnishment) case placement. Since 2016, the Pro Bono Council has 9. Domestic Abuse also submitted a written State of Pro Bono Report for 10. Collection Practices/Creditor Harassment the Pro Bono Summit. The 2020 edition of the Summit was scheduled for Needs by individual nonprofit providers, listed in April 1 before it was postponed due to the COVID-19 the appendix, range from wills in many programs to pandemic. The written summary of activities sub- cancer-related services in Richmond to anti-human mitted by the Pro Bono Council has been completed trafficking advocacy at William & Mary. in stages and is now fully available online. Part 1, Part 2 of the 2020 report describes a number of concerning the aggregate and individual needs of current special projects including the JusticeServer nonprofit legal providers for pro bono assistance to statewide pro bono portal, Virginia Free Legal their clients, was posted on the Pro Bono Council’s Answers, special education and clemency projects, webpage, vba.org/page/2020-state-of-pro-bono-in- and statewide responses to COVID-19. virginia, in June. Part 2, summarizing active special The need for pro bono assistance is always between projects, has recently been posted to the Pro Bono significant and daunting, but once Virginia lawyers get Council’s webpage. involved, they have a documented history of impres- Highlights of Part 1, the collective pro bono needs sive contributions in both time and impact. by nonprofit legal providers, include, in descending Many more hours and lawyers are needed, howev- order of need, the top ten statewide pro bono needs er, to meet more needs and resolve problems affecting identified by the providers. Some providers serve hun- the basics of life for so many of our fellow Virginians. dreds of clients with pro bono volunteers each year We hope that all Virginia attorneys can respond to this and would like to serve hundreds more, while some call for service. Please contact one of us if you have small providers serve dozens and would like to serve any questions or need any help in getting involved. Q

David Greenspan, dgreenspan@ Nicole Harrell, njharrell@ David Neumeyer, davidn@ McGuireWoods.com, co-chair of kaufcan.com, is co-chair of the vlas.org, is executive director the Virginia Bar Association Pro Virginia Bar Association Pro of Virginia Legal Aid Society in Bono Council and shareholder at Bono Council and partner at Lynchburg and a member of the McGuireWoods in Tysons Corner. Kaufman & Canoles in Norfolk. VBA Pro Bono Council.

24 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org Pro Bono Contributions by Virginia Lawyers in 2019

The following data is the average hours and financial contributions Average Hours per circuit divided by the number of active attorneys in the cir- cuit. The services and funding were made during the 2019 year as by Circuit 32 60hrs self-reported by lawyers in their annual dues statement. 16, 33 17hrs During the year the total number of hours given to pro bono ser- 9, 17, 24 14hrs vice by active Virginia lawyers was 368,845 and the financial con- 1 13hrs tributions to pro bono efforts across the circuits was $974,130. A map of the 33 circuits can be found at www.courts.state.va.us. Q 25 12hrs 10, 18, 19, 27 11hrs 13, 26 10hrs 21, 28 9hrs 2, 15, 20, 23, 31 8hrs 4, 5, 14 7hrs 29 6hrs 12, 22, 30 5hrs 6, 7, 8, 11 4hrs 3 3hrs Average Funds by Circuit 26 $62 33 $52 16 $48 14, 17, 19, 23, 24, 25 $26-30 7, 13, 18 $21-25 4, 20 $16-20 8, 15 $11-15 5, 9, 10, 11, 12, 21, 27, 31 $6-10 1, 2, 3, 6, 22, 28, 29, 30, 32 $0-5

www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 25 Pro Bono Pros by Kaylin Bowen

These three organizations are part of the including the three featured here. All VSB- Qualified Legal Services Providers (QLSP) approved QLSPs in the Commonwealth may approved by the Virginia State Bar. There be found at vsb.org/docs/QLSP_list.pdf. are currently 46 QLSP organizations

he Virginia Sexual and Domestic Violence Action Alliance is Virginia’s The Project Tleading voice on sexual and intimate partner violence and covers a wide range of services, including advocacy on behalf of survivors of sexual and intimate for the partner violence. The Project for the Empowerment of Survivors (PES) is an initiative of the Action Alliance that is offered through the Statewide Hotline. The Empowerment PES team provides trauma informed legal services and legal advocacy to callers from Virginia who are experiencing sexual or intimate partner violence, dating of Survivors violence, human trafficking and hate crimes. All services are free and confidential. Additionally, the Statewide Hotline can direct callers to resources for legal aid, emergency shelter, counseling, crisis prevention and other general information. The PES relies on a strong network of private referral lawyers who are willing to take cases pro or low bono. “This network of attorneys willing to fill the justice gap is absolutely crucial to survivors,” said Caitlin Bradley, the PES attorney at

orthern Virginia and Montgomery County, Maryland, are home to the The Good Nseven legal clinics housed in local ministries and run by the Good Samaritan Advocates. The Christian Legal Aid organization serves clients regardless of religious Samaritan affiliation. They offer legal advice on civil matters with a focus on total wellness and fellowship. The GSA was founded by the Law Firm of Gammon and Grange in 2006 and Advocates has grown to provide advice and limited representation to the community clinics at churches, a homeless ministry, and a correctional facility in Northern Virginia and Montgomery County. The volunteers are passionate in their efforts to assist the less fortunate. All the volunteers at GSA are Christians, dedicated to the cause. “The Bible is full of verses calling for service to the needy and working for Allen Liu justice,” said Kenneth Liu, Esq., GSA President. “Lawyers have a unique ability to help pursue justice.”

he Greater Richmond Bar Foundation, in partnership with the City of The Eviction TRichmond, Housing Opportunities Made Equal (HOME) and Central Virginia Legal Aid Society (CVLAS), is working to reduce the number of evictions in Diversion Program Richmond. The Eviction Diversion Program (EDP) is a pro bono service in the City of Richmond that facilitates the creation of payment plans between landlords and tenants. “The goal for EDP is to have a payment plan ready before the initial court date,” said Sarah Warner, attorney and GRBF board member. “The payment plan covers past rent, allowing tenants to stay in their homes and the landlords to begin receiving their rent payments.” Brechlin Warner Tenants and landlords interested in the program contact HOME for admission to the program. There are eligibility restrictions in place, which HOME facilitates

26 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org PRO BONO IN 2020

“Lawyers have a unique ability to help pursue justice.” —Kenneth Liu

Action Alliance who gives legal advice to callers. “The private survivors. Training is all online, with teleconference sessions bar cannot rely on Legal Aid to fill the justice gap alone.” and prerecorded lessons available. Bradley explained the goal is to have private attorneys in “During the pandemic, we’ve seen an increase in all corners of Virginia available to refer survivors from under- domestic violence calls as many people are quarantined with served communities statewide who need help and can’t access their abusers,” Bradley said. “Sadly, the pandemic has also free legal services elsewhere. Often, victims of sexual and compounded barriers for victims attempting to escape these domestic violence have a harder time accessing services due to situations. A lot of victims urgently need legal help.” safety issues or falling into the justice gap. To volunteer services or learn more contact Bradley at Currently, the Action Alliance relies on a network [email protected]. To donate to Action Alliance and of roughly 60 lawyers willing to take on family, custody, the PES initiative visit vsdvalliance.org. The Statewide Hotline immigration, divorce, and a myriad of other case types for can be reached 24/7 at 1-800-838.8238. Callers will be given their referrals. Any attorney or legal professional willing to immediate crisis support and will receive a call back within 48 volunteer their services will be trained to work with trauma hours for legal questions. Q

While they do not provide full representation to clients at been unable to continue to go into the facility to assist inmates. GSA, they have a small network of attorneys they refer people to The GSA is operating virtually currently, and volunteers can who offer low or pro bono service. help serve the community through video conferencing and email. “We don’t need only attorneys,” said Claude Allen, Esq., GSA “Currently, we have seen a dip in clients possibly because they board member. “We need people with language, budgeting, social are nervous or unable to meet online,” Liu said. “We would love service, and financial wellness skills. We want to offer as much to have more clients to serve virtually.” expertise as we can.” Allen encouraged experienced attorneys to take volunteering GSA has training to prepare attorneys and non-attorneys for a step further by considering opening a GSA clinic in their the volunteer service. Volunteers can work as many clinics as area and recruiting younger attorneys to try pro bono service. they can manage with their schedule. Most of the clinics are open Anyone interested in learning more about GSA, volunteering on Saturday mornings. or serving as a pro bono referral attorney, or donating can visit In the correctional facility, volunteers can help inmates with goodsamaritanadvocates.org. Q resource referral and managing their legal matters outside of the prison system. Currently, due to the COVID-19 the GSA has

in their vetting process. Then the EDP volunteers, acting as Warner said the primary job of a volunteer is to be patient third-party neutrals, facilitate the creation of a payment plan. and understand the need for research, background, and “The number of cases we see currently varies greatly,” said tracking down the needed materials. Flexibility is key, as some Hannah Brechlin, EDP manager. “Some weeks it can be 30 or tenants are not reachable during the normal business hours. more, other weeks it’s less than five.” GRBF tries to pair all new volunteers with experienced EDP EDP needs volunteers to help tenants and landlords agree volunteers to show them the process. on the terms of the payment plan and to get the plans signed. Legal professionals interested in helping can learn more “The volunteer position itself is completely remote now,” at grbf.org/edp or contact Brechlin at [email protected] or (804) Brechlin said. “You are not going into court right now to collect 780-2600 ext. 7. Volunteers who are registered in JusticeServer signatures.” Volunteers are trained on the eviction process can also sign up in that system. Financial contributions to the and what is expected of them through video conferencing and GRBF can be made on their website, grbf.org/donate. Q online materials.

www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 27 A Legal Aid IDEA to Improve Racial Justice by Karl A. Doss

uring 2020, racial justice has been the diversity appear rather impressive, a closer Dsubject of a great deal of attention both look at the data indicates that this diversity is nationally and in Virginia. The legal system, overrepresented in entry level positions and which has been instrumental in advanc- much less present in upper management and ing equal justice… and at times has been executive level positions. In fact, only two of an obstacle, has come under considerable our ten local program directors are female scrutiny in the aftermath of the slayings and none of them is a person of color. Other by law enforcement of George Floyd and DEI challenges facing our programs include: Breonna Taylor earlier this year. The dispro- the retention rate for attorneys of color is portionate impact of COVID-19 illness and significantly lower than it is for their white deaths among people of color has also raised and male colleagues; some programs lack any legitimate questions of whether and to what racial diversity among attorneys or staff; and extent this impact is due to historical sys- there is a need to increase diversity of local temic racism. Moreover, difficult questions program board members. are being asked within various organizations The IDEA committee was formed with and institutions about their internal Diversity membership consisting of representation Equity and Access (DEI) practices and how from every program and reflecting the racial, these policies are reflected in their engage- gender, ethnic and positional diversity of our ment of and service to the public. The issue of staff and boards. This committee was sup- the removal of monuments honoring leaders posed to commence its work after conclusion of the Confederacy has sparked introspection, of the 2020 General Assembly session in discussion, and debate. March, but the formation of our COVID-19 Last year the Legal Services Corporation crisis response team took precedence. of Virginia (LSCV), which is the state Although our efforts to address the impacts of funding and administrative oversight office COVID-19 on Virginia’s low-income residents for Virginia’s nine civil legal aid programs disrupted our original plans, the murder of and statewide resource center initiated the George Floyd and others and the resulting Virginia Legal Aid IDEA (Inclusion Diversity racial justice protests have further informed Equity and Access) Project with the partici- our plan and lent a particular urgency to de- pation of its individual programs. This project velop strategies that ensure Virginia Legal Aid arose from the recognition that collectively approaches its work with a racial justice lens. and individually our legal aid service delivery system needs to be proactive in addressing The mission and goals of the IDEA issues of racial, cultural, gender and LGBTQ Project are as follow: equity, diversity, and justice both internally Virginia Legal Aid programs must commit and externally. to the principle that racial equity must Demographic data collected by be present in our hiring decisions, in our LSCV for our most recent annual practice, and in our engagement with our report shows that statewide approx- communities. Furthermore, we acknowl- imately 55 percent of our clients are edge that our work to provide access to low-income people of color and over justice for our clients who cannot afford 70 percent are women. Approximately counsel is advanced through our efforts to 22 percent of our attorneys and 50 percent promote racial justice. We commit to cre- of program staff are people of color. Women ating a diverse, representative and collab- make up almost 75 percent of our clients and orative environment within Virginia’s legal attorneys and over 90 percent of our non-at- services organizations in order to provide torney staff. While our attorney and staff accessible, welcoming and culturally com-

28 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | PRO BONO IN 2020 www.vsb.org petent services to clients of all backgrounds and their com- board members based on program diversity assessments munities. To achieve this, Virginia’s legal services organiza- and client feedback that will address the unique challenges tions endeavor to hire and retain a diverse and inclusive mix for each program as well as provide enhanced training for of attorneys, staff, and executive management, to recruit and program management and leadership. develop diverse governing board members, to bring a racial f. Racial Justice in Individual and Systemic justice and race equity to the delivery of our client services, Representation Subcommittee. This subcommittee will and to engage the diverse members of the communities. work with legal aid attorneys and staff to be aware of, sensitive to, and prepared to address and intervene with Inclusion, Diversity, Equity and Access (IDEA) Plan – implicit and explicit bias and barriers to equal justice—on Internal/External Stakeholder Goals personal, interpersonal, organizational and structural/ • Goal 1. Form a legal services Inclusion, Diversity, Equity systemic levels—as they occur in our representation and and Access (IDEA) planning committee delivery of client services. • Goal 2. Develop a diversity assessment instrument and g. Effective Community Engagement Subcommittee. distribute it to each legal aid program This subcommittee will work with programs to improve di- • Goal 3. Develop diversity recruitment, hiring, retention, rect, sustained community involvement to the point where and promotion plans staff are regularly present in the client community within • Goal 4. Develop and provide diversity, equity and inclusion their service areas. training for all legal aid staff and board members, includ- h. Internal Program Relations Subcommittee. This ing cultural competence and implicit bias training subcommittee will consider how programs should address • Goal 5. Develop and provide diversity leadership training internal staff issues especially relevant to people of color, for all executive directors, deputy directors, and managing women, LGBTQ, disabled, and other members of histori- attorneys cally marginalized groups. • Goal 6. Bring a race equity/racial justice lens to client ser- vices and representation We are still very early in our work but have found informa- • Goal 7. Develop and implement effective community tion and inspiration from both the Shriver Center on Poverty engagement programs Law and the National Legal Aid and Defender Association. One guiding principle for our IDEA project is that we cannot We have established the following subcommittees employ a “one size fits all approach”. Our ten programs serve that will develop work plans and propose implemen- communities that are regionally, economically, and demo- tation processes for achieving these goals: graphically diverse, face different challenges, and have unique a. IDEA Steering Subcommittee. This subcommittee will opportunities to advance DEI work. LSCV’s regular local be responsible for developing and overseeing the imple- program evaluation process will soon include qualitative and mentation of the Virginia Legal Aid Inclusion, Diversity, quantitative assessments of the work by each program to imple- Equity and Access Strategic Plan. ment IDEA practices in their individual, impact, and systemic b. Diversity Assessment Subcommittee. This subcom- work. Finally, while some goals will seem easier to achieve, we mittee will oversee the development and distribution of realize that it will probably take years to accomplish others and, an instrument that will gather information on staff, by even when we do, this work will be ongoing and will require position, and board diversity according to race, gender, commitment and vigilance. Q ability/disability, age, and sexual orientation and compile the data which will provide a snapshot of the strengths and weaknesses of the legal aid programs. c. Staff Recruitment, Hiring, Retention and Promotion Subcommittee. This subcommittee will develop best practices for recruiting, hiring, retaining and promoting diverse staff, including how and where job announcements are posted, improving the diversity of interview and pro- motion panels, and improving onboarding and mentoring of new hires. Karl Doss is the deputy director of Legal Services d. Board Recruitment Subcommittee. This subcommittee Corporation of Virginia (LSCV) and chairs the Virginia Legal Aid IDEA Committee. He was a 2019 will develop strategies for increasing the diversity of com- fellow with the Shriver Center on Poverty Law Racial munity and client representation on the board of directors Justice Institute and is a member of the VSB Standing of each legal aid program and to improve the meaningful Committee on Access to Legal Services and the Virginia Access to Justice Commission. Previously, he was the engagement of community board members during meet- VSB Director of Access to Legal Services. The LSCV was ings. formed and incorporated in 1975 by the Virginia State e. Diversity, Equity, and Inclusion Training Bar, the Virginia Department of Social Services and the Virginia Legal Aid Association to develop, fund, coordi- Subcommittee. This subcommittee will work with DEI nate and oversee the delivery of civil legal services to the experts to develop DEI training curriculum for all staff and poor in Virginia. www.vsb.org PRO BONO IN 2020 | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 29 Medical Malpractice in the COVID-19 Era: How Will the Illusive COVID-19 Standard of Care and Virginia’s Immunity Statutes Affect Future Cases? by W. Davis Powell

When reports of a novel virus spread- COVID-19? ing rapidly through Wuhan, China first Medical researchers are still learning more about COVID-19 each day, and there have been surfaced, few would have predicted the way the very public debates about proper treatments and virus would come to impact every aspect of daily best practices (the now-famous hydroxychloro- life across the world. However, months after the quine comes to mind rather quickly).1 If there outbreak’s beginning, we now well know that the is not agreement about COVID-19 among the impact of the COVID-19 crisis will be felt for many highest levels of the government and science, years. how will the average physician be judged in a Perhaps no group has been as affected by the malpractice lawsuit? pandemic as health care providers. From shortages Such issues are also quite important for at- of personal protective equipment (PPE) to drastic torneys, particularly those practicing in medical changes in delivery and reimbursement models, malpractice and health care. This article seeks to the health care industry has experienced massive examine some of the open questions regarding upheaval since March. After months of working medical liability in the COVID-19 era. Specifically, in the “new normal,” there are still a number of the article will focus on issues of the standard of open questions about COVID-19’s impact on the care in the time of COVID-19 and the impact of practice of medicine. Virginia’s immunity statutes. Some of the most important open questions revolve around professional liability. Will we The Standard of Care and COVID-19 see many medical malpractice lawsuits brought To successfully prosecute a medical malprac- alleging failure to properly treat COVID-19? What tice claim in Virginia, a plaintiff must prove that about cases alleging failure to prevent the spread a health care provider owed the plaintiff a duty of of the virus amongst patients? How will immunity care, that the defendant breached the standard of doctrines and statutes apply to such cases? And care in the plaintiff’s treatment, and that the breach most basically, how will such cases be judged; was the proximate cause of the plaintiff’s claimed What is the standard of care when it comes to injuries.2 The Virginia Code defines the standard

