Virginia LawyerVOL. 65/NO. 6 • APRIL 2017 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

Environmental Law: Water — Stopping It, Cleaning It, Owning It

Robert R. Merhige Documentary

Keep ICE in Mind

VSB Awards for Hirschkop, Eveleigh, Condo, and Moliterno

Virginia Lawyer The Official Publication of the Virginia State Bar April 2017 Volume 65/Number 6

Features

GENERAL INTEREST Noteworthy 15 Philip J. Hirschkop: The Unreasonable Man VSB NEWS by Deirdre Norman 40 Highlights of the February 25, 2017, Virginia State Bar Council Meeting 18 Documentary Explores the Impact of Judge 40 Young Lawyers Conference Bench- Robert R. Merhige Jr. Bar Dinner by Gordon Hickey 40 Bar Leaders Institute 20 Springtime is Here, But Employers Still Need 41 What We Do Here: The Virginia to be Mindful of ICE Lawyer Referral Service by Matthew T. Galati 42 Cheshire I’A. Eveleigh Receives Family Law Service Award 43 Law Professor James E. Moliterno Receives the Virginia State Bar ENVIRONMENTAL LAW SECTION Leadership in Education Award 44 Joseph A. Condo Honored for 24 Cutting-Edge Developments in Regional, State, Lifetime Achievement in Family Law and Interstate Water Management PEOPLE by Eric A. DeGroff 45 The Honorable Joseph E. Spruill 26 A New Approach to Water for Hampton Jr., July 1931–March 2017 Roads Cities 46 In Memoriam by James T. Lang and Christopher Kane

32 Flooding Resilience in the Commonwealth by Angela King and Emily Steinhilber Departments 36 Mississippi v. Tennessee: Are Changes Coming 6 Letters to Interstate Water Rights Jurisprudence? by Emily Russell 50 CLE Calendar 56 Professional Notices 58 Classified Ads and Advertiser’s Index 59 VSB Annual Meeting Schedule VIRGINIA LAWYER REGISTER

54 Disciplinary Summaries 55 Annual Meeting 54 Disciplinary Proceedings 55 Criminal Law Seminar Columns 55 Notices To Members: 55 Indigent Criminal Defense Seminar 8 President’s Message 55 Supreme Court of Virginia 55 Free Legal Answers 10 Executive Director’s Message Amends Rules 55 Nominations Sought For Awards 12 Bar Counsel’s Message 55 Comments Sought on Proposed 55 Administrative Suspensions Legal Ethics Opinions 47 Law Libraries 55 2017 Techshow 48 Risk Management

Cover: Sunset Patrol Photo by Bill Dickinson, Sky Noir Photography. www.skynoirphotography.com Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2016–17 OFFICERS 17th Circuit Michael W. Robinson, President Timothy B. Beason, Arlington http://www.vsb.org Doris H. Causey, President-elect John H. Crouch, Arlington Edward L. Weiner, Immediate Past President Adam D. Elfenbein, Arlington Editor: Karen A. Gould, Executive Director and Chief Gregory T. Hunter, Arlington Gordon Hickey Operating Officer David A. Oblon, Arlington ([email protected]) EXECUTIVE COMMITTEE 18th Circuit Michael W. Robinson, Tysons Corner, President Barbara S. Anderson, Alexandria Assistant Editor and Advertising: Doris H. Causey, Richmond, President-elect Foster S. B. Friedman, Alexandria Carolyn M. Grimes, Alexandria Deirdre Norman Edward L. Weiner, Fairfax, Immediate Past President ([email protected]) 19th Circuit Marni E. Byrum, Alexandria James F. Davis, Fairfax Nancy C. Dickenson, Abingdon David J. Gogal, Fairfax Graphic Design: Eugene M. Elliott, Roanoke Joyce M. Henry-Schargorodski, Fairfax Caryn B. Persinger William E. Glover, Fredericksburg Chidi I. James, Fairfax ([email protected]) Leonard C. Heath, Jr., Newport News Douglas R. Kay, Tysons Corner Todd A. Pilot, Alexandria David L. Marks, Fairfax Barbara S. Anderson, Alexandria, CLBA Chair Gary H. Moliken, Fairfax Latoya A. Capers, Arlington, Diversity Jay B. Myerson, Reston VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Conference Chair Luis A. Perez, Falls Church is published six times a year by the Virginia State Bar, Bruce E. Robinson, South Hill, SLC Chair William B. Porter, Fairfax Dean E. Lhospital, Charlottesville, YLC President Dennis J. Quinn, Tysons 1111 East Main Street, Suite 700, Richmond, Virginia William L. Schmidt, Fairfax COUNCIL 23219-0026; Telephone: (804) 775-0500. Subscription Melinda L. VanLowe, Fairfax Rates: $18.00 per year for non-members. This material 1st Circuit Michael M. York, Reston Nancy G. Parr, Chesapeake is presented with the understanding that the publisher 20th Circuit 2nd Circuit Christine H. Mougin-Boal, Leesburg and the authors do not render any legal, accounting, Steven G. Owen, Virginia Beach T. Huntley Thorpe, III, Warrenton or other professional service. It is intended for use by Judith L. Rosenblatt, Virginia Beach 21st Circuit Daniel M. Schieble, Virginia Beach attorneys licensed to practice law in Virginia. Because of Joan Ziglar, Martinsville 3rd Circuit the rapidly changing nature of the law, information 22nd Circuit Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham contained in this publication may become outdated. As 4th Circuit 23rd Circuit a result, an attorney using this material must always Ann B. Brogan, Norfolk Eugene M. Elliott, Jr., Roanoke research original sources of authority and update Gary A. Bryant, Norfolk K. Brett Marston, Roanoke Neil S. Lowenstein, Norfolk information to ensure accuracy when dealing with 24th Circuit 5th Circuit David B. Neumeyer, Lynchburg a specific client’s legal matters. In no event will the Carl Phillips “Phil” Ferguson, Suffolk authors, the reviewers, or the publisher be liable for 25th Circuit 6th Circuit Roscoe B. Stephenson, III, Covington any direct, indirect, or consequential damages resulting Ronnie H. West, Emporia 26th Circuit from the use of this material. The views expressed herein 7th Circuit Nancy M. Reed, Luray Leonard C. Heath, Jr., Newport News are not necessarily those of the Virginia State Bar. The 27th Circuit inclusion of an advertisement herein does not include 8th Circuit R. Cord Hall, Christiansburg Marqueta N. Tyson, Hampton an endorsement by the Virginia State Bar of the goods 28th Circuit 9th Circuit or services of the advertiser, unless explicitly stated William M. Moffet, Abingdon W. Hunter Old, Williamsburg otherwise. Periodical postage paid at Richmond, 29th Circuit 10th Circuit Joseph M. Bowen, Tazewell Virginia, and other offices. Charles H. Crowder, III, South Hill 30th Circuit 11th Circuit William E. Bradshaw, Big Stone Gap Dale W. Pittman, Petersburg 31st Circuit POSTMASTER: 12th Circuit Maryse C. Allen, Prince William Graham C. Daniels, Chester Send address changes to MEMBERS AT LARGE VIRGINIA LAWYER 13th Circuit Marni E. Byrum, Alexandria MEMBERSHIP DEPARTMENT Paula S. Beran, Richmond Nancy C. Dickenson, Abingdon Brian L. Buniva, Richmond Afshin Farashahi, Virginia Beach 1111 E MAIN ST STE 700 Dabney J. Carr, IV, Richmond William E. Glover, Fredericksburg RICHMOND VA 23219-0026 Leah A. Darron, Richmond Eva N. Juncker, Falls Church Christy E. Kiely, Richmond Beverly P. Leatherbury, Eastville George W. Marget, III, Richmond Todd A. Pilot, Alexandria Eric M. Page, Richmond Lorrie A. Sinclair, Leesburg A Benjamin Spencer, Charlottesville 14th Circuit Jon A. Nichols, Jr., Glen Allen Conference of Local Bar Associations Chair Daniel L. Rosenthal, Richmond Barbara S. Anderson, Alexandria Rhysa G. South, Henrico Diversity Conference Chair 15th Circuit Latoya A. Capers, Arlington Virginia State Bar Staff Directory Jennifer L. Parrish, Fredericksburg Senior Lawyers Conference Chair Frequently requested bar contact 16th Circuit Bruce E. Robinson, South Hill information is available online at R. Lee Livingston, Charlottesville Young Lawyers Conference President Palma E. Pustilnik, Charlottesville Dean E. Lhospital, Charlottesville www.vsb.org/site/about/bar-staff.

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Robert Pleasants — Robert Pleasants’s family saw those terms as depriving them of property Virginia’s forgotten and income which they believed were emancipator rightfully theirs. Many had left or been expelled from the Society of Friends, I read with great interest Frank Overton and they had not joined Robert in his Brown Jr.’s article on Robert Carter III anti-slavery beliefs. In that respect, they in the February 2017 issue. His sto- were much like Patrick Henry, who be- ry cannot be told and retold enough. friended Pleasants but whose friendship Still, the reference to the filing of his dissolved by the issue of slavery. (Even deed, leading to the manumission of Robert Carter refused to join Pleasants’s more than 500 slaves, reminds me Virginia Abolition Society, distinguish- that we as lawyers ought to go further ing himself as an emancipator, though among other things, determined wheth- in our look at history and remember not an abolition activist). Robert er the case would proceed (as under the Virginia Quaker Robert Pleasants and Pleasants, on the other hand, had freed family’s interpretation) in the court of the legal battle resulting in Pleasants v. a number of his slaves before passage of law or (as under Robert’s conception) at Pleasants, 6 Va. (2 Call) 319 (Ct. App. the Manumission Act of 1782, earning chancery. Robert, therefore, filed his suit 1799), the largest manumission case in him a conviction in Henrico County in the High Court of Chancery, where American history. That case, in which court for letting his slaves run at large in it reached the bench of George Wythe, John Pleasants petitioned Chancellor June of 1782. the Chancellor of the Commonwealth George Wythe to order Pleasants’s By 1795, as many of the origi- of Virginia (and an ardent anti-slavery son-in-law, siblings, nieces, and neph- nal holders of the slaves under John proponent who had begun freeing his ews to manumit over 440 slaves, pitted Pleasants’s will were dying out, Robert slaves after his wife’s 1787 death). some of Virginia’s — and, indeed, this (then in his seventies) was finding that At the time of the adjudication, then-young nation’s — best legal minds each change of ownership made it more nearly 440 slaves — amounting to a against each other. At the Court of difficult to free those slaves. Recognizing small fortune to their owners – were Appeals, John Marshall represented that he was unable to convince his at issue. Among other early decisions, Pleasants, and his family members were family members to abide by the will’s Wythe determined that the will of John represented by Edmund Randolph and terms and free their slaves, Robert sued Pleasants created a trust for the benefit John Wickham. Partly at issue (you’ll his sister and her husband in Powhatan of the enslaved with Robert Pleasants cringe at the phrase if your practice County court in 1793. That case, pre- as the de facto trustee. He therefore doesn’t include wills, estates, and trusts) sumably seeking to enforce the couple’s characterized Pleasants as the execu- was the Rule Against Perpetuities and wedding-day promise to free their tor of a benevolent trust in which the whether it applied to human lives. slaves, resulted in dismissal or with- slaves themselves were the beneficia- Robert Pleasants sought to enforce drawal – either way, a failure for Robert. ries. The family next argued that John the terms of the will he helped draft for In 1797, Robert tried again, this time Pleasants’s death before the passage of his father, John Pleasants III, who died suing to fulfill his duties as executor of the Manumission Act meant that he was in 1771 (eleven years before Virginia his father’s will. The family argued that never authorized to manumit his slaves enacted the 1782 Act to Authorize the the Rule Against Perpetuities rendered and could not order others to do so. Manumission of Slaves and twenty-one the manumission provision invalid, as it Wythe rejected this argument, noting years before Robert Carter III’s deed violated the time limit in which a prop- the distinction between an unlawful scheduled the beginning of the grad- erty interest could exist without vesting. provision that required an immedi- ual manumission of his slaves). At the Pleasants (through Marshall, most ate malicious act and a provision that time of his death, the father owned likely) proffered that the manumission required performance of a benevolent over 200 slaves, and his will provided provision was not a transfer of property, act if it were legal. In so finding, Wythe that each, though bequeathed to family but a change in legal status, therefore relied on statutory construction and members, including slaves not yet born avoiding the Rule. Under this concep- held that if the provision could lawfully of the slaves he owned, would be free tion, manumission was a benevolent act be performed within a reasonable peri- (should they choose freedom) at the undertaken to the financial detriment of od of time, then it was not illegal at its age of 30 if “the laws of the land will the donator in order to benefit the recip- creation. Ultimately, Wythe concluded admit them to be set free without their ient, creating a quasi-trust intended for that any slaves under the will who were being transported out of the country.” the benefit of the slaves. The distinction, over 30 years old in 1782 were entitled

6 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org Letters to immediate freedom, and those born The history of Robert Pleasants before John Pleasants’s death were and his legal battles to free his family’s entitled to freedom when they turned slaves is fascinating, if largely ignored 30. Going a further step, however, Wythe or unknown. I encourage anyone Letters held that the family owed monetary interested in learning more to read Send your letter to the editor to: damages to those kept enslaved after William Fernandez Hardin’s Vanderbilt [email protected] or 1782 who would otherwise have been University PhD dissertation “Litigating freed under the will. He ordered the the Lash: Quaker Emancipator Robert Virginia State Bar, family to pay those slaves the profits of Pleasants, the Law of Slavery, and Virginia Lawyer Magazine, their labor from 1782 until 1798. the Meaning of Manumission in 1111 E Main Ste 700, The family appealed to Virginia’s Revolutionary and Early Virginia, Richmond VA 23219-0026 Supreme Court of Appeals in September available (for free) online at http:// 1798. In a decision too complex to re- etd.library.vanderbilt.edu/available Letters published in Virginia Lawyer may count here, that Court affirmed most of /etd-03292013-113550/unrestricted be edited for length and clarity and are Wythe’s decision, after first finding that /HardinWF.pdf. I confess most of the case was properly heard at chancery. the facts in this letter come from Mr. subject to guidelines available at It found most provisions of the will Hardin’s work. http://www.vsb.org/site/publications/ to be valid, finding, for instance, that valawyer/. all the slave children born after 1782 J. Max Weintraub would become free when they turned Alexandria 30, although it struck Wythe’s decision to award damages. Spoiler Alert: the decision did not turn on an application of the Rule Against Perpetuities.

www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 7 President’s Message by Michael W. Robinson Judicial Independence Must Be Respected

In a previous column, I wrote maxim to treat each person as an end serves. I would add, then, that if an about civility, its role as a core princi- unto themselves and not as a means independent judiciary is seen as the ple of professionalism, and my hope is hinged on the universal demand for crown jewels of our democracy, its that we lawyers could elevate our respect. currency is respect. service to our clients and even our But here I want us to set aside The civic dialogue we hear today public discourse through our demands those issues for a broader profession- devalues that currency. And it is not for civility in an adversarial process. alism discussion and focus instead on limited to a single political party. Fair As we approach the conclusion of my a different aspect of respect. I want to criticism of judicial decisions comes one-year term, I thought about writing focus on respect not towards individ- with the territory, and I take no issue a column that would review my year as uals, but towards our institutions — in with it. But the attacks we hear today president. I decided instead to return particular our judiciary — and towards challenge not just the result, or even to that earlier theme, visiting another, the ideals we hold for the abstract the reasoning of a decision, but seek less discussed principle: respect. promise of an independent judiciary. to undermine the legitimacy of the I chose this follow-up in the Alexander Hamilton — in vogue decision and the validity of the system context of a year marked by political again 213 years after his duel with that produced it. Adverse decisions upheaval and, some would say, civic Aaron Burr — wrote that an indepen- are criticized as the result of a “rigged” turmoil. A lack of respect for contrary dent judiciary “is the best expedient system. In this arena, judicial decisions views and those who hold them un- which can be devised in any gov- — and decision makers — are attacked doubtedly undermines the civility we ernment to secure a steady, upright, as if they are just players in another claim to seek in our public and private and impartial administration of the political forum. This treatment of the discourse. The old adage that people laws.” Former Chief Justice Rehnquist judiciary undermines the value we are entitled to their own opinions but asserted that an independent judi- place on the rule of law, and mocks the not their own facts is under consider- ciary is “one of the crown jewels” of hope that an independent judiciary able stress; “alternative facts” is a buzz our system of government. And the acts to assure an impartial application phrase when actual facts are wanting. insistence of an independent judiciary of the law. Attacks on opposing views or opinions is always given strong endorsement in As lawyers, we have a special are not limited to even the periphery the judicial selection process. privilege. We uphold the rule of law. of the merits but rather asserted with But the issue does not end with We do so not just through landmark scorched-earth zeal. But the problem judicial selection, or retention. Indeed, cases, but through our daily efforts goes deeper, for both our profession that is a point where some effort to in representing our clients, insisting and our ongoing experiment with politically influence the judiciary is upon an impartial application of the democracy. expected, and our system is flexible laws governing commerce, conduct, Civility no doubt embraces the enough to accept. The demand for and community. We also must be at concept of respect — respect for indi- independence continues and must be the vanguard to defend and promote viduals and our “equal standing in a respected in the daily functioning of the ideals too easily taken for grant- democratic society,” as Justice Kennedy our system of justice and the prism ed. Yes, civility demands respect. Our notably proclaimed. And respect for through which we view it. As Chief ideals for an independent judiciary not the individual is a basic premise of Judge Roger Gregory has observed, only demand respect, but like civility, moral philosophy. Emmanuel Kant’s the judiciary has no direct power over cannot function without it. And if the theory of ethics poses that each indi- powder or purse. It operates through courts are viewed as little more than vidual is due respect by virtue of that the respect accorded its decisions by a political forum, our respect for the person’s status as an individual. The the parties before it and the public it rule of law is likewise diminished.

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THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC www.law.gwu.edu Executive Director’s Message by Karen A. Gould Let’s Put Things in Perspective

With numerous members, pressed for almost ten years. Here’s the over revenue, how will the VSB meet committees, sections, a governing history of state salary increases in the the challenge of balancing its budget? body of eighty-one members, a staff of Commonwealth of Virginia between The choices are limited: (1) eliminate 100 and status as a state agency and an 2008 and 2016: expenses by eliminating programs and arm of the Supreme Court of Virginia, • 2008: No salary increase services; (2) layoff staff; (3) increase the Virginia State Bar is a complex • 2009: No salary increase dues. organization subject to stringent state • 2010: No salary increase The staff of the Virginia State Bar administrative requirements, state • 2011: No salary increase1 works hard every day to keep costs and federal law, the US and Virginia • 2012: No salary increase down. Help us to help you by certify- Constitutions, and competing de- • 2013: 2 percent salary increase and a ing your MCLE hours online, keeping mands of its many constituents. $65/year compression adjustment for your address of record current by The staff labors to meet the employees with five or more years of going online to make any changes, and needs of more than 45,000 members continuous state service. Raise effec- paying your dues promptly after July 1. of the VSB. Technology is helping tive July 25, 2013. Don’t hesitate to contact me at to address those needs, if members • 2014: No salary increase [email protected] if you have questions will use the online tools provided. • 2015: 2 percent salary increase and a or suggestions. Online certification of attendance at $65/year compression adjustment for MCLE courses provides immediate employees with five or more years of Endnotes: 1 There was a 5 percent increase in updating of your MCLE records. You continuous state service. Raise effec- salary effective June 25, 2011, neces- tive August 10, 2015. can pay your dues online if you pay sitated by the requirement that state with a credit card. The bar pays the • 2016: No salary increase employees begin paying the 5 percent merchant fee and does not charge it Two 2 percent raises between 2008 member contribution on a pre-tax back to you as a “convenience fee.” The and 2016 were not adequate to meet salary reduction basis effective June VSB Information Technology staff the needs of commonwealth employ- 25, 2011. This offset was not a true salary increase. recently instituted an online service ees to address rising costs nor compen- for members to pay MCLE late fees sate them for their services compared and penalties. You can now register for to the private marketplace. There has many VSB meetings and events online. been much recent media discussion You can update your address of record about the problems with Virginia state online and avoid missing an important salaries, and the General Assembly has deadline, such as the dues deadline. tried to address the issue in the 2017 These tools will help us keep costs session by awarding a 3 percent salary down at the VSB. We need your coop- increase that will occur on July 10, eration to keep costs down. Nobody 2017. wants dues to go up. The problem with a salary One thing that is going to go up increase is that it increases expens- are bar staff salaries, and that is a good es and, therefore, will decrease the thing. People cannot work on praise bar’s reserve. The VSB’s expenses are and encouragement alone. They have not static. They keep going up, while families and rising costs, just as you its income remains level. When no do. State salaries have been sup- reserve remains to offset expenses

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McAdoo Gordon & Associates, P.C. 202-293-0534 www.mcadoolaw.com www.casefinder.com Bar Counsel’s Message by Edward L. Davis Secure E-mail and the Proactive Resolution of Minor Disciplinary Complaints

Attorney discipline is a core all 668 of these complaints without ters more quickly with the VSB and function of the Virginia State Bar. The creating disciplinary records against their clients, all at a significant savings bar, however, also has an obligation to the affected attorneys. If a complaint to the VSB and its membership. educate the public about the Rules of is resolved through this process, the Professional Conduct and to improve Rules of Court require the bar counsel Endnotes: 2 1 Rules of Court, Part 6, Section IV, the legal profession. If complaints to dismiss it. Paragraph 13-10.C, Rather than send these minor alle- about attorneys involve allegations of 2 Id. “If the Complaint is resolved minor misconduct and appear subject gations of misconduct to the attorneys through this process, Bar Counsel to quick and effective resolution, the by regular mail, the VSB is now using shall then dismiss the Complaint. Rules of Court allow the VSB to con- secure e-mail to scan and send the Such dismissal shall not become a duct informal or abbreviated investi- materials to attorneys. This process en- part of the Respondent’s Disciplinary ables attorneys to review and respond Record.” gations, and to dismiss the complaints 3 If not resolved within 90 days, the if the attorneys and their clients can to the allegations confidentially with- Rules of Court require the bar counsel resolve the matters.1 The VSB calls out receiving the dreaded envelope to commence a formal preliminary this its proactive process. For exam- marked “Personal and Confidential.” investigation. ple, unhappy clients may complain It also more readily enables attorneys that their attorney has not provided to achieve an early resolution of the a recent status update. Others may complaints, as contemplated by the complain that they have discharged Rules of Court, as attorneys may send their attorney but cannot obtain the their proposed resolutions to the VSB file from their attorney. These types of by secure e-mail as well if they wish.3 complaints may be resolved through Any attorney not wanting to receive the bar’s proactive process. complaint materials by secure e-mail In the fiscal year that ended June may opt out of this process simply by 30, 2016, the VSB received 3,162 notifying the VSB. complaints of attorney misconduct. In sum, the VSB dismissed more Of those, the VSB summarily closed than one in five complaints last year 1,977 because the factual allegations by offering attorneys the opportu- did not affect the Virginia Rules of nity to resolve minor misconduct Professional Conduct. The bar found complaints with their clients directly. that 668 of these complaints set forth Secure e-mail allows attorneys to learn allegations of fact that, if true, would of these complaints more quickly and have constituted violations of the to respond more quickly by secure Rules of Professional Conduct, but e-mail. We hope that all attorneys of- were appropriate for early resolu- fered a chance at resolution by secure tion. In these cases, rather than seek e-mail will continue to avail them- a formal response from the affected selves of this process. It allows the VSB attorneys, the VSB utilized its proac- to meet its public protection mission tive investigation process to resolve without burdening the attorneys with the matters between the attorneys and formal disciplinary procedures, and their clients. Ultimately, it dismissed enables the attorneys to resolve mat-

12 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org We get the calls. You get the clients.

