VIRGINIA LAWYER REGISTER the Official Publication of the Virginia State Bar

Virginia LawyerVOL. 64/NO. 5 • FEBRUARY 2016 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

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Features

GENERAL INTEREST Access to Legal Services

12 Improvements in US-Cuban Relations Bring Business Opportunities 34 The Benefits Outweigh the Sacrifice: and Challenges Two of Virginia’s Top Pro Bono by Geoffrey M. Goodale and Louis K. Rothberg Attorneys Discuss Attorney Service Noteworthy BANKRUPTCY LAW VSB News 29 Bar Leaders Institute 18 Bankruptcy Law Impacts Most Practice Areas 36 VSB TECHSHOW by Angela M. Scolforo PEOPLE 20 Stripping it Down — Real Estate Issues in 37 Ben Spencer Adds Army Reservist to Bankruptcy Expansive Resumé by Sarah Beckett Boehm 38 In Memoriam

24 Scheduling and Protecting Personal Injury and Other Causes of Action in Bankruptcy Cases by Angela Scolforo, Mark C. Leffler, and Emily Fort

30 Demystifying Domestic Support Obligations in Bankruptcy by David Cox

Departments 6 Letters to the Editor 17 Law Stories VIRGINIA LAWYER REGISTER 39 Conference of Local Bar Associations 46 Disciplinary Proceedings 49 YLC Celebration of Women and 44 CLE Calendar Minorities In the Legal Profession 47 Disciplinary Summaries 52 Professional Notices Bench Bar Dinner 54 Classified Ads 48 Notices To Members: 49 License Forfeitures 48 Ethics Committee Seeks Comments 49 Nominations Sought For Columns 48 Supreme Court of Virginia Committee Vacancies Approves Amendments 50 Nominations Sought For District 8 President’s Message 48 Criminal Law Seminar Committee Vacancies 10 Executive Director’s Message 40 Law Libraries 48 Nominations Sought for Awards 51 Committee Preference Form 41 Technology and the Practice of Law 49 2016 TECHSHOW 42 Risk Management

“Sea of Debt” cover and illustrations for Bankruptcy Law features by Madonna Dersch Dec VL 2015_vl1215 12/7/15 11:39 AM Page 4

Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2015-16 OFFICERS 17th Circuit Edward L. Weiner, President Timothy B. Beason, Arlington http://www.vsb.org Michael W. Robinson, President-elect Raymond B. Benzinger, Arlington Kevin E. Martingayle, Immediate Past President John H. Crouch, Arlington Editor: Karen A. Gould, Executive Director and Chief Harry A. Dennis, III, Arlington Gordon Hickey Operating Officer Rachelle E. Hill, Arlington ([email protected]) EXECUTIVE COMMITTEE 18th Circuit Edward L. Weiner, Fairfax, President Barbara S. Anderson, Alexandria Advertising: Michael W. Robinson, Tysons Corner, Foster S. B. Friedman, Alexandria Dee Norman President-elect Carolyn M. Grimes, Alexandria Kevin E. Martingayle, Virginia Beach, ([email protected]) 19th Circuit Immediate Past President James F. Davis, Fairfax Brian L. Buniva, Richmond Graphic Design: Joyce M. Henry-Schargorodski, Fairfax Marni E. Byrum, Alexandria Caryn B.Persinger Chidi I. James, Fairfax Nancy C. Dickenson, Abingdon ([email protected]) Sean P. Kelly, Fairfax Leonard C. Heath, Jr., Newport News David L. Marks, Fairfax Michael HuYoung, Richmond Gary H. Moliken, Fairfax Illustration: Daniel L. Rosenthal, Richmond Jay B. Myerson, Reston Madonna G. Dersch Jack “JB” W. Burtch, Jr., Richmond, CLBA Chair Luis A. Perez, Falls Church ([email protected]) Providence E. Napoleon, Richmond, Diversity William Boyle Porter, Fairfax Conference Chair Dennis J. Quinn, Tysons Robert T. Vaughan, Jr., Danville, SLC Chair William L. Schmidt, Fairfax Nathan J. Olson, Fairfax, YLC President VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Melinda L. VanLowe, Fairfax is published six times a year by the Virginia State Bar, COUNCIL James A. Watson, II, Fairfax Michael M. York, Reston 1111 East Main Street, Suite 700, Richmond, Virginia 1st Circuit 23219-0026; Telephone: (804) 775-0500. Subscription Nancy G. Parr, Chesapeake 20th Circuit Christine H. Mougin-Boal, Leesburg 2nd Circuit Rates: $18.00 per year for non-members. This material T. Huntley Thorpe, III, Warrenton is presented with the understanding that the publisher Steven G. Owen, Virginia Beach Judith L. Rosenblatt, Virginia Beach 21st Circuit and the authors do not render any legal, accounting, Daniel M. Schieble, Virginia Beach Joan Ziglar, Martinsville or other professional service. It is intended for use by 3rd Circuit 22nd Circuit attorneys licensed to practice law in Virginia. Because of Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham the rapidly changing nature of the law, information 4th Circuit 23rd Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Mark K. Cathey, Roanoke a result, an attorney using this material must always Gary A. Bryant, Norfolk Eugene M. Elliott, Jr., Roanoke Neil S. Lowenstein, Norfolk research original sources of authority and update 24th Circuit David B. Neumeyer, Lynchburg information to ensure accuracy when dealing with a 5th Circuit Carl Phillips “Phil” Ferguson, Suffolk specific client’s legal matters. In no event will the 25th Circuit 6th Circuit Roscoe B. Stephenson, III, Covington authors, the reviewers, or the publisher be liable for Peter D. Eliades, Hopewell any direct, indirect, or consequential damages resulting 26th Circuit 7th Circuit W. Andrew Harding, Harrisonburg from the use of this material. The views expressed herein Leonard C. Heath, Jr., Newport News 27th Circuit are not necessarily those of the Virginia State Bar. The 8th Circuit Richard L. Chidester, Pearisburg inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton 28th Circuit an endorsement by the Virginia State Bar of the goods 9th Circuit William M. Moffet, Abingdon or services of the advertiser, unless explicitly stated W. Hunter Old, Williamsburg 29th Circuit otherwise. Periodical postage paid at Richmond, 10th Circuit Joseph M. Bowen, Tazewell Charles H. Crowder, III, South Hill Virginia, and other offices. 30th Circuit 11th Circuit William E. Bradshaw, Big Stone Gap Dale W. Pittman, Petersburg 31st Circuit POSTMASTER: 12th Circuit Gifford R. Hampshire, Manassas Graham C. Daniels, Chester Send address changes to MEMBERS AT LARGE VIRGINIA LAWYER 13th Circuit Marni E. Byrum, Alexandria Paula S. Beran, Richmond Nancy C. Dickenson, Abingdon MEMBERSHIP DEPARTMENT 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 Michael HuYoung, Richmond 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 Jack “JB” W. Burtch, Jr., Richmond Rhysa G. South, Henrico Diversity Conference Chair 15th Circuit Providence E. Napoleon, Richmond Jennifer L. Parrish, Fredericksburg Virginia State Bar Staff Directory Senior Lawyers Conference Chair Frequently requested bar contact 16th Circuit Robert T. Vaughan, Jr., Danville James M. Hingeley, Jr., Charlottesville information is available online at Young Lawyers Conference President R. Lee Livingston, Charlottesville www.vsb.org/site/about/bar-staff. Nathan J. Olson, Fairfax

4 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org 4 br o. www.vsb.org According to legend, an ostrich will shove its head in the sand when confronted with something unpleasant. I think you’ll agree - probably not the best approach.

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On Legal Aid Virginia legal aid establishment. Because attempts but the patchwork remains and This responds to the two-page article the Virginia Lawyer is an official pub- the inequality. on Virginia legal aid by Bar President lication of the bar, it is important that According to the facts offered by Edward L. Weiner in the December 2015 lawyers know of these other issues. Mr. Weiner, which he urges readers to issue of Virginia Lawyer magazine titled When a person seeks help from a consider, the vast majority of “cases” “Holding Out for A Hero.” As a year’s Virginia legal aid program, whether or closed by Virginia legal aid programs in end fund-raising vehicle, the effort meets not he or she will receive services may 2014 involved the provision of informa- the expected standards. There is the very well depend on the arbitrary acci- tion and advice to low income persons. quote from the late Justice Powell and dent of geography. Each of the ten pro- When I began my legal services career in the references to justice and access to grams has its own substantive guidelines, 1973, the expected function of legal aid legal assistance as part of justice. which may or may not coincide with programs was to provide representation As is typical of this sort of thing, the guidelines of other programs. The to people by raising issues and questions the central premise of Mr. Weiner’s fact that there is no “master” eligibility which were frequently inconvenient in column is that the only “access” ques- guideline applicable to all areas means sometimes hostile forums. Providing tion that matters is whether programs that eligibility for services will depend on quick information and advice to clients have enough money. The implication is geographic accident. Under this patch- in the hope they might ultimately benefit that more money for programs would work non-system, persons with identi- from knowing more is a nice thing to do also mean more services to people who cally serious problems could be treated and an easy way to increase the number could not otherwise pay private lawyers differently purely because of geography. of closed cases; but pretending it has for legal assistance. Focusing exclusively In 2000, an unsuccessful effort was made much to do with the realities of poverty on the external macro-economic fact of to persuade other project directors to and powerlessness requires a more than available resources, Mr. Weiner distracts adopt state-wide guidelines to eliminate heroic stretch. The plain truth is that the attention from other access issues within this blatant discrepancy. I do not know shift to advice cases is really more about the control of the local programs and the whether there have been any more recent institutional survival than equal justice. There is nothing heroic or even mildly brave about the activity. Indeed, the suggestion that lack of information is the principal obstacle when people without means navigate the legal system smacks of Lady Bountiful and those “who sit in darkness” awaiting enlightenment.

Hugh F. O’Donnell St. Paul

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Jackson & Campbell’s Appellate Section [email protected] or Virginia State Bar, concentrates on state court appellate Virginia Lawyer Magazine, practice in DC, MD, & VA. 1111 E Main Ste 700, Richmond VA 23219-0026 Robert N. Kelly, Chair Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at 202.457.1600 [email protected] http://www.vsb.org/site/publications/valawyer/. www.jackscamp.com

6 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org

President’s Message by Edward L. Weiner Character Matters

The mission of the Virginia State Recently, while attending a fac- across the state. The current members Bar, as an administrative agency of the ulty meeting of the Virginia State Bar of the committee are: Henry M. Sackett Supreme Court of Virginia, is to: Professionalism Course, I had the III (chair), Lynchburg; Julia B. Judkins, • Regulate the legal profession of pleasure of meeting Stephen A. Isaacs, Fairfax; Linda L. Laibstain, Norfolk; Virginia; director of the Character and Fitness Curtis M. Hairston Jr., Richmond; and • Advance the availability and quality Committee of the Virginia Board Nancy C. Dickenson, Abingdon. of legal services provided to the peo- of Bar Examiners. Steve walked me The character and fitness screen- ple of Virginia; and through the process followed by appli- ing is an in-depth investigation, which • Improve the legal profession and the cants for bar membership, once they’ve includes a twenty-four page appli- judicial system. passed the bar exam. cation, criminal background checks, At its core, the mission of the VSB As part of the licensing process, driver’s license transcripts, credit is really to protect the public. each individual who passes the bar reports, medical certifications, and Among the many joys of being exam undergoes a character and fitness fingerprinting. VSB president is coming to understand screening. The screening is part of the If an applicant’s history indicates more deeply the nuts and bolts of our Supreme Court mandated process to any probable cause that there is a “defi- profession and observing the VSB assure the protection of the public and ciency in the honesty, trustworthiness, machinery at work. safeguard the system of justice. diligence or reliability…” a hearing is A critical tool in the VSB’s public protection role is the difficult and much-appreciated work of the Committee on Lawyer Discipline (COLD). COLD and its seventeen At its core, the mission of the VSB is really Local District Committees through- to protect the public. out the state oversee the disciplinary process. This includes receiving com- plaints, conducting investigations, hearings, and imposing sanctions (if warranted) including reprimands, Since 1995, these screenings have scheduled. At the hearing, the burden license suspensions, and revocations. been administered by the Character is on the applicant to prove by clear Those of us who have been mem- and Fitness Committee, which inves- and convincing evidence that he or bers of the bar for “a while” (more tigates, conducts hearings, and makes she possess the qualifications of good than half of my life, in my instance) recommendations to the Virginia moral character and general fitness may have forgotten the bar’s first line Board of Bar Examiners. required for a practicing attorney. of public protection: vetting those The process is administered by The committee is guided by two who apply for membership in the Steve Isaacs and a committee of five fundamental principles: Virginia State Bar to practice law in attorneys, who are appointed by the • The practice of law is not a right, it is our commonwealth. Supreme Court and are selected from a privilege; and

8 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org President’s Message

• The sole purpose of character and financial difficulty are often deferred for required by the Virginia Supreme Court fitness certification is to protect the rehabilitation and eventual licensure. rules: “the public is better served by public. A denial of licensure by the com- those who have met rigorous educational The committee determines if there mittee results in a two-year moratorium requirements, has been certified of hon- is an issue and whether the applicant has before the applicant may reapply. An est demeanor and good moral character taken responsibility for rehabilitation. applicant may appeal directly to the and are subject to high ethical standards Where an applicant has a record reflect- board and then the Supreme Court of and strict disciplinary rules in conduct of ing irresponsible behavior, disregard for Virginia. their practice.” the safety of others, or disrespect for the Members of the Virginia State Bar As the Board of Bar Examiners law, the committee considers the age and should be proud that the standards for has stated; “An attorney should be one maturity of the applicant at the time of character and fitness for admission to whose record of conduct justifies the the negative conduct. The central issue practice law in Virginia have remained trust of clients, adversaries, courts and to be considered is rehabilitation, and consistently high. This can only be others with respect to the professional the applicant’s current character and accomplished through vigilance. As an duties owed them.” fitness. Applicants who have entered into agency of the Supreme Court of Virginia, Thank you Mr. Isaacs and the com- an alcohol rehabilitation monitoring the Board of Bar Examiners and mittee for making this a reality in our agreement have nearly a 100 percent Character and Fitness Committee have commonwealth. success rate of eventual licensing. Other faithfully and diligently carried out their issues such as serious driver records or responsibility as our gatekeeper’s. As

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www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 9 Executive Director’s Message by Karen A. Gould Judicial Performance Evaluation Program: Why You Should Participate

The Chief Justice of the Supreme tify yourself as a potential survey Where less than 250 attorneys are Court of Virginia sent an e-mail on respondent for one or more of the identified, all attorneys identified are January 7, 2016, to all active members judges being evaluated in the next surveyed. of the Virginia State Bar about par- six months. Your prompt and If an attorney is selected as an ticipating in the Judicial Performance accurate response to this survey evaluation survey respondent, he Evaluation Program. The e-mail is set is very important in order that a or she will receive a letter mailed by forth in part below: sufficient number of evaluation VCU-SERL on behalf of the Chief surveys can be distributed for each Justice. The letter is followed about a To: All Active Members of evaluated judge. This should only week later with an e-mail that includes the Virginia State Bar take a few moments of your time. a link to the evaluated judge’s survey. From: Donald W. Lemons, You may expect to receive these If an attorney has received a survey but Chief Justice links twice per year. The survey is has not actually appeared before the Re: Judicial Performance expected to close on …. evaluated judge, he or she need only fill Evaluation Program out the first three questions to establish The eligibility survey is sent to that circumstance. The Supreme Court of Virginia attorneys throughout the state to Your survey responses help all has re-established the Judicial ensure that the attorneys who may judges identify ways they can improve Performance Evaluation Program practice in localities distant from their their performance. For judges whose (JPE Program) as provided by offices are included. VCU-SERL uses terms are expiring, your evaluation Virginia Code § 17.1-100. The the eligibility survey responses as well responses are useful to the General purpose of the JPE Program is to as attorney data obtained from the Assembly during the re-election pro- provide an internal self-improve- courts’ case management systems to cess. Your participation in the JPE ment mechanism for judges and identify potential respondents for each Program is critical. The attorneys of a source of information for the judge’s evaluation. It is important for the commonwealth have valuable re-election process. attorneys to respond to the eligibility information to share and should want surveys because case management data their opinions to be considered. This This e-mail is being sent to may not identify all attorneys who is one important way to be heard. all active members of the appear in court. Even when attorney Please do your part to give the General Virginia State Bar by Virginia names are available through the case Assembly and our judges the best Commonwealth University’s management systems, they are not feedback possible. Survey and Evaluation Research necessarily linked to a particular judge. Laboratory, in the L. Douglas The sources complement each other. Wilder School of Government If a sufficient number of attorneys and Public Affairs (VCU-SERL). are identified for a particular judge, The link below will allow you to then VCU-SERL randomly selects the respond to VCU-SERL to iden- judge’s evaluation survey respondents.

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Security Clearance Confidential help for Lawyers substance abuse problems and mental health issues. McAdoo Gordon & Associates, P.C. For more information, call our toll free number: 202-293-0534 (877) LHL-INVA www.mcadoolaw.com or visit http://www.valhl.org. Improvements in US-Cuban Relations Bring Business Opportunities and Challenges by Geoffrey M. Goodale and Louis K. Rothberg

Cuba old map with Havana insert plan. Created by Vuillemin and Erhard, published on Le Tour du Monde, Paris, 1860. © shutterstock.com

As soon as President Obama announced that the United States would pursue improved relations with Cuba on December 17, 2014, many US companies and law firms began to wonder what it would be like to do business with or in Cuba. While certain new opportunities have been created by amendments made to Cuban-related regulations administered by the US Department of Treasury’s Office of Foreign Assets Control (OFAC) and the US Department of Commerce’s Business of Industry and Security (BIS), many of the comprehensive sanctions imposed against Cuba by the US for decades remain in effect, and will continue unless Congress takes action.