30 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST

of care for defendant health care providers in medical mal- filed in other jurisdictions, including Ohio, Kansas, and New practice cases as the “degree of skill and diligence practiced Jersey.10 However, with the ongoing COVID-19 crisis and by a reasonably prudent practitioner in the field of practice Virginia’s two-year statute of limitations for personal injury or specialty in this Commonwealth.”3 Va. Code § 8.01-581.20 claims, there is still time for plaintiffs to pursue COVID-19 and Virginia caselaw also make clear that in most medical malpractice claims. malpractice cases, the standard of care is established by expert Like many other states, Virginia also has immunity pro- testimony on a case by case basis.4 visions for health care workers who provide treatment during Though we are now months into the pandemic, physicians times of disasters and emergencies. Va. Code § 8.01-225.01 and scientists are still learning more about COVID-19 each states that in the absence of gross negligence or willful mis- day. For instance, recently published studies have reported that conduct, health care providers who respond to a disaster “by COVID-19 patients are at a higher risk for stroke than patients delivering health care to persons injured in such disaster shall with normal cases of the flu.5 Both the Centers for Disease be immune from civil liability for any injury or wrongful death Control (CDC) and the National Institute of Health (NIH) claims arising from the abandonment by such health care pro- have updated their COVID-19 treatment protocols through- viders of persons to whom the provider owes a duty of care.”11 out 2020, and there has been much debate within the medical The provision of immunity is qualified on the condition that community about whether treatment protocols once thought (i) a state or local emergency has been declared and (ii) the effective are in fact beneficial.6 Treatment regimens often need provider was unable to provide care to the person because of years of study through clinical trials before they can be truly his response to the disaster. Va. Code 8.01-225.01 also provides judged as effective or not. immunity for hospitals and other credentialing entities for granting emergency practice privileges during emergencies.12 Virginia also has immunity provisions for health Va. Code § 8.01-225.02 provides immunity for health care care workers who provide treatment during times providers who, while responding to a disaster or emergency, are unable to provide “the level or manner of care that other- of disasters and emergencies. wise would have been required in the absence of the emer- gency” due to a lack of resources “attributable to the disaster.” In addition to questions about proper treatment, there have As with Va. Code § 8.01-225.01, the immunity provision of also been well-publicized issues surrounding the proper pro- § 8.01-225.01 does not apply in cases of gross negligence or tocols for preventing the spread of COVID-19 among patients willful misconduct. admitted to health care facilities. Given the highly communi- Many health care providers had questions about these cable nature of the virus, this has proven a major problem in statutes’ applicability to the COVID-19 crisis. In response nursing homes, where elderly patients are particularly vulner- to these questions, Governor Ralph S. Northam issued able. Unfortunately, the results of the spread of COVID-19 Executive Order No. 60 on April 28, 2020.13 The Order states, within nursing homes have been devastating in many cases.7 “It is apparent that in enacting these provisions, the General Just as with treatment protocols, the medical commu- Assembly intended to afford health care providers immunity nity has learned a great deal about preventing the spread from certain liability in exactly the circumstances presented of COVID-19 since the pandemic began in March. While by the COVID-19 health crisis” and goes on to make certain several federal agencies including the Centers for Medicare findings aimed to clarify questions about the statutes applica- and Medicaid Services (CMS) and CDC have now published bility. Most basically, Executive Order No. 60 makes clear that guidelines regarding the management of COVID-19 in nursing the COVID-19 pandemic qualifies as an emergency for the homes, much of this guidance was not available until well-after purposes of Virginia Code §§ 8.01-225.01 and 8.01-225.02. It the pandemic began.8 also offers guidance on what constitutes a lack of resources or a All these questions and developments regarding proper Medical Malpractice continued on page 51 prevention methods and treatments will certainly have an impact on any future COVID-19 malpractice cases. Obviously, experts often disagree as to what constitutes the standard of care in medical malpractice cases. But given the changing landscape of COVID-19, establishing (or defending) the standard of care with expert support may be particularly difficult in cases alleging negligence in preventing or treating COVID-19. Questions such as when the treatment occurred, and what information was available to the provider at the time, will be vital in establishing whether a provider’s actions met Virginia’s “reasonably prudent” standard. Davis Powell is a partner at Byrne Legal Group in At this time, the author is unaware of any medical mal- Richmond. He concentrates his practice on repre- practice cases filed in Virginia alleging improper diagnosis senting health care providers in medical malpractice 9 litigation as well as in government investigations and or treatment of COVID-19. Yet lawsuits have already been white-collar criminal cases.

www.vsb.org GENERAL INTEREST | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 31 What Are You Afraid Of? The Art of Public Speaking Without Anxiety by Jim Lofton

Public speaking causes high anxiety your head? In his book, The Inner Game of Public speaking can be terrifying. Many peo- Tennis, a book about how to achieve peak ple are more afraid of public speaking than performance, W. Timothy Gallwey calls them of snakes, spiders, or even death, according “Self 1” and “Self 2.” Self 1, the inner self or to some surveys. Sometimes referred to as the ego-mind, is constantly providing mental “stage fright,” this reaction does not just occur input to Self 2, the outer self, the “you” who in novices. In The Challenge of Effective is performing the task or the activity. The pri- Speaking, the authors report that “as many as mary insight from Gallwey’s book is when you 76 percent of experienced public speakers feel are performing, the ego-mind is constantly fearful before presenting a speech” (Verderber providing mental obstacles to the outer self in et al. 2012). We all know the feeling. When the form of nervousness, judgments, self-crit- we rise to our feet to make a speech or give a icism, self-doubt, and lapses in concentration. presentation, almost all of us feel stress, anx- Gallwey believes to achieve peak performance iety and nervousness, which trigger a surge as a tennis player, you must eliminate the of adrenaline that can manifest in a variety mental interference from the little voice in of ways: muscle tension, trembling hands, your head, the ego-mind. a squeaky voice, rapid and shallow, sweaty Of course, this distracting inner mono- palms, fidgeting, or even worse—outright logue from the ego-mind does not just occur panic. when you are playing tennis. It happens any time you are performing an art or activity that The Cause of Anxiety requires skill and practice; and it certainly Why do we feel nervous or stressed when giv- applies to the art of oratory. ing a public address? Is it our fear of rejection For most of us, as we prepare to start an or failure, or fear of the unknown? It’s usually opening statement, give a presentation at a some kind of fear, but why are we fearful and public workshop, or conduct a training class, who is doing the fearing? Actually, a little the ego-mind sends us an adrenaline surge, voice in our heads is almost always talking to inflicting self-doubt, casting judgment on us, and it’s almost always in the past or in the our abilities, and planting the fear that we are future. going to forget what to say next. It distracts us Who are the speaker and the listener in from focusing on the message that we are de-

32 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST livering. The best presentations are delivered with confidence, practice an opening statement or presentation for the audience. authenticity and passion, allowing us to connect with our audi- Before a speaking engagement, I usually write out a detailed ence. But when interference from the ego-mind activates fear, outline for my presentation to organize the structure of my it prevents us from giving our best presentation. So, quieting talk. And the more satisfied and familiar I get with the struc- that inner voice that puts up those mental roadblocks to peak ture, the less I depend on the notes. Eventually, my script performance is crucial to speakers. evolves into slides with minimal words on each slide or a one- Here’s how you can do it. page outline that only lists the topics that I plan to cover. In other words, my visual cues for the talk provide the structure Quieting Your Inner Voice—What You Can Do to Prepare of my presentation, but as I master the materials of the presen- tation, I allow myself the liberty of delivering my presentation 1. Master the subject matter in the way that we speak conversationally—that is with spon- In order to speak with authority and confidence, the very first taneity and feeling. Preparation allows me to converse with the thing that you must do is to master the subject matter. More audience and to improvise, while removing the fear caused by than 2,000 years ago, the senator, lawyer, and orator Marcus being unprepared. Tullius Cicero wrote that public speaking without mastery of the subject matter was nothing more than windy verbiage. That You are liberated from notes... and can observation still holds true. If you are giving a presentation, you owe it to yourself, and connect with your audience in the most to your audience, to own it—to become an expert on whatever the topic is. If you are not secure in your own knowledge about impactful way. the topic, you cannot deliver the presentation with confidence and assurance. Every presentation has a message that we want In The Articulate Advocate, Brian Johnson and Marsha the audience to hear and receive. And almost every presenta- Hunter have coined the term structured improvisation to tion includes some element of persuasion: we want to convince describe this method of speaking: you have practiced, and you our audience they should accept and believe the facts, the know the structure of your presentation, but you improvise the observations, and the conclusions we are delivering. One of words as they are actually spoken. This is a powerful way to the key components of persuasion is credibility. We establish deliver a presentation. You are liberated from notes, from read- credibility through demonstrating to our audience that we are ing, from memorizing, and can connect with your audience in an authority on the subject. If you are an authority on your the most impactful way. topic, you can deliver the message with passion, with authen- The use of structured improvisation as a method to deliver ticity, and can be completely absorbed in delivering it with a presentation is consistent with artistic techniques in other confidence. fields to achieve peak performance in an activity. Athletes call it “getting in the zone;” psychologist Mihaly Csikszentmihalyi 2. Practice called it “finding flow;” Zen Master Alan Watts called it “disci- There is a saying in soccer: The game is the teacher. The more pline in spontaneity and spontaneity in discipline.” Whatever you play in a game, the more you learn about it and develop as it is called, peak performance in an endeavor like public a player. Players develop “muscle memory,” which is sometimes speaking can only be achieved when the ego-mind is still, and really “mind memory.” The scientific term for this is “neuro- when concentration is focused on and totally absorbed in the plasticity.” We now know that the brain is a dynamic organ and present. continues to wire and rewire itself in response to experience. Public Speaking continued on page 52 Scientists sometimes refer to neuroplasticity as “structural remodeling of the brain.” The structural remodeling can apply to us as speakers. The more we speak in public, the more the mind develops to do it well. According to psychologist Dr. Pascale Michelon, we all get better at what we do repeatedly: “The brain areas involved in language—the areas that help you talk and explain ideas more clearly—these brain areas become more activated and more efficient the more they are used. The more you speak in public, Jim Lofton spent nearly 30 years as an attorney in federal service. He the more the actual structure of the brain changes. If you spent 26 years at the U.S. Department of Justice trying and managing complex environmental cases. He continues to teach trial advocacy and speak a lot in public, language areas of the brain become more public speaking at the Justice Department’s National Advocacy Center and developed.” recently taught the first class that was offered online there. This year, he was Of course, any art or performance that involves skill re- selected as a Fulbright Scholar and will teach Rule of Law and trial advocacy in North Macedonia beginning in January 2021. In 2015, he was named the quires practice for the specific event. Athletes practice for the Government Attorney of the Year by the ABA Section on Environment, game, musicians practice for the concert, and lawyers must Energy and Resources. Jim can be reached at LoftonLegallySpeaking.com. www.vsb.org GENERAL INTEREST | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 33 Capital Punishment: A Review of the Proposed Legislative Reform to Virginia’s Death Penalty Laws by the Hon. Joseph A. Migliozzi and Rebecca Dattilo, Judicial Intern

Although controversial, the death penalty win a death sentence, prosecutors must prove either that remains an authorized punishment in 28 the crime was so vile that it merited ultimate retribution states, as well as in the federal government or that the defendant poses a threat of future danger to and the U.S. military.1 Currently, three of these society.11 states ­— Oregon, California, and Pennsylvania — are Currently, there are two prisoners on Virginia’s under a governor-imposed moratorium.2 However, death row, and no new death sentences have been momentum seems to be building for reformations to be imposed since 2011.12 In fact, the number of prison- made to the death penalty in state legislatures, including ers on Virginia’s death row recently changed this year: the abolition of the death penalty. Currently, 22 states On March 18, 2020, Mark Lawlor, the last prisoner and the District of Columbia have abolished the death sentenced to death in 2011, was given a resentence to penalty.3 Moreover, the results of an October 2019 life without parole.13 Lawlor’s resentencing came as a Gallup poll suggest public opinion might be shifting result of a federal appeals court overturning Lawlor’s toward reforming death penalty laws. Sixty percent of death sentence in 2018, after determining that the trial Americans polled preferred life imprisonment with no judge had unconstitutionally prevented the defense possibility of parole over the death penalty.4 This shift in from presenting expert testimony about Lawlor’s future public opinion is notable, as it is the first time a major- dangerousness, a factor jurors must consider in death ity of Americans polled took this position since Gallup penalty cases.14 With the resentencing order, Fairfax started presenting this question in 1985.5 County Commonwealth’s Attorney Steve T. Descano Virginia’s General Assembly has been confronted chose to pursue a life sentence without parole for Lawlor with reforming the state’s stance on the death penalty, and Lawlor agreed to waive any rights to appeal or seek as several bills ranging from its abolition to a morato- early release.15 rium on executions were introduced during the state’s Since the United States Supreme Court’s reinstate- 2019–2020 legislative session. With a number of these ment of the death penalty in 1976, Virginia has carried bills carrying over to the 2020–2021 legislative session, out 113 executions, making it second only to Texas in the eyes of both pro-penalty advocates and abolitionists number of executions.16 And, Virginia has executed fall upon Virginia. As one abolitionist stated, “from a more people in its history than any other state.17 In fact, symbolic perspective, abolition in Virginia would have the first execution in the territory of the United States national significance because it would be the first of the took place in 1608 in Virginia.18 Research also indicates Southern states to voluntarily repeal capital punish- that the average time between conviction and execution ment.”6 in Virginia is less than eight years.19 Although Virginia's last execution occurred in 2017, for more than two- The Death Penalty in Virginia thirds of the Commonwealth's localities, there has not Under Virginia law, an offender convicted of specific been a death sentence imposed in more than 50 years.20 Class 1 felonies who was at least 18 years of age at the time of the offense and is determined not to possess an National and State Trends in the Application of the intellectual disability may be sentenced to death.7 Since Death Penalty the reinstatement of the death penalty, Virginia has Several notable trends have developed in the application increased the number and type of death penalty-eligi- of the death penalty by states since its national reinstate- ble offenses from three offenses in 1975 to 15 separate ment in 1976. Research suggests that the death penalty predicate offenses.8 In a 2013 Assessment of Virginia’s does not operate in a vacuum, as the demographic Death Penalty, the American Bar Association stated that profile of death row populations is patterned rather than “the actual number of capital-eligible offenses is greater random. As the former Judge Gerald Heaney, a federal than 15 as most of the predicate offenses described in judge for the United States Court of Appeals for the the Virginia Code contain several death-eligible offens- Eighth Circuit stated, “…the decision of who shall live es.”9 Virginia law grants Commonwealth’s attorneys full and who shall die for his crime turns less on the nature discretion over when to seek the death penalty against of the offense and the incorrigibility of the offender and defendants and when to withdraw those intentions. 10 To more on inappropriate and indefensible considerations:

34 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org States with Governor-imposed Moratorium

States with the Death Penalty

States without the Death Penalty

the political and personal inclinations of prosecutors; the penalty sentencing seems to reflect these national trends. The defendant’s wealth, race, and intellect; the race and economic Death Penalty Information Center tracked statistics from 1977 status of the victim; the quality of the defendant’s counsel; and to 2020 of Virginia’s executions by race of the defendant and the resources allocated to defense lawyers.”21 reported that 57 white defendants, 52 black defendants, three In general, those on death row are disproportionately male, Latino defendants, and one defendant described as “other” are racial minorities, and come from low socio-economic race were executed.29 During this same time period, Virginia’s classes.22 In fact, the vast majority of individuals on death row executions by race of victims are: 88 white victims, 17 black are men as the Death Penalty Information Center found that victims, one Latino victim, one Asian victim, one victim de- women currently make up about 2 percent of those on death scribed as other race, and five cases of victims of multiple rac- row and about 1 percent of those executed in the modern era es.30 Upon further analysis, out of Virginia’s 1,390 documented of the death penalty.23 The racial demographics of those cur- executions carried out since 1608, only four involved a white rently serving on death row in the United States also suggests a defendant killing a black victim — all occurring since 1997.31 correlation between race and the death penalty: while African Research also indicates that poverty and the imposition Americans represent 13 percent of the US population, they of the death penalty are linked: according to the Equal make up 41.56 percent of those on death row and 34 percent Justice Initiative, a study in 2007 found that 95 percent of of those executed.24 The remaining populations by race are as individuals on death row have disadvantaged economic follows: 42.10 percent-White, 13.47 percent-Latino, and 2.86 backgrounds.32 A 2012 report from Amnesty International percent-defined as other race.25 stated that almost all death row inmates could not afford their Additionally, studies have pointed to the race of the vic- own attorney at trial.33 Several sources point to those who are tims having a significant impact on defendants receiving a unable to afford effective legal representation being vulnera- death-sentence. More than 75 percent of death row defendants ble to the imposition of the death penalty because “whether a who have been executed were sentenced to death for killing defendant will be sentenced to death typically depends on the white victims, despite the fact that about half of all homicide quality of his legal team more than any other factor.”34 victims are African American.26 As of December 2019, the Scott Phillips, a University of Denver sociology and crim- Death Penalty Information Center reported a significant differ- inology professor, analyzed the imposition of death sentences ence in persons executed for black/white interracial murders against defendants in Harris County, Texas, known as the since 1976, in its study of cases where a defendant was execut- capital of capital punishment, from 1992 to 1999.35 Phillips’ ed for murdering victims of one race. The study found 21 cases research revealed that hiring counsel for the entire case elimi- of white defendants executed for the murder of black victims, nated the chance of a death sentence: among the31 defendants compared to 295 cases of black defendants executed for the who were able to afford hiring counsel for their entire case, murder of white victims.27 Additional sources have determined none were sentenced to death “despite committing murders that “if the defendant on trial is black, and the victim is white, that were just as heinous as those committed by defendants he is five times more likely to receive the death penalty than a with appointed counsel.”36 Additionally, those defendants who white defendant who has committed a similar murder regard- hired counsel for the entire case were 20 times more likely to less of the race of the victim.”28 be acquitted at trial than defendants who did not.37 In fact, Virginia’s demographics in the imposition of the death defendants who hired counsel for even a portion a capital case www.vsb.org GENERAL INTEREST | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 35 GENERAL INTEREST