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Thirteenth Annual Indigent Criminal Defense Advanced Skills for the Experienced Practitioner

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www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 13 Fee Dispute Resolution Program

Now that your work is done, do you find yourself in a dispute with your client over fees and costs? The Virginia State Bar offers another way to settle those disputes, without resorting to costly litigation.

The Special Committee on the Resolution of Fee Disputes oversees the Fee Dispute Resolution Program to provide an avenue, other than litigation, for the expeditious and satisfactory resolution of fee disputes between attorneys and their clients through mediation and uniform arbitration proceedings and works to foster trust and communication among attorneys and clients. For information on the program, go to our website at www.vsb.org/site/about/resolution-of-fee-disputes.

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VIRGINIA STATE BAR AND VIRGINIA CLE Philip J. Hirschkop: The Unreasonable Man

by Deirdre Norman

“The reasonable man adapts himself to the world; the unreasonable man persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.” George Bernard Shaw Deirdre Norman Deirdre

Hirschkop is the 2017 recipient of the VSB Harry L. Carrico Professionalism Award.

At age 80, Philip J. Hirschkop miscegenation laws unconstitutional and was cited in the Supreme Court’s recent decision still has the bulk and the presence of legalizing same-sex marriages. In Kirstein v. a prize fighter — a build that Pulitzer University of Virginia, Hirschkop fought to Prize-winning author Norman Mailer, end the University of Virginia’s and other who Hirschkop defended for demon- Virginia state schools’ practice of discriminat- ing against women in both undergraduate and strating against the Vietnam War, once law school admissions. Though the universi- called a “powerful short body” that ties claimed that allowing an equal number “put double weight in back of every of women into the schools would cause such hardships as having to build kitchens were remark.” women could “prepare snacks” for their dates, building new closets for “ball gowns,” and There is no doubt that Hirschkop relishes the locating “diminutive furniture,” Hirschkop good fight. In a legal career spanning over prevailed. He says of that era, “During the de- fifty years, he has battled to end anti-misce- genation laws, to give women equal access to cade preceding the case at U.Va., women were Virginia universities, to stop discrimination second-class citizens in every way.” against people of color and pregnant women, In another US Supreme Court decision, to end the war in Vietnam by protecting the Cohen v. Chesterfield County, Hirschkop liti- rights of those who protested the war, and to gated on behalf of teachers across the United ensure that animals ranging from whales to States who were harmed by discriminatory orangutans are treated humanely. maternity leave policies. In United States v. In perhaps his most famous case, Loving Norman Mailer, Hirschkop defended the v. Virginia, Hirschkop won a unanimous writer’s right to protest the Vietnam War at Supreme Court case on behalf of Mildred the Pentagon. And in Berosini v. People for the and Richard Loving, who had been awakened Ethical Treatment of Animals, et al., Hirschkop in the middle of the night by the police and took on a Las Vegas orangutan act that had arrested in their home simply for being in an sued PETA for circulating tapes of the apes interracial marriage. The case found Virginia’s being beaten prior to a show.

www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | April 2017 | VIRGINIA LAWYER 15 GENERAL INTEREST

Defending the Unpopular and I had a lot of difficulty with authority. His tactics have been controversial, they have I have actually struggled with authority my provoked, and they have rubbed some people whole life, whether it was a judge or a teach- the wrong way. Defense attorney John P. Mc- er.” Hirschkop, who had his own desk in the Geehan, who has worked with Hirschkop over principal’s anteroom, was not recommended the years, points out that in court Hirschkop to any colleges by his principal, and so at the has been cursed at, has been forced to show age of 18 he joined the Army, later volunteer- a judge his bar card before he was allowed to ing to be a Green Beret in the 77th Special speak, and has been held in contempt more Forces Group-Airborne. After an honorable than a few times. Hirschkop has also sued the discharge from the Army, Hirschkop was Virginia State Bar to protect the rights of law- admitted to Columbia University and received yers’ to discuss pending litigation. According degrees in both liberal arts and mechanical to McGeehan, Hirschkop has often represent- engineering. ed “the marginalized and despised” in order He was well on his way to becoming to protect their Constitutional rights. a patent attorney, when he discovered at When asked what draws him to the Georgetown Law that, “I didn’t like engineer- cause of the underdog over and over again ing. It bored me.” His journey from patent Hirschkop says simply, “My Jewish heritage.” attorney to civil rights lawyer was a short Yet, much to his mother’s chagrin, he once one: in the summer of 1963, while still in law represented the leader of the American Nazi school, he was invited to a party attended by a party. He has also represented the founder of group of African American civil rights lawyers the American Atheist Party, the leader of the who were assembled by President Kennedy, Black Panther Party, former presidential can- where he met civil rights attorney Dean Robb didate Gary Hart, the Texas Hunt brothers (at who invited him to Danville to defend dem- one point the richest men in the world), and onstrators. He met civil rights legend William the leadership of the Church of Scientology, Kunstler on the plane down, and Kunstler along with a slew of celebrities and everyday would go on to be Hirschkop’s “leading light” people arrested for protesting the Vietnam as they battled civil rights abuses against peo- War or fighting for civil rights. He relishes the ple of color across the south. On that trip to fight — and of course he likes to win. Danville, Hirschkop witnessed the after effects of “one of the worst beatings of black people From Brooklyn to Airborne and Beyond ever seen in the south. Danville made me a Hirschkop attributes his toughness to being civil rights lawyer.” Almost fifty people went born in Brooklyn, where he was the youngest to the hospital that day after being beaten by of three boys. Hirschkop’s father, who was a police with water hoses and night sticks. waiter in a Jewish deli, and his mother were “Contrary to people who have a cause “principled and kind” people who never and then go looking, I never went looking went to college but who sent all three sons to for a cause,” says Hirschkop. But even before college. His parents decided to relocate the he graduated from Georgetown Law School, family to rural Hightstown, New Jersey, where which he attended at night so that he could he attended a high school with sixty-seven work in the US Patent Office during the day, students in his graduating class. His interest he had begun his civil rights career. in civil rights began there, he says, adding, “I had known a great deal of discrimination in Loving and Civil Rights a small town.” In Hightstown, he befriended After Danville, Hirschkop travelled to Missis- many of the African American migrant work- sippi to work with a team of lawyers involved ers who came through the town to live for a in defending voting rights, and also helped to short time, often in terrible conditions, and investigate the infamous “Mississippi Burn- work the potato fields, and who sometimes ing” murders of three civil rights workers in stopped in his father’s store to shop. Hirsc- 1964. He would make numerous trips to the hkop says that the conditions he observed the south fighting for civil rights, and it was this workers living in, including bunking in chick- experience that led his Constitutional Law en coops, deepened his interest in fighting professor, Chester Antieu, to recommend him racial discrimination. to Bernard Cohen, a young ACLU attorney Even then, “I was always mouthing off,” who was working on the Loving v. Virginia laughs Hirschkop. “I was a bit of a cut-up, case. The two young attorneys partnered on

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Hirschkop argues in favor of legalizing gay marriage at the 2014 VSB Annual Meeting. Hirschkop and McGeehan the oral arguments before the Supreme Court, then where the bars were segregated. He was and Hirschkop says the day they got the unan- part of the old boys’ network, and yet he was imous opinion in that case was one of the best able to eventually break with the old bonds days of his legal career. He was 31 years old. and lead the Virginia court into the 21st Cen- In addition to his civil rights work, tur y.” Hirschkop has worked extensively on behalf of prisoners’ rights, founding the National Animal Rights and Hollywood Prison Project and serving as the Executive Today, Hirschkop says his legal worries center Director of the Penal Reform Institute. He has on “animal rights as well as incursions on also served as the General Counsel of PETA, free speech and voting rights. Without a free and in 2016 PETA named their seventeen-per- voting electorate, you do not have a democra- son legal department after him. Hirschkop has cy.” Though Hirschkop has been involved with worked for PETA since its inception, when he high profile legal casework for over fifty years, was hired to represent PETA’s founder, Ingrid and won major awards including the Virginia Newkirk, after she was arrested in Virginia for Trial Lawyers’ Distinguished Service Award, protesting at a rodeo. PETA’s 25th Anniversary Humanitarian Hirschkop advises young lawyers who Award, and the Southern Trial Lawyers Asso- are interested in using their law degrees to ciation “War Horse Award” for “Extraordinary improve the world around them to work in contribution to the trial bar of the nation,” his the public defenders’ office and to volunteer name is hardly known outside of legal circles. for the ACLU, where he was on the board for He did a round of interviews when Holly- decades. “If you are going to learn how to wood made the movie Loving in 2016, but he practice, how to cross-examine, how to think has never considered promoting himself on on your feet, how to get street smarts — you talk shows or in the news as many other high do it practicing criminal law.” profile lawyers have done. “I can do more for people writing a brief Carrico Professionalism Award than writing a book or promoting myself,” He was recently awarded one of the Virginia he says. And he sees many opportunities for State Bar’s highest honors — the Harry L. lawyers to make a difference in the current Carrico Professionalism Award — presented political administration. by the Criminal Law Section, which he calls For now, he lives in the countryside of “bittersweet.” In a twist of irony that sums up northern Virginia, where he is recovering very much of Hirschkop’s career, he knew Carrico nicely from a back surgery to repair damage as the Justice of the Supreme Court of Virgin- from a Green Beret paratrooping incident and ia that refused to vacate the Loving decision. a Harley Davidson motorcycle accident from Hirschkop has also butted heads with the younger days, yet he continues to practice the Virginia State Bar (Hirschkop v. Snead) where law that he loves. he fought for lawyers’ rights to discuss cases in “I have been a maverick and an outcast,” litigation. Hirschkop says of his legal career. But there is Yet Hirschkop says, “It is a pleasure to no doubt that he has stayed true to the pas- get something in Harry Carrico’s name. I met sion that drives him: “I like formative law,” he him in the Loving case, and that was a poor says. “Changing the law to current standards opinion he wrote. But he was part of a system and current needs.” www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | April 2017 | VIRGINIA LAWYER 17 Documentary Explores the Impact of Judge Robert R. Merhige Jr. by Gordon Hickey

Robert R. Merhige through the years.

If there are any lawyers in Virginia breaking into Daniel Ellsberg’s office. And he presided over the trials of members of the who don’t know the lasting effect Ku Klux Klan and American Nazi Party for Judge Robert R. Merhige Jr. has had the murders of Communist Workers’ Party on the law, documentary filmmakers members in Greensboro, North Carolina. Al Calderaro and Robert Griffith are Though he is now admired and often revered, many people hated Merhige, par- out to fill them in. ticularly over his ruling desegregating city schools. Those people went so far as to shoot At one time, Merhige was arguably “the most his dog and burn a cottage on his property to influential judge in the United States,” as is the ground. noted in the teaser for the film that Calderaro “We need more people like the judge,” and Griffith are close to completing. Catch Calderaro said in a recent interview at his phrases from the cases he handled are familiar Shockoe Slip office when asked about why to most lawyers, and most anyone else paying he and Griffith were making the movie. “We attention: Richmond school desegregation, women admitted to the University of Virginia, think that those people are out there.” Kepone, Dalkon Shield, Greensboro massacre, A major goal is to get the film shown in Wounded Knee, Watergate. law schools, he said. “If we can inspire five Merhige’s rulings desegregated Richmond or ten law students to be like the judge. … public schools and admitted women to the Judicial independence is becoming an issue. University of Virginia. He presided over This is a tough job, your loyalty is to the the case involving the Kepone discharge by Constitution, and to the laws of the land, not Allied Chemical into the James River. He to the president or whoever it was that ap- handled the bankruptcy of the A.H. Robins pointed you. It’s to the Constitution. If there Company after the Dalkon Shield debacle. He was anybody who embodies judicial indepen- was involved in the Watergate trials, rejecting dence, and being willing to do a difficult job, the appeals of three defendants convicted of it was Judge Merhige.”

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Calderaro and Griffith are managing he discovered a long backlog of cases, some directors of the American Documentary Film of them six years old. He ordered pre-trial Fund, a non-profit company they started to motions on the case he was hearing within produce educational documentary films.The a week and a hearing in thirty days. Merhige Judge, their movie about Merhige, is the first then set about cleaning up that long backlog in what they intend to be a series. of cases. Beginning in 1967 when he was appoint- “The judge was a big believer in every- ed by President Johnson, Merhige served on body having their day in court,” Calderaro the US District Court for the Eastern District said. When he was in West Virginia, he heard of Virginia. He took senior status in 1986 but a case, long delayed, for a terminally ill man continued hearing cases for many more years. who had been waiting for six years for his He died in 2005. case to go to trial. “The guy lost,” Calderaro The film makers have begun assembling said, “But he was so thankful to have his day a long list of Merhige’s friends and colleagues in court that he thanked the judge profusely.” to offer praise, pictures, and many personal Merhige “was like a Frank Capra character. He stories. The teaser for The Judge includes com- really believed in America and the goodness ments from former Secretary of Education of America…. Going to court is like going to Anne Holton, who also was a law clerk for church.” Merhige; Rita Ruby, partner at Hunton and Calderaro said the company’s landlord is Williams and another former law clerk of the Merhige’s son, Mark Merhige. The pair started judge; The Honorable Robert E. Payne; The researching the judge after they moved in. Honorable James R. Spencer; the judge’s court “He was just in the middle of all this stuff,” reporter, Gilbert F. Halasz; Lewis Powell III, Calderaro said. “In history you keep running partner at Hunton and Williams and another into these people.” former law clerk; and former Governor A. The American Documentary Film Fund Linwood Holton Jr. had enough money to shoot the teaser film, Calderaro said Roland Reynolds offered but then delayed further production to work him and Griffith a short film of Merhige on fund raising. They’ve recently received help relating how he was appointed to the bench. from the Mary Morton Parsons Foundation, In the video, which was made at the dedi- the Virginia Sargeant Reynolds Foundation, cation of J. Sergeant Reynolds Community the Virginia Film Office, William and Pamela College, Merhige says that he got a call one Royall, S. Buford Scott, and others. They’ve day from his best friend, J. Sargeant Reynolds, lined up their next set of interviews, includ- inviting him to go along to the races. While ing Governor Gerald Baliles, Henry Marsh, on the road to Washington, Reynolds said he Senator Tim Kaine, and Tommy Rockhold, had to make a stop at the White House. When a US marshal who guarded the Merhiges’ Merhige asked why, Reynolds told him that house during the school desegregation case. he was going to recommend that President They have a picture of the marshal, who was Johnson put Merhige on the federal bench. assigned to Mark Merhige, standing outside The judge objected, saying he thought he the house. shouldn’t be along on such an errand, that Their movie is in production, but fund- it would be unseemly for him to go to that ing is still an issue. Griffith said they will be meeting. But Reynolds insisted that they at expanding their interviews to people from least walk together through the park. Merhige other states where Merhige had an impact. He stopped there and sat on a bench in Lafayette imagines they’ll be including people in the Square while Reynolds went in the White film that they haven’t yet even heard of. “It’s a House to nominate his friend. documentary. It’s an ongoing process.” They At the time, Merhige was one of the top continue to look for pictures and archival defense lawyers in Richmond. He became a material, stories, and funding. lawyer in 1945 after serving during World War If they can raise enough money, they II as a crewman on a B-17 bomber. intend to finish the film this year. They will As a judge, Merhige was known for the then work on getting it on TV and into film “rocket docket.” He had little patience for festivals. delays and long witness lists. Once, when he “After we make this movie, the judge is went to West Virginia to hear a case there, immortal,” Griffith said. “His legacy goes on.” www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | April 2017 | VIRGINIA LAWYER 19 Springtime is Here, But Employers Still Need to be Mindful of ICE As the new administration focuses on enforcement, employers should prudently focus on ensuring an immigration-compliant workforce and verification system by Matthew T. Galati

- shutterstock.com

For much of Virginia, it was a Customs Enforcement) should be. relatively mild winter. This year The new Trump Administration has brought no “Snowmaggeddons.” approached many immigration issues Northern Virginia witnessed cher- by prioritizing full enforcement of ry blossoms blooming in February. existing laws and regulations. In this Many celebrated several consecutive heightened atmosphere, clients would days in the 70s across the Shenandoah be well-advised to ensure their work- Valley in what is usually the dead force and employment verification of winter. Ice may not be on the documentation are in order should minds of most employers this time ICE arrive unexpectedly. of year, but ICE (Immigration and

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Employers Are Subject to Investigations extended) or for rehires. The most recent ver- and Penalties sion of the form has “smart” features, greatly US immigration laws apply to all domestic simplifying the completion process through companies — even those that do not sponsor use of PDF software. Nevertheless, it’s far foreign workers. Generally speaking, under from fool-proof. the federal laws, only US citizens and nation- als, lawful permanent residents (i.e. people Form I-9 Enforcement with Green Cards), people with employment Most employers never cross paths with ICE, authorization in conjunction with sponsor- yet Form I-9 compliance is not on the “honor ship, and other individuals who are specifical- system.” The government may serve a Notice ly authorized employment may be gainfully of Inspection whereby an employer must employed in the United States. It is unlawful generally within three business days respond to hire, recruit or refer for a fee, a person to the government’s request. ICE general- who is not authorized to work in the US.1 ly seeks that the employer furnish relevant Employees are defined under the immigra- documentation regarding the employees tion laws as individuals who provide “services and operations, such as all Forms I-9, lists or labor for an employer for wages or other of current and previous employees with hire remuneration,” with exclusions in the context dates, payroll records, lists of independent of casual hires or independent contractors.2 contractors, corporate governing documenta- tion, business licenses, tax records, and similar Form I-9 documentation.6 In 1986, Congress passed The Immigration There are two types of form-based viola- Reform and Control Act (IRCA), which tions7 of I-9 protocols: technical and substan- provided the modern employment eligibility tive. Generally, technical violations are typo- verification system, Form I-9 and its associ- graphical errors that can be corrected without ated regulations.3 For every employee hired requiring reverification, such as omitting the after November 6, 1986, employers must employer address in Section Two. Substantive ensure that Form I-9 is correctly completed. violations, on the other hand, are generally Independent of the verification itself, Form deficiencies in the verification method itself, I-9 must be retained for the later of 1) three such as acceptance of an improper combi- years after hire or 2) one year after separation nation of documents. Monetary fines range from the employer. from $216 to $2,156 per violation.8 The higher The Form is divided in three sections amounts in this range are applicable where and was recently redesigned.4 The employee there are multiple instances of ICE finding must complete the first section no later than violations and that the violations are wide- the first day of employment, but not before spread across the company. Additional factors accepting a job offer. In this section, the em- such as a company’s good faith and size are ployee provides biographical information and also relevant in aggregating or mitigating fine attests, under penalty of perjury, of his/her amounts. immigration status. The second section must Following an inspection where errors are be completed by the employer or authorized found, ICE will issue a “Notice of Technical representative. An employee must be given the or Procedural Failures” allowing the employer instructions to the form at the time of verifi- ten business days to correct technical errors cation, allowing for the option to prove his or lest they be deemed substantive. ICE could her identity and employment authorization.5 then issue a “Warning Notice,” generally Employers must inspect the unexpired origi- providing employers with a list of substan- nals of these documents, and have the option tive violations and urging future compliance. to copy and retain the documents if desired. Naturally, such employers are at higher risk Section Two must be completed and certified of future audits. If fines are sought, ICE will no later than the third day of employment. issue a “Notice of Intent to Fine.” Employers The third section is used in situations where have thirty days thereafter to lodge an admin- an employee needs to be reverified (e.g. a istrative review with the US Department of work-authorized visa status expired and was www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | April 2017 | VIRGINIA LAWYER 21 GENERAL INTEREST