Statutory Restrictions Limit Business (3) the Trade Sanctions Reform and Export Opportunities with Cuba Enhancement Act of 2000. We must recognize that several US statutes The Cuban Democracy Act of 1992 currently in effect constrain the ability of the (CDA), among other things, prohibits foreign president – acting alone without Congress – to subsidiaries of US companies from engaging further substantially ease or lift many of the in trade with Cuba.1 The CDA also prohibits existing sanctions against Cuba. These stat- entry into the US for any seagoing vessel to utes include: (1) the Cuban Democracy Act of load or unload general freight if it has been in- 1992; (2) the Cuban Liberty and Democratic volved in trade with Cuba within the previous Solidarity (LIBERTAD) Act of 1996; and 180 days.2

12 VIRGINIA LAWYER | February 2016 | Vol. 64 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST

The LIBERTAD Act of 1996 codified travel to Cuba under a general license (i.e., a the then-existing economic embargo against self-executing regulatory authorization not Cuba.3 This included all restrictions set requiring that an application be filed with forth under OFAC’s Cuban Assets Control OFAC) provided that the purpose of their Regulations (CACR).4 While possessing broad travel falls within one of the twelve existing authority to amend the CACR, the president categories of travel for which a specific license cannot eliminate those regulations without could have been issued by OFAC in the past making a determination that a transition gov- (e.g., professional research and meetings, ernment is in power in Cuba pursuant to the educational activities, journalistic activities, provisions of the LIBERTAD Act,5 and no such religious activities, humanitarian projects, transition government is expected to assume public performances, exhibitions, and athletic power in Cuba in the foreseeable future. competitions) and all other applicable require- Moreover, the LIBERTAD Act also states ments.9 It is important to note that each travel- that Congress must believe that a satisfacto- er who relies on a general license for travel to ry resolution of property claims by a Cuban Cuba must retain specific records for five years government recognized by the US remains indicating that the travel was covered by the an essential condition for the full resumption terms of a general license. Moreover, travel of trade and diplomatic relations between to Cuba for general tourist activities remains the US and Cuba.6 Talks between the US and prohibited. Cuban governments on claims amounting OFAC has also amended the CACR to to billions of dollars held by US nationals for make it easier for US persons traveling to Cuba property expropriated or nationalized by the to purchase items and to bring certain kinds Castro regime over the past 55 years began in of items back. Towards this end, the CACR December 2015, and the satisfactory resolution have been amended to permit US persons of these claims will likely take several years to to use US debit and credit cards to purchase implement. items in Cuba and to open and maintain bank While the Trade Sanctions Reform and accounts in Cuba in order to access funds for Export Enhancement Act of 2000 (TSRA) au- authorized transactions,10 although actually thorizes certain commercial exports to Cuba doing so is somewhat impractical because no (e.g., relating to certain foods, medicines, and major US banks or financial institutions have medical products), it also includes prohibi- entered the Cuban market as of this writing. tions on US credit extensions such as financ- Moreover, as a result of amendments to the ing for purchases, and requires “payment of CACR, US persons may now bring back up to cash in advance” or third-country financing $400 worth of Cuban items, including up to for the exports.7 The TSRA also prohibits $100 worth of alcohol and tobacco products, tourist travel to Cuba.8 provided that the items were purchased in Although some bills have been introduced Cuba and are for personal use.11 in Congress that would end various aspects of In addition, OFAC has also amended the the comprehensive sanctions referenced above CACR to increase trade opportunities with since President Obama made his policy an- Cuba. For example, the CACR have been nouncement, none of them have been able to amended to authorize persons subject to garner much support, and in fact, numerous US jurisdiction to establish and maintain a members of Congress have expressed opposi- business presence in Cuba, including through tion to them. Given this fact, it seems unlikely subsidiaries, branches, offices, joint ventures, that these comprehensive sanctions will be franchises, and agency or other business rela- eliminated anytime soon. tionships with any Cuban individual or entity, to provide authorized telecommunications Easing of Certain Sanctions Under the CACR and internet-based services.12 Furthermore, However, OFAC has made numerous amend- persons subject to US jurisdiction are now ments to the CACR to ease certain sanctions authorized to enter into certain licensing during the past year. While these amendments agreements and to market such services.13 create certain limited opportunities, many OFAC has further amended the CACR aspects of OFAC’s comprehensive embargo to authorize certain persons subject to US against Cuba remain in effect. jurisdiction to establish a physical presence, As a result of amendments made to the such as an office or other facility, in Cuba, CACR in January 2015, US persons may now to facilitate authorized transactions.14 This www.vsb.org GENERAL INTEREST FEATURES | Vol. 64 | February 2016 | VIRGINIA LAWYER 13 GENERAL INTEREST

authorization covers news bureaus, exporters and to update the list of eligible items.21 BIS of goods authorized for export pursuant to has also expanded License Exception Gift sections 515.533 or 515.559, providers of au- Parcels and Humanitarian Donations (License thorized mail and parcel transmission services Exception GFT) in 15 CFR § 740.12 of the and cargo transportation services, providers EAR to permit the export and re-export of of telecommunications or internet-based multiple gift parcels in a single shipment.22 BIS services, entities organizing or conducting has also expanded the availability of License certain educational activities, religious orga- Exception Aircraft, Vessels and Spacecraft nizations, and providers of travel and carrier (License Exception AVS) to pertain to Cuba, services.15 OFAC has also amended the CACR so that certain categories of seagoing vessels, to authorize such individuals and entities to when engaged in specified activities eligible open and maintain bank accounts at financial for the license exception, can remain in Cuba institutions in Cuba for authorized transac- for no more than fourteen consecutive days tions, and to close such accounts.16 before returning to the US or departing for a Most recently, OFAC amended the CACR country to which it may be exported without a on January 27, 2016. Significantly, pursuant to license.23 these amendments, restrictions on payment BIS has also created a new License and financing terms for authorized exports Exception Support for the Cuban People and re-exports, except for agricultural com- (License Exception SCP).24 It permits, among modities and agricultural items, have been other things, the export and re-export of the removed, and US depository institutions may following types of equipment: now provide financing, including, for exam- • Building materials, equipment, and tools ple, issuing a letter of credit for such exports for use by the private sector to construct or and re-exports.17 These latest amendments renovate privately-owned buildings, includ- also expand certain existing general licenses ing privately-owned residences, businesses, to authorize certain additional travel-related places of worship, and buildings for private- transactions that are directly incident to the sector social or recreational use; conduct of market research, commercial mar- • Tools and equipment for private-sector agri- keting, sales or contract negotiation, accompa- cultural activity; and nied delivery, installation, leasing, or servicing • Tools, equipment, supplies, and instruments in Cuba of items consistent with the export or for use by private-sector entrepreneurs.25 re-export licensing policy of the Department Items eligible for export and re-export of Commerce.18 Use of these expanded general to Cuba pursuant to this portion of License licenses is subject to the condition that the Exception SCP are limited to those designat- traveler’s schedule of activities does not in- ed as EAR99 or that are specifically identified clude free time or recreation in excess of that on the Commerce Control List (CCL) and consistent with a full-time schedule.19 controlled only for anti-terrorism [AT] reasons.26 Liberalization of Certain Export Controls License Exception SCP also authorizes Relating to Cuba the export and re-export of items for use by Since President Obama made his historic pol- US persons to establish, maintain, or operate icy announcement in December 2014, BIS has a physical presence in Cuba.27 In addition, made numerous amendments to the Export License Exception SCP authorizes certain Administration Regulations (EAR) to liber- temporary (not to exceed one year) exports alize certain Cuban-related export controls.20 and re-exports to Cuba of certain EAR99 However, many items still require an export items and items controlled on the CCL only license to be sent to Cuba. for AT reasons under some circumstances BIS has liberalized export controls by (e.g., commodities and software as tools of expanding certain license exceptions under trade for use by exporters or their employees the EAR, pursuant to which certain items to install, service, or repair items that are sub- can be exported to Cuba provided that all ject to the EAR and that have been exported of the requirements of the specific license or re-exported to Cuba under a license or exception are satisfied. For example, BIS license exception).28 expanded License Exception Consumer Most recently, on January 27, 2016, BIS is- Communications Devices (License Exception sued guidance indicating that it will generally CCD) to remove the donation requirement approve license applications for exports and

14 VIRGINIA LAWYER | February 2016 | Vol. 64 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST re-exports of some kinds of commodities and 5 See id. software to certain Cuba entities.29 This new 6 See id. licensing policy applies to items controlled on 7 The Trade Sanctions Reform and Export the CCL that relate to the following areas: civil Enhancement Act of 2000, Pub. L. No. 106- society, news gathering, agriculture, telecom- 387, Title IX. 8 See id. munications, civil aviation safety, and meeting 30 9 See 31 C.F.R. §§ 515.533, 515.545, 515.560- the needs of the Cuban people. 515.567, and 515.574-515.576. 10 See 31 C.F.R § 515.560. Conclusion 11 See id. In summary, OFAC has relaxed numerous 12 See 31 C.F.R. §§ 515.542 and 515.578 sanctions against Cuba, and BIS has liberal- 13 See id. ized export controls relating to many kinds of 14 See 31 C.F.R. § 515.573. items that can be exported and re-exported to 15 See id. Cuba. However, many aspects of the com- 16 See id. prehensive US embargo against Cuba remain 17 See 31 C.F.R. § 515.584. in effect and will continue unless Congress 18 See 31 C.F.R. §§ 515.533, 515.545, and 515.567. 19 See id. passes new legislation to amend or rescind ex- 20 The Export Administration Regulations are isting statutes, which seems unlikely to occur codified at 15 C.F.R. Parts 730-774. in the foreseeable future. Accordingly, careful 21 See 15 C.F.R. § 740.19. analysis of the amendments that have been 22 See 15 C.F.R. § 740.12. made to the CACR and the EAR is critical to 23 See 15 C.F.R. § 746.2. ensure that law firms and businesses comply 24 See 15 C.F.R. § 740.21. fully with all applicable requirements. 25 See id. 26 See id. Endnotes: 27 See id. 1 The Cuban Democracy Act of 1992, Pub. L. 28 See id. No. 102-484, Title XVII. 29 See 81 Fed. Reg. 4,580 (Jan. 27, 2016). 2 See id. 30 See id. 3 The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104-114. 4 See id. The Cuban Assets Control Regulations are codified at 31 C.F.R. Part 515.

Geoffrey M. Goodale is the founder and Louis K. Rothberg is of counsel in Morgan managing partner of Trade Law Advisors Lewis’s International Trade & Economic PLLC. He regularly counsels companies on Sanctions Practice. He represents a diverse a wide range of issues relating to the Export range of US and non-US entities on national Administration Regulations, the International security matters, e.g., economic sanctions, Traffic in Arms Regulations, and the economic munitions and dual use export controls, and sanctions regulations administered by the embargoes, Department of Defense con- Treasury Department’s Office of Foreign Assets tract issues, and the Committee on Foreign Control. He is the immediate past chair of the Investment in the United States. He has expe- International Practice Section of the Virginia rience in compliance by US and non-US com- State Bar and currently serves as co-chair of panies with all Office of Foreign Assets Control the ABA Section of International Law’s Export regulations regarding US embargoed countries Controls and Economic Sanctions Committee. and entities and ITAR and EAR export controls as well. In addition, he advises on export control and technology transfer issues arising under US Department of Defense contracts. He is a member of the VSB International Law Section.

www.vsb.org GENERAL INTEREST FEATURES | Vol. 64 | February 2016 | VIRGINIA LAWYER 15 TWELFTH ANNUAL INDIGENT CRIMINAL DEFENSE ADVANCED SKILLS FOR THE EXPERIENCED PRACTITIONER

SPACE STILL AVAILABLE IN WEBCAST LOCATIONS THURSDAY, MAY 5, 2016

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

INVITE ALL PUBLIC DEFENDERS AND COURT-APPOINTED COUNSEL WHO HAVE BEEN CERTIFIED BY THE VIRGINIA INDIGENT DEFENSE COMMISSION TO REPRESENT INDIGENT CRIMINAL DEFENDANTS TO A DAY-LONG ADVANCED TRIAL SKILLS CLE RICHMOND CONVENTION CENTER (LIVE PROGRAM — SOLD OUT) BLUE RIDGE COMMUNITY COLLEGE, WEYERS CAVE (WEBCAST) AND WYTHEVILLE MEETING CENTER, WYTHEVILLE (WEBCAST) Details at http://www.vsb.org/special-events/indigent-defense/index.php/. Law Stories

Beware the Bailiff a physical apprehension was out of the he had anything to say after the officer by David S. Holland question. But I was a runner back in the testified. day before everyone was, so I stayed in The defendant proceeded with a I am one of those attorneys whose pursuit. He eventually slowed to a walk. somewhat lengthy statement in response. careers have mostly been on the fringes I did too. The substitute judge then remarked, “Do of the law. The motivation to attend law To make the proverbial long story you think that explanation is worthy of school was not so much to be a lawyer short, I followed him around the envi- a finding of not guilty?” The defendant as to prepare myself for a variety of pos- rons of the Old Colonial Capital for replied, “Well, yes sir, because last week sibilities. about three hours, staying about ten you got me off with this same story in My first job after graduation from yards behind. He accepted my presence. Chesapeake.” Virginia Law significantly increased the Finally, a police car appeared (where is likelihood that a traditional legal career Ashton H. Pully Jr. practices law and lives in a cop when you need one?). I flagged it Virginia Beach. path was not in the cards. I spent four down, and the officer, the young man, years in the islands of Micronesia in the and I were soon back in the courtroom. far Pacific with a US government claims Although deprived of a story about commission settling World War II the doofus neophyte attorney who let claims the Micronesians had against the his client escape, the bailiff gave a hardy United States and Japan. The job market thumbs-up. was pretty tight when I returned to the I eventually finished the MBA, spent states, so I entered the MBA program a professional career mostly in consult- at the College of William & Mary in my ing and research, and only returned to hometown of Williamsburg. Just for a the law in retirement as an occasional little legal experience, I opened a part- time law practice on the side. The work electronic document reviewer. But docu- consisted mostly of court-appointed ment review is a story for another day. juvenile and misdemeanor matters. David S. Holland is in semi-retirement in One of the juvenile cases involved Alexandria. He writes occasional books, the a young man with problems attending latest being, “Who’d You Vote For, Er. . . school. I don’t recall the particulars, but Against?” the judge ruled that a return to a juvenile home in the lower Peninsula area was warranted. The young man was placed in The Substitute Judge a sort-of holding area to the side of the by Aston H. Pully Jr. Tell Us Your Favorite courtroom as the judge continued with Law Story his extensive docket. Some years ago, a prominent and very After a bit, the bailiff came over active attorney was presiding as a substi- Every lawyer has a story set aside and said that my now-former client for gatherings of friends or relatives. tute judge in the Norfolk District Court. It’s a special tale about a legal battle needed to use the restroom, which was When the defendants were brought won, or lost. Or about an amusing off a public corridor in the courthouse. forward for arraignment the judge asked encounter with a judge. Or a story Would I accompany the young man and their names. One of the defendants with a surprising twist. Maybe it’s a story that will bring a knowing return him to the courtroom? commented that the judge was not a smile, or shake of the head, from a Not thinking clearly, I said “Sure.” judge but a lawyer. The judge responded colleague. So my recent client and I went to the (paraphrased), “Well, today I have on Pick your best Law Story, your restroom. But on the way back, he the robe so I am the judge.” The female incredible adventure, your unusual bolted. Out the front door of the court- defendant responded, “Well, just because courtroom or even boardroom esca- pade, and send it to us. Keep them house. Gone. At extreme speed. I have a dress in my closet, that don’t short — about 400 words or less — Well, I wasn’t about to return to the make me Cinderella.” and send them in. courtroom empty handed and face that Another very prominent and active E-mail your stories to us at bailiff. I took off after the fugitive. Only lawyer in Norfolk was sitting as a substi- [email protected]. he was much bigger than me. Thus tute judge. The defendant was asked if www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 17

Bankruptcy Law Impacts Most Practice Areas by Angela M. Scolforo

On behalf of the Bankruptcy Section of the injury claims and proceeds must be disclosed Virginia State Bar I hope you find this edi- in the bankruptcy case, or the debtor (and tion interesting and educational. Those of us his attorney) may be judicially estoppel from who practice in this area often see how other recovery. Sometimes, the exempt recovery may practice areas impact and inform what we do. have to be paid over to the bankruptcy trustee. We offer you three articles on how consumer Personal injury attorneys are cautioned to bankruptcy law impacts the practice of law investigate if the debtor is in a bankruptcy in real estate, personal injury, and domestic case, and if so to reach out to his bankruptcy relations — the three practice areas that most attorney. often intersect with bankruptcy. Domestic relations attorneys know that Real estate attorneys may learn more their clients often slide into bankruptcy as the about the ability to change the nature of debt household splits in half. There are great pro- on real estate and homes through the applica- tections in bankruptcy for domestic support tion of bankruptcy laws. For example, debtors obligations, a term of art in the bankruptcy may strip off a wholly unsecured mortgage court. Figuring out which obligations are, in Chapter 13 bankruptcy. In some circum- or are not, domestic support obligations in stances, the debtor can modify the terms of bankruptcy is often tricky and requires a thor- a mortgage. For mobile homes, which are ough analysis reading behind the words of treated as personal property in Virginia, the an agreement. Our article walks you through debt may be stripped down to the ever-depre- the analysis so that you can better advise your ciating value of the collateral. Often debtors clients. A debtor’s failure to timely pay child are able to retain real estate, and still get out or spousal support may even be grounds to from under the burden of debt, with a bank- dismiss a bankruptcy case. Knowing the dif- ruptcy payment plan. ference between the discharge of such debts in Personal injury attorneys, and medical Chapter 7 and 13 may help you reassure your malpractice or employment law attorneys, client. may not be aware of the ways in which a bank- Please feel free to reach out to me, or ruptcy filing impacts the debtor’s claim and other members of the Bankruptcy Section, recovery. If a debtor files a Chapter 7 bank- when you find bankruptcy issues arise in your ruptcy petition, his standing to file a lawsuit practice. We are a cordial bar and enjoy help- belongs to the bankruptcy trustee. The statute ing one another. If you practice bankruptcy of limitations may toll before the personal law and are not yet active in our section, come injury attorney even knows his client had no join us. We learn from each other every day. standing to bring the lawsuit. Exempt personal www.vsb.org BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 19 Stripping it Down – Real Estate Issues in Bankruptcy by Sarah Beckett Boehm