substantially reduced the chance of a death sentence: among viduals who received a death sentence before July 1, 2020 and the 104 defendants with mixed court-appointed and hired are currently on death row, to have their sentence changed to counsel, 14 percent were sentenced to death. In comparison, life imprisonment without eligibility for parole, good conduct out of 369 defendants with court-appointed counsel, 23 per- allowance, sentence credits, or conditional release.48 Finally, the cent were sentenced to death.38 bill proposes to remove the requirement for the Department of Unfortunately, an individual’s innocence doesn’t always Forensic Science to store, preserve, and retain evidence specific guarantee escaping a capital punishment conviction. In the to cases where the death penalty is imposed.49 United States, there have been 170 death row exonerations of The bill has garnered immense support from members of wrongful convictions since 1973.39 The quality of legal repre- the Virginia legal community, including from a number of sentation is instrumental in determining the fate of defendants Virginian prosecutors. On February 3, 2020, a group of 21 in capital punishment cases, and poverty can serve as a barrier current and former Virginia prosecutors, including two former to gaining adequate defense. In other words, “capital punish- attorneys generals, sent a letter to state lawmakers voicing their ment means them without the capital get the punishment.”40 support of legislation to end capital punishment in Virginia.50 The prosecutors referred to the death penalty as “a failed government program” and pointed to the financial strains of Unfortunately, an individual’s innocence pursuing a death sentence, the lack of deterrent impact upon future crime, inconsistent application of the death penalty, and doesn’t always guarantee escaping a the potential for wrongful convictions.51 It is even reported capital punishment conviction. that Gov. Ralph Northam has promised to sign a death penalty repeal bill.52 Despite such support for the bill, on February 5, 2020, the Senate Judiciary Committee voted to delay consider- Studies have shown that a low socioeconomic status can affect ation of SB 449 until the Senate’s 2021 legislative session.53 which punishment the prosecutor pursues against the defen- Following suit, Virginia’s House of Representatives also dant. Phillips’ research suggests that the social status of victims proposed House Bill 85, a bill identical to SB 449 in January who are murdered in capital punishment cases have a “robust 2020.54 However, the legislation never got a vote due to a influence” on whether the death penalty is sought and im- late fiscal impact estimate placing a $72,630 estimate on the posed.41 The study determined that convicted capital murder- proposal. The cost analysis, prepared by the Virginia Criminal ers were six times more likely to receive a death sentence when Sentencing Commission, factored in the two individuals cur- they killed married whites or Hispanics with college degrees rently on death row and how much it would cost the state to and no criminal record — as opposed to unmarried Black or house them if they’re not executed.55 On February 11, 2020, the Asian victims with criminal records and no college degrees.42 bill was left in the House Committee on Courts of Justice and If a victim possessed a college degree, another means of social was Adjourned Sine Die.56 status, the odds of prosecutors seeking death were 1.5 times Despite the postponement of SB 449 and the failure of HB higher, while the ultimate chance of a death sentence being 85, the Virginia legislature is considering other death penalty imposed by juries climbed to twice as likely.43 Phillips’ research reform including imposing a moratorium on death penalty ex- implicates, “in the capital of capital punishment, death is more ecutions. Introduced to the Senate on January 8, 2020, Senate apt to be sought and imposed on behalf of high-status victims” Bill 802 proposes to prohibit the executions of prisoners sen- as “people who kill someone who’s ‘important’ are more likely tenced to death until adjournment of the first regular session to get the death penalty.”44 of the General Assembly.57 This bill is limited to only imposing a moratorium on executions and does not affect any other Changing Times: Proposed Legislation and the Future of the matter of law related to the death penalty, including bringing Death Penalty in Virginia and trying capital charges, sentencing proceedings, imposition In January 2020, Virginia legislature introduced Senate Bill of the death penalty, appeals of the death penalty, and habeas 449, which abolishes the death penalty for both future prosecu- review.58 The moratorium on executions will continue until ad- tions and for those persons currently under a death sentence.45 journment of the first regular session of the General Assembly The bill amends numerous Virginia Code statutes to eliminate after a joint subcommittee, established pursuant to a joint reso- death as a penalty for Class 1 felonies as well as strike from lution passed by the 2020 General Assembly, conducts a study related statutes any references to the punishment of death. of the death penalty in the Commonwealth and issues a report Under the bill’s proposed changes, an offender convicted of of its conclusions and recommendations.59 On February 10, a Class 1 felony must be sentenced to “imprisonment for life 2020, the Senate Committee on the Judiciary voted to continue and would be ineligible for parole, good conduct allowance, the bill to 2021.60 earned sentence credits, or conditional release under Section In April 2020, The Virginia legislature successfully engaged in 53.1-40.01”, which is related to geriatric offenders.46 The bill’s death penalty reform through the enactment of Senate Bill 270. provisions apply to Class 1 felonies that were sentenced on or The Act amended and reenacted §§ 53.1-234 and 54.1-3307 after July 1, 2020.47 Additionally, the bill permits those indi- of the Code of Virginia, in order to ensure heightened trans-

36 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST parency in Virginia’s execution procedures.61 SB 270 provided greater regulation of lethal injection drugs received by Virginia’s Department of Corrections, so that the drugs would be subject to the requirements of the Drug Control Act as well as the jurisdiction of the Board of Pharmacy.62 Additionally, the Act declassified and made available as public information the identities of any facilities that outsourced execu- tion drugs subject to disclosure under Virginia’s Freedom of Information 63 The Hon. Joseph A. Migliozzi is a frequent contributor Act and in civil legal proceedings. On April 11, 2020, the bill was to Virginia Lawyer magazine, working with interns and officially signed into law by Governor Ralph Northam and placed in the clerks on a variety of topical articles. He was appointed Acts of Assembly Chapter No. 1166.64 The new law took effect on July 1, to the Norfolk Circuit Court bench in 2014 after serving 65 as a judge in the Norfolk General District Court and as 2020. the southeastern district’s capital defender in death pen- alty-eligible cases. Conclusion Capital punishment legislation will continue to be considered in state legislatures across the nation, as concerns over the inconsistent ap- plication of the death penalty, and the potential for wrongful convic- tions spur on discussions of reform. These conversations have already prompted Virginia’s legislature to implement a law to add transparency to the state’s execution procedures by declassifying the sources of its lethal injection drugs. And the discussions aren’t over: Bills proposing Rebecca Dattilo is a third-year law student at Regent the abolishment of the death penalty altogether and the implementation University School of Law. She graduated from Vanguard a moratorium on executions will continue to the 2021 legislative session. University, where she studied Cultural Anthropology and Political Science. She served as a legal intern for The As Virginia’s legislature considers reformations to the state’s death pen- Honorable Joseph A. Migliozzi Jr. in the Norfolk Circuit alty policies, both pro-penalty advocates and abolitionists will hold their Court during the summer of 2020. Upon graduating from law school, she plans to sit for the Virginia bar exam. breath to see where the state falls. q

Endnotes 13 Virginia Death Row Shrinks to 2 as Prosecutor penaltyinfo.org/policy-issues/arbitrariness/ 1 State by State, Death Penalty Info. Ctr., https:// Drops Death Penalty Against Mark Lawlor, evidence-of-arbitrariness (last visited Aug. 4, deathpenaltyinfo.org/state-and-federal-info/ Death Penalty Info. Ctr. (Mar. 18, 2020), 2020). state-by-state (last visited Aug. 7, 2020). https://deathpenaltyinfo.org/news/virginia- 24 Death Penalty, Equal Just. Initiative, https://eji. 2 Id. death-row-shrinks-to-2-as-prosecutor-drops- org/issues/death-penalty/ (last visited Aug. 4, 3 Id. death-penalty-against-mark-lawlor. 2020) [hereinafter Death Penalty, Equal Just. 4 Death Penalty, Gallup, https://news.gallup. 14 Id. Initiative]; Race and the Death Penalty by the com/poll/1606/Death-Penalty.aspx (last visited 15 Jackman, supra note 10. Numbers, Death Penalty Info. Ctr., https:// Aug. 6, 2020). 16 Lavoie, supra note 6. deathpenaltyinfo.org/policy-issues/race/race- 5 Id. 17 Virginia , Death Penalty Info. Ctr., https:// and-the-death-penalty-by-the-numbers (last 6 Denise Lavoie, Opponents Push to Abolish deathpenaltyinfo.org/state-and-federal-info/ visited Aug. 4, 2020). Death Penalty in Virginia, Associated Press, state-by-state/virginia (last visited Aug. 6, 25 Race and the Death Penalty by the Numbers, Dec. 31, 2019, https://apnews.com/745af- 2020). supra note 24. 552775667c3118c7642009e6dee. 18 Id. 26 Id. 7 Va. Code Ann. § 18.2-10 (2020). 19 Virginia’s Execution History, Virginians Alts. 27 Id. 8 Id. § 18.2-31; ABA, Evaluating Fairness and Death Penalty, https://www.vadp.org/dp-info/ 28 Phillip Cherney, Opinion, The Death Pen- Accuracy in State Death Penalty Systems: The virginias-execution-history/ (last visited Aug. alty and the Masquerade of Justice, Visalia Virginia Death Penalty Assessment Report 116 5, 2020). Times-Delta (July 13, 2020), https://www.visal- (Aug. 2013), https://www.americanbar.org/ 20 Rachel Sutphin, Opinion, It’s Time to End the iatimesdelta.com/story/opinion/2020/07/09/ content/dam/aba/administrative/death_pen- Death Penalty in Virginia, Wash. Post. (Nov. commentary-death-penalty-and-masquer- alty_moratorium/va_complete_report. 22, 2019), https://www.washingtonpost.com/ ade-justice/5392309002/. authcheckdam.pdf. opinions/local-opinions/its-time-to-end-the- 29 Executions by Race and Race of Victim, Death 9 ABA, Chapter Summaries of the Virginia Death death-penalty-in-virginia/2019/11/22/0b1d- Penalty Info. Ctr., https://deathpenaltyinfo.org/ Penalty Assessment Report xxiii (Aug. 2013), b69c-025f-11ea-8501-2a7123a38c58_story. executions/executions-overview/executions- https://www.americanbar.org/content/dam/ html. by-race-and-race-of-victim (last visited Aug. 5, aba/administrative/death_penalty_moratori- 21 Analise Nuxoll, Article, A Comparative Study 2020). um/va_report_chapter_summaries.pdf. on Death Penalty Statutes and Their Effects on 30 Id. 10 Tom Jackman, Va. Man Sentenced to Death in Certain Minority Groups in Light of Furman 31 Kristina Leslie, Opinion, Death Penalty Repeal 2011 Gets New Hearing, and New Prosecutor v. Georgia, 38 J. Nat'l Ass'n L. Jud. 230, 254 is Essential to Racial Healing, Rich. Times-Dis- Agrees to Life Sentence, Wash. Post (Mar. 12, (2018). patch (July 2, 2020), https://richmond.com/ 2020), https://www.washingtonpost.com/ 22 Innocence and Error, Equal Just. Initiative, opinion/columnists/kristina-leslie-col- crime-law/2020/03/12/va-man-sentenced- https://eji.org/issues/death-penalty/#Inno- umn-death-penalty-repeal-is-essential-to-ra- death-2011-gets-new-hearing-new-prosecu- cence_and_Error (last visited Aug. 4, 2020); cial-healing/article_0f21e020-6b6b-51cb-a66a- tor-agrees-life-sentence/. Nuxoll, supra note 21, at 254. 7d82046a60d1.html. 11 Id. 23 Legally Irrelevant Factors Impact Death Sen- 12 Id. tencing, Death Penalty Info. Ctr., https://death- Death Penalty continued on page 53 www.vsb.org GENERAL INTEREST | VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 37 President-Elect Candidates Stephanie E. Grana

It is a sign of quarantine times that we Committee and the “Working Group” have to “meet” like this. to study expansion of the Court of I am Stephanie Grana—double Appeals. I am active with VTLA’s U of R Spider, proud Virginia lawyer and AAJ’s Women Lawyers Caucus. for 27+ years, and partner with Breit Within the Virginia State Bar, I Cantor Grana Buckner. Minus a brief served on the Future of Law Practice stint at age nine when I aspired to be Study Committee and the 3rd a veterinarian, I always wanted to be a District Disciplinary Committee. I lawyer. I developed a passion for oral currently serve on the VSB Executive argument while on my high school Committee, Council for the 14th debate team in New York. I loved to Circuit, the Budget & Finance argue a position, substantiate it with Committee, and the Nominating facts, and prove a point! Committee. My husband, Scott Bemberis, When VLW announced my VSB also an attorney, and I have three President-Elect candidacy in February incredible children—two in college 2020 (a lifetime ago, it seems), I and one high school junior at home was asked to share my platform. . . . for now. My family is my greatest My answer: The VSB leadership accomplishment and means the and staff is impressive. I was not Breit Cantor Grana Buckner, Partner world to me, but being a lawyer is running to change the system, as I Virginia State Bar (‘93): my calling. I love representing clients don’t plan to fix what is not broken. Bar Council 14th Circuit Rep and embrace the role of counselor Nevertheless, improvement should Executive Committee while supporting them through their always be pursued. As a leader of Budget & Finance Committee legal journey. I am appreciative and other bar organizations, I learned 3rd District Disciplinary Committee humbled to have a significant role in the hard way that you cannot predict Future of Law Practice Study Committee my clients’ lives. I became a plaintiff what challenges lie ahead. You must following the tragic deaths of my be prepared to pivot. Recent events Committee on Women and Minorities father and brother in a plane crash. demonstrate this lesson far too well. I know how it feels to be deposed My VSB goals include: Other Bar Admissions and Activities: and to face a jury. That made me • Promoting professionalism Fourth Circuit more empathetic and, ultimately, a • Increasing diversity among VSB EDVA better lawyer. Receipt of awards and leadership and committees VTLA: Past-President and member / Women’s Caucus recognitions for my work reinforces • Recognizing bias Metropolitan Richmond Women’s Bar Association that my career choice was spot-on! • Working with judges to enhance Past-President My parents instilled the bench/bar relations VA Model Jury Instructions Committee importance of service. I serve on the • Continuing the work of prior SCOVA – Court of Appeals Study Committee Community Brain Injury Services presidents for improved access to board, am President-Elect of the justice American Board of Trial Advocates Past-President Commonwealth Community Trust • Encouraging wellness and Boyd-Graves Conference Committee board, lead our law firm’s “Boys/Girls mindfulness Virginia Law Foundation Fellow in Blue” school outreach program, • Expanding outreach to better Lewis F. Powell American Inn of Court Past-President and volunteer for my children’s serve our members’ needs John Marshall American Inn of Court Member schools and sports teams. I am I want to promote a American Association for Justice (AAJ) inspired by the words of Mic Jagger: communicative and engaging cont. pg. 61 “Anything worth doing is worth environment to foster heightened Education: overdoing.” This is especially true collaboration among all VSB in my bar service. My experience as attorneys. My receipt of the VADA- University of Richmond, BA, 1990 President of VTLA, American Board VTLA Civility/Professionalism Award T.C. Williams School of Law, JD, 1993 of Trial Advocates—Virginia chapter, proved that zealous representation is Lewis F. Powell, Jr. Inn of Court, and possible without compromising your Family: Metropolitan Richmond Women’s ethics or sacrificing collegiality. I look Married to Scott Bemberis, Esq. Bar Association will prove invaluable. forward to bringing that spirit to my Mom to Nicole (20), Garrett, (19) and Dakota (16) I am a member of the Boyd-Graves continued work with the VSB. Adopted mom to Beau Grana, Morkie extraordinaire Conference and was selected by the I believe I am the right candidate Virginia Supreme Court to serve on for these times, and respectfully seek the Virginia Model Jury Instructions your vote! 38 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org President-Elect Candidates David B. Neumeyer

The mission of the Virginia State Bar clients in hearings before the public is to protect the public, regulate the utilities commission, and loved the legal profession of Virginia, advance work, my clients, and my colleagues. access to legal services, and assist I went to law school to become a in improving the legal profession legal aid lawyer and returned to legal and the judicial system. Because aid after law school as a Reginald the Bar staff does a very able job of Heber Smith Community Lawyer protecting the public and regulating Fellow in the same office. I met my the profession, a principal role of wife there, and after two and a half the Bar president is to help advance years, became a Minority Counsel the second two goals of the mission: on the U.S. Senate Committee advancing access and improving the on Labor and Human Resources, profession and system. working for Senator Claiborne Pell I am running for the office of (D-R.I.) Later in Washington I president-elect because access to legal worked as lobbyist and litigator for services, i.e. justice, does not exist for public health and food program many Virginians; because access is policy groups, returned to legal aid declining for most rural residents as practice as a manager, and became the number of rural lawyers declines; executive director in my current legal Virginia Legal Aid Society, Executive Director and because all bar members need aid program in Lynchburg in 1990. Virginia State Bar (‘85): to respond to the rapidly changing My legal aid work and community Carrico Professionalism Course Faculty nature of law practice. Solutions exist volunteer work have continued for these challenges, and the Bar without pause since then. I ran for Bar Council 24th Circuit Rep president can help the Bar identify Bar Council because attorneys in Committee on the Future of Law Practice and adopt solutions. my circuit never heard a word about Committee on the Unauthorized Practice of Law Why would I want to take on the issues faced by Bar Council once Diversity Conference these challenges? John F. Kennedy we elected a new representative; I said, paraphrasing the Book of Luke: wanted to change that, and I did Other Bar Admissions and Activities: “For of those to whom much is given by communicating to my circuit in Virginia Bar Association much is required.” I have devoted advance about the agenda of every VBA Pro Bono Council much of my life to public service, and upcoming Bar Council meeting VBA State of Pro Bono Report Editor I credit my mom for helping guide during my two terms. Old Dominion Bar Association me to my calling. Please visit my website, VaA2J.net My mom and her brother grew (short for Virginia Access to Justice) Access to Justice Commission of the Supreme Court of Virginia up poor, raised by a single mother for more about the issues I described who worked as a secretary. Mom at the start of this piece. I ask that Committee on Access by Self-Represented Litigants did well in college, earning an Sc.B you share your comments and work Legal Services Corporation of Virginia Board in chemistry in 1948, and she and with me to make justice accessible of Directors my dad were fortunate to create and real for our fellow citizens. a comfortable life for their three Thank you for what you already do, Education: children. Mom always volunteered and for what we can do together. Brown University, A.B. to help those less fortunate while I I can be reached at davidn@vlas. University of Maine School of Law, J.D. was growing up, and she pushed my org; or (434) 455-3090. sisters and me to volunteer as soon as Family: we could be helpful to others. Spouse: Mary Barney, Associate General Counsel, I discovered my vocation as a Genworth legal aid attorney by working as an Children: Benjamin Neumeyer, B.A., J.D. Policy ACTION Community Volunteer, Manager for Data Privacy, Facebook Inc., similar to a VISTA Volunteer, after San Francisco college. I worked in a legal aid office, Joy Neumeyer, B.A., Ph.D., E.U. Institute Fellow, helping clients who faced utility Florence Italy shutoffs, negotiating with utility Rescue Terriers: Annie, Portia, Esther, Mookie Betts credit managers, and representing www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 39 Wellness Take Care of Your Community and Yourself by Angeline Saferight Lloyd

My name is Angeline Saferight Lloyd service work in your wider community. mood, outlook, and physical well-being. and I work with the Virginia Judges and Community service can be very in- Try to incorporate regular self-care as Lawyers Assistance Program (VJLAP) volved or very simple. You can serve on well as service work into your life to as the Southwest Virginia Program your local boards to give back to your improve everyone’s mental health! q Manager. I’ve worked in various human community, volunteer at a local chari- services and mental health settings since ty, or provide pro-bono legal services. 1999. I have noticed, especially during There is a food pantry near me that is the pandemic, that while the way we a weatherproof hutch, similar to the interact has changed, it is more vital mini-libraries that are springing up all than ever to feel connected to others. over Virginia. Anyone can leave non- It’s good mental health, as humans are perishables there, and anyone in need social creatures. I have been making can take items. Leaving pantry items an effort to stay connected not only to there is a small action but may have a my closest people, but also to friends lasting impact for someone in need. I and acquaintances with whom I don’t currently serve on the board of directors Angeline Saferight Lloyd is a graduate regularly interact. I send them funny for a nonprofit in my community that of Radford University and holds a Master messages or just tell them I’m thinking assists with housing and food resources. of Science in Counseling and Human of them. It helps me and it helps them. Through helping others, we ultimately Development and earned a Bachelor of Science degree in Psychology. She received Recently, I received an unexpected com- help ourselves because we are all part of her LPC credential in 2010. She is a pliment from a former co-worker that our communities. board-certified counselor by the National brightened my day. You don’t know how Take care of yourself! You must take Board of Certified Counselors. Lloyd is also certified in EMDR (Eye-Movement your actions and words can ring with care of yourself before you can care for Desensitization and Reprocessing), and by others and make a positive difference to others. For my self-care, I run long-dis- the International Association of Trauma them and for you. tance races, hike, paint, and write. I try Professionals as a Certified Clinical Trauma Professional. She is excited to be Feeling connected to your commu- to do at least one of those activities each a part of the VJLAP team providing assis- nity can also result from community day. If I don’t, I notice a difference in tance in Southwest Virginia. vjlap.org

We’ve been keeping it lively for a while now.