Justice’s Office of the Chief Administrative Form I-9 completion should be distilled into Hearing Officer (OCAHO). a clear process for new HR employees. It is important to note that Form I-9 fines • Provide a system of secondary review for are levied against companies of all sizes and each Form I-9 to be completed. Two sets of across all industries. In 2010, Abercrombie’s eyes are better than one. A second reviewer noncompliant Form I-9 system led to a set- is more likely to spot inadvertent errors such tlement of over $1 million.9 In a recent case,10 as accepting expired documents or certain OCAHO upheld a $33,725 penalty against a parts of the forms that were not properly small restaurant business that had no unau- completed. thorized workers or previous violations. The • Institute periodic Form I-9 audits. Most im- restaurant, however, failed to timely present/ migration law firms offer services where they prepare Forms I-9 for four employees and may step into the shoes of ICE and audit the properly complete Forms I-9 for sixty-seven forms. They may then oversee corrections employees. Even state and local government and advise on reverifications as needed. entities are not immune to prosecution.11 Such good faith efforts are relevant should ICE ever audit the company. This may also An Ounce of Prevention identify old forms to be purged as permitted Counsel should of course be contacted by the law. immediately upon service of the Notice of • Establish a tickler system for reverifications. Inspection. Experienced I-9 attorneys can As described above, some employees with negotiate additional time to respond and temporary work authorization (such as even conduct a self-audit of all forms prior to nonimmigrants) need to be reverified upon response to ensure that any fines to be levied expiry of their status or documentation. By will be minimized or perhaps a Warning instituting a tickler system, HR personnel Notice issued in lieu of a fine. Yet the best will be alerted of when to timely reverify defense to I-9 audits is implementing a com- employees. pliant Form I-9 system proactively. Below are some preventive measures that every employ- ICE Raids er should consider to maximize compliance: At the other end of the enforcement spectrum • Develop a comprehensive I-9 policy. The lie actions aimed at those employing non- best policies are written and strictly followed work authorized individuals. These actions to increase accuracy in form completion. have fines of their own, ranging from $539 Only those trained in employment verifica- to $21,563 for each unauthorized worker.12 tion methods should be permitted to handle Employers engaging in a “pattern and prac- I-9 completion on behalf of the company. tice” of such hires may also be subject to crim- inal liability, including jail time. Historically, many of these penalties have resulted from worksite raids. In these heightened times, employers should take proactive For the most part, the Obama admin- istration ceased the Bush-era raids against measures to ensure a compliant workforce and Form I-9 businesses targeted to detain those without status and punish their employers. ICE agents verification procedures. have recently made national headlines follow- ing raids aimed at individuals; yet many in the immigration bar are bracing for worksite raids to begin again. An employer’s bona fide • Build a comprehensive internal training effort to ensure an employment-authorized system. Individuals tasked by a company workforce is the best defense to an ICE raid. to handle Form I-9 verifications must be Why do such raids occur? ICE is often trained well. USCIS provides a comprehen- tipped off to a targeted business after receipt sive Form I-9 manual called the M-274. This of intelligence of unlawful employment. Tips document is lengthy, but should be consid- may come from the questioning of an undoc- ered required reading. The main points of umented employee (perhaps arrested in an

22 VIRGINIA LAWYER | April 2017 | Vol. 65 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST unrelated event) as to where he or she works more information, visit https://www.justice and the makeup of the workforce. The public .gov/eoir/office-of-the-chief-administrative might also provide ICE with tips. During a -hearing-officer-decisions. Discrimination- related prosecutions are handled by the Civil raid, ICE will enter a building with the goal Rights Division’s Office of Special Counsel of creating chaos, storming the premises, and for Immigration-Related Unfair Employment sealing off any exits. Despite what is to be Practices (OSC). an incredibly stressful situation, employers 8 USCIS, I-9 Central Penalties, available at should consider a plan to implement best https://www.uscis.gov/i-9-central/penalties. practices13 should ICE raid their companies. 9 See “The $1 Million Mistake: Abercrombie Such best practices include designating a & Fitch To Pay For Electronic I-9 System Deficiencies” http://www.lawlogix.com/the company official to speak with the head ICE -1-million-mistake-abercrombie-fitch-to agent, demanding to see a search warrant, -pay-for-electronic-i-9-system-deficiencies/ 14 recording the activities of the agents, and 10 See U.S. v. 3679 Commerce Place Inc., 12 sitting in on any interviews with employees. OCAHO No. 1296 (Jan. 19, 2017). ICE activities also attract media attention, and 11 For example, OSC recently settled a case negative publicity will need to be adequately with the Aldine, Texas, Independent School handled. District resulting in a $140,000 civil penalty. See “Justice Department Settles Immigration- Related Discrimination Claim Against Aldine Be Prepared Independent School District” https://www For decades, the inauguration of a new ad- .justice.gov/opa/pr/justice-department ministration has frequently signaled chang- -settles-immigration-related-discrimination es in immigration enforcement priorities. -claim-against-aldine. President Trump’s emphasis on enforcement 12 See https://www.uscis.gov/i-9-central/ has put many employers on edge. In these penalties. 13 S ee Gonzalez, J. and Merritt, N., “The heightened times, employers should take pro- Anatomy of an ICE Raid,” AILA’s Guide to active measures to ensure a compliant work- Worksite Enforcement & Corporate Compliance force and Form I-9 verification procedures. 179 (2008 ed.). This article provides an excellent discussion of best practices and a Endnotes: play-by-play of ICE activities during a raid. 1 See Immigration and Nationality Act (“INA”) 14 Attorneys must review the laws of the local at §274A(a)(1). jurisdiction to see whether recording activities 2 8 C.F.R. § 274a.1(f). might run afoul of wiretapping laws. This is a 3 Available for download at https://www.uscis rapidly evolving area of the law in the era of .gov/i-9. the smartphone. 4 The new edition date is 11/14/16, and is mandatory for all new verifications starting Jan. 22, 2017. Present use of a previous edition would subject an employer to liability. 5 Specifically, employees are given the option of either providing one “List A” document or a combination of List B and List C documents. List A documents, such as a U.S. passport, prove identity and work authorization. List B documents, such as a VA Driver’s License, prove identity. List C documents, such as an unrestricted Social Security Card, prove employment authorization. 6 See, e.g., “Form I-9 Inspection Overview” available at https://www.ice.gov/factsheets /i9-inspection. 7 Independent of these specific types of viola- tions, penalties exist for other practices such Matthew T. Galati is a senior associate in the as document abuse (e.g. requesting employees Philadelphia office of Green and Spiegel LLC. provide more or different documents than He focuses his practice on representing indi- viduals in acquiring US immigration benefits. required by Form I-9), discrimination based He also regularly advises companies in the on national origin or citizenship status, and corporate context, with a focus on immigra- noncompliant electronic I-9 systems. For tion compliance. www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | April 2017 | VIRGINIA LAWYER 23 Cutting-Edge Developments in Regional, State, and Interstate Water Management by Eric A. DeGroff

Illustration by Natalie E. Thatcher Environmental law and policy have significant losses suffered from coastal storms. Coastal resilience has also been a priority of the McAuliffe administration, and this article impacts on our quality of life and on many of our opens the window on the many initiatives already underway clients’ businesses. Among Virginia’s greatest nat- in area universities and government agencies to address this ural assets is its water. With thousands of miles of concern. coastline, nine major river basins, its access to the O largest estuarine system in North America, and an average annual rainfall of more than forty inches, Finally, the article by Emily Russell discusses a potentially landmark case on interstate rights to ground water and its the commonwealth is indeed blessed. But the con- possible implications for Virginia. That case, Mississippi v. tinued development of urban areas and the growth Tennessee, could be heard by the Supreme Court later this of industrial and agricultural capacity make effective year. It involves an interstate dispute over access to ground water in a geological formation known as Sparta Sand, which water management challenging. The articles in this overlaps the Mississippi-Tennessee border. It will be a case of issue highlight a series of recent, cutting-edge de- first impression because the Court has never before consid- velopments at the regional, state, and interstate level ered an interstate water dispute involving ground water alone. Mississippi has sued Tennessee and Memphis over access to that could help overcome some of those challenges the aquifer that lies within the Sparta Sand formation. At this and assure an adequate and affordable supply of stage of litigation, it is unclear whether the aquifer is legally clean water for all Virginians. and scientifically an interstate or intrastate water body. Though the formation itself spans the Mississippi-Tennessee border, Mississippi has asserted that the ground water within the for- O mation is naturally located solely within Mississippi, and has The first article, by Christopher Kane and James T. Lang, become available for use in Tennessee only through advanced discusses a landmark proposal for integrated water manage- pumping technology. ment in Hampton Roads. If approved by EPA and Virginia’s Mississippi v. Tennessee is of interest to Virginians because Department of Environmental Quality, this first-of-its-kind of Virginia’s continuing considerations of its own ground initiative would coordinate waste water and storm water water resources. As the article notes, the Virginia legislature management for the entire area. Its proponents predict that it has determined that the commonwealth is “not managing its would save money in environmental compliance costs, while ground water in a sustainable manner,” and that the failure to meeting or exceeding the region’s Chesapeake Bay cleanup do so could “have impacts on future availability [of ground obligations. Because the plan would call for injecting purified water] for municipal users and economic growth.” The Court’s waste water underground, rather than into the bay, it would decision could have particular relevance to future apportion- also help replenish the vital Potomac Aquifer and ease the ment issues between Virginia and North Carolina. problem of land subsidence in Southeastern Virginia. As the The section’s board of governors would like to thank each article suggests, the “unprecedented integrated planning” envi- of the authors for their contribution to this issue of Virginia sioned by this proposal could represent a “win” for everyone in Lawyer. We hope you enjoy these articles and that you find the the region. O information useful. The second article, by Angela King and Emily Steinhilber, addresses an issue that affects residents and businesses throughout Virginia’s entire coastal region – namely, the risk of losses that result from flooding during hurricanes and other severe storms. The commonwealth has more than 5,000 miles of tidal shoreline; and as the article notes, that shoreline is “home to some of our nation’s greatest ecosystems, the largest Eric A. DeGroff is chair of the VSB Environmental Law Section. He was naval station in the world, a thriving port, a tourism industry, formerly associated with Hunton & Williams, in Richmond, where he and a burgeoning aquaculture industry.” Resilience to coastal focused on compliance, permitting, and enforcement issues related to hazardous waste laws, Superfund, the Clean Water Act, and underground flooding is an issue of national scope, and Virginia was recently storage tanks. He is now a professor at Regent University School of Law, awarded more than $120 million to help fund the development where his courses have included Environmental Law, Administrative Law, of strategies to minimize the impacts of flooding. Businesses and Property Law. He is a member of the Virginia Waste Management Board, serves as managing editor of the Chemical Waste Litigation Reporter, and residents throughout Virginia’s coastal region may benefit and formerly chaired the Virginia Bar Association’s Environment, Natural from state funds and tax exemptions designed to offset the Resources, and Energy Section. www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 25 A New Approach to Water for Hampton Roads Cities by James T. Lang and Christopher Kane

Underworld Connection Photo by Bill Dickinson, Sky Noir Photography.

Never before has an “integrated” planning1 approach to municipal wastewater (i.e., sewage2) and storm water3 management been used for a region spanning multiple cities.4 A plan developed in Hampton Roads would be the first. If approved by the US Environmental Protection Agency (EPA) and the Virginia Department of Environmental Quality (DEQ), this plan5 delivers an estimated $2 billion reduction in environmental compliance costs to the cities in the Hampton Roads region while meeting or exceeding the region’s Chesapeake Bay clean-up obligations. The plan also counteracts land subsidence, which fur- thers efforts to equip Hampton Roads with resilience to sea level rise, restores the badly depleted volume of ground water in the Potomac aquifer, and reduces or eliminates saltwater contamination of that ground water.

26 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org A NEW APPROACH TO WATER FOR HAMPTON ROADS CITIES

Features of the “SWIFT” Plan dollars to migrate to technologies that deliver The Hampton Roads Sanitation District the greatest bang for the buck. SWIFT also (HRSD) operates nine major sewage treat- counteracts ground water scarcity and land ment plants in Hampton Roads with each subsidence, two further issues of major con- plant obligated to comply with discharge cern in Hampton Roads. limits imposed in their Virginia Pollution Discharge Elimination System permits. HRSD Restoration of the Chesapeake Bay developed the Sustainable Water Initiative For The Chesapeake Bay is the largest estuary in Tomorrow (SWIFT) as a way to deliver multi- the United States, and is one the largest and ple regional benefits, including responding to most biologically productive estuaries in the the EPA’s demand that HRSD and eleven cities world. Yet, the bay absorbs pollutants from in the Hampton Roads Region reduce the pol- multiple sources: lution they are releasing into the Chesapeake • chemicals put into the air from car/airplane/ Bay.6 SWIFT creates annual savings for the locomotive exhaust and industrial smoke- region because HRSD can deliver pollution stacks; reduction at a price per pound far lower • chemicals and sediment carried by storm than the cost the cities must pay to deliver an water flowing off of lands modified by agri- equivalent quantity of pollution reduction cultural and urban development; in their Municipal Separate Storm Sewer • chemicals that flow out of pipes carrying the System (MS4) permits. Nutrient trading, contaminated wastewater from industrial accomplished through use of the Chesapeake operations; Bay Watershed Nutrient Credit Exchange • chemicals and bacteria from pipes carrying Program7 (enacted by the General Assembly the effluent of sewage treatment plants; and in 2005), is the lynchpin that allows the HRSD • chemicals and bacteria from ground water to spread the cost savings among the eleven that is contaminated by septic systems. participating cities. As the EPA recognizes: One of the major negative impacts from Water quality trading is an approach these pollutants (among many) is low-oxygen that offers greater efficiency in “dead zones” that pop up during summer achieving water quality goals on a at various places in the bay and which are watershed basis. It allows one source caused by nitrogen and phosphorous pollu- to meet its regulatory obligations by tion delivered by sources mentioned above. using pollutant reductions created The aggregate size of dead zones in the bay by another source that has lower for the 2016 summer season was estimated at pollution control costs. Trading capi- 1.58 cubic miles (or 2.3 million Olympic-size talizes on economies of scale and the swimming pools).9 control cost differentials among and between sources. (EPA, Office of Water Quality Trading ... this plan delivers an estimated $2 billion reduction Policy, at 1 (Jan. 13, 2003)). HRSD proposes to implement SWIFT at in environmental compliance costs to the cities in the seven of its sewage treatment plants by pu- rifying the incoming wastewater to drinking Hampton Roads region while meeting or exceeding the water standards. Next, SWIFT injects8 the ef- fluent into the Potomac Aquifer (the primary region’s Chesapeake Bay clean-up obligations. source of ground water for eastern Virginia) instead of discharging it into the James, York, and Elizabeth Rivers, thus generating millions The combination of dead zones, loss of of pounds of pollution credits annually. The grasses on the floor of the bay, overfishing, cities in the region could draw upon this mas- and introduction of disease-carrying organ- sive quantity of credits, valued at $2 billion, isms (to name a few) have devastated the fish, via the Nutrient Credit Exchange Program for crab, and oyster fisheries. The oyster fishery use in eliminating inefficient requirements provides an instructive example. There, “the that would otherwise be imposed on them in decline in oysters has meant a loss of more their MS4 permits. SWIFT makes sure the re- than $4 billion [between 1980 and 2010] for gion does its part to clean up the Chesapeake the economies of Maryland and Virginia.”10 Bay while enabling environmental compliance These cost figures are consistent with conclu- www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 27 A NEW APPROACH TO WATER FOR HAMPTON ROADS CITIES

sions reached by the EPA in its report on the known as the James River Basin and the York cost of nutrient pollution that was issued in River Basin. The chart below shows the extent 2015: to which SWIFT can meet the needs of the Excessive nutrient loading to water- eleven cities in the region: bodies can lead to over-enrichment (see chart below) and algal blooms, resulting in a myriad of adverse economic effects Restoration of Ground Water in sectors that include commercial Although the HRSD’s primary motivation fisheries, real estate, and tourism and for the SWIFT project is reducing nutrient recreation, and an increase in health and sediment discharge into the bay, there care and drinking water treatment are a number of other significant water issues costs. Additionally, mitigation mea- in the Hampton Roads region that require sures that local governments use to a long-term comprehensive solution. These reduce the effects in the water (such problems include: depletion of ground water as algal blooms) can cost millions of in the Potomac Aquifer; land subsidence both dollars for a single year of treatment. natural and due to aquifer depletion; sea level (EPA, A Compilation of Cost Data rise caused by climate change and exacerbated Associated with the Impacts and Control of by land subsidence; and, threat of saltwater Nutrient Pollution at III-1 (May 2015)). intrusion into and contamination of the Waters that drain into the bay emanate aquifer. Depletion of the Potomac Aquifer from six states (Virginia being one) plus the is similar to the “Tragedy of the Commons” District of Columbia, giving rise to the classic paradigm that occurs with historical pollution “Tragedy of the Commons.”11 Action by the flowing into the bay. federal government is the technique the Clean The Potomac Aquifer underlies a vast Water Act selected to overcome the Tragedy of region from North Carolina to New York. the Commons paradigm.12 On December 29, Thousands of industries and half a million 2010, the EPA established the Chesapeake Bay households take water from the aquifer. (The Total Maximum Daily Load (Bay TMDL).13 estimate for Hampton Roads is approxi- The bay TMDL establishes numerical limits mately hundreds of industries and 25,000 on pollutant loads (measured in pounds) households.) Today this equates to permitted for nitrogen (including nitrogen deposit- withdrawals of around 147 million gallons per ed by air into the bay), phosphorous, and day (MGD), with actual withdrawals totaling sediment that can enter the tidal portion of 115 MGD.15 Another 40 MGD of withdrawals the Chesapeake Bay watershed.14 The SWIFT occur from an estimated 200,000 unpermitted program responds to the bay TMDL in the “domestic” wells located throughout eastern two geographic areas of the Chesapeake Bay Virginia.16 When this level of ground water is

Credits Available for Use by the Eleven Cities (all units shown in pounds) HRSD Bay TMDL HRSD Post Swift Loads Credits Available for Use by the Allocations (2030) Eleven Cities Nitrogen James River Basin 3,400,000 500,000 2,900,000 York River Basin 275,927 25,000 250,927 Phosphorus James River Basin 300,009 50,000 250,009 York River Basin 18,395 2,000 16,395 Sediment James River Basin 14,000,000 700,000 13,300,000 York River Basin 1,400,00 98,000 1,302,000

28 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org A NEW APPROACH TO WATER FOR HAMPTON ROADS CITIES pumped from an aquifer system, water levels will make Hampton Roads resilient to the and water pressure decrease. The natural impacts of sea level rise.23 “mound” of subsurface fresh water and When fully built out by the year 2030, related pressure keeps adjacent saltwater from SWIFT will replenish the aquifer by injecting contaminating the freshwater in the aquifer. 120 MGD back into the Potomac Aquifer.24 When the pressure and size of this mound The source for the ground water replen- decrease, the risks of saltwater contamination ishment will be the purified wastewater into the aquifer increase. Pumping ground discharged from seven of HRSD’s sewage water out of the aquifer also affects the level treatment plants. The SWIFT advanced treat- of the water table. Over the past 100 years ment process purifies the water to levels equal the water table has dropped at some loca- to or better than the current aquifer water tions from 31 feet above sea level to 200 feet and to levels that match the chemistry of the below.17 ground water in the aquifer (which eliminates In addition, the Potomac Aquifer system the possibility for new problems).25 SWIFT, if is made up of many horizontal layers of approved, should reverse the degree of land clay and sand separated by ground water. As subsidence and substantially replenish the ground water is eliminated from the aqui- aquifer. fer these horizontal layers of clay and sand move closer to one another, which causes Conclusion the surface land to subside. This man-made SWIFT is an unprecedented integrated subsidence is in addition to the naturally oc- planning win-win. The HRSD’s trailblazing curring subsidence due to long-term geolog- effort to integrate municipal wastewater and ical settlement conditions resulting from the storm water management compliance for the existence of glaciers thousands of years ago. Hampton Roads region will, if approved, cap- Land subsidence magnifies and worsens the italize on economies of scale and control cost negative effect of sea level rise18 due to climate differentials that will clean up the bay while change. Indeed, land subsidence in Hampton delivering an estimated $2 billion reduction Roads “causes more than half the relative in environmental compliance costs to the sea-level rise” with “aquifer-system compac- cities in the Hampton Roads region. SWIFT tion [explaining] the majority of observed will, in addition, counteract land subsidence, land subsidence.”19 Thus, depleting the aquifer which furthers the efforts to equip Hampton increases the risk and significance of flooding Roads with resilience to sea level rise, restore in the region. The flood risk in the Hampton the badly depleted volume of groundwater Roads region is second only to New Orleans stored in the Potomac Aquifer, and reduce in the United States.20 or eliminate saltwater contamination of that Moody’s Investor Service, a leading pro- groundwater. vider of credit ratings, research, and risk anal- ysis, is performing a “Coastal Virginia Credit Endnotes: Focus Review” to assess how sea level rise/ 1 EPA issued a memorandum in 2012 encour- recurrent flooding would affect the Moody’s aging “integrated planning approaches to rating for bonds issued by Virginia Beach.21 municipal wastewater and storm water man- In response to the Moody questionnaire the agement.” EPA, Integrated Municipal Storm water and Wastewater Planning Approach city confirmed that it spent $43.8 million for Framework (June 5, 2012). Integration in this flood-control projects over the last five years, context means that the “NPDES requirements and would spend an additional $135 million for separate sanitary sewer systems, combined 22 over the next ten years. sewer systems, municipal separate storm In addition, an Intergovernmental sewer systems and at wastewater treatment Planning Pilot Project (IPP) was formed, with plants may be included in an integrated plan.” broad federal, state, and local government EPA, Integrated Municipal Stormwater and participation, for the purpose of coordinating Wastewater Planning Approach Framework, “sea level rise preparedness and resilience at page 3 (May 2012). planning” for Hampton Roads. Following 2 Sewage treatment plants receive municipal two years of work, the IPP issued a resolution wastewater, treat it and then discharge the treated effluent to rivers, lakes, or the ocean. dated June 27, 2016, executed by all of its The Clean Water Act, enacted in 1972, created members (save one), calling for the formation the National Pollution Discharge Elimination of an entity to facilitate and plan actions that System (NPDES) permit program, 33 U.S.C. www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 29 A NEW APPROACH TO WATER FOR HAMPTON ROADS CITIES