Bankruptcy law encompasses Supreme Court also has drawn an important distinction — a Chapter 7 debtor cannot many areas of practice, including “strip down” a partially underwater mort- real estate. Addressing real property gage2 or “strip off” a wholly underwater mort- 3 issues and assisting debtors in keeping gage, while a Chapter 13 debtor may strip off a wholly unsecured mortgage. their home is often the driving force One significant benefit of Chapter 13, behind a Chapter 13 case. This arti- then, is that a wholly unsecured mortgage cle summarizes real estate issues that lien can be “stripped off” to render the debt unsecured.4 Lien stripping is available against frequently arise in individual reorga- junior mortgages on the debtor’s principle nization cases under Chapter 13 of the residence if the senior mortgage equals or exceeds the value of the property. In order to Bankruptcy Code and suggests prac- strip off a junior mortgage lien, the debtor tice pointers for handling them. must file a separate adversary proceeding.5 If the debtor is successful, the order stripping Lien Stripping off the junior lien may be filed in the appro- There are fundamental differences between priate state court land records. Chapters 7 and 13 of the Bankruptcy Code. While a Chapter 13 plan may modi- Chapter 7 contemplates liquidation of the fy the rights of holders of certain secured estate, while Chapter 13 enables individuals1 claims, it may not modify a security interest to develop a plan to repay all or part of their in real property that is the debtor’s principal debts over three to five years and save their residence, subject to limited exceptions.6 One homes from foreclosure. The United State exception is that if the last payment on the

20 VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION www.vsb.org STRIPPING IT DOWN – REAL ESTATE ISSUES IN BANKRUPTCY original mortgage payment schedule is due may provide a roadmap for real estate issues before the final payment on the Chapter 13 that may arise during the bankruptcy case. plan is due, it may be subject to modifica- For example, if any judgment liens were filed tion by the Chapter 13 plan.7 For example, less than ninety days before the case was filed, if a final mortgage balloon payment matures they may be subject to avoidance.15 As noted before the end of the Chapter 13 plan, the full above, if there are junior mortgages that amount could be stretched out over the life exceed the fair market value of the property, of the plan rather than being paid in a lump they may be stripped off by filing an adversary sum. proceeding complaint. Moreover, the search Additionally, if the debtor owns invest- could turn up a title defect. If a deed of trust ment or other property that is not his or her was not properly recorded in the appropri- principal place of residence, the mortgage can ate city or county, the lien may be subject be “crammed down” through the Chapter 13 to avoidance during the bankruptcy case, plan. This process allows the debtor to reduce rendering the lender unsecured and subject to the principal balance of the mortgage to the a pro rata distribution with other unsecured value of the real estate, and then to pay that creditors.16 amount with interest. It also may allow the debtor to reduce the mortgage interest rate. Liquidation Analysis A Chapter 13 debtor is not required to pay Exemptions general unsecured claims in full. Rather, Know them. Use them. 11 U.S.C. § 522(f) the percentage to be paid is determined by enables a debtor to eliminate, in whole or the “best interest of creditors” test and the in part, liens8 that impair an exemption amount of the debtor’s disposable income. to which the debtor is entitled. Virginia The best interest of creditors test requires that provides minimal homestead protection, in order to confirm a Chapter 13 plan, the so debtors should take advantage of what value of property to be distributed under the little is available, including: $5,000 per plan to unsecured creditors must not be less person ($10,000 per person for anyone 65 than the amount that would be paid to such or older), plus $500 for each dependent;9 creditors in a hypothetical Chapter 7 liquida- an additional $10,000 for any veteran with tion.17 Because the best interest of creditors a service-connected disability of 40 percent or more;10 $2,000 per month up to $24,000 during a one-year period of administration A Chapter 13 debtor is not required to pay general of the decedent’s estate for a surviving spouse and minor children;11 and $20,000 from the unsecured claims in full. decedent’s estate in lieu of any share passing to the spouse from the estate.12 Generally, property held by tenants by the entireties is test considers how much unsecured creditors protected from the claims of all judgment lien actually would receive if the assets were liqui- creditors of only one of the tenants, unless the dated in a Chapter 7 proceeding, calculating service was emergency medical care.13 the fair market value of the real property is critical when performing a liquidation anal- Title Searches ysis. To calculate the fair market value of the Running a title search can be beneficial. The property for a liquidation analysis, a debtor results will reflect who owns the property, may deduct all valid liens on the property as how it is being held (e.g., individually, tenants a whole, and then from the debtor’s share of by the entireties), if there are any deeds of the equity remaining after deducting all valid trust or other liens against the property, and liens, the debtor may be able to deduct the if there are any restrictions or easements that cost of liquidation (e.g., 6 percent realtor’s could affect title. If the property is allegedly commission for improved land, 10 percent for held as tenants by the entireties, ensure the unimproved land), exemptions, other closing deed contains the “five unities” — interest, and administrative costs, and the Chapter 7 title, time, possession, and marriage.14 Not trustee’s commission.18 Always check local only is some of this information required for practice to determine how the trustee and the debtor’s Schedules of Assets and Liabili- judges calculate these amounts and what ties filed in the bankruptcy court, but it also deductions they allow. www.vsb.org BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 21 STRIPPING IT DOWN – REAL ESTATE ISSUES IN BANKRUPTCY

the debtor may obtain an order from the Valuation bankruptcy court releasing the lien as having Valuing real property can be vital to a Chap- been paid in full. This can also may be ac- ter 13 case. If the senior lien exceeds the fair complished by the more cumbersome route market value of the property, junior liens may of recording in the state court the Chapter be stripped. The fair market value of a prop- 13 plan, confirmation order, and discharge erty also will be factored in to the best interest order. Both of these options, however, elimi- of creditors test. Because of the important nate the need for the debtor to locate the lien role it plays, valuation may come down to a creditor to obtain the release.

The author would like to thank Herbert L. Because of the important role it plays, valuation may Beskin, Chapter 13 trustee in Charlottesville, Shephen E. Dunn of Stephen E. Dunn, PLLC, come down to a battle of the experts. and Michael T. Freeman of Samuel I. White, P.C., for use of their materials from the Bankruptcy Section’s Spring CLE. battle of the experts. The key to valuation is to know the local custom and practice. A debtor Endnotes: should consider: (i) whether the county or 1 To be eligible for Chapter 13, an individual city in question tends to value real estate (not a corporation or partnership) must above or below true market value, and, if so, have unsecured debts of less than $383,175 to what extent; (ii) what other forms of evi- and secured debts of less than $1,149,525. 11 U.S.C. § 109(e). These figures are subject to dence (broker’s price opinions, “comps,” etc.) readjustment. Id. at § 104. are acceptable to counter a current tax-as- 2 Dewsnup v. Timm, 502 U.S. 410, 416-20 sessed value; and (iii) any recent changes to (1992). the house or land, or any needed repairs, that 3 Bank of Am., N.A. v. Caulkett, 135 S. Ct. 1995, would affect its current value, but might be 1999-2000, 2001 (2015). unknown to the tax assessor. 4 The Fourth Circuit, among others, allows debtors to strip off liens that are wholly un- Mobile Homes secured under section 506(a), reasoning that A mobile home may be converted to real they do not represent “secured claims” subject property or it may remain a vehicle and, to the anti-modification provision of section therefore, personal property.19 If the mobile 1322(b)(2). In re Davis, 716 F.3d 331, 334–36 (4th Cir. 2013) (“We too have affirmed, albeit home remains personal property,20 it may be in unpublished opinions, the stripping off of crammed down to the fair market value in the valueless liens against principal residences in debtor’s Chapter 13 plan. If the debtor wishes Chapter 13 cases.”) (collecting cases and de- to have it deemed real property, the owner scribing the rationale for stripping off wholly must submit to the Department of Motor underwater liens). Vehicles an Affidavit for Manufactured Home 5 Fed. R. Bankr. P. 7001(2). Conversion to Real Property Form. Once the 6 11 U.S.C. § 1322(b)(2). DMV cancels the title, the owner must file an 7 Id. at § 1322(c)(2). Affidavit Regarding Manufactured Home in 8 Statutory liens are not avoidable under the circuit court land records where the prop- section 522. They may, however, be crammed erty is located. A search of DMV records and down in a Chapter 13 plan, with a portion treated as priority or unsecured. Judicial liens land records may be necessary to determine and non-possessory, non-purchase money if a lender has a lien on the mobile home, the liens on household goods, tools of the trade, 21 land, or both. or professional prescribed health aids are avoidable. Recording the Release of Non-consensual 9 Va. Code Ann. § 34-4. Liens 10 Id. at § 34-4.1. If a judgment or tax lien is being paid through 11 Id. at § 64.2-309. the Chapter 13 plan, it is important to ensure 12 Id. at § 64.2-311. that the release of that lien is recorded in the 13 Id. at § 55-37 and 8.01-220.2, 55-37; see also state court land records. This may be done 11 U.S.C. § 522(b)(3)(B). But see United by including language in the Chapter 13 plan States v. Craft, 535 U.S. 274, 283-89 (2002) (holding that a federal tax lien can attach to that upon entry of the debtor’s discharge,

22 VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION www.vsb.org STRIPPING IT DOWN – REAL ESTATE ISSUES IN BANKRUPTCY

one spouse’s interest in tenants by the entirety 21 See Ennis v. Green Tree Servicing (In re Ennis), property even though the other spouse does 558 F.3d 343 (4th Cir. 2009) (holding that not owe debt). a mobile home titled by the DMV, taxed 14 In re Sampath, 314 B.R. 73, 84, 98 (Bankr. E.D. as personal property, and secured so that it Va. 2004); see also Va. Code Ann. §§ 55-20, “would ‘not become a fixture or part of [] real -21 (abolishing survivorship between joint property’” without the lender’s consent did tenants and discussing joint ownership in real not satisfy the real property requirement of § and personal property). 1322(b)). 15 11 U.S.C. § 547(b)(4)(A). 16 This may be a double-edged sword for a debtor who still has to satisfy the best interest of creditors test. 17 11 U.S.C. § 1325(a)(4). 18 See, e.g., In re Todd, Case No. 02-04451 (Bankr. W.D. Va. Mar. 17, 2003) (Stone, J.); In re Neal, No. 01-80851, 2001 WL 36268654, *2-4 (Bankr. E.D. Va. Oct. 24, 2001) (conducting a liquidation analysis); In re Leedy, Sarah Beckett Boehm is an attorney at 230 B.R. 678, 683 (Bankr. E.D. Va. 1999) (dis- McGuireWoods LLP in Richmond, where she cussing the inclusion of sale costs with respect has practiced since concluding her bankruptcy clerkships for Judges Shelley and Tice. Her to the best interests of creditors test). practice is focused on representing corporate 19 Va. Code Ann. § 46.2-653.1; see also In re debtors, creditors’ committees, and creditors Banks, 259 B.R. 848, 850-51 (Bankr. E.D. Va. in a variety of business Chapter 11 cases. She 2001). also serves on the board of governors for the Bankruptcy Law Section of the Virginia State 20 If a mobile home is taxed as personal prop- Bar and is a member of the executive commit- erty, then a debtor can use the tax records as tee of the Bankruptcy Section of the Richmond evidence that it remains personal property. Bar Association.

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www.vsb.org BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 23 Scheduling and Protecting Personal Injury and Other Causes of Action in Bankruptcy Cases by Angela Scolforo, Mark C. Leffler, and Emily Fort

Imagine a client who has a claim month after the auto accident and, further, that your client never disclosed the cause of for damages arising out of an auto action in his bankruptcy schedules. You call collision. The client was rear-ended, your client, who innocently explains he never and liability is clear. The accident told you about his bankruptcy and never told his bankruptcy lawyer about the accident happened one year and eleven because he didn’t think his personal injury months ago. Thankfully, the client is claim and his financial woes were connected. organized with medical records and What is the next step? No one wants to be the personal injury lawyer or the bankruptcy evidence of damages, so you quickly lawyer in this scenario, but those who draft your complaint and file suit. represent debtors in bankruptcy or plaintiffs Congratulations! You have tolled the in civil litigation need to know that filing for bankruptcy can drastically impact a plaintiff’s two-year statute of limitations of Va. claim arising from many causes of action Code Ann. § 8.01-243. Or have you? such as personal injury, wrongful death, and wrongful termination or discrimination. After serving the complaint, defense counsel In navigating this less-than-ideal calls you and asks, “Did your client tell hypothetical situation, four overarching you about his bankruptcy?” Your helpful factors will guide the analysis: disclosure, opposing counsel then informs you that standing, exemptions, and good faith/income your client filed a Chapter 7 bankruptcy one considerations that arise in a Chapter 13.

24 VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION www.vsb.org SCHEDULING AND PROTECTING PERSONAL INJURY AND OTHER CAUSES OF ACTION IN BANKRUPTCY CASES

Disclosure the court of her potential claim within the Your client’s first mistake was failing to tell forty-one day period, the bankruptcy court his bankruptcy lawyer about the claim for could have modified her plan to increase the damages arising from the auto collision. creditors’ recovery.4 In analyzing cases similar Simply put, a debtor in bankruptcy has a duty to Kimberlin, courts in the Fourth Circuit to disclose all property interests, including have emphasized that the entry of a discharge any cause of action.1 in the bankruptcy may be a pre-condition of The cause of action is property of the judicial estoppel.5 estate if it arises before the bankruptcy is filed, and—in a Chapter 13 case—property Standing interests acquired by the debtor postpetition Recall that, in the hypothetical, your client also are part of the bankruptcy estate filed his personal injury suit within the two- pursuant to 11 U.S.C. § 1306. Therefore, year statute of limitations (and after filing a a debtor’s duty to disclose is ongoing:2 if Chapter 7 bankruptcy with less-than-stellar a debtor “acquires or becomes entitled to schedules). We asked whether, by filing the acquire any interest in property,” the debtor personal injury suit, the debtor tolled the must file a supplemental schedule within statute of limitations found in Va. Code Ann. fourteen days “after the information comes to § 8.01-243. the debtor’s knowledge ….”3 Unfortunately, the answer is “no.” Of course, a debtor who intentionally Your client lacked standing to file the suit. A withholds information about such an interest Chapter 7 debtor may only pursue a cause of may be prosecuted criminally pursuant to action if: (i) the trustee abandons the cause 18 U.S.C. § 152. However, even the debtor’s of action after notice and a hearing pursuant unintentional failure to disclose a cause of to 11 U.S.C. § 554(c), or (ii) the “properly action can preclude the debtor from pursing scheduled” cause of action is “not otherwise the claim. In the hypothetical, your client administered at the time of [the bankruptcy did not disclose the claim for damages in case] closing,” and is therefore abandoned his bankruptcy schedules. When he filed back to the debtor when the bankruptcy case schedules without disclosing his interest in is closed. the cause of action, he was swearing under Your client had no standing when you penalty of perjury that he had no claim for filed the lawsuit because the claim was not damages. The debtor’s oversight, which serves properly scheduled and, therefore, it had not as an admission against his own interests, been abandoned back to him by the trustee. may be grounds to judicially estop him from Only the Chapter 7 trustee has standing pursuing any recovery. to pursue a cause of action.6 However, Kimberlin v. Dollar General Corp, 520 Fed. Appx. 312 (6th Cir. 2013) shows how strictly the duty to disclose is enforced. Kimberlin worked for Dollar General for nine years in a distribution center until her termination—which she attributed to retribution for having filed a complaint against her supervisor. She was fired forty-one days prior to making her final payment to the Chapter 13 trustee, and she did not amend her schedules during that time to disclose a cause of action for unlawful termination. Her Chapter 13 plan paid unsecured creditors a dividend of only 3 percent of their claims. Approximately one year after Kimberlin received her discharge, she filed suit against Dollar General, alleging unlawful because the cause of action was not properly termination. The court held that judicial scheduled, the trustee was unaware of the estoppel barred Kimberlin from pursuing the need to file a suit in order to toll the statute of lawsuit because, if Kimberlin had notified limitations. www.vsb.org BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 25 SCHEDULING AND PROTECTING PERSONAL INJURY AND OTHER CAUSES OF ACTION IN BANKRUPTCY CASES