K Virtual regional wellness sessions Monday-Thursday the entire month of October.

24/7 Help Line: K Updates, news, and advice monthly in The Beacon 1-877-545-4682 blog.

K Quarterly editions of The Lighthouse featuring resources, case studies, and more. VJLAP.ORG K The Weekly Wellnote shares curated resources, spurs conversations, and fosters connection for lawyers.

40 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy New Virginia Lawyer Mail Dates Beginning with the December 2020 and December. You will now receive the Learn more at http://bit.ly/VLmail. issue, Virginia Lawyer should arrive June magazine at the beginning of June If you prefer reading Virginia Lawyer in your mailbox during the first week rather than mid-July, and the Annual online and don’t wish to receive it by of the month rather than mid-month. Meeting events will now be covered in mail, you may opt-out by logging into You will continue to receive the mag- the August issue. the lawyer portal on the VSB website. azine six times per year, bimonthly, in The digital edition platform for If you change your mind, you may opt February, April, June, August, October, Virginia Lawyer has some new features. back in at any time via the portal. Virginia Law Foundation Grants $500K to Pro Bono and Rule of Law Projects for 2020 The Virginia Law Foundation has • Rural Immigration Legal Services Services — $20,000 granted $500,000 to Virginia organiza- Program, Just Neighbors — $30,000 • Virginia High School Mock Trial, tions that help provide access to justice • Virginia Justice Program, Capital Virginia Law-Related Education or highlight the Rule of Law as a basis Area Immigrants’ Rights Coalition Institute — $20,000 for a peaceful, stable, and prosperous — $30,000 • 2020-2021 We the People, Virginia society. VLF grants fund a variety of • Uncontested Divorce Toolbox for Civics Education — $15,300 projects and organizations, including Pro Bono Lawyers, Virginia Legal • Southwest Virginia Training legal aid nonprofits, CLE conferences, Aid Society — $30,000 Initiative, Southwest Virginia Legal medical-legal partnerships, and public • Statewide Legal Aid Conference, Aid Society — $15,000 service internships for law students. Virginia Poverty Law Center — • Hill Tucker Pre-Law Institute, $26,175 Virginia State Bar — $15,000 The Virginia Law Foundation wel- • Northern Virginia Pro Bono Law • Children’s Program, AYUDA — comes donations and guarantees 100 Center, Fairfax Law Foundation — $10,000 percent of every donation is allocated $25,000 • Providing Access to Legal Services directly to the grants program. • “Best Practices” Pro Bono Program, for Cancer Patients, CancerLINC — Charlottesville Albemarle Bar $10,000 2020 Virginia Law Foundation Grant Association — $25,000 • Rule of Law Project, Center for Recipients: • Civil Legal Assistance to Low- Teaching the Rule of Law — • Public Service Summer Internship Income Seniors, Blue Ridge Legal $10,000 Program, Virginia Law Schools — Services — $25,000 • VJLAP Wellness Conference, $50,000 • Project for Empowerment of Virginia Judges and Lawyers • Justice for Human Trafficking Survivors, Virginia Sexual & Assistance Program — $10,000 Victims, Virginia Beach Justice Domestic Violence Action Alliance • Jazz4Justice — $5,000 Initiative — $40,000 — $25,000 • Rule of Law Day, Virginia • Capital Defense Workshop, Virginia • Justice in the Classroom Program, Holocaust Museum — $4,800 Bar Association — $35,000 John Marshall Foundation — • Eviction Diversion Program, $24,050 More information on these grants is Greater Richmond Bar Foundation • Immigration Legal Services available at www.virginialawfoundation. — $35,000 Program, Northern Virginia Family org/grants/grants-in-2020. MCLE Compliance Deadline Reminder Due to the COVID-19 pandemic the Active lawyers are mailed an MCLE tive CLE credit hours each year. completion deadline for the 2020 MCLE end-of-year report in mid-November, Contact the course sponsor with any requirement has been extended from and any MCLE hours missing from the questions. A partial list of already ap- October 31 to midnight EST December report must be reported by February 15, proved teleconference and webcast CLE 31, 2020. The CLE hours need to be 2021. courses is available at https://www.vsb. reported no later than 4:45 p.m. EST All Active lawyers are required to org/site/members/mcle-courses. February 15, 2021. complete a minimum of 4 live interac- www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 41 Noteworthy > VSB NEWS Freddie Mac Receives 2020 Frankie Muse Freeman Pro Bono Award

The Frankie Muse Freeman Organizational Pro Bono Award for 2020 has been awarded to the Freddie Mac Legal Department by the VSB Standing Committee on Access to Legal Services. Freddie Mac is a leader in the secondary mortgage market, assisting home buyers and renters across the country obtain residences. In his nomination letter, James A. of replicable procedures for conducting such as the pro bono donation of time Ferguson, executive director of Legal remote clinics.” and brilliance that we have been so for- Services of Northern Virginia (LSNV) Freddie Mac’s pro bono endeav- tunate to have from Freddie Mac. said, “Freddie Mac and Legal Services ors are expansive and ongoing. Darcy The annual Frankie Muse Freeman of Northern Virginia have a pro bono Cunningham, executive director of Organizational Pro Bono Award recog- partnership going back almost 30 years. Fairfax CASA (Court Appointed Special nizes Virginia organizations that provide In fact, no firm or company has been a Advocates for children) noted in her exemplary pro bono legal services to more important supporter and partner nomination letter that Freddie Mac under-served Virginians. The award is to LSNV.” took on an extensive and time-consum- named for civil rights icon Frankie Muse Ferguson went on to explain that the ing overhaul of the nonprofit’s records Freeman, who was born in Danville in Freddie Mac legal department now hosts retention practices. Said Cunningham, 1916, and who served as co-counsel on six legal clinics per year at its head- “The reality is that their efforts will the NAACP’s successful racial discrimi- quarters in McLean, and in the midst impact far beyond our program. What nation suit against the St. Louis Board of of the pandemic, “Freddie Mac rose to came out of their hard work is a stream- Education in 1949 and was lead attorney the occasion, donating invaluable time, lined, sensible system that I have shared on the NAACP’s landmark housing 125 hours, and expertise, 8 volunteers, with the network of 27 CASA programs lawsuit, Davis et al vs. St. Louis Housing to this endeavor. The result was not just across Virginia—programs that run on a Authority, which ended legalized racial a successful remote clinic on June 11, shoestring budget and simply don’t have discrimination in public housing in and on July 21, but the establishment access to the resources our program has 1952. Bary Hausrath and Chip Clapp Co-recipients of the 2020 Lewis F. Powell Jr. Pro Bono Award Clifford “Chip” Clapp and Bary W. Since its inception, the Clinic Hausrath have been awarded the 2020 has assisted hundreds of Lewis F. Powell Jr. Pro Bono Award, transgender and non-binary given by the Standing Committee on individuals to navigate the Access to Legal Services of the Virginia process of legally changing State Bar to honor attorneys who have their name and gender marker made outstanding pro bono contribu- on official identification docu- tions in the Commonwealth. ments. Hausrath was a found- Clapp and Hausrath were nominated ing member of the Clinic, while by the Virginia Equality Bar Association Clapp has volunteered with the Clapp Hausrath (VEBA) for their ongoing dedication to organization since 2017. the Name and Gender Marker Change In their nomination, Mayme LLP and Marc Purintun of Williams Clinic sponsored by VEBA since 2014. Donohue of Hunton Andrews Kurth Mullen said, “Bary and Chip are fiercely

42 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy dedicated and have devoted significant Hausrath is the founder and princi- traffic matters, as well as handling time to this effort, both with regard to pal in BaryLaw, serving individuals and custody matters for immigrant children the delivery of exceptional pro bono small business owners with estate and who have been abandoned, abused or legal services to the poor in Virginia and legacy planning, relationship disso- neglected, and who come to the United the recruitment and training of volun- lution, and name and gender marker States for care. teer attorneys to continue to provide pro changes. Hausrath is a founding mem- In his free time, he helps write bono legal services in Virginia.” ber of VEBA, and a former president grants for DC’s Different Drummers, Donohue and Purintun noted, “As a of the Richmond LGBTQ Chamber. a LGBTQ+ music organization in D.C. result of their leadership and commit- Hausrath has also been a guest lecturer that includes a 90-member symphonic ment, the Clinic has operated more than at both William & Mary Law School and band, a marching band and a jazz band. 25 client-facing, pro bono legal clinics University of Richmond School of Law. Lawyers interested in getting in- and corresponding CLE events since Clapp is an associate at the firm volved with equality efforts may go to 2014. Dozens of lawyers and more than Calderon Seguin, PLC, where he focuses vaequalitybar.org. 400 clients have been affected to date.” his practice on criminal defense and

In Memoriam Julian A. Bryant Jr. Ellen Bates Griffith Nancy Repa Toker Virginia Beach Bethesda, Maryland Bethesda, Maryland May 1944 – July 2020 July 1950 – September 2019 September 1960 – February 2020

Ellen Charlotte Carlson Henry L. Hall Jr. Randolph Fowler Totten Norfolk Lexington, Massachusetts Richmond May 1948 – August 2020 July 1931 – June 2020 June 1943 – July 2020

Michael Anthony Cole Girard C. Larkin Jr. David O. Williams Jr. South Boston Virginia Beach Arlington October 1958 – June 2020 August 1944 – March 2020 April 1929 – November 2019

John Barry Donohue Jr. T. E. Lohrey Jr. James Thomas Williamson Richmond Port Ludlow, Washington Hockessin, Delaware March 1942 – March 2019 February 1932 – February 2018 September 1951 – July 2020

Kossen Gregory James L. Miller Barbara Louise Wright Roanoke Norfolk Lee’s Summit, Missouri January 1922 – June 2019 April 1930 – July 2020 October 1949 – May 2019

When you retire, your law degree doesn’t have to.

Transition into emeritus status and practice only pro bono.

For questions about the program, contact the VSB Pro Bono/Access to Legal Services department at (804) 775-0522. To start the application process toward emeritus status, call (804) 775-0530.

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 43 Law Libraries Public Law Libraries, the Digital Divide, and COVID-19 by Anna Price

In March 2020, various Virginia gov- geographic differences.3 According to As phased re-openings with limited ernment branches and agencies issued the Pew Research Center, lower-income on-site capacity continue, many public orders limiting and suspending on-site Americans are far less likely to have in- and county libraries have implemented services in response to the coronavirus ternet access through a smartphone, in- creative stopgap solutions for bridging pandemic. Public and county libraries home internet, or a personal computer. the digital divide, such as permitting lit- across the Commonwealth transitioned While only 56 percent of people living igants and their attorneys to use library to a telework environment. Days after in households earning less than $30,000 facilities to attend court proceedings the governor declared a state of emer- annually have broadband internet in remotely.7 gency on March 16, the Supreme Court their homes; that number jumps to 91 Lawyers, librarians, and the courts ordered circuit and district courts to percent for households with an annual may not be able to solve this issue on continue all matters, except “quaran- income over $100,000.4 their own, or in short order. That said, tine or isolation matters, arraignments, the pandemic is providing an unprec- bail reviews, protective order cases, Access to Justice during COVID-19 edented opportunity to contemplate emergency child custody or protection According to the American Association our more vulnerable populations, how cases, and civil commitment hearings.”1 of Law Libraries (AALL), “Access to we can help them access information, Although most legal matters were con- justice includes affordable legal ser- and the best use of those resources in tinued, litigants have been permitted to vices; readily available legal information promoting access to justice.8 initiate certain proceedings. Courts have and forms; the ability to bring a case Law Libraries continued on page 46 been granted wide discretion in how to trial without hiring an attorney; they conduct those matters, including the unbundling of legal services; fair requiring appearances over telephone or treatment and equality in the justice videoconference. system regardless of social standing; and For some, the migration to remote confidence that the outcome will be fair court access was almost seamless. and just.”5 Throughout the pandemic, Technology permeates and proliferates. law librarians have strived toward these Primary legal resources including court ideals, working diligently to promote opinions, state and federal statutes, access to information and resources. In and municipal codes are freely avail- the early days of the library closures, able online. The websites of courts and law librarians fielded remote reference public and county law libraries often phone calls, scanned and emailed include fillable forms, templates, and requested materials, and worked with instructions for navigating the local vendors to make subscription databases court system.2 But while the availability temporarily available off-site, free of of this information online promotes charge. access to information and justice for Many of the workarounds imple- some, self-represented litigants (SRLs) mented involved making information Anna Price is a legal reference specialist caught on the wrong side of the digital available online. This response is at the Law Library of Congress, where she divide risk being denied the benefits of reasonable, considering that 53 percent assists government clients and members these resources. of Americans ranked internet access of the public with legal research projects, 6 teaches classes on legal resources, and during the coronavirus as “essential.” contributes to the Law Library’s various The Digital Divide For SRLs without a reliable internet publications. Before becoming a librarian, The digital divide is the gap between connection or technological savvy, Price practiced complex civil litigation in however, the digital divide stands Washington for five years. She is an active individuals who have access to informa- member of the American Association of tion and communication technologies as a barrier to accessing “readily Law Libraries and a director of the Virginia and those who do not. Many causes available legal information” during a Association of Law Libraries. Price earned crucial time, when jobs, livelihoods, her JD from the University of Washington contribute to this divide, including indi- School of Law and her MLIS from the vidual socioeconomic, educational, and health, and homes may be at risk. University of Washington iSchool.

44 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Technology and the Future Practice of Law Oral Arguments by Videoconference: Avoiding Common Pitfalls by Graham K. Bryant

As most attorneys have learned since then make an account if necessary and platform’s screen-sharing feature. As the COVID-19 pandemic began, a wide familiarize yourself with the software’s a result, the timer will dominate the variety of videoconferencing platforms features and controls. Each platform screen unless counsel manually changes are available with each one having functions differently, so don’t assume the view. unique features and quirks. No sin- familiarity with one will translate to Ensure that your off-screen argu- gle platform has become standard for another. Likewise, a given platform will ment space is prepared as well. If you judicial use. Instead, courts across the look and operate differently depending use multiple monitors, make sure you Commonwealth have adopted a variety on whether it is accessed on a PC or mo- know on which screen the videocon- of video technologies as they adapt to bile device. The best practice is to avoid ference will display. Use soft lighting to pandemic procedures.1 using mobile devices like tablets or illuminate your face, and position your- For instance, the Supreme Court phones for videoconference arguments self so that the camera shows your head of Virginia held its first videoconfer- unless absolutely necessary. and shoulders. Take care in selecting a ence merits session in June using the The most useful resource for background because windows will cause Polycom platform, while the Court of ensuring that your device is ready for your face to be shaded and busy back- Appeals of Virginia has instead opt- argument is the court’s clerk’s office. grounds are distracting. Finally, treat ed to use Microsoft Teams for its writ Most clerks’ offices offer resources for your virtual lectern as you would the arguments and panel hearings. Zoom, attorneys preparing for videoconfer- real thing. Avoid the temptation to have generally considered the leading video- ence arguments,5 including scheduling lots of materials at your computer just conferencing platform, is widely used in test videoconferences. The value of because you think the court cannot see Virginia’s federal courts. Despite Zoom’s a test meeting cannot be overstated them — everyone will hear the rustling ubiquity, it is unlikely that Virginia’s ap- because it will be the only opportu- if you shuffle through them. pellate courts will begin using it due to nity prior to the argument itself to lingering security concerns,2 particularly connect your device to the court’s 3. Minimize Disruptions considering the Texas Supreme Court’s system. In doing so, you may uncover Technical problems are nearly unavoid- recent two-month struggle to regain connectivity issues, like interference able in the videoconference argument control of its administrative systems from your local firewall, which would environment but taking a few precau- after a ransomware attack.3 go undiscovered in test calls within tions can do much to minimize them. Attorneys can expect to face this your organization. Connect using a wired connection if mixed bag of videoconference platforms possible and avoid competing band- for some time to come. The Court of 2. Prepare Your Virtual Lectern width uses, such as large downloads, Appeals recently indicated that it will Another advantage of a test meeting is during your argument. Also silence hold oral arguments remotely “through that it provides an opportunity to famil- at least December 31, 2020,”4 and with iarize yourself with the argument screen the pandemic showing few signs of abat- layout. Be sure to know the locations of ing, other Virginia courts are likely to the judge or judges, opposing counsel, follow. With videoconference arguments and the timer so you can plan accord- here to stay — at least for the foreseeable ingly. For example, both the Supreme future — this column provides practical Court and Court of Appeals provide an suggestions for taming technology and on-screen timer. In the Supreme Court, Graham K. Bryant is an associate at Byrne avoiding common pitfalls. a camera shares the display on a physical Legal Group where he concentrates his prac- courtroom timer. This means the timer tice on appellate advocacy while contributing 1. Become Familiar with the Software occupies an ordinary video box situated to the firm’s defense of healthcare providers. Graham previously served as a law clerk to both The day of argument is not the time under the boxes for the Justices and of Virginia’s appellate courts. He is a member to learn how a new videoconference opposing counsel, with arguing coun- of the Virginia State Bar’s Special Committee platform works. Download whatev- sel centered in a larger box. The Court on Technology and the Future Practice of Law and a graduate of William & Mary Law er application the court will be using of Appeals, however, uses a software School, where he presently serves as an Adjunct well in advance of your argument date, timer shared using the videoconference Professor of Law. www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 45 Technology and the Future Practice of Law any other devices to avoid distracting your audience — the court — and it can sel focused on the camera. There are notification noises. Consider using wired see you. Traditional advice stresses the thus dangers in either looking only at headphones and a high-quality external importance of eye contact for persuasive the screen or only at the camera, so the microphone rather than your computer’s oral argument.6 But making and leverag- best approach appears to be address- defaults to improve sound quality while ing eye contact is complicated by the vid- ing argument toward the camera while reducing the risk of feedback screeches. eoconference environment, in which the periodically scanning the screen for signs Following videoconference etiquette only way to make “eye contact” is to look of questions. Complement this scanning can also do much to avoid disruption. directly into the camera lens. It is tempt- process by using effective pauses. In If you are not the only argument on the ing to look at the box displaying a judge’s addition to being a valuable rhetorical docket, treat joining the videoconference video when arguing or responding to a technique, pauses also give the court a as you would walking into a courtroom question, but doing so makes you appear chance to ask questions. Even with these during another hearing by minimizing to be looking away. Innocently looking at precautions, however, the anecdotal your presence. You can accomplish this these boxes rather than the camera can evidence to date indicates videocon- by muting your microphone and turning easily be mistaken for reading from an ference benches tend to have fewer off your video before joining, not imme- on-screen script or notes, so take care in questions than live benches, so prepare diately afterward — having a new box directing your attention. accordingly. with someone’s face appear for a few sec- The essential value of oral argument Videoconference arguments remain onds before disappearing is distracting is the ability to respond directly to a technological novelty for counsel and for attorneys and judges alike. Remain the court’s questions about your case, courts alike, but they will likely remain a muted unless you are actively arguing. but some judges are more hesitant to regular part of our judicial system long interrupt with questions during remote after COVID-19 is gone. Developing best 4. Respond to Your Audience arguments. A judge’s body language can practices for them now is a prudent way The biggest advantage of videoconfer- signal that a question is forthcoming, to adapt to the future practice of law. q ence arguments over more traditional but these subtle signals can be lost in a telephone arguments is that you can see videoconference argument with coun-