§1342 which, among other things, imposed 8 There are examples around the country where new pollution control requirements on wastewater treatment plants are injecting sewage treatment plants designed to protect purified wastewater effluent into the ground water quality. The Clean Water Act also cre- water aquifer. The largest, at 100 million gal- ated a funding mechanism to pay for sewage lons per day, is in Orange County California. treatment plan upgrades. 33 U.S.C. §§1281 It is the Ground Water Replenishment System, to 1299. There are more than 16,000 publicly jointly created by the Orange County Water owned sewage treatment plants in the United District and the Orange County Sanitation States. https://www.dhs.gov/water-and District, and has been operating since 2008. -wastewater-systems-sector (site visited Jan. GWRS Technical Brochure, at page 4. 22, 2017). 75 percent of the population has its http://www.ocwd.com/media/4267/gwrs wastewater treated by these plants, with the -technical-brochure-r.pdf (site visited Jan. remainder of the population using a septic 22, 2017). Other examples include Scottsdale, system. Id. In the first twenty-five years fol- Arizona (20 million gallons per day), El lowing adoption of the Clean Water Act, the Segundo, California (12.5 million gallons per federal government spent over $60 billion on day), El Paso, Texas (10 million gallons per sewage treatment plant upgrades. day), and Los Alamitos, California (3 million 3 Although an obvious point source discharge, gallons per day). the EPA initially attempted to exempt storm 9 National Oceanic and Atmospheric water discharges from the NPDES permitting Administration, Chesapeake “Dead Zone” to requirement, a strategy that was ruled illegal be Average to Slightly Smaller (June 13, 2016) in Natural Resources Defense Council v. Costle, http://www.noaa.gov/media-release/ 568 F.2d 1369 (D.C. Cir. 1977). The Clean chesapeake-bay-dead-zone-to-be-average-to Water Act amendments in 1987 imposed -slightly-smaller) (site visited Jan. 8, 2017). very specific NPDES permit requirements in 10 Chesapeake Bay Foundation, On the Brink: respect to storm water through the addition Chesapeake’s Native Oysters (2010) (quoting of 33 U.S.C. §1342(p). assessment made by National Oceanic and 4 According to the trade group National Atmospheric Administration). Association of Clean Water Agencies 11 Daniels, The Tragicomedy of the Commons, (NACWA), several cities are attempting 2014 B.Y.U. L. Rev. 1347 (2014); Thompson, or have adopted “integrated” planning Tragically Difficult: The Obstacles to for their municipal wastewater and their Governing the Commons, 30 Envtl. L. 241 stormwater management: Durham, New (2000). Hampshire, Cincinnati, Ohio, Santa Maria, 12 See especially 33 U.S.C. section 1313(d). California, Columbus, Ohio, Washington, 13 Notice of Availability of the Chesapeake Bay DC, Evansville, Indiana, Lawrence, Kansas, TMDL, 76 Fed. Reg. 549 (Jan. 5, 2011). The Seattle, Washington, Spokane, Washington, American Farm Bureau Federation and the Springfield, Missouri, and Victor Valley, Pennsylvania Farm Bureau, as plaintiffs, lost California. See, https://www2.nacwa.org/ in the legal action that they filed seeking to index.php?option=com_content&view= overturn the Bay TMDL. American Farm article&id=1767&Itemid=356 (site visited Bureau Federation v. EPA, 984 F. Supp. 2d 289 Feb. 15, 2017) (integrated plans and/or per- (M.D. Pa. 2013), aff’d, 792 F.3d 281 (3rd Cir. mits for many of these municipalities can be 2015). downloaded from NACWA’s Integrated Plan 14 The numerical limits in the TMDL “cap” e-library). the amount of pollution that can enter the 5 Mayfield, “Hampton Roads cities are lining up Bay. This “cap”, when joined with nutrient for $2 billion in pollution reduction credits,” trading (through use of the Chesapeake The Virginian-Pilot, March 9, 2017, at 3. Bay Watershed Nutrient Credit Exchange 6 The EPA demand might have never been Program, see supra note vi) is a classic use of made if it were not for the actions by a group the “Cap and Trade” approach to pollution of environmental citizen-suit plaintiffs, led by control. These Cap and Trade systems reduce the Chesapeake Bay Foundation. They filed “emissions by setting a limit on pollution and suit against the EPA for its failure to comply creating a market.” See, https://www.edf.org with the duty to clean up the Chesapeake Bay /climate/how-cap-and-trade-works (site pursuant to the Clean Water Act. See, Fowler visited Jan. 27, 2017). “[C]ap and trade is a v. EPA, case no. 1:09cv005 (D. D.C. complaint government-mandated, market-based ap- filed Jan. 5, 2009). The case settled with the proach to controlling pollution by providing EPA agreeing to promulgate a Total Maximum economic incentives for achieving reductions Daily Load for the Chesapeake Bay not later in the emissions of pollutants.” See, https:// than December 31, 2010. en.wikipedia.org/wiki/Emissions_trading (site 7 Virginia Code §§62.1-44.19:12 to .15. visited Jan. 27, 2017).

30 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org A NEW APPROACH TO WATER FOR HAMPTON ROADS CITIES

15 Jamie Mitchell & Daniel Holloway, SWIFT: sea-level-rise-virginia (site visited Jan. 22, Sustainable Water Initiative for Tomorrow, 2017). at 4 (Sept. 20, 2016) (paper presented at 21 James K. Spore letter to Mayor and City 2016 Hampton Roads Water Symposium) Council Members (March, 6, 2015) (copy on (copy on file with authors and also avail- file with authors). able at http://www.hrpdcva.gov/uploads/ 22 Id. docs/02_HRSD%20Sustainable%20Water%20 23 Resolution of The Steering Committee of the Initiative_D%20Mitchell%20and%20%20 Hampton Roads Sea Level Rise Preparedness J%20Holloway.pdf (site visited Jan. 27, 2017)). and Resilience Intergovernmental Planning 16 Id. Pilot Project (June 27, 2016) (copy on file 17 Id. at 5. with the authors). 18 For an excellent discussion of sea level rise 24 Jamie Mitchell & Daniel Holloway, supra note in Virginia, see, Henry R. Pollard, Primer on xiv at 32. Coastal Flooding Issues, at 1-7 (Jan. 20, 2017) 25 “Ensuring the ‘geocompatibiity’ of the fin- (paper presented at VBA Annual Meeting ished water with the native ground water is a 2017) (copy on file with authors). key factor in achieving success on the overall 19 U.S. Geological Service, Land Subsidence project.” Landers, Virginia Utility Aims to and Relative Sea-Level Rise in the Southern Eliminate Most Discharges to Surface Waters, Chesapeake Bay Region at 17 (2013). Civil Engineering 20, 22 (November 2016) 20 Forbes Tompkins and Christina DeConcini, (to avoid problems, the ionic strength of the Sea Level Rise and its Impact on Virginia finished water must be compatible with the (June 2014) http://www.wri.org/publication/ ionic strength of the native ground water).

James T. Lang is an environmental lawyer and Christopher Kane is a licensed professional partner at Pender & Coward PC in Virginia engineer and member of the bar with over Beach where he represents governmental thirty-five years of experience. He is senior vice entities, industry, and waterfront property president, chief counsel for AECOM Americas owners. Before joining Pender & Coward, he developing water resources and wastewater represented the US Navy as an environmen- projects in the United States and Canada. tal counsel handling difficult environmental Prior to receiving his law degree, he spent five issues arising at bases throughout Virginia, and years as an engineering officer in the US Army issues connected with ship and aircraft opera- Corps of Engineers and worked on several tions throughout the United States and at sea. water projects in the Pacific Northwest. He A widely published author, his most recent participated in the New Jersey Sandy Media- article (on citizens’ environmental lawsuits) is tion Program and is active in the ABA Section forthcoming as the lead article in the Universi- on Environment, Energy and Resources. ty of Texas Environmental Law Journal.

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See www.vsb.org/site/sections/environmentallaw

www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 31 Flooding Resilience in the Commonwealth by Angela King and Emily Steinhilber

GLOUCESTER, VIRGINIA — OCTOBER 2, 2015: The closed off Gloucester Point Beach in Gloucester VA as hurricane Joaquin and a stalled front combine to create major coastal flood- ing in low-lying areas. Credit: Barry Blackburn / Shutterstock.com

Hurricane Matthew in October efforts must continue to mitigate the ongoing risks posed by flood waters. 2016 reminded people across Virginia of the risks posed by coastal flooding. Flooding Resilience in the Commonwealth Although Matthew’s winds had substan- Flood resilience is a key issue for the cur- rent administration. In 2014, Governor tially weakened, heavy rainfalls in the McAuliffe established the Climate Change and preceding weeks left the ground saturat- Resiliency Update Commission by Executive Order and directed the Commission to de- ed. With no place to go, water inundated velop actionable recommendations.2 Based neighborhoods and roadways. upon preliminary recommendations of the commission, McAuliffe appointed Secretary President Obama issued emergency declara- of Public Safety and Homeland Security Brian tions for cities across southeastern Virginia, Moran the chief resilience officer for the and the Federal Emergency Management Commonwealth of Virginia.3 Moran’s office Agency has since approved more than 2,000 has made great strides to lead Virginia in this applications for individual assistance.1 area.4 Though rising flood waters often present As a part of the federal government’s challenges, Virginia’s coastlines are home to National Disaster Resilience Competition, some of our nation’s greatest ecosystems, the the commonwealth was awarded more than largest naval station in the world, a thriving $120 million.5 These funds, mostly allocated port and tourism industry, and a burgeoning to projects in the Ohio Creek Watershed area aquaculture industry. The importance of pro- in Norfolk, will protect and enhance the eco- tecting these assets cannot be overstated. As nomic vitality and quality of life in Virginia. discussed below, Virginia has made recurrent The award also provides for a business accel- flooding a recent focus statewide and those erator, which will focus on developing water

32 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org FLOODING RESILIENCE IN THE COMMONWEALTH management and resilience related economies • Living Shorelines Local Tax Exemption. The in the commonwealth.6 2016 Virginia General Assembly passed HB 526 (Ch. 610 of the 2016 Acts of Assembly), General Assembly which provides that any living shoreline Hampton Roads’ legislators are leaders in project approved by the Virginia Marine proposing and supporting legislation to Resources Commission or the applicable plan and implement resilience strategies local wetlands board and not prohibited by across Virginia. In 2012, then Senator Ralph local ordinance shall qualify for full exemp- Northam (6th District), proposed legislation tion from local property taxes.14 requesting the Virginia Institute of Marine Science (VIMS) “study strategies for ad- Local Action aptation to prevent recurrent flooding in Resilience, at its heart, is a community issue, Tidewater and Eastern Shore localities.”7 This and many localities have led the way in de- report,8 published in January 2013, clarified veloping and implementing flood resilience the issue to many and galvanized support for strategies. flooding adaptation in coastal Virginia. Norfolk, named in the Rockefeller The following year, Delegate Chris Stolle Foundation’s first round of “100 Resilient (83rd District) and Senator Lynwood Lewis Cities,”15 has fully embraced its goal to “design (6th District) led the effort to establish a joint the coastal community of the future” through subcommittee to recommend short-term and integrating a resiliency staff into city manage- long-term strategies to minimize the impact ment, launching its resilience strategy,16 and of recurrent flooding and coastal storms,9 charging forward on a long-term planning which was reauthorized in 2016 as the Joint process it calls Vision 2100.17 Portsmouth Subcommittee on Coastal Flooding.10 Below is incorporating resilience throughout its are examples of key legislation passed by the revised comprehensive plan, and Hampton General Assembly since 2015. is developing a plan to “live with water,”18 which will include actionable short-term • Incorporate Sea Level Rise and Recurrent and long-term strategies. Virginia Beach Flooding into Comprehensive Plan. The 2015 received a grant from the National Oceanic General Assembly passed SB 1443 (Ch. 186 and Atmospheric Administration (NOAA) of the 2015 Acts of Assembly), requiring Regional Coastal Resilience Grant Program that “[b]eginning July 1, 2015, any locality to continue and expand upon its city-wide included in the Hampton Roads Planning analysis of sea level rise and adaptation strat- District Commission shall incorporate into egies.19 Additionally, the Hampton Roads the next scheduled and all subsequent re- Planning District Commission regularly views of its comprehensive plan strategies to convenes a Coastal Resilience Committee and combat projected relative sea-level rise and associated working group to share strategies recurrent flooding.”11 As Virginia is a Dillon and discuss regional planning needs. Rule state, this legislation is helpful to these localities because it provides express author- ity to incorporate such strategies. Though rising flood waters often present challenges, Virginia’s coastlines are home to some of our nation’s • Virginia Shoreline Resiliency Fund. The 2016 General Assembly passed SB 282 (Ch. 762 greatest ecosystems, the largest naval station in the world, of the 2016 Acts of Assembly), establishing the Virginia Shoreline Resiliency Fund (the a thriving port and tourism industry, and a burgeoning Fund) and stating that “[l]ocalities shall aquaculture industry. use moneys from the Fund primarily for the purpose of creating a low-interest loan program to help residents and businesses The Hampton Roads Sea Level that are subject to recurrent flooding as Rise Preparedness and Resilience confirmed by a locality-certified floodplain Intergovernmental Pilot Project, a two- manager. Moneys in the Fund may be used year project convened by Old Dominion to mitigate future flood damage.” 12 The University (ODU), aimed to develop a gov- General Assembly has not yet appropriated ernment and community planning process money for the Fund.13 by bringing together local, state, federal, and www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 33 FLOODING RESILIENCE IN THE COMMONWEALTH

community stakeholders. The project con- continuity in the face of flooding. Working cluded in 2016 with more than thirty discrete in tandem, the Coastal Policy Center is as- recommendations that encourage integration sessing policy support for resilience to signif- of data, increased regional and governmental icant storm surges and flooding by analyzing collaboration, and a watershed-based ap- the current overarching legal framework proach to resilience.20 governing the tourism industry in Virginia Beach and statewide, identifying legal and Utilizing University Resources policy impediments to resilient tourism, Virginia boasts many leading institutions and detailing laws and policies that could be of higher education. ODU and William and implemented to support resilient tourism. Mary (W&M), both located in Virginia’s Although this project focuses on Virginia flooding hot spot of Hampton Roads, have Beach, other communities will benefit from formed a strong partnership and are collabo- the resulting tourism resilience assessment rating on diverse research projects. The initia- and policy recommendations. tives discussed below are designed to enhance resiliency within the commonwealth. • Working Waterfront Master Plan. The Virginia Working Waterfront Master Plan22 • Research Center. Last year, the General (the Plan) was featured at the Coastal Policy Assembly, with the support of McAuliffe, Center conference on December 2, 2016. designated the Commonwealth Center for In addition to providing background and Recurrent Flooding Resiliency (CCRFR) historical information, the Plan outlines the jointly at ODU, VIMS, and the Virginia threats that working waterfronts face from Coastal Policy Center (the Coastal Policy natural forces and policies that could be en- Center) at W&M Law School.21 The acted at all levels of government to protect CCRFR engages the expertise, resources, and working waterfronts in the future. After the intellectual vibrancy of the three institutions release of the Plan and the legislative pan- in support of building resilience to rising el discussion at the Coastal Policy Center waters. The CCRFR serves, advises, and conference, legislation was introduced in supports Virginia by conducting interdisci- the 2017 Session of the General Assembly to plinary studies and providing training, tech- address some issues raised in the Plan. The nical and non-technical services, and policy General Assembly passed SB 1203 which guidance to the commonwealth and its local authorizes localities to establish working governments, state agencies, industries, and waterfront development areas by ordi- citizens. nance.23 However, SJ 281, which requested In its first year, the CCRFR is support- that “the Virginia Economic Development ing research and leveraging funds to pro- Partnership . . . study the long-term eco- vide decision makers with actionable tools, nomic viability of working waterfronts,” did information and research. This approach not pass.24 is not constrained by political borders. For example, as the City of Hampton embarks on • Integrations of tide gauges and other water the development of a resilience plan, CCRFR level gauges throughout coastal Virginia. researchers from ODU, VIMS, and W&M VIMS’s TideWatch program currently in- will not only support aspects of the project tegrates data from ten tide gauges (one but will ensure information and strategies maintained by VIMS and nine by NOAA) are captured to expand upon throughout the in the lower Chesapeake Bay and its tribu- commonwealth. The CCRFR is an essential taries. TideWatch provides visualization of partner to localities, especially those that do the predicted astronomical tides at each tide not have the ability to develop and test new gauge location, plus the observed water level resilience strategies independently. over the previous twenty-four hours and the predicted weather-related water levels over • Tourism Resiliency. ODU faculty is assessing the next thirty-six hours. VIMS is updating the resilience of the tourism industry at the the program software and integrating newer Virginia Beach oceanfront in collaboration tide gauges across the region. Once the net- with Virginia Beach and local stakeholders. work of greater than twenty tide gauges and This will guide development of customized water-level sensors are integrated it will pro- tools and workshops to support business vide wide-reaching storm surge prediction

34 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org FLOODING RESILIENCE IN THE COMMONWEALTH

capabilities for Tidewater Virginia. VIMS is partnering with • Community Rating System Open Space Mapping. FEMA’s Newport News and the National Institute of Standards and National Flood Insurance Program Community Ratings Technology to install additional water-level sensors that will System (CRS) is a voluntary incentive program that en- link to the system leveraging funds within the region. courages localities to engage in community floodplain management activities to receive discounted flood insurance • High resolution state-of-the-art street-level flood modeling. premiums for residents. ODU and VIMS faculty are actively VIMS has developed a world-class set of numerical comput- working with the Coastal Virginia CRS Workgroup to provide er models that can predict with high resolution street-level technical support to localities in support of CRS programs. flooding in advance of a storm. VIMS is in the process of op- timizing this model throughout Hampton Roads, integrating Conclusion it into CCRFR research, and consulting with local govern- Over the past few years, a variety of stakeholders have made ments to optimize the modeling capabilities. great strides to address flooding resiliency in Virginia, but more can be done, such as funding the Virginia Shoreline • Localized Subsidence Research. In partnership with NASA and Resiliency Fund. As we look toward changing coastlines and the United States Geological Survey, ODU scientists are using storm patterns, Virginia must continue to support its localities, synthetic aperture radar (InSAR) data from 2006 to 2011 sat- citizens, and businesses to strengthen our communities as we ellite readings to determine localized rates of land subsidence, continue to live with rising tides and flood waters. which contributes to flooding. Moving forward, ODU will have the capability to conduct ongoing monitoring of subsid- Endnotes: 1 Virginia Hurricane Matthew (DR-4291), FEMA, https://www ence for localities and others using current satellite data. .fema.gov/disaster/4291. 2 Virginia Exec. Order 19 (2014), https://governor.virginia.gov/ • Economic Analysis. ODU economists are conducting a series media/3348/eo-19-convening-the-governors-climate-change of economic impact analyses as a follow up to the Coastal -and-resiliency-update-commissionada.pdf. 25 3 Honorable Molly Joseph Ward and Honorable Brian Moran, Policy Center’s “Costs of Doing Nothing” report. The first Report and Final Recommendations to the Governor, Governor analysis will detail the existing water management and flood Terence R. McAuliffe’s Climate Change and Resiliency Update mitigation economy in Hampton Roads, the capacity for the Commission, (Dec, 21, 2015) https://naturalresources.virginia. region to become a national and global leader in this area, gov/media/5101/climate-commission-and-resiliency-update and recommendations to achieve that goal. Subsequent re- -commission-report.pdf. 4 Legislation introduced in the 2017 session of the General ports will utilize VIMS street-level modeling to analyze the Assembly to establish a stand-alone cabinet level position to impact of coastal flooding on commercial development, assist focus on coastal flooding resilience did not pass.See HB 1964, with the development of resilient building codes, and more. Coastal protection and flooding adaptation, Secretary for; creates position; SB 1349, Coastal protection and flooding adaptation, •Road flooding risk in Mathews County. VIMS is utilizing Secretary for; creates position, effective clause. 5 Virginia to receive more than $120.5 million from National LIDAR elevation data to develop digital elevation maps of Disaster Resilience Competition, Press Release, Governor Terry roads and roadside ditch elevations throughout Mathews McAuliffe, (Jan. 21, 2016) http://governor.virginia.gov/ County. This digital map can be used in conjunction with the newsroom/newsarticle?articleId=13972. street-level flooding model to predict flooding risk for roads 6 National Disaster Resilience Competition, Grantee Profiles, HUD, p. 23 https://portal.hud.gov/hudportal/documents throughout the county under various storm conditions. /huddoc?id=NDRCGrantProf.pdf. 7 Senate Joint Resolution No. 76 (2012). • Resiliency data portal. VIMS is developing a data portal, 8 Molly Mitchell, et. al., “Recurrent Flooding Study for Tidewater “Adapt Virginia,” that will integrate a wide range of resiliency Virginia,” Report Submitted to the Virginia General Assembly resources for the commonwealth’s agencies and local govern- (Jan. 2013) available: http://ccrm.vims.edu/recurrent_flooding /Recurrent_Flooding_Study_web.pdf. ments. The team is working closely with both the Virginia 9 Virginia House Joint Resolution No. 16 (2014). Department of Conservation and Recreation, the Coastal 10 Virginia House Joint Resolution No. 84 (2016). See also http:// Policy Center, and Wetlands Watch, a Norfolk-based nonprof- dls.virginia.gov/interim_studies_flooding.html. it, to ensure that the portal, which will launch in 2017, pro- 11 Virginia Code § 15.2-2223.3 (2015). vides a wealth of useful resources and case studies. 12 Virginia Code § 10.1-603.25 (2016). 13 The Joint Subcommittee on Coastal Flooding voted to recom- mend providing funding in January 2017. Meeting of the Joint • Risk communication. Utilizing output from VIMS’s street- Subcommittee on Coastal Flooding, Jan. 10, 2017, materials level flood modeling, ODU scientists will develop, analyze, available: http://dls.virginia.gov/interim_studies_flooding.html. and then enhance flood risk communication in collaboration 14 Virginia Code § 58.1-3666 (2016). 15 Norfolk’s Resilience Challenge, 100 Resilient Cities, http:// with local stakeholders. The researchers will use a gamified www.100resilientcities.org/cities/entry/norfolks-resilience approach, including a custom text alert system, to test users’ -challenge#/-_/. responses and adaptation actions (for example, moving a parked car to a higher elevation in advance of flooding). Flooding continued on page 39 www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 35 Mississippi v. Tennessee: Are Changes Coming to Interstate Water Rights Jurisprudence?