As the Virginia Supreme Court held in a your client recovers pursuant to the cause of case involving essentially these facts, standing action, will he still have to pay the proceeds to must exist before filing suit, and filing suit the trustee? without standing is a “legal nullity”— The first step in resolving this issue allowing the statute of limitations to run.7 is asserting the proper exemptions, which In Kocher, the court held that the lawsuit at he must do in order to have any hope of issue was void and did not toll the statute protecting the proceeds from his creditors. of limitations, because the lawsuit was filed 11 U.S.C. § 522 grants the debtor the power before such relief was granted. The court to exempt assets within the time specified in reached this decision notwithstanding the Bankruptcy Rule 1007 (generally fourteen bankruptcy court reopening the bankruptcy days). Further, Bankruptcy Rule 1009 also case and granting the debtor leave to amend allows schedules to be “amended by the debtor as a matter of course at any time before the case is closed” with proper notice. Pursuant to Bankruptcy Rule 9006(b)(1), the debtor can even file a motion and try to amend schedules after the case is closed if “excusable neglect” is proven.9 If the debtor does not initially schedule the cause of action, he must amend the schedules, and then he is permitted to claim an exemption.10 Even where the debtor’s cause of action accrues postpetition—and even if it was not timely disclosed—the debtor should amend his schedules to fully disclose the claim, accurately value it, and then exempt the highest allowable value. Otherwise, the trustee may retain an interest.11 Secondly, as you attempt to obtain the maximum recovery for your client, you must the schedules to disclose the cause of action be aware that there may be medical providers and exempt it without objection.8 who have a “secured” claim, a lien on the Imagine the previous scenario with a proceeds to guarantee their payments. The twist: Your client was a debtor in Chapter 13 bankruptcy court in In re Jones Const. & bankruptcy instead of Chapter 7. In contrast Renovations, Inc., 337 B.R. 579, 586 (Bankr. to Chapter 7, there is no risk for plaintiff’s E. D. Va. 2006), found that “pre-petition counsel in filing suit for a Chapter 13 debtor, assignments are valid, and the proceeds of any because Chapter 13 debtors retain standing assignment that vests rights in the assignee to pursue their own causes of action. As such, pre-petition are not property of the estate.” a Chapter 13 debtor who files suit tolls the The district court in In re Carpenter, 252 B.R. statute of limitations. This was confirmed by 905, 913, 916 (E. D. Va. 2000) found that the Fourth Circuit in Wilson v. Dollar General the employer had an equitable lien on the Corp., 717 F.3d 337, 339 (4th Cir. 2013), debtor’s personal injury settlement proceeds which held that, “because of the powers under the terms of the health insurance plan, vested in the Chapter 13 debtor and trustee which is a “security interest” in the proceeds [pursuant to Bankruptcy Code Sections (the “res”), and ordered the debtor to pay 1303 and 1306 and Bankruptcy Rule 6009], the employer the proceeds up to the amount a Chapter 13 debtor may retain standing to that the debtor received under the plan. A bring his pre-bankruptcy petition claims.” Chapter 13 debtor may need to provide for medical lien creditors as secured claimants in Claiming Exemptions a Chapter 13 plan. Let’s continue the hypothetical with the debtor in a Chapter 13, rather than a Chapter Additional Considerations in Chapter 13 7. Your Chapter 13 debtor client had standing If the debtor plaintiff is in Chapter 13 and properly scheduled the cause of action. If bankruptcy, he will need good counsel to

26 VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION www.vsb.org SCHEDULING AND PROTECTING PERSONAL INJURY AND OTHER CAUSES OF ACTION IN BANKRUPTCY CASES determine whether—even if the property Endnotes: is exempt—he may have to pay it to the 1 11 U.S.C. §§ 521(a)(1)(B)(i) and 541, and bankruptcy trustee for the benefit of his F. R. Bank. P. 1007; see also Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir., 2013); creditors. The trustee may assert that the Kocher v. Campbell, 712 S.E.2d 477, 479 (Va. funds constitute income that the debtor 2011); Canterbury v. J.P. Morgan Acquisition must pay into his Chapter 13 plan in order Corp., 958 F. Supp. 2d 637 (W.D. Va. 2013) to satisfy the Bankruptcy Code’s disposable (quoting Logan v. JKV Real Estate Servs., 414 income or good faith requirements. F.3d 507, 512 (4th Cir. 2005)); Vanderheyden Although courts are split on whether v. Peninsula Airport Comm’n, 2013 WL 30065 Chapter 13 debtors must pledge proceeds (E.D. Va., 2013). of exempt assets to fund their plans as 2 The U.S. District Court in Vanderheyden explained the duty to disclose as follows: disposable income, debtors in the Fourth … The Fourth Circuit has observed that Circuit have strong arguments for retaining “[t]he meaning of ‘property of the estate’ such proceeds. In In re Solomon, 67 F.3d 1128 under the Code has been construed (4th Cir. 1995), the court refused to require a ‘broadly to encompass all kinds of property, Chapter 13 debtor to pay the trustee exempt including intangibles [more] specifically, IRA funds because they were exempt, saying, ‘property of the estate’ under § 541(a) has “a debtor’s choice to proceed under Chapter ‘uniformly been interpreted to include causes of action.’ … [T]he debtor need not 13 [should not] entitle creditors to more know all the facts or even the legal basis for than they would receive in Chapter 7 . . . .” the cause of action; rather, if the debtor has However, in contrast to Solomon, three other enough information . . . to suggest that it circuit decisions require the debtor to pay may have a possible cause of action, then over exempt funds to meet disposable income that is a ‘known’ cause of action such that requirements.12 it must be disclosed … the debtor has an Often a compromise is reached between affirmative duty to disclose such assets and liabilities to the bankruptcy court debtors and trustees as to how the proceeds … This duty does not end when the are to be distributed when the debtor recovers debtor files her bankruptcy petition; it money from a cause of action. continues through the pendency of the debtor’s bankruptcy proceedings, requiring In summary, debtors clearly have a duty to the debtor to update the bankruptcy court as disclose any cause of action, and plaintiff’s her financial situation changes. counsel should carefully confirm they have Vanderheyden , is 2013 WL 30065, at *8. (most standing to pursue the cause of action before citations omitted). 3 Fed. R. Bankr. P. 1007(h). filing suit. One simple way to avoid being 4 Kimberlin, 520 Fed. Appx. at *3. the plaintiff’s counsel in the first scenario 5 See Collucci v. Tyson Farms, 2014 WL 6879927 above is to review the federal courts’ PACER (E. D. Va. 2010) (declining to apply judicial system for bankruptcy filing histories before estoppel because there is no reliance until accepting the case. Debtor’s counsel should the discharge is entered, even though the carefully guide the debtors in scheduling debtor filed an employment discrimination their assets and asserting their full exemption complaint prior to filing Chapter 13 and he did not initially list his cause of action); rights. Failure to disclose or exempt may strip Royal v. R & L Carriers Shared Services, the debtor of his ability to pursue or benefit LLC, 2013 WL 1736658 (E. D. Va. 2013) from the cause of action at all, or may result (denying judicial estoppel claim in a wrongful in the trustee taking the debtor’s interest. termination lawsuit because “[c]ourts have Then, even if properly disclosed and exempt, repeatedly emphasized that ‘acceptance’ there is at least an argument that debtors may in this context means that the bankruptcy have to pay over the proceeds to a Chapter 13 court has not merely confirmed the debtor’s bankruptcy plan but has also taken the trustee for the benefit of creditors. Plaintiff’s ultimate step of granting the debtor relief (i.e., civil counsel and bankruptcy counsel will discharge or repayment)”). maximize the benefits to their clients—and 6 Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 perhaps even benefit creditors—when they (4th Cir. 2013); Robertson v. Flowers Baking understand the interplay between civil causes Co. of Lynchburg, 2012 WL 830097 (W.D. Va. of action and bankruptcy. 2012). www.vsb.org BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 27 SCHEDULING AND PROTECTING PERSONAL INJURY AND OTHER CAUSES OF ACTION IN BANKRUPTCY CASES

7 Kocher v. Campbell, 712 S.E.2d 477, 480 (Va. re Barnett, Case No. 11-36220-KRH (Bankr. 2011). E.D. Va. Feb. 18, 2015) (overruling the 8 Id. at 481. Chapter 13 trustee’s objection to the debtor’s 9 See In re Wilmoth, 412 B.R. 791 (Bankr. E.D. claim of exemption in a post-petition cause of Va. 2009). action for personal injury). 10 The Virginia exemption rights relevant to 12 See In re Hagel, 184 B.R. 793 (9th Cir BAP causes of action include Va. Code Ann. 1995) (Social Security Disability payment are § 34-28.1 (personal injury and wrongful included in determining disposable income, death actions); Va. Code Ann. § 34-4 ($5,000 even though exempt); In re Koch, 109 F.3d. per “householder” ($10,000 if 65 or older) 1285 (8th Cir. 1997) (debtor required to plus $500 per dependent); and Va. Code pay exempt worker’s compensation benefits Ann. § 34-4.1 (another $10,000 for disabled because 11 U.S.C. § 1325(b)(2) defines veterans). “disposable income” to mean income not 11 In re Webb, 210 B.R. 266 (Bankr. E.D. Va. needed for debtor’s support and the ability 1997) (containing a detailed discussion of to claim an exemption is an independent Virginia’s unique personal injury exemption issue from whether debtors have the ability to statute); In Re Williamson, 337 B.R. 846 repay their debts); In re Freeman, 86 F.3d 478 (Bankr. E.D. Va. 2005) (court allowed (6th Cir. 1996) (“[T]he ‘projected disposable amendment of schedules to disclose and income’ language of section 1325(b) does exempt prepetition personal injury proceeds not expressly or implicitly qualify income and the mobile home and van purchased with by reference to its exempt status under state such proceeds); In re Walley, 525 B.R. 320 law” and finding that tax refunds must be (Bankr. E.D. Va. 2015) (allowing amendment paid over as disposable income, even though and exemption of postpetition assets); and In exempt.).

Angela M. Scolforo has worked for ten years as the staff attorney to Herbert L. Beskin, Chapter 13 Trustee for the Western District of Virginia. Speaking on seminar panels in Virginia and nationally, she enjoys learning from and interacting with her peers. Before becoming a Staff Attorney, she represented debtors in consumer bankruptcy cases and a myriad of other clients. She is the chair of the Bankruptcy Section of the Virginia State Bar, on which she has served since 2009.

Mark C. Leffler is a shareholder with the Emily Connor Fort is an attorney with the Boleman Law Firm PC. He is president of the Boleman Law Firm PC. NACTT Academy for Consumer Bankruptcy Education and writes a recurring column for the academy on post-confirmation issues in Chapter 13. He is a frequent speaker on bankruptcy for the National Association of Chapter 13 Trustees and Virginia CLE, and he is a member of the board of governors for the VSB Bankruptcy Section.

28 VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION www.vsb.org Bar Leaders Institute Lewis Ginter Botanical Garden, Richmond March 28, 2016 8:30 a.m.–4:30 p.m.

Keynote Speaker: Jeannie P. Dahnk, Past President – Virginia State Bar Resources for Bar Associations Sandra Chinn-Gilstrap, At-large Member – Conference of Local Bar Associations, MODERATOR Amy Esp, Educational Services Coordinator – ALPS Corporation Karl A. Doss, Director of Access to Legal Services Dr. Michael Schaefer, Assistant Commissioner of Forensic Services – Virginia Department of Behavioral Health & Developmental Services Raymond M. White, Executive Director – VACLE What Young Lawyers Want in a Bar Association Jack W. Burtch, Chair – Conference of Local Bar Associations, MODERATOR Faith A. Alejandro – Sands Anderson PC Stacy E. Lee – VSB/YLC Circuit Representative for the 13th Circuit Kristopher R. McClellan – Lawson and Silek, P.L.C. Maana K. Parcham, Assistant Public Defender – Danville Public Defender’s Office Nerissa N. Rouzer – Co-chair of the VSB/YLC Bench-Bar Dinner Committee Preparing for Your Bar Year Eugene M. Elliott Jr., Past President – Roanoke Bar Association, MODERATOR Alan McGraw, President – Tazewell County Bar Association Petula A. Metzler, Past President – Prince William County Bar Association Gilberto Sanchez, Vice President – Hispanic Bar Association of the Commonwealth of Virginia George W. Shanks, Past President – Virginia State Bar & Page County Bar Association Edward L. Weiner, President – Virginia State Bar & Past President, Fairfax Bar Association Ethics for the Bar Leader (One hour live CLE/Ethics) Bernard J. DiMuro – DiMuroGinsberg, PC James E. Leffler, Executive Director – Virginia Lawyers Helping Lawyers James McCauley, Ethics Counsel – Virginia State Bar Thomas E. Spahn – McGuireWoods LLP Engaging Judges in Your Bar Association Charles M. Lollar, At-large Member – Conference of Local Bar Associations, MODERATOR The Honorable Robert J. Humphreys – Court of Appeals of Virginia The Honorable Marilynn C. Goss – Richmond J&DR District Court The Honorable David W. Lannetti – Norfolk Circuit Court The Honorable Jacqueline Ward Talevi – Roanoke General District Court ALPS CLE (One hour live CLE/Ethics) ALPS will present a one-hour CLE as an example of programming they can bring to the local bar.

Lunch will be included. There is no fee to attend this event.

For more information, please visit: www.vsb.org/site/conferences/clba or contact Paulette Davidson at [email protected]. Demystifying Domestic Support Obligations in Bankruptcy by David Cox

Aside from generating emotional What is a Domestic Support Obligation? The Bankruptcy Abuse Prevention and trauma, divorce has an immediate Consumer Protection Act of 2005 (BAPCPA) financial impact on the parties that introduced a new definition to the Bankruptcy sometimes leads to bankruptcy. When Code under § 101(4A): the Domestic Support that happens, no doubt the nonfiling Obligation or DSO. A DSO is defined as a debt that accrues before, on, or after the spouse’s divorce lawyer will hear from date of the order for relief in a case under his or her client about the new devel- this title, including interest that accrues opment before he or she even has a on that debt as provided under applicable nonbankruptcy law notwithstanding any chance to examine the notice of bank- other provision of this title, that is — ruptcy filing served through the mail. Determining how the bankruptcy (A) owed to or recoverable by — (i) a spouse, former spouse, or child of filing will impact a carefully negotiat- the debtor or such child’s parent, legal ed property settlement agreement or guardian, or responsible relative; or the terms of a divorce order between (ii) a governmental unit;

the former spouses will typically (B) in the nature of alimony, mainte- depend on whether any of the under- nance, or support (including assistance lying obligations of the parties satisfy provided by a governmental unit) of such spouse, former spouse, or child of the the requirements of a “Domestic debtor or such child’s parent, without Support Obligation” under the regard to whether such debt is expressly Bankruptcy Code. so designated;

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(C) established or subject to establish- Between the two subsections, (a)(5) and ment before, on, or after the date of the (a)(15) of § 523, most all divorce obligations, order for relief in a case under this title, by regardless of whether they are in the nature of reason of applicable provisions of — alimony, maintenance, or support, are except- (i) a separation agreement, divorce deed from a Chapter 7 discharge. Further, after cree, or property settlement agreement; BAPCPA, both the (a)(5)4 and the (a)(15)5 (ii) an order of a court of record; or debts generally pass through the bankruptcy (iii) a determination made in accordance unaffected without the need for the creditor with applicable nonbankruptcy law by a to timely file a complaint to determine the governmental unit; and dischargeability of the debts or otherwise participate in the bankruptcy proceeding in (D) not assigned to a nongovernmental any meaningful way. entity, unless that obligation is assigned voluntarily by the spouse, former spouse, Impact of a Chapter 13 Bankruptcy child of the debtor, or such child’s parent, Analyzing the impact of a Chapter 13 bank- legal guardian, or responsible relative for ruptcy on divorce related obligations is far the purpose of collecting the debt.1 more complicated. Specifically, the determination of whether a debt is, in fact, a DSO, The statutory definition breaks down as opposed to an obligation arising from a into the four main parts identified above property division or settlement, becomes crit- in sections A through D, and each must be ical to determining the rights of the parties. satisfied for a claim or obligation to be a From the creditor’s perspective, the holder of DSO.2 With the exception of section C, the a DSO claim has special protections under definition of a DSO is written very broadly the code. In the hands of an attentive former to encompass most obligations that would spouse, these provisions offer powerful tools typically arise from a domestic proceeding. for ensuring a claim is satisfied and include Section C’s requirement, however, that the the following. debt be “in • Priority and Full Payment of DSO. If an ob- the nature of alimony, maintenance, or sup- ligation is deemed a DSO, then it is consid- port,” often proves to be the deciding factor ered a priority claim under § 507(a)(1)(A) in determining whether an obligation is, in and entitled to full under the debtor’s Chap- fact, a DSO or, instead, simply an obligation ter 13 plan pursuant to § 1322(a)(2) unless arising from property division or settlement. the claimant agrees to different treatment. As this article will explore, this distinction is critical to understanding the consequences of a subsequent bankruptcy on the rights of the parties. In the hands of an attentive former spouse, these provisions Impact of a Chapter 7 Bankruptcy The BAPCPA amendments eliminated offer powerful tools for ensuring a claim is satisfied and a Chapter 7 debtor’s ability to discharge obligations to a former spouse arising from include the following. a divorce decree, separation agreement, or equitable distribution award. All DSOs are nondischargeable under § 523(a)(5). In addition, any other divorce related claims, including obligations arising from property division or • Oversight of Ongoing DSO Payments. The settlement, owed “to a spouse, former spouse, debtor has added incentive to remain or child of the debtor that are not covered by current in any post-petition DSO payments § 523(a)(5),” are deemed nondischargeable because under § 1325(a)(8), the debtor’s under § 523(a)(15) if they were “incurred plan may not be confirmed if he or she is in default. by the debtor in the course of a divorce or • Cause for Dismissal if DSO Defaults. During separation or in connection with a separation the case, the nonfiling spouse may seek agreement, divorce decree or other order of a the dismissal or conversion of the debtor’s court of record….”3 www.vsb.org BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 31 DEMYSTIFYING DOMESTIC SUPPORT OBLIGATIONS IN BANKRUPTCY

Chapter 13 if the debtor fails to pay any was that the obligation was merely a division postpetition DSO as it comes due. of property, then the obligation is not a DSO.7 • Potential Discharge Denial for Failure to Sat- isfy DSO. The Chapter 13 discharge will not Unofficial Test of Intent in Fourth Circuit be granted until the DSO amounts due both for DSO before and after the bankruptcy filing have Courts in the Fourth Circuit have developed been paid in full pursuant to § 1328(a). an “unofficial” test for the intent inquiry, which provides for the court to look at the following factors.8 • Language of Agreement. Courts consider the actual language and substance of the It is not always obvious what is and what is not a DSO agreement, being mindful of the context in which the obligation arises under the from the language of a property settlement agreement or agreement.9 The labels used by the parties or the state court should not control, and the court order. court will look beyond the label to examine whether the debt actually is in the nature of alimony, maintenance, or support. Courts also will consider factors such as whether the payment is to be made in a lump sum, The above creditor protections depend more akin to property division, or over a on a determination that the claim to be period of time in order to provide support. enforced is, in fact, a DSO. Consequently, the Also, in interpreting whether the language most important work that can be done on of the agreement favors a property division behalf of a nonfiling spouse is often to ensure or a DSO, courts will look at factors such as that the obligations owed to that spouse are any agreed tax treatment for the obligation, treated as a DSO. Such a task, however, can be whether the parties waived support, and how challenging because it is not always obvious the agreement is organized. For example, what is and what is not a DSO from the lan- does the obligation arise from provisions guage of a property settlement agreement or under the section of the agreement address- court order. ing support or property division?10 • Financial Situation. Courts may consider is Determining Whether an Obligation is the parties’ financial situation at the time of a DSO the agreement. Relevant factors include the The majority of the requirements for defining prior work experience, employment history, a DSO, that is, subsections A, C and D of physical health, potential earning power, and § 101(4A), turn on objective criteria, such as business opportunities.11 In examining the the identity of the payee, the type of instru- support versus property division question, ment establishing the obligation, and whether courts will likely also weigh the probable the obligation has been assigned. The more needs of the parties in the future, the stabil- difficult determination is often whether the ity of the parties’ income at the time of the obligation meets the requirements of subsec- agreement, and whether one spouse has cus- tion B — that it be “in the nature of alimony, tody of minor children from the marriage. maintenance, or support.” • Function of Obligation. The function served The intent of the parties controls, but by the obligation at the time of the agree- divining that intent in hindsight and from ment (i.e. daily necessities) and the role the prior orders or agreements is not always obligation was intended to perform at the easy. In the Fourth Circuit, courts look at time the parties entered into the agreement the mutual or shared intent of the parties to will typically be considered by the court.12 In create a support obligation.6 When construing determining whether the obligation allocates property settlement agreements, courts are debt or divides property, courts will consider encouraged to determine whether the parties whether the obligation provides for daily intended the obligation as alimony, mainte- necessities like food and shelter and wheth- nance, or support at the time of the execution er it was intended to balance a disparity in of the agreement. If the intent of the parties incomes.