Endnotes Encryption, CNET (May 8, 2020), https:// somware-attack/. 1 See In re: Order Declaring a Judicial Emer- www.cnet.com/news/zoom-security-issues- 4 In re: Third Order Concerning Court Oper- gency in Response to Covid-19 Emergency zoom-buys-security-company-aims-for-end- ations under the Public Health Emergency (Mar. 16, 2020), http://www.courts.state. to-end-encryption/; see also Remote Appear- Created by the Outbreak of Coronavirus va.us/news/items/covid/2020_0317_su- ances, Chesterfield Cty. Cts., https://www. Disease 2019 (COVID-19) (Aug. 31, 2020), preme_court_of_virginia.pdf (encouraging chesterfield.gov/4931/Remote-Appearances http://www.vacourts.gov/news/items/ courts to adopt remote-hearing technol- (indicating that the Supreme Court of covid/2020_0831_cav_operations_order_ ogy consistent with law in response to Virginia has authorized use of Polycom and third.pdf. COVID-19). WebEx, but not Zoom, Skype, or FaceTime 5 See, e.g., Videoconferencing Tips for Counsel, 4th 2 Although Zoom has substantially remedied for remote hearings). Cir. Ct. Appeals, https://www.ca4.uscourts. cybersecurity flaws discovered shortly after 3 Angela Morris, Texas Appellate Courts Almost gov/docs/pdfs/VideoconferencingTips- the pandemic began, some conservative IT Back Online After Ransomware Attack, Tex. forCounsel.pdf?sfvrsn=488fb909_2. departments remain wary of the platform. Law. (July 10, 2020), https://www.law. 6 Antonin Scalia & Brian A. Garner, Making See Rae Hodge, Zoom Security Issues: Zoom com/texaslawyer/2020/07/10/texas-appel- Your Case: The Art of Persuading Judges Buys Security Company, Aims for End-To-End late-courts-almost-back-online-after-ran- 178–78 (2008).

Law Libraries continued from page 44 https://www.pewresearch.org/fact- ie, and Monica Anderson, 53% of Ameri- Endnotes tank/2019/05/07/digital-divide-persists- cans Say the Internet Has Been Essential During 1 Supreme Court of Virginia, In Re: De- even-as-lower-income-americans-make- the COVID-19 Outbreak, Pew Research claring a Judicial Emergency in Response gains-in-tech-adoption/. Center (2020), https://www.pewresearch. to COVID-19 Emergency (2020), http:// 4 Organisation for Economic Co-operation and org/internet/2020/04/30/53-of-ameri- www.courts.state.va.us/news/items/ Development, Understanding the Digital Divide cans-say-the-internet-has-been-essential- covid/2020_0317_supreme_court_of_vir- (2001), http://www.oecd.org/internet/ during-the-covid-19-outbreak/. ginia.pdf. ieconomy/1888451.pdf. 7 Geraldine Cepeda, Reopening Our Libraries: 2 The Guide to Law Online, maintained by the 5 AALL, Law Libraries and Access to Jus- The Guam Law Library, LISP/SR Blog (Aug. Law Library of Congress, links to thou- tice: A Report of the American Association of 13, 2020), https://lispsr.wordpress. sands of these freely-available resources, Law Libraries Special Committee on Access to com/2020/08/13/reopening-our-libraries- https://www.loc.gov/law/help/guide.php. Justice (2014), https://www.aallnet.org/ the-guam-law-library/ 3 Monica Anderson and Madhumitha wp-content/uploads/2018/01/AccessTo- 8 The views expressed herein are solely Kumar, Digital Divide Persists Even as JusticeSpecialCommittee2014LawLibrar- those of the author and do not reflect the Lower-Income Americans Make Gains in Tech iesAndAccessToJustice.pdf. opinion of the Law Library of Congress or Adoption, Pew Research Center (2019), 6 Emily A. Vogels, Andrew Perrin, Lee Rain- the Library of Congress. q

46 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Risk Management Is It Risky to Agree to Do Pro Bono Work? by Mark Bassingthwaighte

By way of asking this question, I am temptation, particularly as it relates to firm, and documented as such, there hoping to capture the attention of those file documentation. Don’t minimize the shouldn’t be an issue. That said, if you who are hesitant to ever agree to do importance of documenting the scope need additional reassurance make that pro bono work based upon a belief that of your representation, as well as the quick call to your insurance carrier and the answer is yes. Truth be told, the decision-making process, to include all see what they say. If you are considering correct answer is actually: “It depends.” legal advice that was shared and why. providing pro bono services under the To understand why, do not think that Stop and think about this for a moment. auspices of another entity, simply ask pro bono work is somehow different The Rules of Professional Conduct a few questions. Many of these other than work done for paying clients. It make no distinction between paying entities will have a policy in place that isn’t. A client is a client regardless of and nonpaying clients. An argument covers all volunteer attorneys for any whether money is changing hands, that the standard of care should be work they do on behalf of that entity’s which means the risks that come with a lower because the work was being clients. pro bono work are the same as the risks done for free will not cut it in the world My intention with this article is that come with providing legal services of malpractice or attorney discipline not to present a position on the high to a paying client. Hopefully, the answer because the money issue simply isn’t calling of providing legal services pro of “it depends” now makes a little more a factor when it comes to professional bono. I simply wish to shed some light sense, because most of the risks associ- accountability. on the excuses that sometimes get in ated with providing pro bono services Now, not only should the basics of the way of allowing attorneys to give are risks that you have a great deal of file documentation be followed through back professionally. Nothing in life is control over. on, but all usual office practices and risk free; but risk can be managed. So, For example, some attorneys are procedures should be followed when the next time you’re asked to help on encouraged to embrace pro bono work providing pro bono services. For ex- a pro bono matter, perhaps what has to expand their professional horizon ample, many attorneys routinely screen been shared here will help you feel or learn a new practice area. I have no potential new clients in addition to run- more comfortable saying “Sure, I’d be problem with this. Wanting to learn a ning a conflict check at first contact with happy to.” After all, you are an attorney new practice area through pro bono all paying clients. Don’t bypass these being asked to do what you are always can be a real benefit as long as you are effective and necessary procedures with being asked to do, practice law. Feel free responsible in how you go about it. Just potential pro bono clients. While we to give it a go. q as an attorney should never dabble in an all know that sometimes paying clients unfamiliar practice area with a paying can turn out to be problem clients, why client, this should also never happen do some attorneys fail to recognize that with a pro bono client. When navigating the same is going to be true with certain in unfamiliar waters have a map! Seek non-paying clients? Of course it is. Stay guidance. Get educated. Steps such as with your tried and true procedures and consulting with a trusted colleague or remember: There is no rule that says researching the law become mandato- you must take on every potential client ry, and if that can’t happen then stop. that comes your way. Again, sometimes Yes, this may mean that there will be saying no is the right decision. times where a potential pro bono client Finally, there are those who avoid will be best served by your saying no; taking on any pro bono matters fearing but remember the adage, “First, do no their malpractice insurance will not harm.” If you are not up to the task, take cover that work. While a legitimate Mark Bassingthwaighte, ALPS risk manager, has conducted more than 1,000 a pass and look to provide assistance to concern, this fear can be addressed law firm risk management assessment someone who needs help in the arenas and alleviated. Start by asking if your visits, presented numerous continuing where you are comfortable practicing. existing coverage is in play. It may or legal education seminars throughout the United States, and written extensively Another risk with pro bono work may not be. Attorneys are covered for on risk management and technology. He can be a temptation to take shortcuts the work they do on behalf of clients of can be contacted at: [email protected]. with these clients simply because they the named insured which is their firm. are non-paying clients. Resist this If the pro bono client is a client of the www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 47 Book Review The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite Reviewed by L. Steven Emmert

Daniel Markovits. not alone. As a THE MERITOCRACY TRAP: society, we have How America’s Foundational Myth Feeds been taught to revere Inequality, Dismantles the Middle Class, a merit-based culture. The and Devours the Elite contention that this whole (Penguin Press 2019). setup is a trap will engender 418 pages including extensive endnotes. widespread skepticism, and many among us — especially those who The concept of meritocracy is so consider that we have advanced in so- well-accepted, so normal feeling, that a ciety through our achievements — will tocracy, aristocrats led lives of leisure, challenge to it faces a steep uphill battle simply reject Markovits’s thesis outright, their finances secure through holdings to gain acceptance. For most of our without examining it carefully. of land or other capital. But today’s elite lives, we’ve heard and read its principles Having learned long ago that it’s got there largely through work, usually in various forms: “You’ll get out of life healthy to entertain challenges to what through working extraordinary (and what you put into it.” “To get ahead, you I regard as my core beliefs, I picked up increasing) numbers of hours. And so- have to be the best at what you do.” “You this book recently and dove in. Inside ciety’s demands, he argues, keeps them can achieve anything you can envision, the cover, I found a varying writing hard at it, to the point that work/life bal- as long as you’re good enough, you work style. When he’s relating tales, Markovits ance becomes the myth. In this way, the hard, and you persevere.” can be quite engaging. When he waxes elite’s skills — its labors — become the Sixteen years ago, two professors eloquent about his thesis, a reader will capital on which their wealth depends, at the University of North Carolina at be tempted to rate the prose using a so a life of leisure is no longer an option. Wilmington penned The Meritocracy scale of viscosity. Markovits is, after all, The book explores several elite Myth, in which they described what they a law professor, and he often writes like industries, but for our purposes, his perceived as “the myth that the system one; this book is not beach reading. passages on the legal profession are distributes resources—especially wealth It does, however, make several points most germane. Markovits describes and income—according to the merit of that should give even true believer mer- astronomical levels of mental-health individuals.” Profs. Stephen J. McNamee itocrats at least some pause. Markovits problems among law students — 70 and Robert K. Miller Jr. found no fault explains how the evolution of modern percent, according to one report. The with meritocracy itself but argued that society, predated by now-discarded aris- cost of a legal education — especially of our society is not truly meritocratic. tocratic ideas, has led to the complete an elite one, such as at the author’s Yale They offered suggestions for how to separation of the American populace Law school — forces a crushing debt make meritocracy a reality, such as tax into a highly skilled elite and lower onto new graduates who hope to hire on reform and redirecting philanthropy classes that no longer have any mean- as wage serfs in BigLaw firms until they A new book, The Meritocracy Trap ingful chance of joining it. He describes make partner. by Yale law professor Daniel Markovits, the hollowing out of the middle class, as The trap endures even into partner- takes on a different and more difficult corporations seeking greater efficiency ship: Markovits cites a 1962 ABA study challenge. Markovits seeks not to repair have largely eliminated middle manage- that “reflected long-standing conven- the meritocratic system, but to indict ment, which was once the steppingstone tional wisdom” that lawyers would bill its very foundations. The system, in his from a mail-room job to the C-suite. about 1,300 hours per year. A 1977 ABA view, has functioned too well, and has The American middle class, he con- Journal essay reported that figure as in the process entrapped not just the cludes, is slowly vanishing. 1,400 hours. Today, in contrast, de- losers but the winners in the meritocra- Markovits’s most daring accusation mands on a lawyer’s time can approach cy game. is that the winners in this societal com- “between 2,500 and 3,000 hours per If you find this thesis jarring, you’re petition are also trapped. Before meri- year either billing clients, developing

48 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org business or otherwise improving the defined success. firm’s practices”—and this is for part- Markovits concludes his book with ners. In one shocking passage, Markovits a short coda that proposes a couple of quotes an ABA report describing “stories changes in the realms of education and of lawyers closing deals or drafting doc- tax policy. These recommendations seem uments in hospital delivery rooms [as] to be a thin approach to what the author disturbingly common,” and of “shifting believes is a deeply ingrained problem, family funerals to make meetings.” but perhaps this book will spark creative Steve Emmert is an appellate lawyer in the Virginia Beach firm Sykes, Bourdon, These reports may be more extreme thinking that can more effectively ad- Ahern & Levy, where he steadfastly than what you’re accustomed to. But each dress the meritocracy trap. The coda ends avoids wage-serfdom, preferring instead of us has felt work-related pressure; each with a short closing paragraph on the last to have a life. He is a 38-year member of the Virginia State Bar and periodically of us wonders inside if we’re putting in page that says much about this book’s reviews books for this publication. enough time at the office. This is a result ideological origins. of our success in the meritocratic game, As noted above, the book can be a Markovits notes that social mobility—the Markovits would argue. It’s why our slog at times, but it’s worth the effort to ability to rise to a higher socioeconomic profession suffers from elevated levels of absorb the message (only a thin veneer status than your parents’—is sharply im- depression, substance abuse, and suicide. of which I’ve conveyed here). It may not paired now, especially for those who as- It’s why we—the class that has succeeded change your mind about how you view pire to join the ranks of the truly wealthy. —have been caught in this trap, and it is meritocracy, but it will affect how you That, at least, is worth considering, and part of the price we pay for the way we’ve view your children, and their children. addressing if we can. q

Executive Director continued from page 10 the rule change, there were two emer- es available to those in need. to just pro bono. In addition to the itus members; today there are fifteen Please consider volunteering to rewards of helping the most vulnera- emeritus members. help Virginia’s most vulnerable pop- ble of Virginia’s population who need The VSB’s pamphlet Access to ulation protect their legal rights. You legal assistance, emeritus members Justice: Free and Low Cost Legal can do it safely in a virtual environ- do not have to pay dues or the Clients’ Resources in Virginia is available ment. If you have any questions on Protection Fund fee under Paragraph at www.vsb.org/docs/probono/ac- the appropriate volunteer opportunity 3(e). The VSB and legal aid communi- cess-guide.pdf. It outlines these oppor- for you, please contact Crista Gantz, ty were hopeful that this rule change tunities (and others) to volunteer and the VSB’s Pro Bono Coordinator, at would result in more retired members explains the panoply of access resourc- [email protected] or (804) 775-0522. q providing pro bono services. Prior to

Bar Counsel continued from page 13 a false document, or improperly with- dor and a moral compass. The board with no help from Ayer. She request- holds material information, and causes found as mitigating the facts that Ayer ed a refund. Ayer initially told the serious or potentially serious injury had only been in practice five years investigator that he had no recollection to a party, or causes a significant or and had no disciplinary history. of this client paying him $500. When potentially significant adverse effect on Suspension, followed by Consent he was confronted with a receipt, Ayer the legal proceeding.” to Revocation In the Matters of Paul said that he would have deposited The board considered as aggra- Granville Watson the money into his trust account. In vating evidence that Ayer had left In September 2019, the board sus- fact, Ayer did not have a trust ac- the scene of a serious car accident in pended Paul Granville Watson’s license count. Ayer violated Rules 1.3(a) which he was involved, before calling for two years after finding that he had (Diligence); 1.4(a) (Communication); police. Ayer’s car, which was seized, violated ethical rules in four different 1.15(a)(1)7, 1.15(a)(2)8 (Safekeeping had a stolen Uzi gun, which Ayer matters.11 Property); 8.1(a)9 (Bar Admission and claimed was a gift from his father, but Case No. 1: Watson was appoint- Disciplinary Matters); and 8.4(c)10 which an officer testified was stolen ed to represent a client on appeal of (Misconduct). from the office of Ayer’s former em- criminal conviction. Watson timely In revoking Ayer’s license, the ployer. appealed to the Court of Appeals, board cited the ABA Standards for The board noted as aggravating the which denied the appeal. He then Imposing Lawyer Sanctions: “disBar- harm caused to clients who were still attempted to appeal to the Supreme ment is generally appropriate when a not divorced, the pattern of miscon- Court of Virginia, but he failed to lawyer, with the intent to deceive the duct, Ayer’s failure to take responsibil- file a notice of appeal with the Court court, makes a false statement, submits ity for his actions, and his lack of can- continued on page 50