Industrial South Photo by Bill Dickinson, Sky Noir Photography.

by Emily Russell “Like all cases within the [Supreme] violated that apportionment by taking more than its fair share.1 Under Article III, Section Court’s original jurisdiction, a dispute 2, Clause 2 of the US Constitution and 28 U.S.C §1251(a), interstate water disputes fall between States over rights to water is a within the original jurisdiction of the Court. serious matter — so serious, in fact, that The premise of such cases is that a river, lake, or other water resource is interstate in it might be grounds for war if the States nature because it is not confined to one state’s borders. But what if the parties fail to agree were truly sovereign.” — Memorandum even on that fundamental issue? In 2015, the 1 Decision of Special Master, the Hon. Court agreed to hear Mississippi v. Tennessee, an interstate water dispute of first impression Eugene E. Siler Jr., dated August 26, where the central factual conflict is wheth- er an aquifer is an interstate resource. For 2016 (internal quotes omitted). water law attorneys, Mississippi v. Tennessee is intriguing because it presents questions of For more than 100 years, the United States law that will turn on the science of ground Supreme Court has settled interstate water water and a factual understanding of the disputes in one of two ways: (1) by reference aquifer. For Virginia decision makers, the case to, and interpretation of, an existing interstate exemplifies the importance of accounting for compact or (2) by apportioning the water eq- interstate users, not just intrastate users, at a uitably between the two states (“equitable ap- time when the commonwealth is planning for portionment”) and deciding when a state has future management of its ground water.

36 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org MISSISSIPPI V. TENNESSEE

Procedural Background on where the ground water itself is located – Although Mississippi v. Tennessee arises under in other words, whether it is an interstate or the Court’s original jurisdiction, the action intrastate resource. did not begin as an interstate water dispute. The two states do not have an interstate Mississippi originally filed suit against the city compact governing use of the ground water, of Memphis and its water utility in federal and Mississippi’s complaint disclaims that it district court in Mississippi.2 The district seeks equitable apportionment of the ground court dismissed the case without prejudice water supply.11 Instead, Mississippi argues on grounds that Tennessee was a necessary that the ground water contained in the Sparta party to the action and further stated that Sand formation would naturally remain en- it was not empowered to join Tennessee tirely within Mississippi’s boundaries but for because “original and exclusive jurisdiction the Tennessee defendants’ tortious mechanical of disputes between states resides with the pumping, which has caused the ground water United States Supreme Court.”3 The Fifth to “unnaturally” cross over into Tennessee.12 Circuit Court of Appeals affirmed the district Under Mississippi’s theory, the ground court’s judgment,4 and Mississippi petitioned water at issue is an intrastate waterbody. The the Court for a writ of certiorari, which the Tennessee defendants counter that Mississippi Court denied.5 Mississippi then decided to has failed to state a claim upon which relief join Tennessee as a defendant and renewed can be granted, arguing that Mississippi its claims under the theory that the case was conceded in its own complaint that the now an interstate dispute which could only be ground water is an interstate waterbody when resolved by the Court. The Court, by majority it acknowledged that the geological forma- vote, granted leave for Mississippi to file a bill tion underlies both states.13 According to the of complaint, thereby permitting Mississippi Tennessee defendants, Mississippi’s tort claims to present the same argument it had already are simply an attempt to evade the Court’s made to the district court and on appeal to century-long equitable apportionment juris- the Fifth Circuit.6 prudence.14 The Court appointed a special master, The Interstate Water Dispute the Honorable Eugene E. Siler Jr. of the Sixth Mississippi v. Tennessee is unlike preceding Circuit Court of Appeals, and granted him interstate water disputes because it is based “authority to fix the time and conditions for in tort and relates solely to ground water. All the filing of additional pleadings, to direct similar, prior cases before the Court involved subsequent proceedings, to summon wit- surface water (rivers, streams, etc.) or ground nesses, to issue subpoenas, and to take such water that was hydrologically connected to evidence as may be introduced and such as surface water.7 The Court’s jurisprudence is he may deem it necessary to call for.”15 The clear that an interstate compact or equita- appointment of a special master is a unique ble apportionment governs those types of characteristic of cases where the Court choos- disputes. In Mississippi v. Tennessee, the Court es to exercise its original jurisdiction.16 Since will decide whether the ground water at issue the Court serves as the trial court in inter- is interstate and whether its existing jurispru- state water disputes, special masters assist in dence applies in a case where the interstate executing the Court’s trial court functions by conflict pertains to ground water exclusively. acting as fact-finder.17 Mississippi v. Tennessee Mississippi claims that Tennessee, the city presents a factual scenario previously uncon- of Memphis, and the city’s water utility are vi- sidered by the Court, where ground water olating Mississippi’s sovereign right to ground could naturally be located in one state but, water found in a geological formation known through technological advances in pumping, as the Sparta Sand.8 Mississippi alleges that, is available for use by another state. In order since 1985, the Memphis utility, with approval to determine whether the factual scenario and oversight from the city and Tennessee, argued by Mississippi truly distinguishes this has knowingly drawn ground water from the case from others that preceded it, Siler has Sparta Sand to provide the city’s municipal distilled the case down to a single question, water supply.9 To do so, the utility uses wells which he believes is dispositive — that is, is located three miles from the Mississippi bor- the ground water interstate in nature? der.10 The parties agree that the Sparta Sand In August 2016, Siler issued a extends beneath both states but do not agree Memorandum of Decision on the parties’ www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 37 MISSISSIPPI V. TENNESSEE preliminary motions and observed that Mississippi’s decision and legal stakeholders. If nothing else, the case demonstrates not to request equitable apportionment is likely grounds for that ground water issues are a serious matter at local, regional, dismissal, after which Mississippi would decide whether to and interstate levels and that planning for future uses should seek leave to amend and request equitable apportionment.18 include an awareness of each of these jurisdictional interests as Nonetheless, Siler concluded that an evidentiary hearing would well as a firm understanding of the hydrological characteristics be appropriate to resolve the question of whether the aquifer of the water resource in question. is an interstate resource.19 Unlike previous interstate water disputes where the evidence consisted primarily of existing Endnotes: interstate compacts20 or findings concerning use of the water 1 135 S.Ct. 2916 (2016). by the parties for equitable apportionment,21 Mississippi v. 2 Hood ex rel. Mississippi v. City of Memphis, Tenn., 533 F. Supp. 2d Tennessee hinges on factual findings that will be made on the 646 (N.D. Miss. 2008), aff’d, 570 F.3d 625 (5th Cir. 2009). basis of the scientific characteristics specific to the Sparta Sand 3 Id. at 651. aquifer. Siler has directed the parties in Mississippi v. Tennessee 4 Hood ex rel. Mississippi v. City of Memphis, Tenn., 570 F.3d 625, that “[e]vidence that would likely be relevant to this determi- 632 (5th Cir. 2009) (“Tennessee cannot be joined to this suit nation [of whether the ground water is an interstate resource] without depriving the district court of subject-matter juris- diction because a suit between Mississippi and Tennessee for includes the nature and extent of hydrological and geological equitable apportionment of the Aquifer implicates the exclusive connections between the ground water in Memphis and that jurisdiction of the Supreme Court under 28 U.S.C. § 1251(a).”). in Mississippi, the extent of historical flows in the [a]quifer be- 5 Mississippi v. City of Memphis, Tenn., 130 S. Ct. 1319 (2010). 22 tween Mississippi and Tennessee, and similar considerations.” 6 Supra, note 2. This directive is another way that Mississippi v. Tennessee 7 See, e.g. Nebraska v. Wyoming, et. al, 325 U.S. 589, 627 (1945) is distinguishable from previous cases. Siler designed the evi- (apportioning the natural flow of the North Platte River among dentiary hearing to lead to evidence and factual findings that three States and the United States); Kansas v. Nebraska, 135 S. focus more heavily on hydrogeology and earth sciences than Ct. 1042, 1054 (2015) (evaluating allegations that groundwater on the water needed by the parties. The parties have until July pumping decreased stream flow in Republican River). 30, 2017, to complete discovery, and the evidentiary hear- 8 See generally, Mississippi Motion for Leave to File a Bill of ing will take place after August 31, 2017.23 If Mississippi can Complaint in Original Action (“Miss. Motion”), http://www.ca6 demonstrate, scientifically, that the ground water is confined to .uscourts.gov/sites/ca6/files/documents/special_master/DE% an area within its boundaries, the case is in new legal territory 201%20Mississippi%20Motion%20for%20Leave%20to%20 where interstate compacts and equitable apportionment have File%20Complaint.pdf. not been applied. For this reason, the case is one for environ- 9 Id., ¶ 20. mental attorneys and scientists to watch. 10 Id. 11 Id., ¶¶ 38, 41, 48, 49.

12 Id., ¶ 54(c). Virginia’s Ground Water 13 See, e.g. Memphis MGLW Opp. Br., ¶ 29, http://www.ca6.uscourts During the pendency of this case, Virginia has been assessing .gov/sites/ca6/files/documents/special_master/DE%203%20 its own ground water resources in light of growing concerns Memphis%20MGLW%20Brief%20in%20Opposition%20.pdf. over dwindling supply and increasing demand. The General 14 Id. Assembly established an advisory committee to study ground 15 Mississippi v. Tennessee, 136 S.Ct. 499 (Mem) (Nov. 10, 2015). water issues in eastern Virginia, which will meet through 16 For a thorough review of the history of Special Masters, see 2017. 24 Also, in October 2016, the Joint Legislative Audit and generally Carstens, Anne-Marie C. “Lurking in the Shadows of Review Commission (JLARC) released a report in response Judicial Process: Special Masters in the Supreme Court’s Original to concerns about the commonwealth’s management of its Jurisdiction, 86 Minn. L. Rev. 625 (2002). water resources.25 The JLARC report found that Virginia is not 17 Id. at 644. managing its ground water in a sustainable manner, particu- 18 Mem. Dec. on Defs.’s Motions to Dismiss and Pl.’s Motion to larly in the eastern portion of the commonwealth, and that this Exclude (“Mem. Dec.”), at 35, http://www.ca6.uscourts.gov/ poor management will have impacts on future availability for sites/ca6/files/documents/special_master/DE%2055%2C%20 municipal users and economic growth.26 Memorandum%20of%20Decision.pdf 19 Id. at 36. The Coastal Plain aquifers that are the source of ground 20 See, e.g., Tarrant Regional Water District v. Herrman, 133 S.Ct. water in eastern Virginia are confined aquifers that extend 2120, 2130 (2013) (“Interstate compacts are construed as across the border into North Carolina, like the Sparta Sand for- contracts under the principles of contract law… So, as with 27 mation presently at issue in Mississippi v. Tennessee. Seasoned any contract, we begin by examining the express terms of environmental attorneys will know that Virginia and North the Compact as the best indication of the intent of the parties.”) Carolina are not strangers to protracted litigation over access (internal citations omitted). to water.28 Based on the commonalities between the shared use 21 See, e.g., Colorado v. New Mexico, 459 U.S. 176, 189-190 (1982) of the Sparta Sand and the Coastal Plain aquifers, the proceed- (remanding to the Special Master for additional findings regard- ings in Mississippi v. Tennessee should be of particular interest ing the existing uses of the water and the potential for decreasing to Virginia legislators and policymakers, as well as scientific use in the future).

38 VIRGINIA LAWYER | April 2017 | Vol. 65 | ENVIRONMENTAL LAW SECTION www.vsb.org MISSISSIPPI V. TENNESSEE

22 Mem. Dec., supra note 19, at 36. 28 See e.g., Probst, Richard T., “The Virginia Beach Quest for Water: 23 Case Management Plan at 6, 11, http://www.ca6.uscourts.gov/ Drowning in a Sea of Litigation,” 11 B.Y.U. J. Pub. l. 319 (1997). sites/ca6/files/documents/special_master/No.%20143%20 Original%2C%20Case%20Management.pdf. 24 See Va. Code § 62.1-256.1. 25 JLARC, “Effectiveness of Virginia’s Water Resource Planning and Management,” Oct. 2016, http://jlarc.virginia.gov/pdfs/reports/ Rpt486.pdf 26 JLARC, “Report to the Governor and the General Assembly of Virginia: Effectiveness of Virginia’s Water Resource Planning and Management,” jlarc.virginia.gov, http://jlarc.virginia.gov/ landing-water.asp. 27 Stephenson, Kurt, et. al., “An Investigation of the Economic Impacts of Coastal Plan Aquifer Depletion and Actions That May Emily C. Russell is an assistant county attorney for Chesterfield County. Her practice includes environmental law, social services, and real estate Be Needed to Maintain Long-term Availability and Productivity,” assessment. She is a member of the Board of Governors for the Virginia 5-6, (Aug. 2014), http://www.deq.virginia.gov/Portals/0/DEQ/ State Bar Environmental Law Section and a councilmember for the Water/WaterSupplyPlanning/EVGWAC/VT_Abt%20Assoc%20 Environmental, Natural Resources, and Energy Law Section of the Virginia Aquifer%20Study_Aug%202014.pdf. Bar Association.

Flooding continued from page 35

16 City Manager’s Office of Resilience, City of Norfolk, 21 Virginia Chapter 440 of the 2016 Acts of Assembly (HB 903). http://www.nfkresilientcity.org. See generally www.floodingresiliency.org. 22 The Plan was funded by the Virginia Coastal Zone 17 Vision 2100, City of Norfolk, http://www.norfolk.gov Management Program at the Department of Environmental /vision2100. Quality through a U.S. Department of Commerce, National 18 “Live with water” and other variations of the same phrase were Oceanic and Atmospheric Administration grant, under the popularized following the release of the New Orleans Urban Coastal Zone Management Act of 1972. Water Plan and other similar initiatives that encouraged local- 23 SB 1203, Working waterfront development areas; establish- ities to develop plans for creatively incorporating flood waters ment (to be codified at Virginia Code § 15.2-2306.1 (2017)). into their communities and community plans instead of sim- 24 SJ 281, Study; long-term economic viability of working water- ply moving it off land as quickly as possible. See e.g. Waggoner fronts; report. and Ball Architects, “Greater New Orleans Urban Water Plan,” 25 See George Van Houtven et al. RTI International “Costs of available http://livingwithwater.com. Doing Nothing: Economic Consequences of Not Adapting to 19 Virginia Beach Wins National Grant to Plan for Sea-Level Rise, Sea Level Rise in the Hampton Roads Region” (Nov. 2016). Press Release, City of Virginia Beach, (Mar. 8, 2016) Prepared for the Virginia Coastal Policy Center, William https://www.vbgov.com/news/Pages/selected.aspx?release & Mary Law School, available: http://law.wm.edu/news/ =2858. stories/2016/documents/Summary%20Costs%20of%20 20 Emily E. Steinhilber, et al. Hampton Roads Sea Level Rise Doing%20Nothing%20and%20Final%20Hampton%20 Preparedness and Resilience Intergovernmental Pilot Project Roads%20SLR%20Report.pdf. Phase 2 Report: Recommendations, Accomplishments, and Lessons Learned (Oct. 2016), http://digitalcommons.odu.edu /hripp_reports/2/.

Angela M. King is the assistant director of the Virginia Coastal Emily E. Steinhilber is a research assistant professor at Old Policy Center (VCPC) at William & Mary Law School. Before Dominion University and coordinates the Commonwealth Center joining VCPC, she served as an assistant attorney general in the for Recurrent Flooding Resiliency. Previously, she convened the Consumer Protection Section of the Virginia Office of the Attorney Hampton Roads Intergovernmental Pilot Project at ODU and was General, the Executive Director of the Newport News Green the executive director of the Virginia Coastal Coalition, a small Foundation, and as an assistant county attorney for James City non-profit that encouraged businesses to become engaged in wa- County. ter-related issues in Hampton Roads.

www.vsb.org ENVIRONMENTAL LAW SECTION | Vol. 65 | April 2017 | VIRGINIA LAWYER 39 Noteworthy > VSB NEWS Highlights of the February 25, 2017, Virginia State Bar Council Meeting

At its meeting on February 25, 2017, of the rules of procedure that outline that govern lawyer advertising. The in Richmond, the Virginia State Bar the administration of the CPF, including proposed amendments will be presented Council heard the following significant the procedure for processing claims. The to the Supreme Court of Virginia for reports and took the following actions: purpose of the amendments is to clarify its review and approval. The proposed the authority for the CPF as well as to changes to Rules 7.1, 7.4, and 7.5 arose Clients’ Protection Fund facilitate understanding of the CPF for from a need to simplify and modernize The council unanimously approved both VSB members and the public. the lawyer advertising rules in light of amendments to the CPF rules. The changes caused by the rise of Internet amendments outline the purpose, Amendments to Rules 7.1-7.5 marketing and communications. funding, authority, and administration The council approved, by a vote of 65 to of the CPF. The amendments also 1, proposed amendments to Rules 7.1- improve the structure and organization 7.5 of the Rules of Professional Conduct Call for Nominations

VSB Conference of Local Bar Associations nominations are due April 28, 2017. Awards will be presented at the CLBA Annual Meeting and Breakfast in June at Virginia Beach. Award of Merit Competition recog- nizes outstanding projects and programs of Virginia bar associations. Bar Association of the Year Award recognizes a member bar association that has best fulfilled the attributes member Above: The Honorable Roger L. Gregory of the 4th Circuit Court of associations strive to attain. Appeals was the speaker at the annual Local Bar Leader of the Year Award Young Lawyers Conference Bench-Bar recognizes past and presently active lead- Dinner on March 8. The event honors ers in their local bar associations who recently elevated women and minority have continued to offer important ser- judges in Virginia. vice to the bench, bar and public. Specialty Bar Leader of the Year rec- Left: Robert Gray, former president ognizes past and presently active leaders of the American Bar Assocation, in their specialty bar associations who talked with Conference of Local Bar have continued to offer important ser- Associations President Barbara S. vice to the bench, bar and public. Anderson at the conference’s annual Bar Leaders Institute meeting in Richmond on March 10, where Grey was the For more information, please visit the speaker. website at http://www.vsb.org/site/con- ferences/clba/clba-awards.