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• Evidence of Overbearing. The determinative 9 In re Austin, 271 B.R. 97 (Bankr. E.D.Va., issue for this part of the test is whether there 2001). is any evidence of overbearing at the time of 10 Ludwig at 469. the agreement that should cause the court to 11 Austin at 105-109. question the intent of a spouse. As with any 12 Id. 13 Id. analysis of overbearing by one party over 14 In re Johnson, 397 B.R. 289, 296-97 (Bankr. another, relevant factors include the relative M.D.N.C. 2008). bargaining positions of the parties, wheth- 15 Jacobellis v. Ohio, 378 U.S.184, 197 (1964) er both parties had legal representation, (Stewart, J., concurring). any grossly unbalanced provisions in the agreement, the statements and admissions of the parties, any misrepresentations of the parties, and the age, health, intelligence, and experience of the spouses.13 Of course, the use of these factors does not preclude consideration of other factors, and the court may look beyond the four corners of a divorce decree or the agreement of the parties to determine the nature of the payments constituting the debts sought to be discharged.14

Conclusion Ultimately, the determination of whether a debt is a DSO is a fact specific analysis, with the circumstances of each individual case carefully viewed through the prism of the statutory language and case law tests. The answer in some cases will be obvious and in others will be elusive. In all cases, advising a client requires a holistic view of the entire case in order to weigh and balance carefully all factors and considerations. In the end, determining with certainty that a particular provision of an agreement or order is in the nature of alimony, maintenance or support is not always easy, and lawyers tasked with such duty may find themselves struggling to reach a definitive decision and instead embracing the late Justice Stewart’s oft quoted conclusion that they will “know it when [they] see it.”15

Endnotes: 1 11 U.S.C. § 101(4A). 2 In re Forgette, 379 B.R. 623 (Bankr. W.D. Va. David Cox practices bankruptcy law through- 2007). out the Western District of Virginia. His prac- 3 11 U.S.C. § 523(a)(15). tice focuses exclusively on the representation 4 The § 523(a)(5) debts refer to all DSO. of debtors in bankruptcy and related proceed- 5 The § 523(a)(15) debts refer to property divi- ings. Prior to entering private practice, David sion or settlement debts. served as a judicial law clerk for the late Hon. William E. Anderson. He is the coeditor of 6 In re Ludwig, 502 B.R. 466, 468 (Bankr. W.D. Bankruptcy Practice in Virginia and a frequent Va. 2013) (citing Tilley v. Jessee, 789 F.2d 1077, lecturer at CLE programs related to bankrupt- 1078 (4th Cir. 1986). cy. In June, 2011, David became a permanent 7 Ludwig at 469. member of the Fourth Circuit Judicial Confer- ence, and in March, 2013, he was inducted as a 8 In re Krueger, 457 B.R. 465 (Bankr. D.S.C., fellow of the American College of Bankruptcy Sept. 19, 2011) (citing Tilley at 1077-1078). in Washington, DC.

BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER www.vsb.org 33 Access to Legal Services The Benefits Outweigh the Sacrifice: Two of Virginia’s Top Pro Bono Attorneys Discuss Attorney Service by Deirdre Norman

Justice Lewis F. Powell Jr. once commented that “Equal justice under the law…is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” In this light, two local bar associations recently recognized the achieve- Stoney Casey Geiger MacDonald ments of two of Virginia’s top pro bono on the Virginia Court of Appeals, who to develop relationships with the bench attorneys. The Fairfax Bar Association also encouraged her to give back to the because of the recognition of the judges awarded Susan Stoney, the deputy direc- community. “It is tremendously reward- who realize that these young attorneys tor of Legal Services of Northern Virginia, ing to be able to give a voice to people are donating their skills to the service with the James Keith Public Service who otherwise would have little access to of others. I have seen the bench be so Award. The Metropolitan Richmond justice,” Stoney said. appreciative of our volunteers who take Women’s Bar Association bestowed the “I have worked with hundreds of the time to assist on pro bono cases.” 2015 Women of Achievement Award on lawyers providing pro bono services to The Carrico Center recently Tara L. Casey, the director of the Carrico Legal Aid clients. Over and over, these matched Sands Anderson Firm Counsel Center for Pro Bono Service at the lawyers report that they find as much or Jeffrey H. Geiger with University of University of Richmond School of Law. more fulfillment in their pro bono cases Richmond School of Law third-year Both attorneys represent the highest as they get from their regular law prac- student Zachary L. MacDonald on a pro order of pro bono service, having devot- tice,” Stoney said. bono appeal involving due process rights ed the majority of their careers to helping Casey was an Assistant United in a probation revocation hearing in low-income Virginians access and navi- States Attorney for the Eastern District front of the Virginia Court of Appeals, gate the legal services they need, but too of Virginia and 8 1/2 months pregnant which they won on December 1, 2015. often cannot afford. Casey, who began with her first child when she decided to According to Geiger, “Pro bono allows her legal career as an Assistant United interview for the position as the director me to be involved in my community States Attorney for the Eastern District of of the Carrico Center at the University and gives me the opportunity to work Virginia, has established twelve different of Richmond School of Law. She was directly with law students. It gives the pro bono programs at the University offered the position while still in the law students the chance to gain valuable of Richmond School of Law and has hospital after delivering her daughter, courtroom experience at a time when helped hundreds of law students devote and has gone on to also serve as the it is more and more difficult for young thousands of hours of legal service to the faculty director of the law school’s lawyers to do so because of the expense community. Casey also volunteers for a Bridge to Practice Fellowship Program, of trial.” number of Richmond organizations in- which has helped more than thirty-five According to MacDonald, who cluding the Legal Aid Justice Center and law students begin public service careers sucessfully presented the oral argument the Central Virginia Legal Aid Society. upon graduation. during the proceedings, “Jeff knew that Stoney became interested in public “If you are a young attorney, pro I was new to the law, but he trusted me service while at William & Mary Law bono service gives you direct client expe- to get the work done. He struck a great School. There, she interned at Peninsula rience and innumerable other skills such balance in that he let me do as much as Legal Aid as part of a law school clinic as document drafting, courtroom experi- I could while still mentoring me. Jeff run by professor and clinic direc- ence, and networking opportunities with taught me how to convey the human tor, John Levy. She later clerked for other attorneys,” Casey said. “Pro bono aspect of the case to the court — some- now-retired Judge James W. Benton, Jr. work also allows young attorneys thing not easy to learn in law school.”

34 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Dec VL 2015_vl1215 12/7/15 2:37 PM Page 34

THE ELUSIVE PERMISSIBILITY OF PASS-THROUGH CLAIMS IN VIRGINIA Access to Legal Services irgiia Las asstrog clais ave ee alloe agaist s Geiger, whose practice focusescotractors on sicesuccessful te aeetspro bono program. See, e.g., These attorneys who never litigate preserve a civil litigation involving eminentAsphalt domain Roads &groups Materials do Co.,so much Inc. v. toCom., make Dept. our clients tenancy in a housing case in court, and and legal malpractice and ethics,of says Transp. of afeel welcome, S and to remove the barriers prevailing there is as meaningful to that pro bono, “As my firm’s GeneralDriggs Coun Corp.- v. Com.that keepof Va. them fromL getting a the legal attorney as it is important to the client,” ir t sel, I understand that attorneys needSee Aand services they et seq. need,” she te said. Stoney said. “These lawyers donate their want to be professionally competenteeral and Assel sogtCasey to pointed coissio out thata st all of the Melisa A.valuable Roy is a associatetime for it the illias benefit lle of clients i its diligent in whatever they are doing.to cosier I will eterpro bonote irgiia work shelic shepherds at the lawatioallrecogie who simply ostrctio cannot navigate Litigatio the ractice system i never put a pro bono case at the rocreetbottom Actschool A is done sol in partnershipe aee towith eithersos oreron their Se own.ocses For er theseractice clients, o costrctio pro bono la a reresets cliets i all ases o a costrctio of my things to do. Everyone deservesallo cotractorsa professional to sit clais association, to lic a non-profit, help is essential to a fair outcome.” oers o eal o scotractors a sliers roect Se as etesive eeriece it rearig a egotiatig costrctio cotracts a rearig a liti the highest caliber of legal serviceso and, icrre costsor private a eeses attorneys, o lic including ro the law Casey said, “Many of the perceived unfortunately, there exists a real unmet firms who comprise Firms in Service andgatig colebarriers costrctio to pro bono clais service o eeral are state actually a ects e to acts or oissios o te lic rivate roects i aitio to avisig o varios tes need for these services.” oer as it companies cotracts such as Capital es One and o isses myths.tat arise Whether ro te rei it’s a protectivestage trog order iste or Both Stoney and Casey mentioned e AsseDominion. eg Sess “These a large available law firms may resoltiobe an uncontested divorce, people benefit that the pro bono efforts that theyat ttlegstatevascgiilegeeover- competitors in the corporate world,” said from an attorney — even one who is l last visite o ctoer see involve the partnerships and ortatelassis- teCasey, resoltio “but they ltiatel are allies aile in pro bono. working outside of their specialty. For tance of law firms and corporationsa tethat st asThere ever is eroreplenty of pro See bonoistor work o to go most pro bono lawyers, the benefits donate office space for meetings as eswell around.” available In at recent ttlisvirgiia months, McGuire- outweigh the sacrifice.” as the time of their employees. Accordinggovcgiilegeesestilval Woods has begun spearheading efforts to Stoney, Hunton & Williams, Freddie to bring the highly successful Firms in The October issue of Virginia Lawyer a ir aira Mac, AOL, Capital One, and Hilton a are A Service model to Northern Virginia. will be devoted to the topic of Access to just a few of the many firms and compa- Stoney and Casey both said that Legal Services. If you are interested in nies who have donated the use of their whereas young lawyers can gain client learning more about opportunities to space, employee time, and food and experience and courtroom experience be of service in your community please beverages to the clients of Legal Services from pro bono work, senior lawyers contact Karl Doss, director of the VSB of Northern Virginia. “Volunteer lawyers also benefit from networking and the Access to Legal Services Committee, at and law firms are the backbone of any mentoring skills they hone. “I have seen [email protected].

Access to Justice Hero Are you providing service to someone who can’t afford legal representation, is your law firm, or another attorney you know? We’d like to tell the members of the Virginia State Bar about it. We’d also like to hear about work lawyers have done on special pro bono projects, or any access to justice program or issue that needs assistance. The VSB is continuing its focus on access to justice by regularly raising awareness of outstanding service by pro bono, legal aid, and indigent defense lawyers. So send us your story — 400 words or less — about access to justice, along with a photo. We’ll pick the best and feature it in Virginia Lawyer. E-mail your stories to us at [email protected]. By the way, the Access to Justice/Pro Bono pages of the VSB website at http://www.vsb.org/site/pro_bono have begun featuring a Volunteer Lawyer Spotlight. Please send a brief “blurb” (3 to 5 sentences and a photo) about an outstanding contribution by a volunteer lawyer or law student. The Special Committee on Access to Justice will update the spotlight each month. Please send your “blurbs” to [email protected].

www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 34 br o. NSTRTIN LA AN LI NTRATS SETIN www.vsb.org35 WHAT YOU DON’T KNOW CAN HURT YOU. The only thing changing faster than the law is technology … and staying technologically competent not only benefits your practice, it is a key part of the Rules of the Supreme Court of Virginia.

Please plan to spend April 25th with a panel of national ABA tech speakers and Virginia Supreme Court Justice Cleo E. Powell at the 2016 TECHSHOW. Make sure your legal practice and your clients are benefitting from the newest concepts in tech.

We will cover topics including: Ethics Discovery Marketing Cyber Security And a multitude of the newest tech ideas affecting the practice of law

Included in your $100 registration cost: Free WiFi Continental breakfast Lunch Coffee breaks Seven hours of CLE credit Networking with attorneys and IT professionals from around Virginia and the USA

For more information, please visit: www.vsb.org/site/events or contact Paulette Davidson at [email protected].

Many 2014 attendees described this event as the best CLE they had ever attended.

Virginia State Bar TECH SHOW – Richmond Convention Center – April 25, 2016

We hope to see you there!

The Virginia State Bar TECHSHOW April 25, 2016 | Richmond Convention Center 403 North Third Street Richmond, VA 23219

Agenda Please indicate your choice for each session. 8:00–8:30 Registration/Continental breakfast 8:30 Welcome—VSB TECHSHOW Chair Sharon Nelson, VSB President Ed Weiner and Justice of the Supreme Court of Virginia Cleo E. Powell 8:45–9:45 First Sessions 5 Ethics: What Does Being Competent Mean in the Digital Era? (Sharon Nelson-President, Sensei Enterprises, 12:05–12:45 Lunch Fairfax, VA/Reid Trautz—American Immigration Lawyers 12:45–1:45 Fourth Sessions Assn, Washington, DC) 5 Using Tech to Do More Legal Work in Less Time (Reid 5 Technology for Trial Lawyers (Tom Mighell—Contoural, Trautz/Natalie Kelly—Director of Law Practice Mgmt at Inc., Dallas, TX/Brett Burney—Burney Consultants, State Bar of Georgia) Chagrin Falls, OH) 5 How to Store Your Law Firm Data in the Cloud Ethically 9:55–10:55 Second Sessions (Brett Burney/Jim Calloway—Director of Mgmt Asst 5 Microsoft 365, Matter Center and Windows 10: Program at Oklahoma Bar Assn, Oklahoma City, OK) The Three Hottest Microsoft Topics for Lawyers (Ben 1:55–2:55 Fifth Sessions Schorr-CEO, Roland, Schorr and Tower, Flagsta, AZ) 5 The Microsoft Word Power Hour for Lawyers (Ben 5 The Ethical Sand Traps of E-Discovery (Tom Mighell/ Schorr/Debbie Foster) Brett Burney) 5 How Law Firms are Successfully Reinventing Themselves 11:05–12:05 Third Sessions Through Technology (Jim Calloway) 5 What Are the “Reasonable” Cybersecurity Steps You Must 3:05–4:05 Sixth Sessions Take to Ethically Protect Your Conﬁdential Data (Sharon 5 The Ethical Perils of Marketing Online (Natalie Kelly/Reid Nelson/John Simek—Vice President, Sensei Enterprises, Trautz) Fairfax, VA) 5 Budget-friendly Technology for Solo/Small Firm Lawyers 5 Essential PDF skills for Lawyers (Britt Lorish-Anity (John Simek/Britt Lorish) Consulting Group, Roanoke, VA/Debbie Foster-Anity 4:15–5:15 Plenary—60 Tech Tips in 60 Minutes Consulting Group, Tampa, FL) (Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell)

Register now! CLE hours Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to (pending) Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026

Name

Address

City State Zip Code

Phone

E-mail address*

*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. PEOPLE < Noteworthy Ben Spencer Adds Army Reservist to Expansive Resumé by Gordon Hickey