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 49 of Appeals, resulting in the Supreme to refund it. However, bank records Endnotes Court dismissing the appeal. After the showed that Watson had disbursed 1 In the Matters of Sammy Edward Ayer client filed a Bar complaint, Watson $1,431.69 of the $1,500 flat fee before Docket Nos. 17-010-108850, 17-010- 108870, 17-010-109322, 18-010- told the Bar he filed a motion for he filed the partition suit. Watson was 110422 delayed appeal, but he had not done unable to provide documents demon- 2 Pursuant to the Rules of the Supreme so. Watson filed the motion three strating that he complied with trust Court of Virginia, Part Six, Section months later which incorrectly stated account record keeping requirements IV, Paragraph 13-25 lawyers may seek reinstatement of their license five years the basis for it. Notwithstanding, it and made false statements to the Bar after revocation. The board hears rein- was granted and a delayed appeal that he had done so. Watson failed statement petitions and recommends was awarded. The Supreme Court to respond to the Bar complaint and whether to reinstate to the Supreme of Virginia denied the appeal on the failed to provide records in response to Court of Virginia, which determines whether or not to reinstate an attor- merits. Watson did not notify his client the Bar’s subpoena until after the Bar ney’s license. of the denial of his appeal. Despite had filed a Notice of Noncompliance. 3 RULE 1.1 Competence repeated requests, Watson did not re- The board found Watson violat- See: https://perma.cc/FQG8-59XC turn his client’s file to him. The board ed Rules 1.3(a) (Diligence); 1.4(a) 4 RULE 1.3 Diligence found Watson violated Rules 1.3(a) (Communication); 1.15(b)(5)13, See: https://perma.cc/28K9-KFTZ 5 RULE 1.4 Communication 14 15 (Diligence); 1.4(a) (Communication); (c) (1-2) , (d)(3-4) (Safekeeping See: https://perma.cc/8277-DDME and 1.16(e) (Declining or Terminating Property); 8.1(a, c-d)16 (Bar Admission 6 Ayer Order of Revocation, p. 9 of 26. Representation)12. and Disciplinary Matters); and 8.4(c) 7 RULE 1.15 Safekeeping Property (Misconduct). See (a) (1): https://perma.cc/L62Y- Case No. 2: Clients — a husband N6XX and wife — hired Watson to repre- Case No. 4: Watson failed to 8 RULE 1.15 Safekeeping Property sent them before the Board of Zoning submit an answer to the Bar com- See (a) (2): https://perma.cc/L62Y- Appeals regarding a Special Use Permit plaint, which violated Rule 8.1(c) (Bar N6XX 9 RULE 8.1 Bar Admission And Disci- a neighbor had obtained. Watson did Admission and Disciplinary Matters). plinary Matters not appear at the final meeting before During the sanctions phase of See: https://perma.cc/VZ7U-8C5Q the zoning board because of a schedul- the hearing, two of the complainants 10 RULE 8.4 Misconduct ing conflict. He also failed to respond testified on Watson’s behalf. The board See: https://perma.cc/5V7T-8EF2 11 In the Matters of Paul Granville Watson to numerous communications from found this testimony to be mitigating, IV VSB Docket Nos. 18-022-109297, his clients throughout the course of the as well as Watson’s remorse and efforts 18-022-109873, 18-0220111481, 18- representation. The disciplinary board to rectify the consequences of his 022-111852 found Watson violated Rule 1.4(a) misconduct. The board found as ag- 12 RULE 1.16 Declining Or Terminating Representation (Communication). gravating Watson’s dishonesty, pattern See (e) https://perma.cc/9SY5-ECM5 Case No. 3: Watson agreed to pur- of misconduct, substantial experience 13 RULE 1.15 Safekeeping Property sue a partition and collection matter as a lawyer, and lengthy disciplinary See (b) (5): https://perma.cc/L62Y- for a client for a fixed fee of $1,500. record including prior issues with dili- N6XX 14 RULE 1.15 Safekeeping Property Watson told the client a hearing was gence, communications, and respond- See (c) (1) and (2): https://perma.cc/ scheduled for October 2, 2017. The ing to the Bar. L62Y-N6XX client was not able to reach Watson Watson subsequently consented to 15 RULE 1.15 Safekeeping Property to find out more about the hearing. revocation based on a separate matter See (d) (3) and (4): https://perma.cc/ L62Y-N6XX When she arrived, after traveling some in which he accepted an advance fee 16 RULE 8.1 Bar Admission And Disci- distance, she found out that a hearing of $1,300 to file a bankruptcy peti- plinary Matters had never been scheduled. Watson was tion. He did not deposit those funds See: https://perma.cc/VZ7U-8C5Q generally unresponsive to the client. in trust, never filed a bankruptcy 17 Some dismissals including at the Board and Circuit Court level reflect He filed the partition suit more than petition, and failed to respond to his implementation of Paragraph 13-23.K seven months after the client had paid client’s numerous status inquiries. He allowing for “retirement with dignity.” him to do so, and by then the client agreed that he violated Rules 1.3(a) See: https://perma.cc/UU3V-R9EF no longer wanted to pursue a partition (Diligence); 1.4(a) (Communication); 18 Effective December 1, 2019, the Dismissal De Minimis and Dismissal suit, which Watson did not realize and 1.15(a)(1), (b)(5) (Safekeeping for Exceptional Circumstances are no because of his failure to respond to the Property). longer disciplinary sanctions. client’s numerous attempts to contact These cases emphasize our duty him. The client requested a refund, as a self-regulating profession to which Watson issued from his operat- ensure that we meet our ethical ing account. Watson told the bar that obligations to our clients. Repeated he had preserved the client’s advance violations of the Rules of Professional fee and had simply transferred the Conduct, even seemingly minor viola- $1,500 from trust to operating in order tions, can result in severe sanctions. q

50 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Medical Malpractice continued from page 31 of the procedure was not anticipated to provider must adopt “altered standards response to a disaster for the purposes cause harm to the patient by negatively of care” or “crisis standard of care” due of the statutes. affecting the patient’s health outcome, to scarce resources or unavailability of Much like the standard of care or leading to disability or death.” supplies or personnel.15 As of the time issue, the impact of Executive Order Obviously, this raises the question of writing, none of these bills has yet No. 60 has yet to be seen and will play of whether the provider should have passed, so health care attorneys will out as future cases are litigated. Though anticipated that the delay would create certainly want to review COVID-19 the order does clarify certain things, it an adverse outcome. Like other immu- legislation once the session concludes. also leaves room for interpretation. For nity questions, whether the immunity By now it is a well-worn cliché example, the Governor’s order states provisions of Sections 8.01-225.01 and to state that we still do not know the that the phrase “responds to a disaster” 8.01-225.02 will lie in a case would be impact of the COVID-19 pandemic. would include health care providers decided by a trial judge in consider- However, this cliché rings especially and institutions who cancelled or with- ation of a plea in bar.14 true for health care providers and held certain procedures, consultations, The General Assembly is also medical malpractice attorneys eval- or surgeries to conserve resources considering numerous bills per- uating future COVID-19 malprac- during the pandemic. Thus, it seems taining to COVID-19 during the tice lawsuits. If a large number of providers who cancelled elective proce- 2020 special session which began in COVID-19 malpractice cases are filed dures would have a strong claim that August. One pending bill, SB-5023, in the coming months and years, issues they are entitled to immunity pursuant seeks to amend Va. Code § 8.01-225.02 of the applicability of immunity and to Va. Code § 8.01-225.01 if a patient to make clear when providers would be the standard of care will surely make whose procedure was cancelled later entitled to immunity. Though the bill for contested and interesting litigation. sued for malpractice. stops short of providing blanket immu- Much like the data on COVID-19 However, the same section of the nity for health care providers treating itself, the legal standards applicable order has an important caveat, as it patients with COVID-19, it would in malpractice cases will continue to limits the “responds to a disaster” likely extend immunity to additional develop as litigation plays out across immunity to cases in which “the delay situations, including those where the the Commonwealth. q

Endnotes have also been considered by the NIH. excellent COVID-19 complaint tracker, 1 “FDA cautions against use of hy- 7 According to data collected by the https://www.huntonak.com/en/covid- droxychloroquine or chloroquine for CDC’s National Health care Safety 19-tracker.html. COVID-19 outside of the hospital set- Network and published by the CMS, 11 Va. Code § 8.01-225.01. ting or clinical trial due to risk of heart there have been over 207,000 confirmed 12 See Va. Code § 8.01-225.01. The cre- rhythm problems.” Food and Drug Ad- COVID-19 cases and 51,700 within dentialing immunity only applies in the ministration, July 1, 2020. https://www. nursing homes as of August 23, 2020. absence of gross negligence or willful fda.gov/drugs/drug-safety-and-availabil- See, COVID-19 Nursing Home Data, misconduct and is conditioned on the ity/fda-cautions-against-use-hydroxy- https://data.cms.gov/stories/s/COVID- hospital or entity following procedures chloroquine-or-chloroquine-covid-19- 19-Nursing-Home-Data/bkwz-xpvg/. for emergency credentialing that are outside-hospital-setting-or. Accessed Accessed Sep. 5, 2020. “consistent with the applicable stan- September 4, 2020. 8 For example, CMS published its first dards of an approved national accredit- 2 See Brown v. Koulizakis, 229 Va. 524, 532 edition of its “Toolkit on State Actions ing organization for granting emergency (1985). to Mitigate COVID-19 Prevalence in practice privileges.” 3 Va. Code § 8.01-581.20. Nursing Homes” on May 13, 2020. The 13 Executive Order Number 60: Clar- 4 See, Raines v. Lutz, 231 Va. 110, 113 toolkit is now on its eight version and ification of Certain Immunity from (1986) (holding that “expert testimo- was last updated in August, 2020 Liability for Health care Providers ny is ordinarily necessary to establish 9 There have been malpractice cases filed in Response to Novel Coronavirus the appropriate standard of care, to in other (COVID-19). Governor Ralph S. establish a deviation from the standard, 10 See, e.g., The Estate of Emily Reardon, Northam, Apr. 28, 2020. https:// and to establish that such deviation was through its administrator James P. Reardon v. www.governor.virginia.gov/media/ the proximate causes of the claimed OhioHealth Crop d/b/a Riverside Methodist governorvirginiagov/executive-actions/ damages.”) Hospital, et al, Case No. 20CV04043 EO-60-Clarification-of-Certain-Immu- 5 See Risk of Ischemic Stroke in Pa- (Franklin County Court of Common nity-From-Liability-For-Health care-Pro- tients with Coronavirus Disease 2019 Pleas Ohio, filed June 22, 2020);Estate viders-in-Response-to-Novel-Coronavi- (COVID-19) vs Patients with Influenza, of Joseph Maglioi, Bernard Maglioli, Dante rus-(COVID-19).pdf. Merkler, MD et al., JAMA Neurology, Maglioi v. Andover Subacute Rehabilitation 14 See, Mann v. Sentara Hosps., 59 Va. Cir. July 2, 2020 Center, et al, Case No. SSX-L-176-20 433 (Norfolk, Sep. 11, 2002) (deciding a 6 See Treatment Guidelines Panel, Corona- (Sussex County Superior Court, New plea in bar claiming sovereign immuni- virus Disease 2019 (COVID-19) Treat- Jersey, Apr. 27, 2020); Greg Paton and ty); Ola v. YMCA of S. Hampton Rds., Inc., ment Guidelines, National Institutes Kemela Craigh, as heirs-at-law of Lawden 65 Va. Cir. 456 (Norfolk, Sep. 10, 2004) of Health, Avalable at https://www. Wayne Patton, deceased v. Clearwater Living (deciding a plea in bar claiming charita- covid19treatmentguidelines.nih.gov/. LLC d/b/a Clearwater Nursing & Rehabil- ble immunity). Accessed Sep. 4, 2020. Besides the of- itation Center, Case. No, 20CV000942 15 Senate Bill No. 5023, 2020 Special Ses- ten-discussed question of hydroxychlo- (Sedwick County District Court, Kan- sion I, General Assembly of Virginia. roquine, treatments such as convales- sas, June 3, 2020). Credit should also cent plasma and corticosteroid therapy be given to Hunton Andrews & Kurth’s www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 51 Public Speaking continued from page 33 But if you can become comfortable with silence, using 3. Get there early and check your electronics it as an ally rather than as something to be feared, it can be Always make sure that you get to the venue early. When I calming and quieting. You will need to practice this, but a need to travel to a different city to give a presentation, I try microsecond of verbal quiet can help you settle, refocus your to arrive the day before the event. That way, I can visit the concentration, and move on with grace and clarity. room where I will be speaking, test the sound system, and if I am using slides, ensure that my slide presentation has been 4. Use the power of awareness loaded and is displayed properly. Two kinds of distractions can affect us when we speak, The time when you will be most nervous, of course, is internal and external ones. In The Inner Game of Music, at the beginning. Don’t place extra stress on yourself by Barry Green argues that by accepting distractions for what arriving just in time to discover that there is some issue that they are, we can choose to focus our attention where we is going to delay or interrupt your talk. If others are speaking want it. First, acknowledge the little voice. The strategy is to before me, I try to arrive in time to hear others speak. I usu- acknowledge it and observe it, rather than engage with it. If ally think to myself: “His speech is not perfect, and yet he is you can observe the inner voice almost as if you were a third doing just fine. The audience is engaged and his talk is going person observing yourself, you can transcend it. You can say well. So will mine!” to yourself: “Ok, I realize that this presentation is not going to be perfect, and I might leave out something that I want to Delivering Your Presentation: Transcending the say. But I give myself permission not to be perfect.” Adrenaline Surge In his book, Green describes a story about a young mu- Now that we’ve covered how you can prepare to reduce sician who was so nervous while performing during a class anxiety, let’s talk about transcending stress when you are that her hands were shaking. The instructor stopped and delivering your presentation. gently asked her which hand was shaking the most. Then, he asked which fingers were shaking the most. Then, the in- 1. Pause structor asked her to describe the pattern of shaking to oth- Victor Frankl famously said: “Between stimulus and re- ers in the class. Each time the instructor asked a question, sponse there is a space. In that space is our power to choose and the student paid more attention to her hands, her hands our response. In our response lies our growth and our shook a little less. Finally, the instructor asked the class if it freedom.” So, you’ve risen to your feet and are ready to start. was okay for the student’s one remaining trembly finger to Stop for a just a moment. Nobody will mind. Collect yourself shake. The class said it was, and the shaking disappeared. and bring your full attention to the moment. Allow yourself Try this technique yourself. Be aware of any physical to find that space between the stimulus and your response. signs of nervousness. If your hands or voice are trembling, There you can find the freedom to focus your attention on be aware of it nonjudgmentally and give yourself permis- only the present, to speak from the heart. sion to shake. Give yourself permission to be nervous. Acknowledge it, but don’t engage with it. 2. Breathe Check your breathing before you begin. Is it slow and 5. Make eye contact with your audience steady? One of the tells of a nervous speaker is shallow and When I teach public speaking classes, one of the important quick breathing. Bring awareness to the breath, and let it be themes of my class is the power of connecting with your relaxed and unforced. Focus for just a microsecond on the audience through eye contact. If you are making good eye space between your breaths. You should feel the muscles in contact with those in your audience, you can talk conversa- your face, jaw and forehead relax, which should cause a rip- tionally with the audience rather than lecturing. Eye contact ple effect throughout your body. As Alan Watts wrote: “Not helps you gauge how you are doing: whether the audience is only is breathing one of the two fundamental rhythms of the engaged, whether the message is understood, whether the body; it is also the process in which control and spontaneity, audience is affirming you. But eye contact has another ad- voluntary and involuntary action, find their most obvious vantage: it allows you to focus your attention on the people identity.” in the audience rather than on the inner self. Regardless of how large or small the audience is, the best 3. Use silence as your ally technique is to make eye contact momentarily with someone A sign of an untrained speaker is one who fills any oppor- in the audience and then move on to someone else. I think tunity for space or silence with “thinking noises”: the um’s, of it as “watering the flowers” moving left, right, up, back, ah’s, uh’s, you knows. Composer Claude Debussy once said, without any deliberate pattern. Making eye contact this way “Music is the space between the notes.” A corollary might will get you in the flow of spontaneity and help you connect be that powerful and effective speech is built with the space to your audience. between words and phrases. Many inexperienced speakers This is, of course, much more difficult when you are are uncomfortable with allowing any gap or silence between speaking online, but it’s still possible. When you are speak- the end of one thought and the beginning of another. ing through Zoom or some other online format, encourage

52 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org those in the audience to turn their video cameras on so from the heart. Yet, as with any athlete or artist, peak that you can see them. If you can see your audience, even performance does not come when you are thinking about virtually, it will make a huge difference to you as the speaker it or when you are trying to exercise control. But if you use because you can see who is validating you, who is engaged, structured improvisation to deliver your message, you can and who is following your presentation. Even through the speak with spontaneity and your mind can become focused, internet, you can make a connection. quiet and still. Your mind can indeed become one with your body, enabling you to utter your words effortlessly, your Conclusion automatic functions working without interference from your When you’ve mastered the topic, and you’ve practiced so thoughts. q that you know the material, you should be ready to speak

Death Penalty continued from page 37 houston-texas/article/Study-figures-odds- com/blog-va/how-much-does-not-killing- of-a-killer-getting-death-1709939.php. two-people-cost-virginia-put-72k-price- 32  World Coal., Death Penalty and Poverty 45 Several States Consider Repealing or tag-on-halting-executions/. Detailed Factsheet, 15th World Day Against Reforming Death Penalty Laws. Project 56 Virginia House Bill 85 (Adjourned Sine the Death Penalty (Oct. 10, 2017) http:// Press (A.B.A. Death Penalty Representa- Die), Legiscan, https://legiscan.com/VA/ www.worldcoalition.org/media/resource- tion Project, Wash. D.C.), Mar. 11, 2020, bill/HB85/2020 (last visited Jun. 26, 2020). center/EN_WD2017_FactSheet. https://www.americanbar.org/groups/ 57 S.B. 802, 2020 Gen. Assemb., Reg. Sess. 33 Amnesty Int’l, Death Penalty Facts, (May committees/death_penalty_representation/ (Va. 2020), https://lis.virginia.gov/cgi-bin/ 2012) https://www.amnestyusa.org/pdfs/ project_press/2020/spring/state-repeal-ef- legp604.exe?ses=201&typ=bil&val=sb802. DeathPenaltyFactsMay2012.pdf. forts-2020/. 58 Id. 34 Death Penalty, Equal Just. Initiative, supra 46 2020-S.B. 449 Fiscal Impact Report Va. 59 Id. note 24. Legis. Bill Hist. (LexisNexis). 60 Id. 35 Scott Phillips, Legal Disparities in the Cap- 47 S.B. 449, 2020 Gen. Assemb., Reg. Sess. 61 Act of Apr. 11, 2020, ch. 1166 (S.B. 270), ital of Capital Punishment, 99 J. Crim. L. & (Va. 2020). 2020 Va. Legis. Serv. 1166 (West) (to be Criminology, 717, 720 (2009). 48 Id. codified as amended at Va. Code Ann. §§ 36 Id. at 751. 49 Id. 53.1–234, 54.1–3307). 37 Id. 50 Press Release, Justice Forward Virginia and 62 Id. 38 Id. Virginians for Alternatives to the Death 63 Id. 39 Death Penalty, Equal Just. Initiative, supra Penalty, Current and Former Virginia 64 S.B. 270, 2020 Gen. Assemb., Reg. Sess. note 24. Prosecutors Announce Support for Death (Va. 2020), https://lis.virginia.gov/cgi-bin/ 40 Bryan Stevenson, Close to Death: Reflec- Penalty Repeal (Feb. 3, 2020), https://files. legp604.exe?ses=201&typ=bil&val=s- tions on Race and Capital Punishment in deathpenaltyinfo.org/documents/Virginia- b270&submit=GO. America in Debating the Death Penalty: ProsecutorLetter2020PR.pdf. 65 Id. Should America Have Capital Punishment? 51 Id. 76, 95 (Hugo Bedau & Paul Cassell eds., 52 Leslie, supra note 31. 2004). 53 Several States Consider Repealing or 41 Scott Phillips, Status Disparities in the Cap- Reforming Death Penalty Laws, supra note ital of Capital Punishment, 43 L. & Soc’y 45. Rev. 807, 809 (2009). 54 H.B. 85, 2020 Gen. Assemb., Reg. Sess. 42 Id. (Va. 2020), https://lis.virginia.gov/cgi-bin/ 43 Id. at 826. legp604.exe?ses=201&typ=bil&val=hb85. 44 Id.; Peggy O’Hare, Study Figures Odds of a 55 Ned Oliver, How Much Does Not Killing Killer Getting Death, Hous. Chron. (Mar. Two People Cost? Virginia Puts $72K Price 4, 2010), https://www.chron.com/news/ Tag on Halting Executions, Va. Mercury, Feb. 6, 2020, https://www.virginiamercury.

Stay connected with the Virginia State Bar!