40 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org VSB NEWS < Noteworthy What We Do Here: The Virginia Lawyer Referral Service by Deirdre Norman

In 1977, it snowed in Miami for the first and only time, a little film called Star Wars debuted in theaters, Elvis died at Graceland, and the Virginia State Bar started a service that works to connect Virginians with lawyers, while helping lawyers build their practices via referrals to new clients. Forty years later, flare pants are staging a comeback, and the Virginia Lawyer Referral Service (VLRS) is still helping lawyers grow their practices with pre-screened referrals to Virginians in need of legal advice. The VLRS currently has 450 lawyers (called panel members once they be- come part of the service) working across the state of Virginia, but is actively seek- ing to increase its roster. “We particular- ly need lawyers practicing in the areas of employment law, consumer protection, and elder law — but we welcome all VSB members for all areas of practice from anywhere in the state,” said Toni Dunson, VLRS coordinator. Dunson, who has been with the Toni Dunson, seated, with Sheree Patterson (L) and Lydia Maddox (R) of the VLRS. VLRS for twenty-seven years, said the biggest misconception lawyers have is “…thinking that they won’t make mon- Currently, the average age of panel type of legal assistance is required and ey. But the VLRS is really a marketing members is between 40 and 45, and next steps. Any fees generated after the tool — we have had young lawyers turn Dunson said she is hoping to attract a half-hour consult are the sole property 75 percent of their referrals into paying new generation of lawyers to the group, of the panel member who receives the clients.” as well as senior lawyers who are looking referral. To become a panel member, a to change the focus of their practice as According to Dunson, a single Virginia lawyer must be in good stand- they move toward retirement. referral has resulted in a six-figure case ing with the bar and pay a $95 flat fee The VLRS hotline is available for a northern Virginia family lawyer. every twelve months. Any fees the panel Monday thru Friday from nine to five “A VLRS referral has as good a chance members collect from the referrals (after p.m. VLRS staffers take a brief descrip- if not better of turning into an actual the initial consultation) belong solely tion of the caller’s issue, determine the client relationship than any other call a to them. Multiple past-presidents of the type of legal issue and the locale of the lawyer might receive,” Dunson said. Virginia State Bar have worked as panel caller, and then connect them with the Dunson said she and her staff of members over the years, and, according panel member best able to assist them two, both of whom have more than ten to Dunson, the majority of those who once they have paid their $35 initial fee. years of experience with the VLRS, field sign-up choose to stay. Dunson said the In return for the referral, panel mem- over 12,000 calls per year. The calls tend average length of panel service is ten to bers agree to give the caller up to a half- to come in a cyclical pattern with a high fifteen years. hour consult for free to determine what rate of bankruptcy calls coming after the www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 41 Noteworthy > VSB NEWS

Christmas holiday, tax issues trending members that they return when they from February to April, school-related have a different type of legal issue. litigation issues from August to June, “Our lawyers take the referrals we and traffic and personal injury calls send seriously; they genuinely try to peaking in the summer months. Divorce help and when they can’t, they refer the and custody calls come “all year long.” caller back to us for another referral. Recently, political activity at the federal We also receive referrals from larger law level has brought in a spate of immigra- firms who can’t handle a specific type of tion calls. case but want the caller to find the legal Although the VLRS is seeking law- help they need. This service is a win-win yers from all practice areas from all over for both the lawyers involved and the Virginia, it is particularly in need of law- consumers.” yers from Winchester, Charlottesville, For more information on becoming and the Roanoke and Danville city areas. a panel member, go to www.vsb.org/vlrs Dunson said that her office receives or contact Toni Dunson at (804) 775- many calls from repeat customers who 0591. have used the VLRS for one issue and received such good service from panel Dunson

Cheshire I’A. Eveleigh Receives Family Law Service Award

Cheshire I’Anson Eveleigh, of Wolcott College of Family Trial Lawyers. She Rivers Gates, has been named the 2017 has served as president of the Norfolk recipient of the Family Law Service and Portsmouth Bar Association, chair Award presented by the Virginia State of the Domestic Relations Council of Bar’s Family Law Section. the Virginia Bar Association, chair of The award recognizes people and the Family Law Section of the Virginia organizations that have improved fami- State Bar, and president of Family Law ly, domestic relations, or juvenile law in Organization of Greater Hampton Virginia. It is to be presented April 20 at Roads. the section’s Annual Advanced Family Eveleigh is a graduate of Oral Law Seminar at the Jefferson Hotel in Roberts University and has her law Richmond. degree from the College of William and In his letter nominating Eveleigh, Mary, Marshall-Wythe School of Law. Richard E. Garriott Jr., of Pender & Coward, wrote that she “has been tire- less in her devotion to improving the law for everyone and has clearly made a significant impact for litigants, children, Eveleigh and the legal profession in this compli- cated area of the law. Cheshire’s ongoing dedication and service not only to the bar but to our area of specialty clearly deserves recognition.” Eveleigh is chair of the Virginia Family Law Coalition, secretary of the Virginia Chapter of the American Academy of Matrimonial Lawyers, and a diplomate in the American

42 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org VSB NEWS < Noteworthy Law Professor James E. Moliterno Receives the Virginia State Bar Leadership in Education Award

James E. Moliterno, the Vincent lawyers and judges in jurisdictions Bradford Professor of Law at with developing legal regimes.” He Washington and Lee University School has designed ethics courses in Serbia, of Law and an international expert on Armenia, Georgia, Czech Republic, legal ethics, has been named the recipi- Japan, Indonesia, and China. “Professor ent of the William R. Rakes Leadership Moliterno’s passion for improving the in Education Award from the Virginia State Bar Section on the Education of legal profession broadly and the ethical Lawyers in Virginia. administration of law by lawyers and Moliterno has been deeply in- judges knows no geographical bounds.” volved with innovative legal education “I have admired and indeed have programs at Washington and Lee, and often been amazed at his unbridled before that at William & Mary, where passion not only for teaching students he was the Tazewell Taylor Professor substantive law, but for doing so in a of Law, Director of the Legal Skills manner that will allow them to effec- Program, and Director of Clinical tively and efficiently serve their clients Programs from 1997–2000. He has in a professional and ethical manner,” received numerous awards for his work Moliterno at both universities, his scholarship Hellwig wrote. in books and articles is extensive and The awards Moliterno has received includes his 2013 book, The American span his career. He was awarded the about 100 Continuing Legal Education Legal Profession in Crisis: Resistance and inaugural American Bar Association programs to Virginia lawyers and judges. Responses to Change (Oxford University Gambrell Professionalism Award in The Rakes Award was established in Press), and he is a highly sought-after 1991 for the best law school program for 2012 to honor former Virginia State Bar speaker on ethics and professionalism. the teaching of ethics and professional- president and founder of the Section In his letter nominating Moliterno, ism. In 2012, he received the Rebuilding on the Education of Lawyers, William Washington and Lee Dean and Professor Justice Award from the Institute for the R. Rakes, a senior partner with the of Law Brant J. Hellwig noted that not Advancement of the American Legal only is Moliterno a highly respected Roanoke firm of Gentry Locke. teacher and scholar, but that “he has System. The award, which is underwritten traveled throughout the world to help Moliterno has been an active by Gentry Locke, is to be presented in countries develop legal ethics poli- participant in all three VSB Conclaves June at the Virginia State Bar’s annual cies while assisting in the training of on Legal Education and has delivered meeting in Virginia Beach.

Got an Ethics Question?

The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by click- ing on the blue “E-mail Your Ethics Question” box on the Ethics Questions and Opinions web page at www.vsb.org/site /regulation/ethics/.

www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 43 Noteworthy > VSB NEWS Joseph A. Condo Honored for Lifetime Achievement in Family Law

Joseph A. Condo, one of the preeminent Bar Association Bar Leadership family law practitioners in Virginia, Institute. has been named the 2017 recipient Sanford K. Ain, a partner at Ain & of the Betty A. Thompson Lifetime Bank and frequent adversary of Condo’s, Achievement Award by the Virginia wrote that Condo “is a lawyer who rep- State Bar’s Family Law Section. resents the highest level of profession- Condo’s commitment to the alism, integrity, and devotion to both legal profession in Virginia is unsur- the law and his clients. His service to passed. He is a former president of the Virginia State Bar, the Virginia Trial the Virginia State Bar and the Fairfax Lawyers Association, the American Bar Bar Association. He is a fellow of the Association and our local bars is second American Academy of Matrimonial to none.” Lawyers, the American College of Trial David E. Roop Jr., of Roop Law, Lawyers, the Virginia Law Foundation, wrote that, “Joe Condo is a uniquely Condo and the American Bar Foundation. talented family lawyer, who has spent Condo is a family law principal attorney the vast majority of his life trying to im- at Offit Kurman. prove the lot of his clients, the families while at the same time balancing his In his letter nominating Condo of Virginia, and the family law bar.” family life.” for the award, Senior Justice Lawrence Another advocate, Eva N. Juncker The award recognizes and honors L. Koontz Jr. of the Supreme Court of of Zavos Juncker Law Group, wrote that, an individual who has made a substan- Virginia noted that Condo has lec- “In my almost eight years of practice tial contribution to the practice and tured for Virginia Continuing Legal with Joe, I was constantly amazed by administration of family law in Virginia. Education, the Virginia Trial Lawyers his command of the law, his rapport It will be presented at the Annual Family Association, the Northern Virginia with our colleagues, his ability to teach Law Seminar April 20 at The Jefferson Judicial Conference, the Virginia State by example, and by his dedication to Hotel in Richmond. Judicial Conference, and the American maintaining the integrity of our practice

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44 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org PEOPLE < Noteworthy The Honorable Joseph E. Spruill Jr. July 1931–March 2017

Joseph E. Spruill Jr., of Tappahannock, Tappahannock. He served for many former president of the Virginia State years on the board of St. Margaret’s Bar and retired judge of the Fifteenth School, which awarded him an honorary Judicial Circuit of Virginia, died March diploma. He also served on the board 17, 2017. of Rappahannock Community College. Judge Spruill was president of the In 1988 he was appointed a judge of the VSB in 1976–77. He was a founding Fifteenth Judicial Circuit. member of the General Practice Section Judge Spruill was a member of of the VSB and one of the first faculty Tappahannock Methodist Church, members of the VSB Professionalism where he held many offices over Course. He was a Charter Fellow of the the years. He was past president of Virginia Bar Foundation. He was a past Tappahannock Rotary Club and a Paul president of the University of Richmond Harris Fellow. He was a former scout- Law School Alumni Association and master of the local Boy Scout troop. a former member of the University of He was a long-time board member of Spruill Richmond Board of Trustees. He also Southside Bank (now EVB). He was a served as president of the Northern member of The Jamestowne Society, Neck Bar Association and the Fifteenth The Society of Colonial Wars in the and his wife, Susalee, of Nashville, Tenn.; Circuit Bar Association. State of Virginia, and The Sons of the and seven grandchildren, Eleanor, Liz, “Judge Spruill was a wonderful Revolution. Ella, Peter, Jack, Landon, and William. judge with a great temperament,” said He deeply loved his wife, his family, He graduated from the University Karen A. Gould, executive director of good books, classical music, oil paint- of Richmond and its law school, where the VSB. “We were fortunate to have a ing, golf, and quail hunting with his he was president of the student gov- person of his intelligence and demeanor ever faithful succession of English ernment association. He was a member sit on the circuit court bench and serve setters. He was a member of the 55 Golf of Kappa Alpha Order, McNeill Law as president of the Virginia State Bar.” Association and The Commonwealth Society, and Omicron Delta Kappa. An obituary in the Richmond Club. He was a combat veteran of the Times-Dispatch noted that Judge Spruill He is survived by his wife, college Korean War, remained in the Reserves was very active in his community sweetheart and best friend of fifty-eight after discharge from active duty, and and in all aspects of the law. He was a years, Cora Sue; and two sons, Joseph E. retired as a colonel in the Air Force former commonwealth’s attorney for III (Jay) and his wife, Elizabeth Lloyd, of Reserves. He was awarded the Legion Essex County and town attorney for Richmond, and the Rev. R. Leigh Spruill, of Merit.

“Not in Good Standing” Search Available at VSB.org

The Virginia State Bar offers the ability to search active Virginia lawyers’ names to see if they are not eligible to practice because their licenses are suspended or revoked using the online Attorney Records Search at www.vsb.org/attorney/attSearch.asp. The “Attorneys Not in Good Standing” search function was designed in conjunction with the VSB’s permanent bar cards. Lawyers are put on not-in-good-standing (NGS) status for administrative reasons — such as not paying dues or fulfilling con- tinuing legal education requirements — and when their licenses are suspended or revoked for violating professional rules. The NGS search can be used by the public with other attorney records searches — “Disciplined Attorneys” and “Attorneys without Malpractice Insurance” — to check on the status and disciplinary history of a lawyer.

www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 45 Noteworthy > PEOPLE In Memoriam

Arthur Edward Bound Jr. David W. Johnson Albert B. Russ Jr. Clearwater, Florida Vero Beach, Florida Jacksonville, Florida July 1930 – October 2016 July 1929 – May 2014 August 1927 – August 2011

Norman Arthur Caron Raymond Charles Kates Charles Jordan Samuels Edenton, North Carolina Front Royal Fairfax May 1941 – November 2016 May 1927 – October 2016 July 1955 – January 2017

Thomas Floyd Dean Charles L. Kaufman Jr. Martin L. Schaffer Jr. Richmond Chesapeake Leesburg June 1926 – December 2016 September 1927 – September 2015 January 1931 – September 2016

Brian J. Donnelly Ervan Edwin Kuhnke Jr. Danny Shelton Shipley Camarillo, California Port Orange, Florida Norfolk October 1937 – September 2016 May 1925 – November 2015 November 1949 – January 2017

Phillips M. Dowding The Honorable Nathan Curtis Lee Thomas Brady Shuttleworth II Newport News Prince George Virginia Beach May 1931 – February 2017 December 1956 – January 2017 October 1945 – December 2016

Hollis Gieselmann Duensing Charles Bruce Lester Frank W. Swacker Alexandria Bradenton, Florida St. Petersburg, Florida January 1936 – January 2017 August 1930 – April 2015 May 1922 – October 2016

Julian Eloi Andrew Jasperson Lockhart Douglas M. Swift Jr. Glen Allen London, England Winchester July 1961 – August 2016 July 1977 – September 2016 July 1937 – April 2016

Lewis Perley Fickett Jr. Willis McDonald IV Edward Kemper Uhler Jr. Fredericksburg Cody, Wyoming Ashburn May 28, 1926 – May 17, 2016 August 1926 – September 2015 December 1931 – January 2015

Robert Lee Garian Kenneth Dane Mills Alfred H. Wells Jr. Richmond Virginia Beach Glen Allen September 1931 – February 2017 August 1947 – February 2017 September 1934 – January 2017

Carl Edward Good Herman Stanley Muir III Joseph B. Yount III Harrisonburg Portland, Oregon Waynesboro December 1963 – October 2016 April 1949 – January 2016 November 1939 – October 2016

Steven Wayne Graber Renae Reed Patrick Manhattan, Kansas Winchester August 1950 – February 2017 March 1948 – March 2017

Paul Joseph Henon Lynn Ann Phillips Vienna Arlington March 1933 – January 2014 February 1959 – December 2016

46 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org Law Libraries Keeping Up with Environmental Law under the Trump Administration by Lara Dresser

Since taking office, President Trump has easy access to presidential orders and • If the record should still be in posses- issued several executive orders and pres- statements, remarks at press confer- sion of the agency, check the agency idential memoranda leveled at environ- ences, messages to Congress, agencies, website for information on their FOIA mental law, ranging from prioritizing and foreign leaders, and other mate- process. DEQ has a responsive and the construction of the Keystone XL and rial released by the White House press transparent FOIA process: http://www Dakota Access pipelines to directing the secretary. .deq.virginia.gov/ConnectWithDEQ/ EPA to rescind and rewrite The Waters FreedomofInformationAct.aspx. of the United States Rule. How will Agency Communications these changes affect Virginia and how Many core federal environmental • If the document is permanent and will Virginia respond? The following programs are implemented on the state is no longer available through the resources are helpful for anticipating level, in part due to the EPA’s delegation agency, the Library of Virginia, as the and understanding potential local im- of authority to states to implement fed- State Archives, may have a copy. You pacts to Virginia. eral laws, such as The Clean Water Act can start by checking their Archives & and The Resource Conservation and Manuscripts catalog (http://www.lva Presidential Documents Recovery Act. Understanding how The White House website is a good .virginia.gov/public/using_collections the newly appointed EPA adminis- .asp), but you will most likely have to source for presidential documents trator, Scott Pruitt, and the Trump (https://www.whitehouse.gov/briefing visit the library to research their hold- Administration will affect delegation ings in more depth. -room/presidential-actions), however, and grant funding supporting these the White House staff recently post- programs is critical to attorneys, their Current Awareness Resources ed incorrect versions of newly signed clients, and the local community. executive orders, which have since been The Daily Environment Report While public announcements and corrected. A final, official version of (Bloomberg/BNA), Inside EPA (https:// press releases from the EPA and the a signed executive order is published insideepa.com/), and Greenwire (http:// Virginia Department of Environmental in the Federal Register, and reprint- www.eenews.net/gw) are just a few of Quality (DEQ) provide the first indica- ed in Title 3 of the Code of Federal the daily environmental news services tions of changes to come, the substance Regulations. The Federal Register is that provide informative and timely up- of these changes is often first outlined available online and has an advanced dates on changes to environmental law. in internal agency announcements and search page that allows you to narrow communications. These sources of your search to executive orders or other Scientific Data and Federal presidential documents signed within information can provide a critical lead to what’s in store for state or region- Government Documents a specific time frame or by a particular After Trump’s inauguration, the White president (https://www.federalregister al programs, such as the Chesapeake Bay Program or Virginia’s Brownfields House page on climate change disap- .gov/documents/search#advanced). peared and the EPA was instructed to Presidential memoranda are not re- and Voluntary Remediation Program. A request under The Freedom of remove its page on climate change. quired to be published in the Federal Anticipating the possible removal of Register, but must be published in order Information Act (FOIA) is useful for scientific data from government sites, a to have “general applicability and legal gaining access to this type of resource. grass roots data preservation movement effect.” As a result, some memoranda Here are a few tips for making a FOIA is underway to download dozens of data may be published in the Federal Register, request in Virginia: while others may not. sets from federal agency sites. Federal Another reliable source for a recent • Ascertain the agency’s record retention websites typically go through massive presidential documents is The Daily policy before making a request. The transitions with new administrations, Compilation of Presidential Documents Library of Virginia provides record with more than 80 percent of PDFs on on the Government Publishing Office retention schedules for all state agen- .gov sites disappearing. The End of the website (www.presidentialdocuments cies: http://www.lva.virginia.gov/ .gov). The GPO provides accurate and agencies/records/sched_specific/. Keeping Up continued on page 49 www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 47 Risk Management Remember, It’s Not Your Money! by Mark Bassingthwaighte

Theft of client property remains a serious concern for the legal profession but trust account problems aren’t just about rogue lawyers. The real problem is that far too often an attorney was less than diligent about maintaining proper and appropriate financial practices in the office and things simply got out of hand. Also, be aware that lack of intent, shoddy record-keeping practices, and restitution are not effective defenses to a misappropriation or conversion of client funds complaint. With this in mind, here are a few tips that can help keep you on the straight and narrow path when it comes to being responsible for © PhotoDisc other people’s money. and create a log of all checks that have own money and no one appears to be First, and most importantly, there come in and keep the log in a separate harmed. Making matters worse, what are no circumstances under which it place from where the checks are held. if the firm doesn’t have sufficient funds would be acceptable to borrow funds If any checks are ever stolen, lost, or available to cover the bounced check? from your client trust account, tempo- destroyed this will enable you to know This does happen. In a zero-tolerance rarily or otherwise; and yes unfortu- whose checks are gone, thus giving you jurisdiction, your license to practice nately this does need to be said. Trying the opportunity to inform the affected could be suspended for just such an to make payroll, covering a quarterly tax clients or other payers. Also, since those occurrence. A hold time of five to seven payment, paying your bar dues, bor- checks were restrictively endorsed, they business days will protect you in most rowing from one client to cover a check should be much easier to have replaced. situations. Wait longer if the check is paid to another, or needing to take care Third, never disburse the proceeds drawn on a foreign bank account or of a necessary personal expense don’t of any check prior to that check clear- something just doesn’t feel right because pass muster. Similarly, an attorney may ing, and here’s why: there is a difference a number of lawyers have been success- not keep an unearned advance fee, hold between funds being available, which fully scammed out of large amounts of onto non-disputed client funds as lever- typically occurs within twenty-four money by authorizing deposited funds age over disputed earnings, or apply hours on domestic checks, and those to be transferred after five to seven days a client’s current funds to that client’s funds being collected funds (meaning only to find the initial check bounced outstanding bill from a previous matter. the check has cleared), which can take two weeks after being deposited. Second, make certain that you keep several days and potentially quite a bit Fourth, never commingle funds in undeposited checks and cash in a locked longer. Checks can fail to clear for a the trust account. For example, non-dis- drawer or cabinet even if you intend variety of reasons including a missing, puted client funds and earned attorney to deposit the money later in the day. I insufficient, or incorrect endorsement; funds are not to be left sitting together have walked into numerous firms for a insufficient funds; a drafting error; a in the trust account for an extended risk visit and found no one in the recep- bank error; or because it was a forged period of time, nor should the trust tion area. It would take only a minute check just to name a few. If you disburse account ever be used as the employee to walk behind the receptionist’s desk, the proceeds of a check and that check Christmas savings account. That said, open the top right hand desk drawer, eventually bounces, you have converted and only if this would be permissible in remove the bank deposit envelope that client funds because another client’s your jurisdiction, you might consider too many still place there, and leave the funds have been used to cover the check keeping a small amount of firm funds in office completely unnoticed. In addition that bounced. This would be true even the trust account to cover any account and upon receipt, restrictively endorse if the firm covers the shortfall with its fees or charges. This is one way to pre-

48 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org Risk Management vent client funds from being used to pay every receipt and disbursement, the date and understood. Once this is completed, a firm expense of the transaction, a notation on the the bank statement may go to the staff Fifth, consider handling trust nature of the transaction, the individ- person responsible for account recon- account withdrawals as follows. Once ual account balance in trust, and the ciliation. When the reconciliation is you earn a fee, send the client a bill re- client’s name and address. Each month complete, have the reconciliation report flecting the deduction from the amount you must reconcile the bank statement returned to you so that you may do a remaining in trust. The bill should state in two ways. First reconcile the bank review of the numbers and check this that if there is a question on the bill the statement with the general ledger and report against the original bank state- client should contact the firm within ten then reconcile the bank statement with ment. Then sign and date the report and days, otherwise the firm will make the the individual sub account ledger. These bank statement in order to document indicated withdrawal at the end of that separate reconciliations should balance attorney oversight of client funds. time. You are going to wait for twenty with each other to the penny. If they days from the day the bill was sent, ten don’t, figure out why and correct the days for the bill to be delivered and ten problem then and there. Understand days to see if the bill is disputed, before that it is going to be much easier to de- actually withdrawing the earned fee. Too termine where a misstep occurred at the many attorneys withdraw earned mon- time it occurred as opposed to trying ies at the same time that a bill is sent to figure out what happened years later and this can create a cash flow problem during an audit by the Bar. should a client ever dispute their bill. Finally, support staff never should The reason for this is that disputed open the trust account bank statement. Mark Bassingthwaight, ALPS risk manager, funds must be placed back in trust until This envelope should be given to the has conducted more than 1,000 law firm risk the dispute is resolved. If you make a attorney responsible for monitoring management assessment visits, presented significant withdrawal at the same time trust account activity. Under the rules of numerous continuing legal education seminars throughout the United States, and written the bill is sent, perhaps to pay personal professional conduct, you have a duty to extensively on risk management and technol- and professional bills, and then you are monitor the activity in your client trust ogy. His webinar on Best Practices for Client unable to come up with those funds if account. Your license is on the line with Selection in the ALPS CLE library is at http://alps.inreachce.com. He can be contacted the bill is disputed, you’ve got a serious this account, so stay on top of it. To do at: [email protected]. problem. so, look at the bank statement and make Sixth, trust account records must certain that there is a corresponding include a general ledger as well as sep- check for every debit noted there, review arate subaccount ledger that can track the signature on every cleared check all account activity by individual client. for authenticity, and make certain that The individual client ledger must detail every debit in the account is appropriate

Keeping Up continued from page 47

Term Data Archive (http://eotarchive. is difficult or impossible to harvest cdlib.org/) has partnered with the through web crawlers.” Internet Archive (a.k.a. The Wayback Machine) (https://archive.org/) to preserve these resources and make them available to the public. The DataRefuge Project (https://www .datarefuge.org/) is part of this larger project, focusing specifically on feder- al data on climate and environmental Lara Dresser is the library manager at Williams Mullen. She is the current vice research and advocacy. The site has president/president elect of the Virginia a data catalog that “stores data that Association of Law Libraries.