It’s not as though A. Benjamin Spencer doesn’t already have plenty to do. He is the Earle K. Shawe Professor of Law at the University of Virginia School of Law, the author of two widely used books on civil procedure, an active member of the VSB Council and former chair of the Education Section, and the father of eight children ranging in age from 12 to newborn. And as of October 30, Ben Spencer has added the role of Judge Advocate General lawyer in the US Army Reserve to his lengthy list of accomplishments. At the age of 41, Spencer required an age waiver to even be considered for the military role and he was likely the oldest A. Benjamin Spencer (right) is sworn in by fellow University of Virginia Professor Thomas Nachbar. member of his six-week basic training course at Ft. Benning, Georgia, which started January 10. Spencer has not been one for lin- U.VA, Thomas Nachbar, who is a mem- ney, and free tax services. He said the gering. After graduating from Harvard ber of the JAG Corps who inspired him. lawyers worked with Internal Revenue Law in 2001, he worked as an associate “Being there, and seeing the JAG School, Service employees who met with them at Shearman & Sterling, as a law clerk and Tom, and talking to my father, and at MacDill Air Force Base in Tampa for to Judge Judith W. Rogers of the US looking for some other way to serve… it four days of training on how to prepare Court of Appeals for the DC Circuit, looked like a good way to contribute.” tax returns for soldiers, veterans, and was an associate professor of law at the Spencer’s father, Federal Judge retirees. University of Richmond School of Law, James R. Spencer of the United States After basic training, Spencer and then was tapped to be a professor District Court for the Eastern District of will attend JAG School back in and the director of the Frances Lewis Virginia, was clearly another inspiration: Charlottesville beginning February 21. Law Center at Washington and Lee the senior Spencer served sixteen years in Luckily, he will be able to live at home, University School of Law. He finally the Army JAG Corps. which should take some of the stress landed at U.Va. in 2014. Spencer said that qualifying for the off of him and his family. Many lawyers would have consid- JAG Corps was far more physically chal- After completing his training, ered their new role at the law school lenging than he imagined. First, he had Spencer will be a regular Army Reservist, enough of a challenge, but not Spencer. to lose weight to get under the required working one weekend a month and The JAG Legal Center and School is limit, and then he had to pass the Army two weeks a year with his team in St. adjacent to U.Va and all JAG officers physical fitness test. Petersburg, Florida. He will be assigned come to Charlottesville for their initial Among his initial assignments to Central Command support, working 3½ month course. It’s often said that if as a JAG lawyer was completing the in areas such as fiscal law, compensation you want to get something done, find a Volunteer Income Tax Assistance train- for civilians killed in strikes, and legal busy person, and Spencer is clearly the ing program. Spencer’s unit, the 174th reviews of misconduct reports, which are kind of person who looks up and sees Legal Operations Detachment, which is below the level of court martial. an opportunity to get involved. “They headquartered in Miami, provides legal Spencer said he’s looking forward to were right outside my office window,” services to Army entities in Florida and his new military duties. “Being a profes- Spencer said during a recent phone Puerto Rico. The lawyers work on such sor is great, but it’s not practice.” Being interview before going off to basic train- things as drafting wills for soldiers, land- an Army lawyer “is a way to practice, but ing. There was also another professor at lord-tenant disputes, powers of attor- to do it in a way that serves.” www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 37 Noteworthy > PEOPLE In Memoriam

Alexander Joseph Conn Peder Andrew Garske The Honorable Joseph F. Spinella Annandale Severna Park, Maryland Henrico July 1982 – January 2016 January 1962 – January 2016 February 1925 – January 2016

Charles Owen Cornelison The Honorable William C. Johnson Jr. The Honorable Colon Hall Whitehurst Fort Myers, Florida Daytona Beach, Florida Chesapeake September 1945 – October 2015 March 1930 – November 2015 August 1951 – December 2015

Tamara LaVonne Crouch Leonard W. Lambert Elaine M. Williams Chantilly Richmond Port Orange, Florida September 1954 – November 2015 October 1938 – November 2015 February 1954 – October 2015

Joseph A. DiJulio Gordon Pickett Peyton Jr. Virginia Beach Alexandria November 1958 – July 2015 January 1941 – January 2016

Robert Monte Gants Michael Gregory Shepard Alexandria Mechanicsville August 1937 – November 2015 September 1946 – January 2016

Seeking Nominations

The Virginia State Bar Young Lawyers Conference is seeking nominations for the R. Edwin Burnette, Jr., Young Lawyer of the Year Award.

This award honors an outstanding young Virginia lawyer who has demonstrated dedicated service to the YLC, the legal profession and the community.

Previous winners can be seen at http://www.vsb.org/site/conferences/ylc/r-edwin-burnette-jr-young-lawyer-of-the-year-award

The nomination deadline is April 1. Nominations should be sent to:

Maureen E. Danker Kelly Byrnes & Danker, PLLC, Suite 275N, 3975 Fair Ridge Drive, Fairfax, VA 22033 [email protected]

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 clicking on the blue “E-mail Your Ethics Question” box on the Ethics Questions and Opinions web page at www.vsb.org /site/regulation/ethics/.

38 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Conference of Local Bar Associations Local and Specialty Bar Elections

Chesapeake Bar Association Erin Leigh Evans-Bedois, President Larachelle Fularon Wood, President-elect Bar Leaders Institute Melissa Jackson Howell, Secretary Ryan Carson Samuel, Treasurer Lewis Ginter Botanical Garden, Richmond Kristen Marie Shannon, March 28, 2016 Executive Officer 8:30 a.m.–4:30 p.m.

The Virginia Bar Association • Resources for Bar Associations James Patrick Guy II, President • What Young Lawyers Want in a Bar Association David Storey Mercer, President-elect • Preparing for Your Bar Year • Ethics for the Bar Leader (One hour live CLE/Ethics) Virginia Law Foundation • Engaging Judges in Your Bar Association Irving M. Blank, President • ALPS CLE (One hour live CLE/Ethics) Lucia Anna Trigiani, President-elect Stephen Donegan Busch, Vice President Lunch will be included. There is no fee to attend this event. Ruby Yvonne Cockram, Secretary For more information, please visit: Karen Ann Gould, Treasurer www.vsb.org/site/conferences/clba or contact Paulette Davidson at [email protected]. Call for Nominations

VSB Conference of Local Bar Upcoming Solo & Small-Firm Associations nominations are due Practitioner Forums April 29, 2016. Awards will be presented at the The Solo & Small-Firm Practitioner Forum focuses on issues that confront CLBA Annual Meeting and Breakfast in attorneys who practice alone or in small firms. Law office management and eth- June at Virginia Beach. ics are among several topics covered at these CLEs. Award of Merit Competition rec- These CLEs are free, include lunch, and are available on a first-come, first- ognizes outstanding projects and pro- served basis. Registration and the agendas will be posted on the CLBA website at grams of Virginia bar associations. http://www.vsb.org/site/conferences/clba-calendar as soon as they are available. Bar Association of the Year Award recognizes a member bar association Monday, April 11, 2016 Solo & Small-Firm Practitioner Forum – Eastern Shore Community College, that has best fulfilled the attributes Melfa member associations strive to attain. Local Bar Leader of the Year Award Monday, May 2, 2016 recognizes past and presently active Solo & Small-Firm Practitioner Forum/Regional Bench-Bar Conference – leaders in their local bar associations Fredericksburg Hospitality House & Conference Center, Fredericksburg who have continued to offer important service to the bench, bar and public. Monday, May 16, 2016 See more information at Solo & Small-Firm Practitioner Forum – Virginia Tech, Blacksburg www.vsb.org/site/conferences/clba/view /clba-awards. www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 39 Law Libraries Changes to Bankruptcy Forms and Pending Bankruptcy Rule Changes by Kathleen Klepfer

Nearly every form used by the bank- District of Ohio noted that, although period closed February 16, 2016, and ruptcy courts went through a signifi- Rule 5005 in the Federal Rules of is now being considered by the Judicial cant overhaul in December as part of a Bankruptcy Procedure directs clerks not Conference Advisory Committee on seven-year project designed to stream- to reject filings that do not conform to Bankruptcy Rules. line the filing process.1 The voluntary official forms, practitioners and pro se petition—old Form B1—has now been individuals will still have to correct any Endnotes split into three separate forms: B101 errors or omissions as a result of using 1 Public Notice from United States Bankruptcy Court Eastern District of Virginia, for individual debtors, B201 for nonin- outdated forms. Amendments to the Federal Rules of dividual debtors, and B401 for foreign Local forms provided by both the Procedure and Practice; Bankruptcy Forms, proceedings. This overhaul altered Eastern and Western Districts of Virginia available at https://www.vaeb.uscourts.gov/ wordpress/?wpfb_dl=648. the format of most additional forms should continue to be used when filing 2 Bankruptcy Forms, USCourts.gov, http:// and schedules, including the internal in those courts. The local and adminis- www.uscourts.gov/forms/bankruptcy-forms. “director’s forms,” all of which are now trative forms adapted from the national 3 Modernized Bankruptcy Forms Numbering available on the court’s main form page.2 courts have all been updated to reflect Conversion Chart, available at http://www .uscourts.gov/file/18167/download. Because most form numbers changed as the December changes on their respective 4 Superseded Bankruptcy Forms, USCourts.gov, well, the courts have provided a conver- court websites. Administrative forms http://www.uscourts.gov/forms/super sion chart that aligns the old and new specific to each court have only been seded-bankruptcy-forms (last visited Jan. 6, form numbers with any title changes.3 updated if necessary, so a local may still 2016). 5 Pending Changes in Bankruptcy Forms, Old forms can still be found on the main be valid even if it bears a revision date USCourts.gov, http://www.uscourts.gov/ court website under the “Superseded prior to 2015. For example, the Chapter rules-policies/pending-rules-amendments/ Bankruptcy Forms” heading.4 13 plan forms from the 2009 revision are pending-changes-bankruptcy-forms (last The new format allows the forms to still valid, but practitioners should keep visited Jan. 6, 2016). 6 Steve Rhode, New Bankruptcy Forms Make It better fit the applicant. Revisions were an eye on proposed rules changes for Easier to File Without an Attorney, Huff. Post undertaken to make both the forms and 2016. (Nov. 24, 2015 05:35 PM), http://www instructions “easier for debtors to un- The only official rule change this .huffingtonpost.com/steve-rhode/new derstand and complete, and are designed past year was a technical change to Rule -bankruptcy-forms-make_b_8639066.html. 7 The webinar may be viewed on ABI’s website, to work with scheduled enhancements 1007, but more changes are pending. http://www.abi.org/newsroom/videos. See to the federal courts’ case opening and A collection of proposed amendments also Diane Davis, New Bankruptcy Forms electronic case management system.”5 to the Federal Rules was sent to the Roll Out Effective Dec. 1, BNA.com (Nov. 17, United States Supreme Court for review 2015), http://www.bna.com/new For example, questions specific to indi- -bankruptcy-forms-n57982063647/. viduals will no longer appear on nonin- on October 9th. The amendments are 8 Stern v. Marshall, 131 S.Ct. 2594 (2011). dividual debtor forms and instructions lengthy, but include elimination of the 9 Pending Rules Amendments, USCourts.gov, are included in-line with each question three-day rule for electronic service, http://www.uscourts.gov/rules-policies/ pending-rules-amendments (last visited Jan. instead of appearing at the top of the changes to international bankruptcy 6, 2016). form. Separate instruction sheets for each case procedures, and to Chapter 13 10 Preliminary Draft of Proposed Amendments form have also been updated; they can notices. Further amendments to specific to the Federal Rule of Bankruptcy Procedure be downloaded along with the form and Bankruptcy Rules, the so-called “Stern and the Federal Rules of Evidence, available at http://www.uscourts.gov/file/18375/ include committee notes on the changes. Amendments,” are the result of litiga- download. Although many touted the edits as a way tion surrounding the bankruptcy courts’ for debtors to file without consulting authority in Stern v. Marshall8 and were an attorney, it remains to be seen if the re-submitted on October 29th.9 updates will increase the number of pro Proposed changes to Bankruptcy se filers.6 Rules 1001 and 1006 opened for com- The American Bankruptcy Institute ment on August 15, 2015. The amend- held a webinar in November on the ment to Rule 1006 would “clarify that changes.7 The panel encouraged prac- courts may not refuse to accept petitions titioners to read the new forms care- or summarily dismiss cases for failure- Kathleen Klepfer is a reference and re- fully. Judge Arthur I. Harris of the US to make initial installment payments search services librarian at the University of Bankruptcy Court for the Northern at the time of filing.”10 The comment Richmond School of Law.

40 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Technology and the Practice of Law Electronic Evidence in the Courtroom: Four Keys to Preparation by M. Lee Smallwood II

Whether your case is civil or criminal, have complied with all local court computer system and the display system. it is more likely than ever that there will rules, and that there are no issues There are several display standards and be electronic evidence. When I started you have with getting the equipment adapters that will connect just about any as an assistant public defender in 2007, you may need to bring with you into modern computer or tablet to any display the only cases that would always have the courtroom. It is a nightmare to system in use. These adapters often have electronic evidence were murders. Now, contemplate having the technology to be ordered and time allocated for we regularly receive video, wireless phone ready in the courtroom and all of the delivery. The day of trial is not the time records, and even Internet usage data data prepared on a tablet or note- to discover that a VGA to HDMI adapter in discovery. As transactions — and book computer only to be told by will be required. crime — move increasingly online, we courthouse security that the device 4. Prepare for technology to fail. No will confront even more cases that make will not be permitted into the build- matter what happens, it is the duty demands of us as lawyers to be advocate, ing without a specific court order of counsel to effectively present the counselor, and technology proficient that has not previously been secured. favorable and necessary evidence individuals. 3. Arrange for a time before your trial so all of the important issues can A large part of technology proficien- to use the equipment with your be decided. Always have a plan for cy involves being prepared to effectively evidence. There can be any number what happens if the file will not play, present video and other electronic evi- of issues with evidence, particularly the display will not work, or the dence to judges and juries in the court- when it is video evidence. Due to computer will not work. In addition room. This is a challenge that requires my reputation as a technologically to preserving the record in the case, a specific set of skills, preparation, and conversant attorney, I was recently it is necessary to make certain that occasionally good fortune. I suggest the called into a courtroom in a case I a failure does not result in a loss of following four keys as necessary to your had nothing to do with in order to composure. Rely on the backup plan preparations for presenting electronic try to facilitate a Skype communica- and know the judge or jury under- evidence in a courtroom setting: tion with a custodian of records the stands and sympathizes with the 1. Visit the courtroom where you parties agreed could testify remotely. situation. will be having the trial. Are there The court spent hours trying and The only way to become com- suitable displays already installed in ultimately succeeding in getting the fortable with presenting technological the courtroom? Can the judge, the connection to work, but it was a evidence in court is to practice doing it witness, the other party, and the jury frustration for everyone. and to embrace using this evidence every see the evidence at the same time? Online evidence is not the only con- time it will aid your client. What may at Is it going to be necessary to bring cern in this area. Specialized compression first create panic can become an asset to in equipment, and if so does the and decompression algorithms (codecs) your practice. courthouse have this equipment on are often necessary when playing video site? Even before approaching the or audio evidence. I have seen on more court about the technology you need than one occasion an attorney who to use, it is vital to make this visit so insisted evidence worked fine at the office you can make an effective request have considerable trouble playing that about the use of your technology. evidence in the courtroom because a dif- This is particularly important in ju- ferent computer system is being used in risdictions where parties can actually the courtroom than the one used in the make requests to have cases heard in law office. This is almost always because a M. Lee Smallwood II is deputy public particular courtrooms with different necessary codec is missing. defender for the Public Defender Office capabilities. Another problem that can easily be in Danville. He enjoys technology, a good 2. Contact the court to make sure that avoided by arranging for a technology motions hearing, and fountain pens. the technology resources you plan rehearsal in the courtroom involves to use are in working order, that you the physical connection between the www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 41 Risk Management First Impressions Matter by Mark Bassingthwaighte

I’ve been a consumer for years and response was to question the business a client meeting to perhaps shut a the older I get the more I’ve come to and even legal acumen of the attorneys door if voices can be overheard in recognize the impact of first impressions. who practiced in these firms. Certainly reception or by visitors elsewhere They really do matter. I can only speak my initial opinions were open to being in the office. for myself but these days if I am accosted changed but it was now going to be an • Do not allow visitors to view com- by an aggressive sales person when first uphill climb. puter screens. The receptionist’s entering a store, I often leave and rarely First impressions are made at first computer screen will often have return. If I’m shopping online and a contact, whether calling for an appoint- confidential information on it and website fails to load properly because it’s ment, visiting your webpage, or walking thus should never be visible to outdated or it’s simply hard to navigate, through your front door. They are often anyone coming into the office. I’m gone. If a grocery store is unclean, I set before you have a chance to meet with • Occasionally check the waiting will walk out and shop elsewhere. Heck, a prospective client, and they’re all about area during the day. This is an everyone knows that you can judge the presentation and experience. Is there a especially good customer service quality of the food an unfamiliar restau- welcoming greeting? Is the space tidy and technique. If anyone sitting there rant serves by the number and types of inviting? Is your website user friendly seems bored or frustrated and has vehicles in the parking lot don’t they? and functional on multiple platforms to been in the reception area less than First impressions matter and I don’t include mobile devices? With all this in ten minutes, there’s a problem. The think I’m alone in believing this. If you mind, I offer the following to help get space should be designed to make agree, I would ask whether you’ve taken you started in thinking about what you the wait as pleasant as possible. steps to set the right impression at your can do to make certain you’re setting the Remember they don’t like having own firm because it’s certainly going right impression. to wait for you any more than to be easier to establish an effective and • Train staff to greet every individ- you would like having to wait for trusting attorney-client relationship if a ual as soon as possible, certainly them if you were in their office. potential new client’s first impression is a within a minute of their entering You might even go sit in your own positive one. the office, and remember that even reception area for ten or fifteen I have walked into more than a firm a sales representative who is turned minutes just to see how it feels. For or two for the first time where I was away today may be a prospective example, does the reading material placed in an unkempt reception area or client tomorrow. If your reception- fit the clientele? While Scientif- an absolutely cluttered and dirty confer- ist happens to be helping some- ic American is probably a great ence room featuring broken furniture. one else, have them give a simple choice for an intellectual property Some of these spaces looked more like “Hello, I will be with you in a practice, it won’t win any points old storage rooms than the client areas moment” in order to acknowledge from clients in a family law prac- that they were. I have also been kept the individual’s presence. tice. If families use your waiting waiting for thirty to sixty minutes past • Never allow confidential or person- area, make sure there are materials my appointment time without expla- al conversations to be overheard by suitable for children. All magazines nation and on several occasions even others, particularly in the reception and newspapers should be current. forgotten about entirely. I have been the area. If conversations from an • Keep the reception area clean recipient of cold greetings by staff and employee break area, a conference and orderly because an unkempt treated by reception as if I was a bother. room, or attorney offices can be reception area is too easily seen as Such experiences can’t help but result heard in reception, consider some a reflection of the quality of service in setting an impression. That’s normal. type of sound proofing. Periodical- offered by the firm. Before the at- Now put yourself in my shoes. What ly remind staff and attorneys that torney-client relationship has even might your response to any of the above confidential or personal matters started, a potential new client may experiences have been? If your own should never be discussed within already begin to question wheth- clients were to have a similar experience, earshot of any visitors. In fact, give er the attorney has enough time what might their response be? My initial staff permission to briefly interrupt to appropriately deal with their