@Vastatebar Virginia State Bar

/virginiastatebar @virginiastatebar

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 53 Virginia Lawyer Register

DISCIPLINARY SUMMARIES Timothy Andrew Litzenburg Charlottesville, VA 20-070-117650 The following are summaries of disciplinary actions for viola- Effective August 11, 2020, the Virginia State Bar Disciplinary Board tions of the Virginia Rules of Professional Conduct (RPC) or revoked Timothy Andrew Litzenburg’s license to practice law in the another of the Supreme Court Rules. Commonwealth of Virginia based on his affidavit consenting to the Copies of disciplinary orders are available at the link pro- revocation. By tendering his consent to revocation at a time when vided with each summary or by contacting the Virginia State allegations of misconduct are pending, Litzenburg acknowledges that the material facts upon which the allegations of misconduct Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB are predicated are true. docket numbers are provided. Rules of Court, Part 6, Section IV, Paragraph 13-28 www.vsb.org/docs/Litzenburg-081220.pdf

SUPREME COURT OF VIRGINIA Nancy Theresa Lord Parhump, NV 20-000-118890 Craig Edward Baumann By Order entered August 28, 2020, the Virginia State Bar Alexandria, VA Disciplinary Board summarily suspended Nancy Theresa Lord’s 19-051-108422 license to practice law in the Commonwealth of Virginia, effective On July 30, 2020, the Supreme Court of Virginia affirmed a pub- September 4, 2020, based on her six month and one day suspension lic admonition with terms issued to Craig Edward Baumann by by the Supreme Court of Nevada. She was ordered to appear before the Fifth District Committee, Section I. On January 11, 2019, the board on September 25, 2020, to show cause why the same the Virginia State Bar Fifth District Committee, Section I, issued discipline that was imposed in Nevada should not be imposed in a public admonition with terms to Mr. Baumann for violating Virginia. professional rules that govern scope of representation, commu- Rules of Court, Part 6, Section IV, Paragraph 13-24 nication, and fees. Mr. Baumann appealed to the Virginia State www.vsb.org/docs/Lord-090720.pdf Bar Disciplinary Board, which affirmed the decision on October 9, 2019. Mr. Baumann then appealed to the Supreme Court of Larry Lynn Miller Virginia, which affirmed the Virginia State Bar Disciplinary Board’s Charlottesville, VA decision. 20-000-118603 RPC 1.15 (b)(4); 3.1; 3.4 (j) Effective July 28, 2020, pursuant to Rules of the Supreme Court Part www.vsb.org/docs/Baumann-080520.pdf Six, Section IV, Paragraph 13-24, the Virginia State Bar Disciplinary Board summarily issued a reciprocal three-year suspension to Larry DISCIPLINARY BOARD Lynn Miller for violating the rules of the United States Bankruptcy Court, Western District of Virginia. The suspension shall remain in Jin-Ho Cynn effect until April 20, 2023. Annandale, VA Rules of the Supreme Court Part Six, Section IV, Paragraph 13-24 19-053-115676 www.vsb.org/docs/Miller-081220.pdf By Order entered August 28, 2020, the Virginia State Bar Disciplinary Board suspended Jin-Ho Cynn’s license to practice Anna Hughes Myers law in the Commonwealth of Virginia for a period of 90 days, with Norfolk, VA terms, for violating professional rules that govern candor toward 19-021-112027; 19-021-113670; 19-021-115847 the tribunal, unauthorized practice of law, and misconduct. By Order entered August 19, 2020, the Virginia State Bar RPC 3.3(a)(1); 5.5(c); 8.4(b) & (c) Disciplinary Board suspended, with terms, Anna Hughes Myers’ www.vsb.org/docs/Cynn-091720.pdf license to practice law in the Commonwealth of Virginia for a period of two years for violating professional rules that govern David Brooks Hundley diligence, conflict of interest, safekeeping property, declining or ter- Richmond, VA minating representation, truthfulness in statements to others, and 19-010-114365 misconduct effective August 28, 2020. This was an agreed disposi- Effective August 6, 2020, the Virginia State Bar Disciplinary Board tion of misconduct charges. revoked David Brooks Hundley’s license to practice law in the RPC 1.3 (a-b); 1.7 (a)(2); 1.15 (a)(1)(3)-(ii), (b)(2-5), (c)(1)(2)(i-ii) Commonwealth of Virginia based on his affidavit consenting to the (3)(i-iv)(4) (d)(1-4); 1.16 (a)(2); 4.1 (a); 8.1 (a-b); 8.4 (c) revocation. By tendering his consent to revocation at a time when Rules Part 6, Section IV, Paragraph 13-6.H allegations of misconduct are pending, Hundley acknowledges that www.vsb.org/docs/Myers-082020.pdf the material facts upon which the allegations of misconduct are predicated are true. Rules of Court, Part 6, Section IV, Paragraph 13-28 www.vsb.org/docs/Hundley-080720.pdf

54 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Virginia Lawyer Register

DISTRICT COMMITTEES Jonathan Michael O’Connor Richmond, VA John Dillard Hooker Jr. 19-032-115505 Virginia Beach, VA Effective July 28, 2020, the Virginia State Bar Third District, 20-022-116310 Section II Subcommittee issued a public reprimand without Effective September 2, 2020, the Virginia State Bar Second District, terms to Jonathan Michael O’Connor for violating the Rules of Section II Subcommittee issued a public reprimand without terms Professional Conduct governing communication, declining or ter- to John Dillard Hooker Jr. for violating professional rules that minating representation, and bar admission and disciplinary mat- govern competence, communication with persons represented by ters. This was an agreed disposition of misconduct charges. counsel, and misconduct. This was an agreed disposition of mis- RPC 1.4(a)(b); 1.16(e); 8.1(c) conduct charges. www.vsb.org/docs/O’Connor-072820.pdf RPC 1.1; 4.2; 8.4(a) www.vsb.org/docs/Hooker-090220.pdf

DISCIPLINARY PROCEEDINGS

Respondent’s Name Address of Record Action Effective Date

Supreme Court of Virginia Craig Edward Baumann Alexandria, VA Public Admonition With Terms July 30, 2020

Disciplinary Board Jin-Ho Cynn Annandale, VA 90-Day Suspension With Terms August 28, 2020 Rachael Anne Hammer Centreville, VA 60-Day Suspension With Terms August 6, 2020 David Brooks Hundley Richmond, VA Revocation August 6, 2020 Timothy Andrew Litzenburg Charlottesville, VA Revocation August 11, 2020 Nancy Theresa Lord Pahrump, NV Six Month and One Day Suspension September 4, 2020 Larry Lynn Miller Charlottesville, VA Three-Year Suspension July 28, 2020 Anna Hughes Myers Norfolk, VA Two-Year Suspension With Terms August 28, 2020

District Committees John Dillard Hooker Jr. Virginia Beach, VA Public Reprimand September 2, 2020 Jonathon Michael O’Connor Richmond, VA Public Reprimand July 28, 2020

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted David Brooks Hundley Richmond, VA September 16, 2020 David Harris Miller Fairfax, VA July 28, 2020 Randall Sousa Fairfax, VA September 9, 2020 Katina C. Whitfield Chesterfield, VA September 16, 2020

Suspension – Failure to Comply with Subpoena Effective Date Lifted William Franklin Burton Chevy Chase, MD September 3, 2020 John B. Russell Jr. Bon Air, VA September 4, 2020

Suspension – Reciprocal Effective Date Lifted Frank Gerald Fina Middleburg, PA September 4, 2020

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 55 Virginia Lawyer Register

NOTICES TO LAWYERS of Appeals of Virginia stated in the Order that all oral argu- ment dockets will be held virtually through at least December 31, 2020, as well as live streamed for the public and posted to Supreme Court of Virginia Amends Third Year Student the Court’s website after each panel’s docket is completed. Practice Rule https://www.vsb.org/site/news/item/CAV_third_covid_order On September 18, 2020, the Supreme Court of Virginia amended Part Six, Section IV, Paragraph 15, Third Year Student Read VSB President Brian L. Buniva's letter to Practice Rule to take effective immediately. Virginia lawyers The changes are to paragraph (c)(i)(1) and paragraph (e). www.vsb.org/site/news/item/Buniva_ltr www.vsb.org/site/news/item/supreme_court_of_virginia_ amends_paragraph_15 Tips on Reading Virginia Lawyer Online The digital edition platform for Virginia Lawyer has some new Supreme Court of Virginia Amends Three Rules and features. You may now change the view settings from “page Form 10 view” to “content view” to read a scalable text-only version On Thursday, September 24, 2020, the Supreme Court of ideal for mobile reading; download a PDF to print or read lat- Virginia amended three rules as well as Form 10 in the er; share a link or specific page via email or social media; and Appendix of Forms. search the latest edition or available archives using select words Effective immediately are amendments to Rule 5A:5. Original or phrases. Proceedings, and amendments to Part 5A, Appendix of Forms, www.vsb.org/site/news/item/tips_on_reading_virginia_law- Form 10, “Petition for a Writ of Actual Innocence Based on yer_online Nonbiological Evidence.” Effective November 23, 2020, are amendments to Rule 1:5A. Signature Defects, and amendments Virginia’s Free Legal Answers Reaches Fourth Birthday, to Rule 1A:4(2): Out-of-State Lawyers – When Allowed by Continues to Shine Nationally Comity to Participate in a Case Pro Hac Vice. Virginia Free Legal Answers (Virginia.freelegalanswers.org) www.vsb.org/site/news/item/scv_amends_three_rules_and_ turned four on August 22, 2020, and continues to be one of form_10 the easiest and most innovative ways for lawyers to complete pro bono hours while assisting low-income and modest-means Supreme Court of Virginia Issues Eleventh Judicial Virginians. Virginia Free Legal Answers (VA FLA) is part of Emergency Order a fifty-state interactive website initiated by the American Bar On Monday, September 28, 2020, the Supreme Court of Association to provide online legal assistance to low-income Virginia issued its eleventh order in response to the COVID-19 individuals while bringing us closer to the value of equal jus- virus, extending the judicial emergency period until November tice under law. 1, 2020, for all courts in the Commonwealth. www.vsb.org/site/news/item/FLA_4 www.vsb.org/site/news/item/scv_extends_judicial_emergen- cy_november_2020 ABA Launches Poll Worker, Esq. to Encourage Poll Volunteers Comments Sought Again on Clarification of the Word The American Bar Association is partnering with the National “Shall” in Rules of Court Association of Secretaries of State and the National Association Comments are sought for a second time on revised Virginia of State Election Directors to encourage lawyers, law stu- Rules of Court that were amended to clarify the meaning of dents and other legal professionals to serve as nonpartisan the word “shall” in the Rules without changing existing law. poll workers for the upcoming 2020 election. This is strictly Comments are due by November 6, 2020. a nonpartisan effort designed to help people vote and to help www.vsb.org/site/news/item/comments_sought_shall local officials ensure a safe and accurate election. Interested poll workers can sign up on www.canivote.org and click on the Court of Appeals of Virginia Issues Third COVID-19 Order “Become a Poll Worker” tab to find out how to serve in their On August 31, 2020, the Court of Appeals of Virginia issued a jurisdictions. third order extending its June 23, 2020, second order until fur- www.vsb.org/site/news/item/aba_launches_poll_worker_esq ther notice as a result of the COVID-19 pandemic. The Court

56 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Virginia Lawyer Register

Fastcase Rolls Out New, Improved Legal Research Platform join a guided walk-through of the new Fastcase, as they explain Fastcase transitioned to its newly built legal research platform. new features, layouts, and best practices to get you searching Fastcase is free to all lawyers of the Virginia State Bar as part faster. of your membership (a $995 value). Throughout October, www.vsb.org/site/news/item/fastcase_new_platform Fastcase’s Reference Attorneys will be hosting a free, live train- ing session each Wednesday at 2:00 p.m. EST. Register now to

CLE Opportunities October 21 1:00–2:00 p.m. Two Sides of the Coin- Documenting Engagements and Dealing with Collections Virginia CLE, the non-profit Problems (1-hour CLE/Ethics pending) educational division of the Virginia Sponsored by the Special Committee on the Resolution of Fee Disputes. Law Foundation, sponsors many virtual CLE courses. For details, October 30 noon–2:00 p.m. see www.vacle.org. Practicing Ethically During and After the Pandemic (2-hour CLE/Ethics pending)

November 6 9:00 a.m.–4:30 p.m. 41st Annual Construction Law and Public Contracts Seminar These and more CLE opportunity

November 18 webinars can be found at www. 10:00–11:30 a.m. vsb.org/docs/vsb-webinars.pdf. Liability in the Face of a Changing Climate (1.5 hours CLE pending) The list will be updated weekly Sponsored by the Environmental Law Section with new events and details as and VCPC. they become available. December 2 noon–1:30 p.m. Capital Raise or Sale: Current Trends and 2021 Predictions for VC, PE and M&A Deals (1.5 hours CLE pending) Sponsored by the Business Law Section.

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 57 Professional Notices

The Williamsburg Hon. Henry Coke Morgan Jr. of the U.S. in family law and appellate matters. A Bar Association has District Court of the Eastern District Hampton Roads resident, Jennifer has elected its slate of of Virginia. Glasser received his B.S. in helped clients with divorce, spousal directors and officers Commerce from the McIntire School support, child support, child custody for its 2020–2022 fiscal years. of Commerce at the University of and visitation, parental rights following President: Adam Kinsman, James City Virginia, his J.D. from the University of assisted conception, adoption, protective County Attorney’s Office Richmond School of Law, and his LL.M. orders, uncontested divorce, and annul- Vice President: Patty Dart, Dart Law, in Taxation from New York University ment matters. She also represents clients PC School of Law. With Jake joining Glasser with civil litigation appeals to the Court Treasurer: Max Hlavin, James City & Glasser, the firm gains its third gen- of Appeals of Virginia and the Supreme County Attorney’s Office eration of Glasser attorneys. Glasser & Court of Virginia. Fuschetti received her Secretary: Naomh Hudson, Ferguson Glasser has successfully assisted clients undergraduate degree from the College Enterprises with a broad spectrum of legal needs for of William & Mary and her Juris Doctor Membership Coordinator: Brian over 88 years. from UCLA School of Law. Gillette, Gillette Law Group Immediate Past President: Will Sleeth, Allyson Kitchel is pleased Attorneys Robyn H. Gordon & Rees to announce that she has Hansen and Jennifer Director at Large: Kevin Grierson, opened a solo practice in L. Muse have joined Culhane Meadows Washington, DC, where she Sands Anderson PC’s Director at Large: Scott Daisley, will represent clients in DC, Kitchel Williamsburg office bring- Hansen Mellette PC. Maryland, and Virginia. She ing a significant employ- brings 15 years of litigation experience ment law practice. Dougherty Tobias Iszard, to bear for her clients, representing Hansen has extensive ex- Northern Virginia Law, plaintiffs who are victims of medical perience in handling labor P.C., announces that Betty negligence, as well as cyclists and pe- and employment issues on Moore Sandler has joined destrians who are the victims of motor behalf of both public and Muse as of counsel and practice Sandler vehicle crashes. private sector employers. in family law, primarily Her practice focuses on all utilizing her experience on complex Bradley Marshall, for- aspects of employment law, including family law cases as well as international merly an Assistant claims and employment issues arising custody and visitation matters. She is Commonwealth’s Attorney under Title VII of the Civil Rights Act, a fellow of the International Academy in Prince William County the Age Discrimination in Employment of Family Lawyers (IAFL) and a past (PWC), has joined Marshall Act, the Americans with Disabilities board member of the U.S. Chapter. She Vanderpool, Frostick & Act, the Fair Labor Standards Act, the is a fellow of the American Academy of Nishanian, P.C. Marshall leads the Family and Medical Leave Act, the Matrimonial Lawyers (AAML) and a firm’s Criminal, Traffic and White- National Labor Relations Act, and the former national board member for more Collar Defense practice and assists Employee Retirement Income Security than 10 years and a past president of the in expanding its Investigations and Act. Hansen received her undergradu- Virginia chapter. Sandler has authored Municipal Law practices. He serves ate degree from the College of William many articles on family law matters for on the PWC Evidence Based Decision and Mary and her law degree from the the Virginia State Bar and Virginia Trial Making (EBDM) Steering Committee, Marshall-Wythe School of Law. Lawyers Association publications and the Community Criminal Justice Muse’s practice focuses on employ- regularly speaks at CLE seminars on Board, the Virginia State Bar’s Special ment law, including issues and claims domestic relations and ethics. Committee on Bench-Bar Relations, the related to Title VII of the Civil Right VSB Harry L. Carrico Professionalism Act, the Americans with Disabilities Act, Glasser & Glasser, PLC is Course Faculty, was past president of the Age Discrimination in Employment pleased to announce that the PWC Bar Association and is current Act, the Fair Labor Standards Act, the Jacob L. “Jake” Glasser has president of the PWC Bar Foundation. Family and Medical Leave Act, and joined the firm. Prior to the Uniformed Services Employment joining Glasser & Glasser, Glasser Pender & Coward is and Reemployment Rights Act. Muse Jake worked as an associate pleased to announce that received her undergraduate degree in at Kaufman & Canoles, PC, specializing Jennifer Fuschetti has from The American University and her in business law and tax matters, and joined the firm as an attor- law degree from the William & Mary served as a law clerk to the ney focusing her practice Fuschetti School of Law.