Vol. 65 | April 2017 | VIRGINIA LAWYER www.vsb.org 49 CLE Calendar

Sentencing Guidelines Knowledge & the Commission. Cost $100 (Paralegals by completing the form and submit to Skills Evaluation (Including Ethics $50), Purchase manual separately. (Fee the commission. Cost $125 (Paralegals Issues) waived for judges, commonwealths $62.50). Purchase manual separately. Five hours – Approved for 5 CLE (1 attorneys, P&P, public defenders and (Fee waived for judges, commonwealths Ethics) April 21, Loudoun/Leesburg, staff. Limited scholarships are available attorneys, public defenders, P&P and Contact the Loudoun Bar Association. for attorneys.) staff. Limited scholarships are available The evaluation course is designed for attorneys.) for the experienced user of Virginia’s Introduction to Sentencing Guidelines Sentencing Guidelines. Attendees will Six hours – Approved for 6 CLE April complete a knowledge and skills exercise 18, Manassas Campus, Northern Virginia Lawyer publishes at no charge that will determine the topics covered Virginia Community College, 10950 notices of continuing legal education in this seminar. Attendees will partic- Campus Drive. The introduction programs sponsored by nonprofit bar ipate in a discussion-oriented work- seminar is designed for the attorney associations and government agencies. shop addressing common errors and or criminal justice professional who is The next issue will cover June 11 through complex scoring issues. Ethics Council new to Virginia’s Sentencing Guidelines. August 22. Send information by June 2 to with the Virginia State Bar will lead The seminar will begin with general [email protected]. For other CLE oppor- the discussion and answer questions background information and progress tunities, see Virginia CLE calendar and related to ethical responsibilities relating to detailed information on scoring “Current Virginia Approved Courses” at to the Sentencing Guidelines. Register each of the guidelines factors to include www.vsb.org/site/members/mcle-courses/ by completing the form and submit to changes beginning July 1, 2017. Register or the websites of commercial providers.

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

April 13 April 24 April 27 2017 Virginia Environmental Quality Annual Bankruptcy Practice Seminar Hot Topics in Business Bankruptcy Regulations Overview 2017 Webcast/Telephone Live — Charlottesville/Webcast/ Video — Alexandria, Charlottesville, 1–3 pm Telephone Richmond 11 am–1 pm 8:30 am–4:45 pm (Richmond video April 28 begins at 9:00 am) 2017 Virginia Environmental Quality April 18 Regulations Overview The Intersection of Business and April 25 Webcast/Telephone Immigration Law: Traps for the Elder Law Basics 2017 9–11 am Unwary Video — Abingdon, Alexandria, Live — Charlottesville/Webcast/ Charlottesville, Norfolk, Richmond, April 28 Telephone Roanoke, Warrenton Analyzing Commonplace IP Scenarios 2–4 pm 9 am–4:10 pm Live — Charlottesville/Webcast/ Telephone April 20 April 26 Noon–2 pm 33rd Annual Advanced Family Law 47th Annual Criminal Law Seminar Seminar 2017 April 28 Live — Richmond Video — Abingdon, Fredericksburg, CLE and a Potomac River 9 am–4:45 pm Harrisonburg, Norfolk, Richmond, Dinner Cruise: Sailing Through Roanoke, Tysons Multijurisdictional Practice Ethical April 21–22 8:15 am–4:45 pm (Richmond video Issues 44th Annual Advanced Business Law begins at 9:00 am) Live — Washington, DC Conference: The M&A Playbook for Seminar: 4:30–6:30 pm; Cruise: 8–11 pm Seller’s Counsel—Enhancing Deal April 27 Value and Mitigating Deal Risk Elder Law Basics 2017 May 2 Live — Wintergreen Resort Your First Trial Video — Tysons, Winchester Friday: Noon–5:30 pm; Webcast/Telephone 9 am–4:10 pm Saturday: 8:15 am–12:30 pm Noon–2 pm

50 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org CLE Calendar

May 4 May 11 Annual Bankruptcy Practice Seminar An Introduction to Fashion Law 2017 Live — Charlottesville/Webcast/ Video — Norfolk, Roanoke, Tysons Telephone 8:30 am–4:45 pm Noon–2 pm

May 4 May 12 Ethics Update for Virginia Lawyers CLE at Historic Kenmore and George 2017 Washington’s Ferry Farm: Civility in Live — Charlottesville/Webcast/ the Practice of Law and the Influence of George Washington Telephone Live — Fredericksburg Noon–2 pm Seminar: 9 am–12:15 pm; Tours: 12:15–4:30 pm; Reception: 4:45–5:45 pm; May 5–7 Dinner: 6–8 pm The Douglas W. Conner 38th Annual Advanced Estate Planning and May 16 Administration Seminar 35th Annual Real Estate Practice Live — Williamsburg Seminar Friday: 12:55–5:35 pm; Saturday: 8:30 Live — Williamsburg am–1 pm; Sunday: 8:30 am–12:35 pm TBD

May 9 May 17 Mental Health Ethics 101 in the The Intersection of Business and Criminal Justice System: A Primer for Immigration Law: Traps for the Handling Your Mentally Ill Client Unwary Live — Charlottesville/Webcast/ Webcast/Telephone Telephone 1–3 pm Noon–2 pm May 19 May 9 2017 Spring Military Law Seminar 26th Annual Employment Law Update Live — Quantico 8:30 am–4 pm Seminar Live — Fairfax Virginia State Bar May 22 TBD Analyzing Commonplace IP Scenarios Harry L. Carrico Webcast/Telephone Professionalism Course May 9 Noon–2 pm 35th Annual Real Estate Practice Seminar May 23 April 20, 2017, Charlottesville Live — Roanoke 44th Annual Advanced Business Law TBD Conference: The M&A Playbook for May 25, 2017, Hampton Seller’s Counsel—Enhancing Deal July 13, 2017, Roanoke May 10 Value and Mitigating Deal Risk August 29, 2017, Alexandria 35th Annual Real Estate Practice Video — Abingdon, Alexandria, Seminar Charlottesville, Norfolk, Richmond September 14, 2017, Richmond Live — Fairfax 9 am–5:10 pm TBD May 23–24 See the most current dates and May 11 Legal Writing Workshop registration information at 26th Annual Employment Law Update Live — Richmond www.vsb.org/site/members/new. Seminar Tuesday: 9 am–4:45 pm; Wednesday: Live — Richmond 8:30 am–1 pm TBD www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 51 CLE Calendar

May 24 June 14 June 28 44th Annual Advanced Business Law Representation of Children as a The Articulate Advocate Conference: The M&A Playbook for Guardian Ad Litem — 2016 Qualifying Live — Fairfax Seller’s Counsel—Enhancing Deal Course TBD Value and Mitigating Deal Risk Video — Tysons Video — Tysons 8:30 am–5:15 pm June 28 9 am–5:10 pm 26th Annual Employment Law Update June 14 Seminar Mental Health Ethics 101 in the Video — Tysons May 25 Criminal Justice System: A Primer for TBD 33rd Annual Advanced Family Law Handling Your Mentally Ill Client Seminar Webcast/Telephone June 28 Video — Abingdon, Alexandria, Noon–2 pm 35th Annual Real Estate Practice Charlottesville, Dulles, Fredericksburg, Seminar Norfolk, Richmond, Roanoke June 15 Video — Abingdon, Charlottesville, 9 am–4:45 pm 43rd Annual Recent Developments in Hampton, Richmond, Roanoke the Law: News from the Courts and TBD May 25 General Assembly Ethics Update for Virginia Lawyers Live — Virginia Beach June 29 2017 8:45 am–4:25 pm CLE at Nationals Park: Computer, Cell Webcast/Telephone Phone, and Social Media Evidence — June 20 Noon–2 pm How to Get It and How to Use It Representation of Incapacitated Live — Washington, DC Persons as a Guardian Ad Litem — Seminar: 1:30–3:30 pm; Baseball Game May 31 2016 Qualifying Course Begins: 4:05 pm 33rd Annual Advanced Family Law Video — Abingdon, Alexandria, Seminar Charlottesville, Norfolk, Richmond, June 29 Video — Harrisonburg, Tysons, Roanoke 35th Annual Real Estate Practice Warrenton, Winchester 9 am–4:05 pm Seminar 9 am–4:45 pm Video — Fredericksburg, Harrisonburg, June 21 Leesburg June 8–9 Representation of Incapacitated TBD 69th Annual Virginia Conference on Persons as a Guardian Ad Litem — 2016 Qualifying Course Federal Taxation July 11 Video — Tysons Live — Charlottesville 2017 Spring Military Law Seminar 9 am–4:05 pm Thursday: 8:50 am–5:15 pm; Friday: Video — Alexandria, Hampton, Lynchburg 8:45 am–4:30 pm June 21 8:30 am–4 pm 2017 Annual International Practice June 9 Seminar An Introduction to Fashion Law Live — Fairfax Live — Charlottesville/Webcast/ 1–4:15 pm Telephone 11 am–1 pm June 27 The Articulate Advocate June 13 Live — Richmond Representation of Children as a TBD Guardian Ad Litem — 2016 June 27 Qualifying Course 26th Annual Employment Law Update Video — Abingdon, Alexandria, Seminar Charlottesville, Norfolk, Richmond, Video — Abingdon, Alexandria, Roanoke Charlottesville, Norfolk, Richmond, 8:30 am–5:15 pm (Richmond video Roanoke begins at 9:00 am) TBD

52 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org TheThe Virginia Virginia State State Bar Bar TECHSHOWTECHSHOW AprilApril 25, 24, 2016 2017 | Richmond Convention Center 403Greater North Third Richmond Street Richmond, Convention VA 23219 Center Agenda Please indicate your choice for each session. 8:00–8:30 Registration/Continental breakfast Agenda8:30 Welcome—VSB TECHSHOW Chair Sharon 8:00–8:30Nelson, Registration/Continental VSB President Ed Weiner breakfast and Justice of the 8:30 Welcome—VSB Supreme Court of TECHSHOW Virginia Cleo E.Chair Powell Sharon 8:45–9:45Nelson, First VSB Sessions President Michael Robinson 5and Ethics: Justice What ofDoes the Being Supreme Competent Court Mean of Virginia in the Digital CleoEra? E.(Sharon Powell Nelson-President, Sensei Enterprises, 12:05–12:45 Lunch 8:45–9:45Fairfax, First VA/Reid Sessions Trautz—American Immigration Lawyers 12:05–12:4512:45–1:45 FourthLunch Sessions • Ethics:Assn, Practical Washington, Budget-Friendly DC) Cybersecurity at 12:45–1:455 Using FourthTech to DoSessions More Legal Work in Less Time (Reid 5 Warp Technology Speed (Sharon for Trial Nelson Lawyers — (Tom President, Mighell—Contoural, Sensei • AvoidingTrautz/Natalie Ethical Missteps Kelly—Director in the Digital of Law EraPractice (Reid Mgmt at Inc., Dallas, TX/Brett Burney—Burney Consultants, State Bar of Georgia) Enterprises, Inc., Fairfax, VA/John Simek — Vice Trautz — American Immigration Lawyers Assn, Chagrin Falls, OH) 5 How to Store Your Law Firm Data in the Cloud Ethically President, Sensei Enterprises, Inc., Fairfax, VA) Washington, DC/Nerino Petro) 9:55–10:55 Second Sessions • A Lawyers(Brett GuideBurney/Jim to Case Calloway—Director Management Systemsof Mgmt Asst • Taking5 Microsoft Your Law 365, Firm Matter Paperless: Center andA Step Windows by Step 10: Guide Program at Oklahoma Bar Assn, Oklahoma City, OK) (Natalie Kelly — Director of Law Practice Mgmt at (CatherineThe Three Sanders Hottest Reach Microsoft — Director Topics offor Law Lawyers Practice (Ben 1:55–2:55 Fifth Sessions MgmtSchorr-CEO, and Technology, Roland, Chicago Schorr and Bar Tower, Association, Flagsta”, AZ) State5 TheBar Microsoftof Georgia, Word Atlanta, Power GA/DebbieHour for Lawyers Foster) (Ben Chicago,5 The EthicalIL) Sand Traps of E-Discovery (Tom Mighell/ 1:55–2:55Schorr/Debbie Fifth Sessions Foster) 9:55–10:55Brett Burney) Second Sessions • Encryption5 How Law is Simple, Firms are Easy Successfully and Cheap Reinventing — and May Themselves Be • Building11:05–12:05 a Virtual Third Law Sessions Practice, Including a Client EthicallyThrough Required Technology (John (Jim Simek/Dave Calloway) Ries) 5 Portal What (Jim Are Calloway the “Reasonable” — Director Cybersecurity of Mgmt Asst Steps You Must •Everything3:05–4:05 Lawyers Sixth Sessions Need to Know About Backing Up Take to Ethically Protect Your Confidential Data (Sharon 5 The Ethical Perils of Marketing Online (Natalie Kelly/Reid Program at Oklahoma Bar Assn, Oklahoma City, — In or Out of the Cloud (Catherine Sanders Reach/ Nelson/John Simek—Vice President, Sensei Enterprises, Trautz) OK/Nerino Petro — Chief Information Officer, Jim Calloway) Fairfax, VA) 3:05–4:055 Budget-friendly Sixth Sessions Technology for Solo/Small Firm Lawyers HolmstromKennedy5 Essential PDF skills PC, for Rockford, Lawyers (Britt IL) Lorish-AŸnity (John Simek/Britt Lorish) • Macs in Law: The Year Behind and the Year Ahead • Time/Billing/Accounting Consulting Group, Roanoke, Software: VA/Debbie Everything Foster-AŸnity Lawyers 4:15–5:15 Plenary—60 Tech Tips in 60 Minutes NeedConsulting to Know (BrittGroup, Lorish Tampa, — FL) Affinity Consulting (Tom(Sharon Mighell) Nelson/Debbie Foster/Jim Calloway/Tom Mighell) Group, Roanoke, VA) • Controlling Your Inbox: It CAN be Done (Reid Trautz/ 11:05–12:05Register Third now! Sessions Natalie Kelly) CLE hours Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to • Essential Law Office Tech — On a Budget 4:15–5:15 Plenary — ALL NEW: 60 Tech Tips in(pending) Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026 (Britt Lorish/Debbie Foster — Affinity Consulting 60 Minutes (Sharon Nelson/Debbie Foster/Jim Calloway/Tom Group,Name Tampa, FL) • Digital Transactions: E-Signatures, E-Contracts and Mighell) AuthenticationAddress (Tom Mighell — Contoural, Inc., Dallas, TX/Dave Ries — Clark Hill PLC, Pittsburgh, PA) 7 CLE hours including 3 Ethics City State Zip Code Register online now! (pending) PhoneSpace is limited and first come/first served. Online registration is available at https://vsbevent.virginiainteractive.org/Home/Detail/11. The $100 registration fee will include free E-mail address* Wi-Fi, continental breakfast, lunch, and coffee breaks, as well as CLE credit. *Confirmations and materials will be sent via e-mail. Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made. Virginia Lawyer Register

DISCIPLINARY SUMMARIES Sharon Styles-Anderson Washington, DC The following are summaries of disciplinary actions for vio- 16-052-104305 lations of the Virginia Rules of Professional Conduct (RPC) On January 17, 2017, the Virginia State Bar Disciplinary Board (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, suspended Sharon Styles-Anderson’s privilege to practice law 2000) or another of the Supreme Court Rules. in Virginia or to be admitted to the practice of law in Virginia Copies of disciplinary orders are available at the Web link for fifteen months for violating professional rules that gov- provided with each summary or by contacting the Virginia ern diligence, safekeeping property, declining or terminating State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB representation, unauthorized practice of law; multijurisdictional docket numbers are provided. practice of law, and misconduct. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.15(a)(1)(b)(2-5), 1.16(a) (1)(d), 5.5(c)(d)(2)(ii)(3)(i-iii), 8.4(a-c) DISCIPLINARY BOARD www.vsb.org/docs/Styles-Anderson-022217.pdf Beverly Anne English Virginia Beach, Virginia DISTRICT COMMITTEES 17-022-106951, 17-022-107014, 17-022-107134, 17-022-107295 On February 1, 2017, the Virginia State Bar revoked Beverly Vincent Mark Amberly Anne English’s license to practice law based on her affidavit Leesburg, Virginia consenting to the revocation. In consenting to the revocation, 16-053-105949 English acknowledged that the allegations against her are true On February 21, 2017, the Virginia State Bar Fifth District and that she could not successfully defend against them. Rules Subcommittee issued a public reprimand with terms to Vincent Part 6, § IV, ¶ 13-28 Mark Amberly for violating professional rules that govern fair- www.vsb.org/docs/English-022117.pdf ness to opposing party and counsel. This was an agreed disposi- tion of misconduct charges. RPC 3.4(i) Scott Browning Gilly www.vsb.org/docs/Amberly-022417.pdf New York, New York 17-000-107755 John Brendon Gately Effective January 3, 2017, the Virginia State Bar Disciplinary Virginia Beach, Virginia Board suspended Scott Browning Gilly’s license to practice law 16-022-105511 for one year based on his one-year suspension by the Committee On March 7, 2017, the Virginia State Bar Second District on Grievances of the United States District Court for the Subcommittee issued a public reprimand with terms to John Southern District of New York. This was an agreed disposition. Brendon Gately for violating professional rules that govern Rules Part 6, § IV, ¶ 13-24 communication and safekeeping property. This was an agreed www.vsb.org/docs/Gilly-022217.pdf disposition of misconduct charges. RPC 1.4(a), 1.15(a)(1)(b) (3,5)(c)(1)(2)(i,ii)(d)(3)(i,ii) Dominick Anthony Pilli www.vsb.org/docs/Gately-031017.pdf Fairfax, Virginia 16-051-104493, 16-051-105786 Bryan James Waldron Effective February 28, 2017, the Virginia State Bar Disciplinary Oakton, Virginia Board suspended Dominick Anthony Pilli’s license to practice 16-021-105791 law for one year and one day for violating professional rules that On February 28, 2017, the Virginia State Bar Second District govern competence, diligence, truthfulness in statements to oth- Subcommittee issued a public reprimand with terms to Bryan ers, candor toward the tribunal, bar admission and disciplinary James Waldron for violating professional rules that govern matters, and misconduct. RPC 1.1, 1.3(a), 3.3(a), 4.1(a), 8.1(a), competence, meritorious claims and contentions, and fairness to 8.4(a-c) opposing party and counsel. This was an agreed disposition of www.vsb.org/docs/Pilli-031317.pdf misconduct charges. RPC 1.1, 3.1, 3.4(d)(g) www.vsb.org/docs/Waldron-031317.pdf DISCIPLINARY PROCEEDINGS

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Mark Howard Allenbaugh Cleveland, OH March 8, 2017 Shannon Jones Dunham Eastville, VA March 7, 2017 Michael Jerome Massie Portsmouth, VA March 3, 2017

Suspension – Failure to Comply with Subpoena Shelly Renee Collette Winchester, VA February 14, 2017

54 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org Virginia Lawyer Register

NOTICES TO MEMBERS INDIGENT CRIMINAL DEFENSE SEMINAR Registration is open for the May 3 Annual Indigent Criminal SUPREME COURT OF VIRGINIA AMENDS RULES Defense Seminar at the Greater Richmond Convention Center The Supreme Court of Virginia has amended the following with webcasts in Weyers Cave and Wytheville. www.vsb.org/ rules, effective May 1, 2017: site/events/item/all_day_13th_annual_indigent_criminal_ • Parts 5 and 5A Forms. www.courts.state.va.us/courts/scv/ defense_seminar amendments/2017_0215_part_five_and_five_a_forms.pdf • Rule 5A:5(B)(2) regarding Petition for a Writ of Actual FREE LEGAL ANSWERS Innocence; Form and Contents of Petition. www.courts.state Sign up for Virginia.freelegalanswers.org. The website is part of .va.us/courts/scv/amendments/2017_0215_rule_five_a_ an ABA multi-state initiative to provide online pro bono civil five_b_two.pdf legal assistance to Virginia residents with income levels of 250 percent of the poverty guidelines or less (a household in- COMMENTS SOUGHT ON PROPOSED LEGAL come of just over $29,000 annually for a single adult). Details: ETHICS OPINIONS https://virginia.freelegalanswers.org/ The Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed Legal Ethics Opinion NOMINATIONS SOUGHT FOR AWARDS 1887: Duties when a lawyer over whom no one has supervisory The VSB is seeking nominations for the the Conference of authority is impaired. www.vsb.org/site/regulation/leo_1887 Local Bar Associations Awards of Merit, Local Bar Leader of the Year Award, Specialty Bar Leader of the Year, and Bar The committee is also seeking public comment on proposed Association of the Year Award. The nomination deadline is Legal Ethics Opinion 1885: Ethical Considerations Regarding a April 28, 2017. Please see the VSB Awards and Contests page Lawyer’s Participation in an Online Attorney-Client Matching for a list of all bar sponsored awards and deadlines. Service. www.vsb.org/site/regulation/leo_1885 www.vsb.org/site/members/awards-and-contests/

2017 TECHSHOW ADMINISTRATIVE SUSPENSIONS Registration is open for the April 24 VSB TECHSHOW at Members of the Virginia State Bar were administratively the Greater Richmond Convention Center. www.vsb.org/site/ suspended on October 12, 2016, for failure to comply with events/item/vsb_techshow the Rules of the Supreme Court of Virginia, Part Six, Section IV, Paragraphs 11 and/or 16, 18, 19; or the Code of Virginia, ANNUAL MEETING Sections 54.1-3912 or 54.1-3913.1. These attorneys were noti- Online registration is open for the 79th Annual Meeting, June fied of their suspensions using their last address of record with 15–18, 2017, in Virginia Beach. www.vsb.org/annualmeeting the Virginia State Bar; however, in some instances, this has not been effective. To assist the Virginia State Bar in re-establish- CRIMINAL LAW SEMINAR ing contact with these attorneys, anyone having knowledge of The 47th Annual Criminal Law Seminar, sponsored by the the present location and practice status of persons on this list VSB Criminal Law Section and Virginia CLE, has video replays should contact the VSB Membership Department. This list was scheduled for April 26 in several locations. published on April 5, 2017, at www.vsb.org/site/members/ www.vacle.org/product.aspx?zpid=5665&zskuid=22093 administrative-suspensions

www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 55 Professional Notices Lawyers Recognized for Pro Bono

Three lawyers have been recognized for the Augusta County Bar Association’s their extraordinary pro bono work on meeting in January. “These three attor- behalf of Blue Ridge Legal Services, the Bell Noland Watkins neys have been our valuable partners in Shenandoah Valley’s non-profit legal aid the Augusta, Staunton, and Waynesboro society. area for decades. They have taken legal Since 1982, Blue Ridge and the The three lawyers are Thomas G. Augusta County Bar Association have aid cases directly and connected our Bell Jr., of Timberlake, Smith, Thomas collaborated in a pro bono referral & Moses; N. Douglas Noland Jr., of clients to other private attorneys in the program to provide free legal services Black, Noland & Read; and G. William area who do pro bono work. Thanks to financially disadvantaged people in Watkins, of Allen and Carwile. to them, we know that hundreds of the area. Last year, the bar handled more John Whitfield, Blue Ridge’s execu- families in Augusta County and the than fifty-five pro bono cases for local tive director, presented the awards during surrounding area have benefitted.” low-income families.