42 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Risk Management

matter simply because it appears options. Some will wait and others good enough or perhaps got started the attorney already doesn’t have will need to reschedule. on something and then neglected enough time to pick up the place. • Be mindful of the difficulties the to follow through? • In a similar vein, do not minimize receptionist faces when assigned As I shared above, all of this is about the importance of appropriate phone answering duties. Confi- presentation and experience. If your attire. Staff and attorneys alike dentiality can easily be breached in presentation is poor or the experience need to dress the part whenever a law office when someone in the of any potential client is bad at first meeting potential new clients. This reception area overhears a phone contact, then you’re going to start off on isn’t to suggest that casual Fridays conversation or a client name. The the wrong foot, if they even decide to get and the like are inappropriate. Just receptionist should have a way of started with you at all. be mindful that people will make notifying attorneys that someone initial judgments about someone has arrived or that a client is on they’re meeting for the first time the phone without being forced to based upon overall appearance. breach client confidentiality. State- I have walked into a law firm ments like, “You’re two o’clock where I was given a nod by the appointment is here” or “you have receptionist who was dressed a call on line one” as opposed to down, reading a romance novel, “John Smith is here and he wants and chewing gum with her feet to talk with you about getting a di- on the desk. My initial thought vorce” should be the norm. Viable was I would never hire anyone alternatives might include the use in this firm because tolerance for of privacy glass, e-mail notifica- the sloppy appearance suggests tions of a waiting call, or moving a tolerance for sloppy work. The phone answering responsibilities message was they didn’t care. away from the reception area. • Client information and documents • If your space permits, have visitor must be kept confidential at all areas and work areas separated by a times. If client file material needs wall or partition. One never knows to be in the reception area in order what impression potential new for the receptionist to do his work, clients may have when they observe make sure that wandering eyes can people working. Some may feel never land on those materials. Nev- they are seeing energetic and busy er leave client file material, mail, or staff members and take that as a anything else that might identify positive sign while others may feel a client on the counter or privacy the staff is overworked or unpro- wall around the reception desk. fessional and conclude the oppo- • Try to prevent anyone from having site. A wall with a tasteful picture to wait longer than ten minutes. or two is worth the investment. In Most people are willing to be rea- fact, some firms place all confer- sonable and wait a short amount of ence room areas near reception time for the right lawyer; but don’t and away from work areas for this expect them to wait as long for very reason. their lawyer as they might for their • Finally, don’t overlook your Web doctor. While medical emergencies presence. A poorly designed web- do arise, lawyers can rarely claim a site, a website that doesn’t display Mark Bassingthwaight, ALPS risk manager, has conducted more than 1,000 law firm risk legal emergency. If prospective cli- properly on a mobile device, or a management assessment visits, presented ents are waiting too long, consider website that isn’t kept current can numerous continuing legal education seminars throughout the United States, and written altering your scheduling proce- send a message about your compe- extensively on risk management and technol- dures. If a delay is unavoidable, tency and priorities. After all, who ogy. His webinar on Best Practices for Client Selection in the ALPS CLE library is at have staff inform them of the delay wants their lawyer to be someone http://alps.inreachce.com. He can be contacted as quickly as possible and discuss who appears to think halfway is at: [email protected].

Vol. 64 | February 2016 | VIRGINIA LAWYER www.vsb.org 43 CLE Calendar

Introduction to Virginia’s Sentencing signed for the attorney or criminal justice Virginia Lawyer publishes at no charge Guidelines professional who is new to Virginia’s sen- notices of continuing legal education pro- Six-hour seminars approved for six CLE tencing guidelines. The seminar will be- grams sponsored by nonprofit bar associ- credits, March 2, Henrico/Richmond gin with general background information ations and government agencies. The next (Henrico Police & Fire Training Center); and progress to detailed information on issue will cover April 16 through July 11. March TBD, Fairfax (Fairfax Govern- scoring each of the guidelines factors to Send information by March 8 to hickey@ ment Center); March 16, Portsmouth include changes. Register by completing vsb.org. For other CLE opportunities, see (Department of Social Services); March the form and submit to the commission. Virginia CLE calendar and “Current 31, Wytheville (Wytheville Community Space may be limited. Purchase manual Virginia Approved Courses” at www.vsb College – Grayson Hall). Details at separately. $125 fee waived for judges, .org/site/members/mcle-courses/ or the http://www.vcsc.virginia.gov/training. commonwealth’s attorneys, P&P, public websites of commercial providers. html. The introduction seminar is de- defenders, and staff.

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

February 17 March 1 March 8 Teaming Agreements: Lessons Learned Free Speech, Fear, and Facebook: The Free Speech, Fear, and Facebook: The from the Courtroom Evolving Boundary Between the First Evolving Boundary Between the First Live — Charlottesville/Webcast Amendment and “True Threats” in the Amendment and “True Threats” in the /Telephone 21st Century 21st Century Noon–1 pm Live — Charlottesville/Webcast/ Webcast/Telephone Telephone Noon–2 pm February 18 Noon–2 pm The Basics of Powers of Attorney and March 9 Health Care Directives March 2 Representation of Children as a Guard- Telephone Tom Spahn on Conflicts of Interest ian ad Litem — 2014 Qualifying Course Noon–1 pm Webcast/Telephone Video — Abingdon, Alexandria, 10 am–Noon Charlottesville, Norfolk, Richmond, February 23 Roanoke Tom Spahn on Conflicts of Interest March 3 8:30 am–5:15 pm (Richmond video begins Live — Charlottesville/Webcast/ Business Valuation Basics for Family at 9 am) Telephone Lawyers 1–3 pm Live — Charlottesville/Webcast March 10 /Telephone Representation of Incapacitated February 24 1–3 pm Persons as a Guardian ad Litem — The Basics of Powers of Attorney and 2014 Qualifying Course Health Care Directives March 4 Video — Tysons Corner Telephone Teaming Agreements: Lessons Learned 9 am–4:05 pm Noon–1 pm from the Courtroom Webcast/Telephone March 10 February 26 10–11 am Ethical Responsibilities for Client Files: Ramping Up for the 2016 Elections: Facing Piles of Files with Smiles What You Need to Know About Politi- March 4–5 Live — Charlottesville/Webcast/ cal Law 20th Annual Advanced Real Estate Telephone Webcast/Telephone Seminar Noon–1:30 pm 9:30–11 am Live — Williamsburg Friday: 1–5:25 pm; Saturday: 8 am–12:20 pm

44 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org CLE Calendar

March 16 March 29 Representation of Incapacitated 46th Annual Criminal Law Seminar Persons as a Guardian ad Litem — 2016 2014 Qualifying Course Video — Alexandria, Charlottesville, Video — Abingdon, Alexandria, Danville, Norfolk, Richmond, Roanoke Charlottesville, Norfolk, Richmond, 8:15 am–4:45 pm (Richmond video begins Roanoke at 9 am) 9 am–4:05 pm March 30 March 17 46th Annual Criminal Law Seminar Representation of Children as a Guard- 2016 ian ad Litem — 2014 Qualifying Course Video — Hampton, Winchester Video — Tysons Corner 8:15 am–4:45 pm 8:30 am–5:15 pm March 30 March 18 Employment Law Ethics Getting to Success: Chapter 13s in the Webcast/Telephone Eastern and Western Districts of the 1–3 pm U.S. Bankruptcy Court Live — Fairfax March 31 8:30 am–4:45 pm 46th Annual Criminal Law Seminar 2016 March 21 Video — Lynchburg Employment Law Ethics 8:15 am–4:45 pm Live — Charlottesville/Webcast /Telephone April 5 Noon–2 pm Nonprofits Live — Fairfax March 22 TBD Ethical Responsibilities for Client Files: Facing Piles of Files with Smiles April 7 Virginia State Bar Webcast/Telephone CLE and Pittsburgh Penguins vs. Harry L. Carrico Noon–1:30 pm Washington Capitals Hockey: Creative Strategies for “Selling” Your Case Professionalism Course March 23 Live — Washington, DC Business Valuation Basics for Family 2:30–4:45 pm (Hockey game begins at March 16, 2016, Alexandria Lawyers 7 pm) April 7, 2016, Charlottesville Webcast/Telephone 1–3 pm April 13 May 12, 2016, Hampton Best Practices for Workers’ July 21, 2016, Roanoke March 24 Compensation Attorneys Representation of Children as a Guard- Live — Richmond/Telephone August 31, 2016, Alexandria ian ad Litem — 2014 Qualifying Course 9 am–1:15 pm September 22, 2016, Richmond Video — Virginia Beach 8:30 am–5:15 pm See the most current dates and registration information at http://www.vsb.org/site /members/new.

www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 45 Virginia Lawyer Register

DISCIPLINARY PROCEEDINGS

Respondent’s Name Address of Record Action Effective Date

CIRCUIT COURT Neil Kuchinsky Colonial Heights, VA Public Reprimand November 18, 2015

DISCIPLINARY BOARD Jean Jerome Dandy Ngando Ekwalla** Woodbridge, VA Revocation October 29, 2015 James Willis Hilldrup Fredericksburg, VA Suspension – 1 month w/Terms November 16, 2015 Tawana Denise Shephard Alexandria, VA Revocation November 20, 2015 James Amery Thurman Virginia Beach, VA Suspension – 5 months at 5:00 p.m. December 11, 2015 Nnika Evangeline White Richmond, VA Suspension – 3 years November 20, 2015

DISTRICT COMMITTEES John Paul Forest II Fairfax, VA Public Reprimand w/Terms November 10, 2015 Bruce Patrick Ganey Ashland, VA Two (2) Public Reprimand w/Terms January 6, 2016 Blanche Miclat Garber Newport News, VA Public Reprimand November 24, 2015 Intak Lee Fairfax, VA Public Reprimand November 24, 2015

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Clifton Carlyle Hicks Norfolk, VA December 4, 2015 Shane Lee Jimison Henrico, VA September 15, 2015 November 30, 2015 Bibi Bahizi Musafiri Falls Church, VA January 4, 2016 Darryl Arthur Parker Richmond, VA January 4, 2016 Tawana Denise Shephard Alexandria, VA January 7, 2016 William L. Stables Jr. Harrisonburg, VA November 24, 2015

Impairment Effective Date J. Patterson Rogers III Danville, VA December 15, 2015

**Respondent has noted an appeal with the Supreme Court of Virginia.

46 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Virginia Lawyer Register

DISCIPLINARY SUMMARIES The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules. Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB docket numbers are provided.

CIRCUIT COURT James Willis Hilldrup Fredericksburg, Virginia Neil Kuchinsky 14-060-099391 Colonial Heights, Virginia On November 16, 2015, the Virginia State Bar Disciplinary Board 11-031-085428 suspended James Willis Hilldrup’s license to practice law for one On November 18, 2015, the Supreme Court of Virginia affirmed a month with terms for violating professional rules that govern dili- public reprimand issued to Neil Kuchinsky by the Circuit Court of gence, declining or terminating representation, and bar admission the City of Colonial Heights. On October 18, 2012, the the Virginia and disciplinary matters. This was an agreed disposition of miscon- State Bar Third District Committee Section I issued a public repri- duct charges. RPC 1.3(a), 1.16(e), 8.1(c) mand to Mr. Kuchinsky for violating professional rules that govern www.vsb.org/docs/Hilldrup-011116.pdf conflict of interest and prohibited transactions, fairness to opposing party and counsel, and misconduct. Mr. Kuchinsky appealed to Tawana Denise Shephard the three-judge circuit court, which affirmed. Mr. Kuchinsky then Alexandria, Virginia appealed to the Supreme Court of Virginia, which found that the 16-000-103697 circuit court erred in finding against Mr. Kuchinsky for violating On November 20, 2015, the Virginia State Bar Disciplinary Board rule 3.4, fairness to opposing party and counsel, but affirmed vio- revoked Tawana Denise Shephard’s license to practice law based on lations of rules governing conflict of interest and prohibited trans- her disbarment in Maryland by the Court of Appeals of Maryland. actions, and misconduct. The Supreme Court remanded the case Ms. Shephard’s license was summarily suspended on October 1. back to the circuit court, which again imposed a public reprimand. Rules Part 6, § IV, ¶ 13-24 Mr. Kuchinsky again appealed to the Supreme Court, arguing that www.vsb.org/docs/Shephard-011116.pdf the circuit court lacked jurisdiction to impose a sanction. The Supreme Court affirmed the sanction. RPC 1.8(a)(1-3), 8.4(a) James Amery Thurman www.vsb.org/docs/Kuchinsky-011116.pdf Virginia Beach, Virginia 14-022-099259 DISCIPLINARY BOARD Effective December 11, 2015, the Virginia State Bar Disciplinary Board suspended James Amery Thurman’s license to practice law Jean Jerome Dandy Ngando Ekwalla for five months for violating professional rules that govern safe- Woodbridge, Virginia keeping of property. This was an agreed disposition of misconduct 15-053-101414, 15-053-102415, 15-053-101351, 15-053-099896, charges. RPC 1.15 (2009 edition)(a)(1)(2)(b)(c)(1)(3)(4)(e)(1)(i-v) 15-053-100656 (f)(2)(4)(i,ii)(5)(i-iii)(6); RPC 1.15 (2012 edition) (a)(1)(3)(ii)(b) Effective October 29, 2015, the Virginia State Bar Disciplinary (1)(3)(4)(c)(1)(2)(4)(d)(2)(3)(i-iv)(4) Board revoked Jean Jerome Dandy Ngando Ekwalla’s license to www.vsb.org/docs/Thurman-011116.pdf practice law for violating professional rules that govern diligence, communication, safekeeping property, declining or terminating Nnika Evangeline White representation, fairness to opposing party and counsel, responsibil- Richmond, Virginia ities to opposing party and counsel, responsibilities of partners and 14-031-102065 supervisory lawyers, responsibilities regarding nonlawyer assistants, On November 20, 2015, the Virginia State Bar Disciplinary Board bar admission and disciplinary matters, and misconduct. RPC suspended Nnika Evangeline White’s license to practice law for 1.3(a)(b), 1.4(a)(b)(c), 1.15(a)(b)(2)(3)(4)(5)(c)(d), 1.16(d)(e), three years for violating professional rules that govern competence; 8.1(a)(c)(d), 8.4(a)(b)(c) conflict of interest: general rule; safekeeping property; candor www.vsb.org/docs/Ekwalla-011116.pdf toward the tribunal; truthfulness in statements to others; and misconduct. RPC 1.7(a)(2), 1.15(a)(3)(i,ii)(c)(2)(i,ii), 3.3(a)(1,2), 4.1(b), 8.4(b,c) www.vsb.org/docs/White-011116.pdf www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 47 Virginia Lawyer Register

DISCIPLINARY SUMMARIES NOTICES TO MEMBERS

DISTRICT COMMITTEES ETHICS COMMITTEE SEEKS COMMENTS The Standing Committee on Legal Ethics is seeking public com- John Paul Forest II ment of proposed amendments to Rules 1.6 and 3.3 clarifying a Fairfax, Virginia lawyer’s obligations when a client discloses an intent to commit 14-052-097153, 14-052-096717 perjury well in advance of trial. On November 10, 2015, the Virginia State Bar Fifth District www.vsb.org/pro-guidelines/index.php/rule_changes/item/ Subcommittee issued a public reprimand with terms to John Paul amendments_rules_1.6_3.3 Forest II for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct SUPREME COURT OF VIRGINIA APPROVES charges. RPC 1.3(a), 1.4(a) AMENDMENTS http://www.vsb.org/docs/Forest-012816.pdf Effective February 1, 2016, The Supreme Court of Virginia has adopted amendments to: Bruce Patrick Ganey Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice Ashland, Virginia of Law. 15-060-101324 Rule 8.3: Reporting Misconduct. On January 6, 2016, the Virginia State Bar Sixth District www.vsb.org/pro-guidelines/index.php/rule_changes/item/ Subcommittee issued a public reprimand with terms to Bruce prop_5-5_and_8-3e Patrick Ganey for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct Effective March 1, 2016, the Court also approved amendments to: charges. RPC 1.3(a), 1.4(a) Paragraph 13: Procedure for Disciplining, Suspending, and www.vsb.org/docs/Ganey-101324-012816.pdf Disbarring Attorneys. www.vsb.org/docs/2015_12_17_part%206_Sect.%20IV_ Bruce Patrick Ganey Para%2013_11_13_25_13_30.pdf Ashland, Virginia Rule 1.1: Competence. 15-060-101162 www.vsb.org/docs/SCV-rule_1-1_1-6-121815.pdf On January 6, 2016, the Virginia State Bar Sixth District Rule 1.6: Client Confidentiality. Subcommittee issued a public reprimand with terms to Bruce www.vsb.org/docs/SCV-rule_1-1_1-6-121815.pdf Patrick Ganey for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct CRIMINAL LAW SEMINAR charges. RPC 1.3(a), 1.4(a)(b)(c) The 46th Annual Criminal Law Seminar, sponsored by the VSB www.vsb.org/docs/Ganey-101162-012816.pdf Criminal Law Section and Virginia CLE, will be February 5 in Williamsburg and February 12 in Charlottesville. Blanche Miclat Garber www.vsb.org/site/sections/criminal/annual-seminar Newport News, Virginia 15-010-100970 NOMINATIONS SOUGHT FOR AWARDS On November 24, 2015, the Virginia State Bar First District Subcommittee issued a public reprimand to Blanche Miclat Garber The VSB is seeking nominations for the following awards: for violating professional rules that govern meritorious claims and • The General Practice Section Tradition of Excellence Award. The contentions, fairness to opposing party and counsel, and miscon- nomination deadline is March 21, 2016. duct. This was an agreed disposition of misconduct charges. RPC • The Special Committee on Access to Legal Services Oliver White 3.1, 3.4 (d), 8.4 (c) Hill Law Student Pro Bono Award. The nomination deadline is www.vsb.org/docs/Garber-011116.pdf March 25, 2016. • The Special Committee on Access to Legal Services Virginia Legal Intak Lee Aid Award. The nomination deadline is March 25, 2016. Fairfax, Virginia • The Young Lawyers Conference R. Edwin Burnette, Jr. Young 14-051-0972013 Lawyer of the Year Award. The nomination deadline is April 1, On November 24, 2015, the Virginia State Bar Fifth District Section 2016. I Subcommittee issued a public reprimand to Intak Lee for violat- • The Conference of Local Bar Associations Awards of Merit, Local ing professional rules that govern competence, conflict of interest: Bar Leader of the Year Award, and Bar Association of the Year general rule, and safekeeping property. This was an agreed dispo- Award. The nomination deadline is April 29, 2016. sition of misconduct charges. RPC 1.1, 1.7(a)(1,2)(b)(1-4), 1.15(a) Please see the VSB Awards and Contests page for a list of all bar (1)(b)(3) sponsored awards and deadlines. www.vsb.org/docs/Lee-011116.pdf www.vsb.org/site/members/awards-and-contests/