58 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Professional Notices

Andy Hendrick has joined business strategies for lawyers and sug- McGuireWoods Ruloff, Swain, Haddad, gests that CLE credit should be offered Vice President: Earl Gee, Morecock, Talbert & to lawyers for marketing and business Principal Partner at the Gee Woodward, P.C. in Virginia planning education. Law Firm Beach as a shareholder. Hendrick Treasurer: Heather Hays Lockerman Hendrick graduated from Gregory R. Wall, formerly Lockerman, Senior The Citadel and the University of a senior attorney-advisor Assistant Attorney General, Virginia School of Law. He practices in for the U.S. Environmental Chief Financial Law & the areas of employment law, business Protection Agency’s Office Government Support law, litigation and appeals in state and of Enforcement and Wall Section federal courts. Compliance Assurance Secretary: Patrice Shelton, (OECA), has joined Hunton Andrews Certified Community Health Shelton Brandon L. Boxler has Kurth LLP as counsel in the firm’s Worker Senior, Richmond joined Spencer LLP as a Richmond office. Wall brings to the firm City Health District and VP of Richmond litigation partner. He will 11 years of experience at EPA, which Tenant Organization. continue to focus on complex includes having served as an Acting commercial litigation, with Boxler Legal Branch Chief in OECA’s Office of an emphasis on regulatory Site Remediation Enforcement. Prior to and appellate matters. Boxler previously joining EPA, Wall was in private practice worked in the D.C. offices of two inter- in Washington, D.C., where he focused national law firms and clerked for Judge on chemical regulation under the Toxic Ed Carnes on the U.S. Court of Appeals Substances Control Act and the Federal for the Eleventh Circuit after graduating Insecticide, Fungicide and Rodenticide You’ve Got Mail! Order of the Coif from William & Mary Act, and environmental representation Law School. of clients in business transactions and Or you might, if your email securities offerings. address is up to date with the John Adam Wasowicz has Virginia State Bar. published Slaters Lane, the The Halperin Law Center third of the Mo Katz mys- is pleased to announce that Please make sure you are getting our monthly VSB News and an- tery series in which Katz Helen Vu has joined the nual compliance messages is U.S. Attorney for the firm as an associate attorney. by adding [email protected], Eastern District of Virginia. Vu attended the University Vu [email protected], and Wasowicz has practiced law for the past of Richmond for both her [email protected] to your email 30 years, beginning his legal career in the undergraduate and her law degrees, contacts. 1980s as an Assistant Commonwealth's working with the Halperin Law Center Attorney in Arlington. He later entered as a law clerk while in law school. She And as always: Keep all of your information current by logging private practice and for the next 15 years recently completed a judicial clerkship in on at www.vsb.org. handled hundreds of criminal defense, the Henrico County Circuit Court and civil, and family law cases. In 2005, he brings that experience to her personal NEW: You can opt out of receiv- began a career as a Federal attorney. injury, product liability and civil rights ing Virginia Lawyer by mail if you Wasowicz is a past president of the work with the Halperin Law Center. prefer to read it online. Fairfax Bar Association. The Central Virginia Legal Personal injury and dis- Aid Society, a nonprofit ability lawyer Ben Glass of community of lawyers who Fairfax’s Ben Glass Law has provide free legal services Professional Notices written a new book, Play Left to low-income Virginians Trible Email your news and professional por- Fullback: How Challenging in civil cases and preventa- the Status Quo Will Help tive legal education in our trait to [email protected] for publica- America’s Solo and Small communities, is pleased to tion in Virginia Lawyer. Professional Firm Lawyers Build Better Practices, announce its new board Be Heroes to Their Families and Restore officers. notices are free to Virginia lawyers and America’s Trust in Lawyers. A prolific President: Chris may be edited for length and clarity. author, in this book Glass writes about Trible, Senior Counsel, Gee www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 59 Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications) Classified Ads 1. Publication Title 2. Publication Number 3. Filing Date Virginia Lawyer 660-120_ 09/18/2020

4. Issue Frequency 5. Number of Issues Published Annually 6. Annual Subscription Price

Bimonthly 6 $18

7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4®) Contact Person Caryn B. Persinger 1111 E Main St, Suite 700, Richmond, VA, 23114-0026 Telephone (Include area code) Positions Available Virginia barred bankruptcy attorney (804) 775-0588 8. Complete Mailing Address of Headquarters or General Business Office of Publisher (Not printer) to work in our Arlington, Richmond, 1111 E Main St, Suite 700, Richmond, VA, 23114-0026

9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank) COUNTY ATTORNEY (FAUQUIER) or our Rockville, MD office. Salary Publisher (Name and complete mailing address) Virginia State Bar 1111 E Main St, Suite 700, Richmond, VA, 23114-0026 is commensurate with experience. Fauquier County seeks a lawyer to serve Editor (Name and complete mailing address) as its County Attorney, working under Excellent benefits and work-life Deirdre Norman 1111 E Main St, Suite 700, Richmond, VA, 23114-0026 Managing Editor (Name and complete mailing address) the general direction of the Board of balance in a casual work environment. n/a 10. Owner (Do not leave blank. If the publication is owned by a corporation, give the name and address of the corporation immediately followed by the names and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give the Supervisors and in partnership with the For a full job description and to apply, names and addresses of the individual owners. If owned by a partnership or other unincorporated firm, give its name and address as well as those of each individual owner. If the publication is published by a nonprofit organization, give its name and address.) Full Name Complete Mailing Address County Administrator. The position click www.bww-law.com/careers/. Virginia State Bar 1111 E Main St, Suite 700, Richmond, VA, 23114-0026 offers excellent benefits and a competi- tive salary. Applicants must be members LEGISLATIVE LAW FIRM (VIRGINIA) of the Virginia State Bar and admitted to The City of Suffolk is seeking qualified 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities. If none, check box � None practice before the U.S. District Court firms to develop and promote the City Full Name Complete Mailing Address for the Eastern District of Virginia. Full of Suffolk’s legislative agenda in the details and job description: www.vsb. Virginia General Assembly. For more org/docs/county_attorney_fauquier.pdf. information, visit the City’s solicita- 12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one) The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes: � Has Not Changed During Preceding 12 Months tion listing the request for proposal: Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement) PS Form 3526, July 2014 [Page 1 of 4 (see instructions page 4)] PSN: 7530-01-000-9931 PRIVACY NOTICE: See our privacy policy on www.usps.com. ASSISTANT COUNTY ATTORNEY http://apps.suffolkva.us/bids/bid_ 13. Publication Title 14. Issue Date for Circulation Data Below Virginia Lawyer The County of Augusta is accepting search_submit.jsp?bid_num=2388 08/01/2020 15. Extent and Nature of Circulation Average No. Copies No. Copies of Single Each Issue During Issue Published applications for an Assistant County Preceding 12 Months Nearest to Filing Date Attorney. Additional information, along Services a. Total Number of Copies (Net press run) (1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541 (Include paid distribution above nominal rate, advertiser’s proof copies, and exchange copies) 51061 51213 b. Paid Mailed In-County Paid Subscriptions Stated on PS Form 3541 (Include paid with an application, can be found at Circulation (2) (By Mail distribution above nominal rate, advertiser’s proof copies, and exchange copies) 50222 49661 and Outside Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, PRIVATE INVESTIGATOR (3) www.co.augusta.va.us. A County appli- the Mail) Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS® 0 0

Paid Distribution by Other Classes of Mail Through the USPS (4) cation with a resume can be emailed to Experienced, detail-oriented inves- (e.g., First-Class Mail®) 0 0 [email protected]. This position will tigator providing litigation support. c. Total Paid Distribution [Sum of 15b (1), (2), (3), and (4)] 101283 100874 d. Free or (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541 0 0 Nominal Rate Locating and interviewing witness- Distribution (2) Free or Nominal Rate In-County Copies Included on PS Form 3541 0 0 be opened until filled. We are an EEO (By Mail and Free or Nominal Rate Copies Mailed at Other Classes Through the USPS Outside (3) 40 19 employer. es, subpoena service and research. the Mail) (e.g., First-Class Mail) (4) Free or Nominal Rate Distribution Outside the Mail (Carriers or other means)

Troodon Investigations, LLC (DCJS e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4)) 40 19

BANKRUPTCY ATTORNEY (LOCATION 11-18800). Contact: jmcelhatton@ f. Total Distribution (Sum of 15c and 15e) 101323 100893 FLEXIBLE) troodonpi.com, (703) 239-3322. g. Copies not Distributed (See Instructions to Publishers #4 (page #3)) 5222 5144 h. Total (Sum of 15f and g) 106545 106037

BWW Law Group, LLC, an “AV” rated i. Percent Paid (15c divided by 15f times 100) 99.9 99.9 real estate law firm, is seeking a full-time * If you are claiming electronic copies, go to line 16 on page 3. If you are not claiming electronic copies, skip to line 17 on page 3.

Website Advertisements & Classified Ads Virginia Lawyer is distributed to Virginia lawyers, judges, law libraries, other state bar PS Form 3526, July 2014 (Page 2 of 4) associations, the media, and general subscribers. Total circulation is over 50,000. The VSB website has almost 34 million hits per year and almost 12 million (page views) impressions. Please contact Dee Norman at (804) 775-0594 or [email protected] if you are interested in advertising in Virginia Lawyer or at VSB.org.

2020 Edition of Senior Virginians Handbook Available This book contains over 100 pages of of charge to participants of the Senior Law Day information designed to assist older Virginians programs and are available in some public libraries. with a vast range of legal issues, life decisions, The Senior Virginians Handbook is available and other topics of interest. It has been a popular for download online. Attorneys or individuals resource for lawyers whose practices assist older may purchase the books singly or by the box by Virginians, and a valuable aid to seniors across completing the order form. https://www.vsb.org/site/ the Commonwealth. Copies are distributed free publications/senior-virginians-handbook

60 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org Grana continued from page 38 Other Bar Admissions and Activities: In a pandemic, juris doctors are often Greater Richmond Bar Foundation Member needed as frequently as medical doctors. Henrico County Bar Assn. Richmond Bar Assn. Chesterfield – Colonial Heights Bar Assn. And after the pandemic, Community Brain Injury Services Board member Brain Injury Association of Virginia (BIAV) they are needed more. Commonwealth Community Trust: President-Elect and Board member

NOT ALL HEROES WEAR CAPES Anyone can join, it’s free, and takes only about two minutes. Demonstrate your support for A pandemic creates legal struggles that go far the Diversity Conference by beyond the initial health crisis. becoming a member today. www.vsb.org/site/conferences/ The COVID-19 pandemic has greatly increased the demand diversity for pro bono attorneys. You can even volunteer virtually and Read the latest from the help via the phone or internet. To volunteer, please fill out the Diversity Conference in COVID-19 Volunteer Interest Form at bit.ly/COVIDprobono. Invictus, the official newslet- Or, simply contact Cris Gantz at [email protected] to discuss ter of the DC. Now available ways you can make a difference. online! Visit the new https://invictusva.com/.

Virginia Claims ADVERTISER’S INDEX

Prevention Hotline ALPS Corporation ...... inside front cover Deborah A. Armstrong, J.D., M.D ...... 9 For new and seasoned Virginia lawyers with concerns or questions Elder & Watkins, PC. 11 about the day-to-day practice of law, John Brandt will answer your questions which may minimize the risk of your being sued Frost Law 11 for malpractice or receiving a bar complaint. There are no limits to L. Steven Emmert ...... 9 the topics you can discuss with him. Law Pay ...... 5

National Legal Research Group ...... 6 Call (703) 659-6567 or Toll free: (800) 215-7854 Norman Thomas, PLLC 9 for a confidential, free, risk management Northern Virginia Graphics 6 consultation with John J. Brandt, JD, LL.M. Secure Direction Consulting ...... 63 all at no cost to Virginia lawyers. Powered Strelka Law Office, PC ...... back cover by ALPS. VA State Bar Members’ Insurance Center ...... 7

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 61 The Last Word On the Writing Process, Part 1 by Joe Fore

Discussions about legal writing usu- Get “garbage words” on the page ally focus on what we put on the A few years back, Professor Alexa page—words, sentences, punctuation. Chew, a legal writing professor at the But there’s another, equally important University of North Carolina, tweeted a topic: how to get them there. So the next photo of a handwritten sticky note with two columns are all about the writing these wonderful words of inspiration: process. Writing is hard. Going from initial You need to write words. thoughts to final, polished draft can It is OK if they are garbage words. be downright overwhelming, causing 3 You can fix them later. Then, of course, there are times you writers to struggle or stall. One rea- don’t want to write at all. When that son, of course, is that “writing” isn’t a Listen to Professor Chew: after happens, don’t write—at least temporar- homogenous activity. It’s a series of dis- you’ve thought things through and ily. Do something else. Prune paren- crete tasks—planning, drafting, editing, have a general sense of what you want theticals. Format footnotes. Assemble proofreading—each requiring different to say and what goes where, let the appendices. Save your strength while skills and a different mindset. Writers words fly. Don’t censor yourself or get you wait for your next round of energy often flounder because they’re trying to too hung up on the specific language and inspiration. do all of these things at the same time. you’re using. Not yet. In this stage, your So in this series, we’ll focus on dividing task is to translate your outline/general Next time: editing the writing process into distinct phases ideas into full sentences and paragraphs. Once you have a complete draft with and tackling each one separately. Obsessing over every word—in real your “garbage words” on the page, you Here, we’ll explore some techniques time—is debilitating and disrupts your can turn your attention to a new task: for going from blank page to first draft. flow. It’s one of the surest ways to stifle editing those rough-hewn sentences into a smooth, finished product. That is the Sharpen the axe your progress. subject of the next column. Abraham Lincoln probably didn’t say, Instead, as you write, ask yourself: Is q “Give me six hours to chop down a tree, the sentence I just wrote in approximately and I will spend the first four sharp- the right spot? Does it convey roughly the Endnotes 1 Dan McQuade, Sam Hinkie Used a Fake Abe 1 right idea that I need here? If so, great. ening the axe.” But even if it didn’t Lincoln Quote in His Resignation Letter, Philadel- come from Honest Abe, it’s still a good Move on to the next one. Not crazy phia Magazine (Apr. 7, 2016), www.phillymag.com/ about the exact wording? That’s fine; news/2016/04/07/abe-lincoln-sam-hinkie-fake-quote/. metaphor for the writer’s task. When 2 Bryan A. Garner, Good headings show you've thought you’re facing a deadline, it’s tempting to you’ll fix it later. out your arguments well in advance, ABA Journal dive right in and start pounding away (Sept. 1, 2015), www.abajournal.com/magazine/arti- cle/good_headings_show_youve_thought_out_your_ on your keyboard. But while it may feel Write what you want, when you want arguments_well_in_advance (emphasis added). like you’re making progress, it can cause I don't know about you, but, most days, 3 @aznchew, Twitter (Dec. 20, 2017, 2:55 pm), twitter. com/aznchew/status/943570522406903809. trouble down the road. Indeed, Bryan there are parts of a document I’m eager Garner suggests that “the tendency to to write and others that I won’t go near. begin writing before fully understanding Write the parts you’re excited about; the message to be conveyed” is “the most capitalize on that enthusiasm. This is pervasive flaw among legal writers.” 2 another advantage of detailed planning: So sharpen your thoughts before you if you already know how many sections write your first sentence. This doesn’t or paragraphs you’re going to have and mean you need a perfectly Bluebooked, what’s going in each one, you can write 30-page outline; your process could be each individual piece in any order you Joe Fore is an Associate Professor of Law, as simple as writing your point head- like. There’s no reason you have to start General Faculty and Co-Director of the Legal ings or laying out the document with at the beginning and write through to Research & Writing Program at the University a handwritten diagram. But whatever the end. (And any choppiness between of Virginia School of Law. Have a comment, a question, or an idea for a future column? Email your method, get your major ideas and the sections can be smoothed over in him at [email protected] or connect with general structure straight first. the editing stage.) him on Twitter (@Joe_Fore).

62 VIRGINIA LAWYER | OCTOBER 2020 | VOL. 69 www.vsb.org A WORLD OF DIFFERENCE

Fastcase Legal Research

start your journey LEARN MORE AT www.fastcase.com

VOLECTEM PORENES DEBIT AUTE PEREM ENTUR, QUI OCCUS MAGNIS DERO QUI ALIAT ATIUS, SUM, QUOS EIC TET ARCIPIS VITIO. OTA VOLUPTAT ARCHICTUR, QUID QUIBUS QUI UT ACEPROVID UT QUAM, SUSCIET DOLUPTI BERCILL ORIATIATIORE IDERO EATIO. NEM ESTRUM NATIBUS CILLORUM QUAM AUT QUATI VELICITA VERITATUR APIENIM USDAE. NAM VELIA VOLUPTI NCIPSANDELES INUM A NOBIS EXERUND IONSEQUUNT. CON POREPE VENIMET LABORE NEM HICTIAE DOLUPTA QUIATUR, OFFIC TEMQUO CONSEQUODIT EX EXPLIT, NOS INVENIS DOLOCUT EIUREHE NDIPIS THROUGH DIS SAE AUTATIORE, UT DIONSENDI ODIO THE TOTAEPELIT, OFFICIA WHITE NDITIS ET QUAM, CUM ETURNOISE. SITA VID QUIS SINTUR AUT AS EUMQUIS ARUM FUGA.RUM ET ESSERUM A DOLUPTA TIORRUM VERIBUSANTI SITA VOLO ERSPEDIGENIS COREUTE SIT FUGIT, SINTEM VOLORI CUS SENT UT ARIO. IQUE LA SECEATE NON CUS, SI SIMPORENT VOLORRUM ET LAUTEM QUI CUME REPUDIS EIC TE DELIQUAE RE APELECATUST VOLUT EUM IS MOLES MA ACCAB IDEST HILIBUS DOLUPTAT.BORE ET AUTATUS, VOLUM NEMPORITATI CONSECTUR SENDAES TRUMQUOGET OMNITA THE DUNT.AXIMPERIATEM CLIENTS VERNAM, SIT UNT DEBIT, VOLUPTATEM YOU UT MAGNIATQUIS NEED. DUCIL ES ES PARUNT ILLUPTAEPERO OMNISTI SINCTUR ALIBEAT QUIDITAM, SUS, OFFICIPSUM IPSAERIA ET DOLUPTIO. EHENIS ET, SOLUPTAS ARUM ILLUPTIS ET RE DOLOREH ENTIATUMENDA NIS PRO ENDA QUATEM ET, SITEMPERE LITASPERO ET IPICIMUS, QUAS AUT FUGIT FUGIT QUATQUO QUUNT.BOREHEN IMOLENET VOLUPTI VELLABO REICTIUM ATA EICIDUCIT ALIQUUNT FUGA. ET LIANTEM UNDIC TET OFFICIUNT, SITAM AUT QUE ODIPIDEL IN- IMINGIVE ELIT RE NITIUR SI DEBITADVICE ABOREM. UT EL IUREM IPIT, NIMETTHEY ESCIPIC IENIMI, CONSEEK. PORPOREPTAT RE VID QUIATEM QUIA AS RE DOLORRO VITISSIN NULPARITAS ALIBUS SIMUS EUMQUI QUI QUAS ACCUPTATUR, NUS DOLORER SPEDISQUAE VENDITET, SEQUIAE PA QUIS AB INITAT- UR?LIST ET VOLENIMUS MAIOSSIT, SOLUT LAMUS MAGNIMAIO. ET ADICABOR ATECEPE RESTEM DELECTATI ID MINCTUR, SI QUI OPTASOLO MA ESTEM FUGA. ECTUR, CUS REM AM RE IDELLANDANDA VOLUPTAE EOS EICTEM QUI BERIT, NIM VELLANDI DEBIS ESCI UT OMNIMPORRUM ESCIENIWHY SCIPSUNT PERNAT WAIT? FUGIAE DOLUPTUR MOLOREP ELIBEAR CIENDIT VIT EXPERFERE AUT FACIPIS EA SUM VOLENDAE LIBEATIUM, SED MINTO COMMOLUPTATE RESTEMPED QUIA DOLUPTATET AUT ODIAM, SINTO EVERIBEA DUS UNTINCTUR, IDEMO CON ET IDERFER RUMENIS EXCESSIT HILLACEA NIS MODITI CUSCILLUPTAS NIHIL IS EA VENDI TEMPORUM NECTUM VOLENDA QUAMUS AUTET, COMNIMA XIMPERO DOLUPTUR?AXIMOLOREPTA NUSDAE SANTIO OPTAS AUT ODIA A VOLECERFERUM CUS ET IN NESCILIAE DOLORUM QUAM, SUM ULLATEM. TURWWW.VLRS.NET RE DIPSAM EUMEQUE VELESTRUME SINULLA BORERCIA SAM VOLUPTA TESEQUAS NIHIT EARUNT.UT APIS DOLUPTA DUSAM NULLATIISSI OPTATIO REPELENDEBIS RENT ULPARUM ET OPTASI QUAM DUNTIA DIS VOLUPTA EPUDAE NOBIST, QUE QUE QUO QUE EA NON ET QUATIS VELIBUSTO MODISTE CUS MAXIMILLA DIA CUS MAGNIA NAMUS A CORUM QUAE PORPOSA NIMUSANTO VOLORIBEA VOLOREI CIPIDERI

www.vsb.org VOL. 69 | OCTOBER 2020 | VIRGINIA LAWYER 63