Bean, Kinney & Korman PC announced Linda M. Gillen has been appointed proceedings, eviction hearings, bank- that Jennifer Schiffer, Lauren Rote, deputy commissioner of the Virginia ruptcy pleading drafting and filing, and Andrea Davison, Jennifer McCammon Workers’ Compensation Commission. commercial litigation matters involving and Zach Williams have been named She serves as an administrative law drafting motions and memoranda in shareholders of the firm. They were judge for evidentiary and on-the record support. Porto is a member of the firm’s previously associates of the firm. hearings under the Virginia Workers’ Personal Injury Group and devotes her Compensation Act. She will hold hear- practice to representing individuals who Christina Bustos has joined ing dockets in Richmond. have been injured by the carelessness Two Rivers Law Group PC of others and helping clients recover in its Richmond office as Brian C. Lansing has joined damages after injury. an associate in the firm’s LeClairRyan as senior coun- Workers’ Compensation Bustos Practice. sel in the firm’s Richmond Nicole Moriarty has been office. He focuses his prac- promoted to partner at Lansing Mary Elizabeth “Betsy” tice on complex commer- Kutak Rock. She practic- Davis has joined cial, intellectual property, es primarily in the area LeClairRyan as a sharehold- qui tam, and white collar of complex commercial Moriarty er in the firm’s Richmond defense matters in federal and state litigation and general civil courts and before government agencies. litigation. Her experience office. Davis regularly Davis represents employers in includes financial services litigation, state and federal courts in Kathryn Lawrence has been pro- antitrust litigation and HSR filings, the areas of discrimination, fair labor moted to partner at Kaplan Voekler government contracts litigation and standards, family and medical leave, Cunningham & Frank. Her practice fo- compliance, bankruptcy and creditors’ wrongful discharge, covenants not to cuses on securities and capital markets, rights litigation, and general contract compete, breaches of employment con- mergers and acquisitions, and general disputes. Moriarty also has experience tracts, as well as other state and federal business and corporate representation. assisting with the structuring, financing employment issues. and implementation of public-private James R. Meizanis Jr. and Juli M. partnerships. John T. Farnum has been Porto have joined Blankingship & promoted to partner in the Keith PC. Meizanis joins the firm’s Joshua Reynolds has joined Commercial Litigation/ Creditors Rights and Foreclosures Two Rivers Law Group PC Bankruptcy Practice Group Group and Commercial Real Estate and in its Richmond office as of Linowes and Blocher Farnum LLP in Bethesda, Maryland. Leasing Group. Meizanis has experience an associate in the firm’s Farnum concentrates in representing mortgage lenders, ser- Workers’ Compensation Reynolds his practice on litigation involving vicers, creditors, and government-spon- Practice. bankruptcy, creditors’ rights, business sored enterprises in real estate sale disputes, and real estate. transactions, non-judicial foreclosure

56 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org Professional Notices DesPortes Named President of American Academy of Forensic Sciences

Betty Layne DesPortes, of Richmond, has been an adjunct professor at the Initiative: was sworn in as president of the University of Richmond School of Law Planning American Academy of Forensic Sciences (Scientific Evidence), and is the man- Committee, (AAFS) at the academy’s Annual aging author of Scientific Evidence in 2005–17, and DesPortes Meeting in New Orleans on February Civil and Criminal Cases (7th edition in Program Co- 18, 2017. DesPortes, a fellow in the production) with Andre A. Moenssens Chair: 2011–12, academy, had served AAFS on its board and Steven D. Benjamin, and has pub- 2014–15; Commission on Virginia of directors since 2007. She has served lished numerous articles on a variety Courts in the 21st Century: To Benefit on the Forensic Science Foundation of topics including criminal law and All, To Exclude None, Task Force on since 2009, including serving as chair forensic science evidence. She served the Structure of the Judicial System: from 2013-16. DesPortes was honored on the American Bar Association’s Task 2005–06. with the Kenneth S. Field Award of Force on Biological Evidence as a repre- In 1996, she obtained a landmark Appreciation for Outstanding Service to sentative of the National Association of Virginia Supreme Court decision the AAFS staff and the Harold A. Feder Criminal Defense Lawyers and on the recognizing the constitutional right Award, AAFS Jurisprudence Section, in ABA Task Force on the Presentation of of an indigent criminal defendant to 2014. She has also made presentations Forensic Science Evidence. expert forensic assistance. In 2001, she and served as a panelist on a range of DesPortes is the Managing Partner obtained the exoneration and release of topics. of Benjamin & DesPortes PC. Jeffrey David Cox, a man who was serv- DesPortes is a fellow of the She has actively sought reform of ing a life sentence for a murder he did American Board of Criminal Lawyers, Virginia’s indigent defense system and not commit, and in 2015, she obtained a member of the National Association is committed to improving indigent the exoneration and release of Mark of Criminal Defense Lawyers, and defense forensic resources. State of Weiner, an Albemarle County man who the Virginia Association of Criminal Virginia appointments include Virginia was convicted of a fictional crime. Defense Lawyers. Additionally, she Chief Justice’s Indigent Defense Training

Lesley A.Z. Rigney has become an representing creditors in bankruptcy, associate with Chadwick, Washington, collections, loan modifications, foreclo- Moriarty, Elmore & Bunn PC, practicing sures, and related matters. in the Glen Allen office and focusing in For confidential, the area of common interest community Anne Ligon Woodbridge has recent- association representation. ly opened Anne Ligon Woodbridge free consultation Attorney and Counselor At Law in William F. Seymour Fredericksburg, a solo practice focus- available to all Virginia attorneys IV has joined ing on civil litigation and estate and on questions related to: FloranceGordonBrown domestic law. as a director in the legal malpractice avoidance, claims Litigation, Business Law Seymour repair, professional liability insurance and Estate Planning and issues, and law office management, Administration Practice Groups. His practice focuses on civil Professional Notices call Fairfax County lawyer, John J. E-mail your news and high-resolution matters, including corporate law, busi- Brandt, who acts under the auspices ness law, and insurance defense. professional portrait to hickey@vsb .org for publication in Virginia Lawyer. of the Virginia State Bar at W. Calvin Smith has joined Dunlap Professional notices are free to VSB Bennett & Ludwig PLLC as senior coun- members and may be edited for length (703) 659-6567 sel in its Leesburg office. His practice and clarity. focuses on commercial litigation and www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 57 Classified Ads

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58 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org 79th Annual Meeting

The 2017 Annual Meeting will truly be History in the Making! Join us as Doris H. Causey, of Central Virginia Legal Aid, is sworn in as the 79th President of the Virginia State Bar — whereupon she will be both the first African American and the first lawyer from Virginia’s legal aid community to serve as our president. Complete Annual Meeting information, including online registration, forms, and hotel information and links, is available on the Virginia State Bar website. If you have not received a brochure and/or need more specific information, please contact the Virginia State Bar, Bar Services Department at (804) 775-9400 or [email protected]. All information on the following pages is tentative and subject to change. Please refer to www.vsb.org/annualmeeting for updates. Schedule of Events

WEDNESDAY, JUNE 14 FRIDAY, JUNE 16

NOON 7:00 A.M. Executive Committee Holiday Inn North Beach Yoga by the Sea Beachfront Sheraton 7:30 A.M. 2:00 P.M. Run in the Sun – 5K Run Boardwalk Annual Meeting Registration Sheraton Oceanfront Sponsor: YLC; Virginia Lawyers Weekly 7:30 A.M. 6:30 P.M. Conference of Local Bar Associations Sheraton Oceanfront Council Reception & Dinner Sheraton Oceanfront Annual Meeting & Awards Breakfast 7:45 A.M. THURSDAY, JUNE 15 Annual Meeting Registration Sheraton Oceanfront 8:30 A.M. 8:00 A.M. VADA Board Meeting Princess Anne Country Club Annual Meeting Registration Sheraton Oceanfront

8:30 A.M. 8:30 A.M. – 10:00 A.M. SHOWCASE CLE I Hilton Oceanfront Council Meeting Holiday Inn North Beach Access to Justice: Bonds & Bail Issues

8:45 A.M. – 4:30 P.M. SHOWCASE CLE II Sheraton Oceanfront 43rd Recent Developments Seminar Sheraton Oceanfront Expert Witnesses: Who Are They and (separate registration with VaCLE) What Can They Say?

11:45 A.M. SHOWCASE CLE III Sheraton Oceanfront Redskins, Slants And Other Disparaging Fore Diversity Golf Tournament Virginia Beach National Trademarks: Supreme Court Decision Sponsor: Diversity Conference on The Intersection of Trademark And The First Amendment 12:00 P.M. 10:10 A.M. – 11:40 A.M. VADA Executive Committee Princess Anne Country Club SHOWCASE CLE IV Grace & Justice on Death Row Hilton Oceanfront 12:30 P.M. Lawyers Helping Lawyers Bischoff Martingayle SHOWCASE CLE V Sheraton Oceanfront Board of Directors Meeting Proffers SHOWCASE CLE VI Sheraton Oceanfront 5:30 P.M. Communicating in the Modern Age Bill W. Meeting Oceanaire Resort Tips & Tales

6:30 P.M. 10:00 A.M. Opening Reception for All Attendees Sheraton Oceanfront Virginia Law Foundation Princess Anne Sponsor: VSB Members Insurance Center Meetings & Lunch Country Club

JUNE 15–18 2017 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 59 79th Annual Meeting

10:30 A.M. 8:00 A.M. Virginia Legal Aid Project Directors Sheraton Oceanfront Law School Alumni Breakfasts Sheraton Oceanfront (ticketed event) 11:45 A.M. Dunnaville Diversity Achievement Award Hilton Oceanfront 9:00 A.M. 11:45 A.M. General Session & Awards Sheraton Oceanfront Section & Conference Joint Lunch Hilton Oceanfront Continental Breakfast Buffet (ticketed event) 11:45 A.M. 9:45 A.M. – 11:15 A.M. Virginia Legal Aid & Oliver Hill Sheraton Oceanfront SPECIAL PROGRAM Sheraton Oceanfront Pro Bono Awards Luncheon Attorney General of Virginia Sponsor: ALPS Candidates Debate 11:45 A.M. – 11:15 A.M. Virginia Women Attorneys Assn. Holiday Inn North Beach 10:00 A.M. Annual Meeting & Board Meeting Brunch for 50-Year Award Recipients Sheraton Oceanfront Sponsor: Senior Lawyers Conference 11:45 A.M. YLC Membership & Fellows Sheraton Oceanfront NOON Reception & Annual Meeting (ticketed event) Raffles & Closing Reception Sheraton Oceanfront Cash Bar 1:30 P.M. – 3:00 P.M. 1:00 P.M. SHOWCASE CLE VII Hilton Oceanfront Tennis Tournament Princess Anne Post-Election Legal Firestorms Sponsor: MichieHamlett Country Club

SHOWCASE CLE VIII Sheraton Oceanfront 1:00 P.M. How Attorneys Can Promote David T. Stitt Memorial Beachfront Sheraton & Advance Access to Justice Volleyball Tournament SHOWCASE CLE IX Sheraton Oceanfront Sponsor: YLC; Harris Matthews & Crowder PC Autism and the Practice of Law

3:00 P.M. – 4:00 P.M. Special Events Family Bingo Sheraton Oceanfront Sponsor: Walker Jones, PC Bingo – A Family Favorite! 3:15 P.M. – 4:45 P.M. Take a break from the beach and bring your family to the SHOWCASE CLE X Sheraton Oceanfront Future of Law Practice Sheraton Oceanfront Hotel on Friday afternoon for lots of fun and prizes! — Sponsor: Walker Jones, PC SHOWCASE CLE XI Sheraton Oceanfront Security Clearances and Finances Boardwalk Art Show & Festival This year our meeting coincides with the 61st Annual 4:30 P.M. Boardwalk Art Show! For more information, visit Rakes Leadership in Education Award Hilton Oceanfront http://www.virginiamoca.org/. Virginia Beach offers so much (by invitation) Sponsor: Gentry Locke to explore that it’s hard to fit it all into one visit. Go to www.vbfun.com to discover all the things to do in the area! 5:00 P.M. YLC Membership Casual Reception Hilton Oceanfront Athletic Events Sponsor: Virginia CLE 7th Annual Fore Diversity Golf Tournament to support the 5:30 P.M. Diversity Conference — Thursday, June 15, Virginia Beach Bill W. Meeting Oceanaire Resort National. 6:00 P.M. 36th Annual Run in the Sun — Friday, June 16, 7:30 a.m. on Children’s Dinner (ticketed event) Hilton Oceanfront the Virginia Beach Boardwalk — Sponsors: Virginia Lawyers 6:00 P.M. Weekly and Young Lawyers Conference President’s Reception Hilton Oceanfront 15th Annual Tennis Tournament — Saturday, June 17, 1:00 7:00 P.M. – 11:00 P.M. Dance Neptune Park/ p.m. at Princess Anne Country Club — Sponsor: MichieHamlett Featuring SLAPNATON Band Hilton Oceanfront 33rd Annual David T. Stitt Memorial Volleyball Tournament 7:00 P.M. Saturday, June 17, 1:00 p.m. Sheraton Beachfront — Sponsors: Banquet & Installation of President Hilton Oceanfront Young Lawyers Conference and Harris Matthews & Crowder PC (ticketed event) Sponsor: The McCammon Group Early Morning Yoga by the Sea 8:00 P.M. – 11:00 P.M. Friday and Saturday mornings. Dance Hospitality Hilton Oceanfront Visit the Virginia State Bar website SATURDAY, JUNE 17 for more details andregistration at 7:00 A.M. www.vsb.org/annualmeeting Yoga by the Sea Beachfront Sheraton 7:45 A.M. Annual Meeting Registration Sheraton Oceanfront

VIRGINIA STATE BAR • 79TH ANNUAL MEETING

60 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org 79th Annual Meeting

Showcase CLE Programs

6.0 MCLE Credits, 3.5 Ethics (pending) Autism And The Practice Of Law: An Interdisciplinary Your Annual Meeting registration fee includes these programs Approach sponsored by VSB sections and conferences in collaboration (1.5 Hours; .5 Ethics, pending) with statewide bars and other legal organizations. You must be Sponsors: Virginia CLE; VSB Trusts & Estates Section registered for the Annual Meeting to receive CLE credit for any Post-Election Legal Firestorms: Gerrymandering, Obstacles program on Friday. to Voting, The Electoral College, Judicial Review, and Other Hot Topics (1.5 Hours) FRIDAY, JUNE 16 / 8:30 A.M. – 10:00 A.M. Sponsor: Virginia State Bar/Corporate Counsel & Administrative Access to Justice: Bonds & Bail Issues Law Sections (1.5 Hours; .5 Ethics, pending) Sponsors: VSB Criminal Law and Family Law Sections FRIDAY, JUNE 16 / 3:15 P.M. – 4:45 P.M. Expert Witnesses: Who Are They and What Can They Say? (1.5 Hours) The Future of Law Practice: It’s Coming at Warp Speed Sponsors: VSB Litigation and Construction Law Sections; (1.5 Hours; .5 Ethics, pending) Joint ADR Committee Sponsors: VSB Future of Law Practice Committee; Joint ADR Committee Redskins, Slants, and Other Disparaging Trademarks: The Supreme Court Decision on the Intersection of Agent 99: Don’t Let Finances Bankrupt your Security Trademark and The First Amendment Clearance (1.5 Hours) (1.5 Hours) Sponsor: Intellectual Property Section Sponsors: VSB Military Law and Bankruptcy Sections

FRIDAY, JUNE 16 / 10:10 A.M. – 11:40 A.M. SATURDAY, JUNE 18 / 9:45 A.M. – 11:45 A.M. Grace and Justice on Death Row (1.5 Hours; 1.5 Ethics, pending) Attorney General of Virginia Candidates Debate Sponsors: VSB Access to Legal Services Committee, Diversity Conference, Conference of Local Bar Associations Sheraton Oceanfront, Ocean Grand Ballroom OMG LOL : Helpful Tips and Cautionary Tales The Young Lawyers Committee invites you to a very special for Attorneys Communicating in the Modern Age event that only happens once every four years! This November, (1.5 Hour; .5 Ethics, pending) the Commonwealth will once again elect their Attorney General Sponsors: VSB Section on the Education of Lawyers and for the next four years. Come learn about the Republican and General Practice Section Democratic candidates, have the chance to attend the first debate Proffers: Impact of Va. Code §15.2-2303.4 between the Party’s nominees, and the big election issues in this on Construction, Land Use and Local Governments lively political debate. (1.5 Hour) Barbara Hamm Lee, a seasoned and well-respected figure Sponsors: Real Property and Local Government Law Sections in media, will moderate the debate. Ms. Lee is the Executive Producer and Host of Another View, a weekly call in talk show that “discusses today’s issues from an African American perspective.” FRIDAY, JUNE 16 / 1:30 P.M. – 3:00 P.M. Ms. Lee has been actively involved in television management roles throughout the duration of her career and received numerous How Attorneys Can Promote and Advance Access to Justice awards for her community service and involvement. (1.5 Hours; 1.0 Ethics, pending) During the debate, each candidate will be given the opportu- Sponsors: Supreme Court of Virginia’s Access to Justice Commission, VSB Access to Legal Services Committee, Conference of Local Bar nity to make opening statements prior to being asked pre-selected Associations, Diversity Conference, Senior Lawyers Conference, and questions by the moderator. The debate will conclude with closing Young Lawyers Conference; Legal Information Network for Cancer (LINC); remarks by each candidate. and ODBA

Raffles and Prizes Don’t Miss There will be plenty of raffles and prizes for both adults Any of the Fun! and children at this year’s meeting. The raffle collection will be donated by our prize sponsors. Look for the raffle dis- play listing the prizes and sponsors in the registration area of the Sheraton Oceanfront Hotel. Raffle entry forms will Visit the Annual Meeting website be distributed in your Annual Meeting registration badge www.vsb.org/annualmeeting packet. Drawings for all raffles and sponsored prizes will be announced at the Closing Reception on Saturday, June 17, at Download Now — Annual Meeting mobile app! Noon, in the Grand Ocean Foyer of the Sheraton Hotel. You (visit the iTunes store or Google play) must be present to win!

JUNE 15–18 2017 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 65 | April 2017 | VIRGINIA LAWYER 61 79th Annual Meeting

Annual Meeting Sponsors

Access to Legal Services MichieHamlett Virginia Beach Convention & Committee Visitors Bureau Millennium Diversity ALPS Initiative Inc. Virginia Lawyers Weekly Conference of Local Bar VSB Members’ Insurance Assns. Old Dominion Bar Association We gratefully acknowledge Center these sponsors of the 2017 Diversity Conference Senior Lawyers Conference Walker Jones PC Annual Meeting for their con- Gentry Locke Sensei Enterprises, Inc. tributions in hosting a variety Weiner Spivey & Miller PLC Harris Matthews & Crowder of activities and special events Sheraton Oceanfront Hotel for our members and their PC Young Lawyers Conference Venable LLP guests. LINC Zavos Juncker Law Group The McCammon Group Virginia CLE PLLC

Now Available! Annual Meeting Mobile App

Download the VSB Events App from iTunes or Google Play.

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VIRGINIA STATE BAR • 79TH ANNUAL MEETING

62 VIRGINIA LAWYER | April 2017 | Vol. 65 www.vsb.org NEW FASTCASE 7 FLY THROUGH YOUR LEGAL RESEARCH WITH THE NEWEST VERSION OF THE WORLD’S MOST VISUAL SEARCH PLATFORM. FREE TO ALL MEMBERS OF THE VIRGINIA STATE BAR.

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