48 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Virginia Lawyer Register

NOTICES TO MEMBERS Vacancies in 2016 are listed below. All appointments will be for the terms specified, beginning on July 1, 2016, unless otherwise noted. 2016 TECHSHOW Registration is open for the April 25 VSB TECHSHOW at the EXECUTIVE COMMITTEE: 6 vacancies (1 current member is not Greater Richmond Convention Center. eligible for reappointment, and 5 current members are eligible for www.vsb.org/site/events/item/vsb_techshow_0416 reappointment). Filled from ranks of the council for 1-year terms, by council appointment. YLC CELEBRATION OF WOMEN AND MINORITIES IN THE LEGAL PROFESSION BENCH BAR DINNER CLIENTS’ PROTECTION FUND BOARD: 7 vacancies (2 current Save the date for the YLC Celebration of Women and Minorities in lawyer members from the 2nd and 5th disciplinary districts are not the Legal Profession Bench Bar Dinner on March 23 at University eligible for reelection; 3 current lawyer members from the 1st, 4th of Richmond Jepson Alumni Center. and 9th disciplinary districts are eligible for reelection; 1 current lawyer member at-large is not eligible for reelection; and 1 current www.vsb.org/site/conferences/ylc/bench-bar-dinner lay member at-large is not eligible for reelection). May serve 2 consecutive 3-year terms. Appointment by council. LICENSE FORFEITURES The licenses of members of the Virginia State Bar who are forfeited JUDICIAL CANDIDATE EVALUATION COMMITTEE: 4 lawyer from the practice of law for failure to comply with Section 54.1- vacancies (of which 2 vacancies are to be filled by a member from 3914, Code of Virginia, Title 54.1, Professions and Occupations the 1st, 3rd, 5th, 7th or 8th judicial circuits; 1 vacancy is to be filled are listed on the VSB website. We have attempted to contact these by a member from the 6th, 11th, 12th, 13th or 14th judicial circuits members at their last address listed with the Virginia State Bar, and 1 member at-large vacancy). May serve 1 full 3-year term. however, in some instances, this has not been successful. Any mem- Appointment by council. ber knowing the present location and/or practice status of any person on the list should contact the Virginia State Bar as soon as AMERICAN BAR ASSOCIATION DELEGATES: 1 lawyer vacancy possible. These forfeitures were effective February 1, 2016. Details: (1 current member is eligible for reappointment). May serve 3 consecutive 2-year terms. Appointment by council. Term commences www.vsb.org/site/members/license-forfeitures September 1, 2016.

NOMINATIONS SOUGHT FOR COMMITTEE VACANCIES Nominations, along with a brief résumé, should be sent by March Volunteers are needed to serve the Virginia State Bar’s boards and 11, 2016, to VSB Nominating Committee, c/o Asha Holloman, committees. The Nominating Committee will refer nominees to the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA VSB Council for consideration at its June meeting. 23219-0026.

FORTY-SIXTH ANNUAL Criminal2016 Law Seminar Recent Developments in Criminal Law and Procedure • Ethics Rocks: Ethical Issues in Criminal Law Practice • Big Brother IS Watching You (sort of): Overview of Recent Changes to Technology & Privacy Laws • Keeping up with the Joneses: Panel on Constitutional & Fourth Amendment Issues • Everybody Gets Out of Jail Eventually: Sentencing Advocacy Panel

www.vsb.org/site/sections/criminal

Video Replays in 13 Locations on Four Different Dates: March 29, 30 & 31 and April 26 Approved 6.5 MCLE Credits (including 1.5 ethics credit)

VIRGINIA CLE® AND VIRGINIA STATE BAR

www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 49 Virginia Lawyer Register

NOTICES TO MEMBERS FOURTH DISTRICT COMMITTEE, SECTION II: 3 attorney vacancies (1 current member is eligible for reappointment); 1 NOMINATIONS SOUGHT FOR DISTRICT COMMITTEE non-attorney vacancy. Vacancies are to be filled by members from VACANCIES the 17th or 18th judicial circuits. The Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be filled by FIFTH DISTRICT COMMITTEE, SECTION I: 2 attorney Council in June. Note that there are vacancies which may vacancies (both current members are eligible for reappointment); not become available because some members are eligible for 2 non-attorney vacancies (1 current member is eligible for reappointment. reappointment). Vacancies are to be filled by members from the 19th or 31st judicial circuits. To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney – Establishment of District Committees, specifically 13-4.E vacancies; 1 non-attorney vacancy. Vacancies are to be filled by (Qualifications of Members) and 13-4.F (Persons Ineligible for members from the 19th or 31st judicial circuits. Appointment).

FIFTH DISTRICT COMMITTEE, SECTION III: 3 attorney FIRST DISTRICT COMMITTEE: 3 attorney vacancies (2 current vacancies (2 current members are eligible for reappointment); members are eligible for reappointment). Vacancies are to be 1 non-attorney vacancy (current member is eligible for filled by members from the 1st, 3rd, 5th, 7th or 8th judicial reappointment). Vacancies are to be filled by members from the circuits. 19th or 31st judicial circuits.

SECOND DISTRICT COMMITTEE, SECTION I: 4 attorney SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 non- vacancies (2 current members are eligible for reappointment). attorney vacancy. Vacancies are to be filled by members from the Vacancies are to be filled by members from the 2nd or 4th judicial 9th or 15th judicial circuits. circuits. SEVENTH DISTRICT COMMITTEE: 4 attorney vacancies (3 SECOND DISTRICT COMMITTEE, SECTION II: 2 attorney current members are eligible for reappointment). Vacancies are to vacancies (both members are eligible for reappointment); 2 non- be filled by members from the 16th, 20th or 26th judicial circuits. attorney vacancies. Vacancies are to be filled by members from the 2nd or 4th judicial circuits. EIGHTH DISTRICT COMMITTEE: 1 attorney vacancy (current member is eligible for reappointment); 1 non-attorney vacancy. THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney Vacancies are to be filled by members from the 23rd or 25th vacancies (2 current members are eligible for reappointment). judicial circuits. Vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicial circuits. NINTH DISTRICT COMMITTEE: 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are to THIRD DISTRICT COMMITTEE, SECTION II: 3 attorney be filled by members from the 10th, 21st, 22nd or 24th judicial vacancies (all 3 current members are eligible for reappointment); circuits. 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are to be filled by members from the TENTH DISTRICT COMMITTEE, SECTION I: 2 attorney 6th, 11th, 12th, 13th or 14th judicial circuits. vacancies; 1 non-attorney vacancy. Vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits. THIRD DISTRICT COMMITTEE, SECTION III: 1 attorney vacancy (current member is eligible for reappointment). TENTH DISTRICT COMMITTEE, SECTION II: 1 attorney Vacancies are to be filled by members from the 6th, 11th, 12th, vacancy; 1 non-attorney vacancy. Vacancies are to be filled by 13th or 14th judicial circuits. members from the 27th, 28th, 29th or 30th judicial circuits.

FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorney Nominations, along with a brief resume, should be sent by vacancies (1 current member is eligible for reappointment); February 28, 2016, to 1 non-attorney vacancy (current member is eligible for Stephanie Blanton, Virginia State Bar, reappointment). Vacancies are to be filled by members from the 1111 East Main Street, Suite 700, Richmond, VA 23219-0026 17th or 18th judicial circuits. [email protected]

50 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org President-elect Robinson Seeks Members for Virginia State Bar Committees With Terms Commencing July 1, 2016

To: Members of the Bar From: Michael W. Robinson, President-elect

As you know, much of the work of the Virginia State Bar is done through its committees, and we need members willing to serve. Appointments will generally be for a three-year term, running from July 1, 2016, to June 30, 2019, with the possibility of another three-year term to follow. The work of the committees is time consuming and in most cases requires committee members to set aside substantial time to fulfill the requirements of the job. To encourage participation — and recognizing the time constraints — members are generally limited to serving on only one committee. The number of available positions is quite limited, but I will attempt to accommodate as many people as possible. The committees are as follows: Standing Committees:* ♦ Budget & Finance ♦ Professionalism ♦ Lawyer Discipline ♦ Unauthorized Practice of Law ♦ Legal Ethics

Special Committees: ♦ Access to Legal Services ♦ Lawyer Referral ♦ Bench-Bar Relations ♦ Personal Insurance for Members ♦ Better Annual Meeting ♦ Resolution of Fee Disputes ♦ Communications ♦ Technology and the Practice of Law ♦ Lawyer Malpractice Insurance

*Lawyer member vacancies on Standing Committees are limited due to requirements for a specific number of Executive Committee and Council members to serve on each committee.

If you would like to be considered for appointment to any of the VSB committees listed, please complete the form below or download the form at http://www.vsb.org/site/about and return it to the Virginia State Bar office by February 26, 2016, by mail or e-mail to Asha B. Holloman: Virginia State Bar 1111 East Main Street, Suite 700 Richmond, VA 23219-0026 [email protected]

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Choice Committee Name Have you ever served on this committee? Length of Service Yes No 1st Choice Yes No 2nd Choice Yes No 3rd Choice

Check here if you have never served on a VSB committee. To assist us in the committee selection process, please provide the following information: Private Practice Corporate Counsel Primary area of practice: Other Government attorney Commonwealth City/County Federal www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 51 Professional Notices

Rodney K. Adams has firm’s Mergers & Acquisitions practice. design professionals, in line with his been tapped by Virginia Thompson is a member of the firm’s practice of counseling privately held Commonwealth University Investment Management practice. businesses, professional practices, and to teach Bioethics & Health non-profits. Law in its Master of Health Adams Edward H. Klees has joined Hirschler Administration program. Fleischer’s Investment Management Griffin M. O’Hanlon has He will continue his full-time prac- practice as a partner. He joins Hirschler joined the Norfolk-based tice defending healthcare providers at Fleischer from the University of Virginia personal injury firm of LeClairRyan. Investment Management Company, Cooper Hurley Injury where he served as general counsel. Klees Lawyers. Previously, O’Hanlon Blankingship & Keith will lead the group’s representation of O’Hanlon practiced criminal PC has added Justin M. endowments, foundations, and out- defense in the Norfolk Public Defender’s Contratto and Lauren A. sourced chief investment offices. Office. His practice will focus on help- Fredericksen as associates. ing those injured throughout Hampton Contratto joins the firm’s Jonathan P. Lienhard is a Roads. Contratto Family Law practice. He partner at Walker Jones in previously worked for the Warrenton and Washington, Owen J. Pinkerton is one of seven attor- Legal Aid Society’s Criminal Virginia. He has been with neys elected partner at Morris, Manning Defense Rights and Juvenile the firm since 2011 and & Martin LLP. His practice area is Lienhard Rights practices in New has more than fifteen years Corporate/Real Estate Capital Markets in York City. Fredericksen’s of legal experience. His practice areas Washington, DC. Fredericksen practice focuses on com- include civil litigation, commercial litiga- mercial litigation with an tion, criminal law, and business law. Ricardo Pitts-Wiley is the newest emphasis on employment law and com- member of The Federal Practice Group mercial matters. Paul Marcus, professor at William Worldwide Service’s Employment Law & Mary Law School, was selected as Group. Pitts-Wiley has over a decade Harman Claytor Corrigan & president-elect of the Association of of experience in employment law and Wellman welcomes three new American Law Schools on January 9 will provide representation for clients attorneys. George A. Somerville, joins during the association’s annual meeting before the Employment Opportunity the firm as senior counsel and will con- in New York. Commission, Merit System Protection cenatrate his practice in appellate litiga- Board, Office of Special Counsel, and the tion. Jeffrey P. Miller and Elizabeth O. Paul H. Melnick, principal, and Julie Office of the Inspector General for vari- Papoulakos join the firm as associates K. Eppard, associate, of Melnick and ous agencies. and will concentrate their practice in Melnick PLC of Falls Church have general civil litigation, including motor merged with the law firm of Pesner Laurie L. Proctor has become a princi- vehicle, premises, and products liability. Kawamoto PLC as of January 1, 2016. pal with Blankingship & Keith PC. She The offices will be at 7926 Jones Branch focuses on civil litigation with an empha- Hirschler Fleischer has combined with Drive, Suite 930, Tysons Corner, VA sis on commercial matters, employment the Tysons law firm of Leach Travell PC, 20102 – tel: (703) 506-9440. Melnick law, and trust and estates litigation. adding seven partners in four practice and Eppard practice primarily in the areas: business, litigation, bankruptcy / areas of trust and estate administration Robert M. Reiner has creditors’ rights, and real estate. With and estate and trust planning. They are joined Selzer Gurvitch these attorneys, Hirschler Fleischer will both former chairs of The Real Estate Rabin Wertheimer Polott & have eighty attorneys across three offices Section of the Virginia State Bar. Obecny PC as a partner and in Virginia: Richmond, Fredericksburg member of the member of Reiner and Tysons. Steven D. Najarian has joined the Board the Estate Planning/Trust & of Veterans’ Appeals in Washington DC Estate Administration and Tax practice Hirschler Fleischer has promoted three as an attorney advisor. groups. attorneys to partner: Fredericksburg- based Stacie C. Bordick, and Richmond- Morris A. Nunes, announces Routledge Eric N. Schloss has joined based Lisa J. Hedrick and Benjamin has published his 6th book (co-authored the Law Offices of Lee G. Thompson. Bordick is a member with Andrew Pressman, AIA) Designing Saltzberg in Towson, of the firm’s Litigation and ADR Profits, a guide to business management Maryland, where he will practice. Hedrick is a member of the for architects, engineers, and other continue to practice per- Schloss

52 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Professional Notices sonal injury law in Maryland, Virginia, and Washington, DC. For confidential, The VSB E-News Pantea F. Stevenson has joined Bean, free consultation Kinney & Korman as a shareholder. She available to all Virginia attorneys Have you been receiving the focuses her practice on mergers and on questions related to legal Virginia State Bar E-News? The acquisitions, commercial contracts, col- malpractice avoidance, claims repair, E-News is a brief monthly sum- laborations, business law, and intellectual professional liability insurance issues, property transactions. and law office management, call mary of deadlines, programs, rule Fairfax County lawyer, John J. Brandt, changes, and news about your who acts under the Matthew Von Schuch regulatory bar. The E-News is has been elected partner auspices of the Virginia State Bar at emailed to all VSB members. If at Wharton Aldhizer & Weaver. He joined the firm (703) 281-2600 x101 your Virginia State Bar E-News is being blocked by your spam filter, in 2012 after working in the Von Schuch US Justice Department’s tax contact your email administra- division for nearly five years. Professional Notices tor and ask to have the VSB.org domain added to your permis- E-mail your news and high-resolution professional portrait to hickey@vsb. sions list. org for publication in Virginia Lawyer. Professional notices are free to VSB members and may be edited for length and clarity. “Not in Good Standing” Search Available at VSB.org Have You Moved? The Virginia State Bar offers the To check or change your address of record with the Virginia State Bar, go to the VSB ability to search active Virginia Member Login at https://member.vsb.org/vsbportal/. Go to “Membership Information,” lawyers’ names to see if they are where your current address of record is listed. To change, go to “Edit Official Address not eligible to practice because of Record,” click the appropriate box, then click “next.” You can type your new address, their licenses are suspended or phone numbers, and e-mail address on the form. revoked using the online Attorney Contact the VSB Membership Department ([email protected] or (804) 775- Records Search at www.vsb.org 0530) with questions. /attorney/attSearch.asp. The “Attorneys Not in Good Standing” search function was designed in conjunction with the VSB’s permanent bar cards. ADVERTISER’S INDEX Lawyers are put on not-in- ALPS Corporation ...... 7 good-standing (NGS) status for Anthony Coppola ...... 11 administrative reasons — such as not paying dues or fulfilling con- Geronimo Development Corporation ...... back cover tinuing legal education require- Jackson & Campbell, PC ...... 6 ments — and when their licenses L. Steven Emmert ...... 7 are suspended or revoked for vio- Liberty University ...... 9 lating professional rules. McAdoo Gordon & Associates ...... 11 The NGS search can be used Minnesota Lawyers Mutual Insurance Company ...... 11 by the public with other attorney records searches — “Disciplined National Legal Research Group ...... 45 Attorneys” and “Attorneys without Norman Thomas, PLLC ...... 11 Malpractice Insurance” — to check Virginia Barristers Alliance Inc...... inside front cover on the status and disciplinary his- Virginia State Bar Members’ Insurance Center ...... 5 tory of a lawyer.

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54 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org ANNUAL 78 MEETING VIRGINIA STATE BAR JUNE 16-19 2016 VIRGINIA BEACH 140784_Ad_Casefinder_Ad 3/18/14 6:42 AM Page 1

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