Virginia LawyerVOL. 65/NO. 4 • DECEMBER 2016 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar
Construction and Public Contracts Law
Restoring Felons’ Gun Rights
Advancing Mental Health Courts
A Detailed Look at Deck Collapse Law Life, Long-Term Care, Health, Professional Liability VIRGINIA Disability & Fixed Annuities & Business Coverage BARRISTERS . Phone ...... 804-270-5128 Phone ...... 804-377-1012 ALLIANCE INC I N S U R A N C E A G E N C Y Toll-Free...... 800-358-7987 Toll-Free...... 844-370-9218 A s u b s i d i a r y o f T h e V i r g i n i a B a r A s s o c i a t i o n
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Features Access to GENERAL INTEREST Legal Services 42 Pro Bono Conference Features 16 Mental Health Courts on the Rise Powell Award, New Frankie Muse by The Honorable Joseph A. Migliozzi Jr. and Freeman Award Denisa Muhametaj 44 Putting a Life Back Together 18 Shaking the Virginia Gun Rights 8 Ball by D. Bradley Kent by Seth Saunders
22 They All Fall Down: An Overview of the Law on Deck and Balcony Collapses Noteworthy by Matthew W. Broughton, Gregory D. Habeeb, and Nicole A. Poltash VSB NEWS CONSTRUCTION AND PUBLIC CONTRACTS LAW 46 Highlights of the Virginia State Bar Council Meeting 27 Construction and Public Contracts Law 46 IP Section Student Writing by Jennifer A. Mahar Competition Awards
28 Individual Accountability and Corporate PEOPLE Cooperation — a Year in Review 47 In Memoriam by Dawn L. Merkle
32 Good Law, Smart Business, and Sound Public Policy: Strict Compliance with Notice Provisions Departments in Virginia Public Construction Contracts by Rodolfo R. “Rudy” Remigio 8 Letters 48 CLBA 38 Changes to Differing Site Conditions Clause in 49 VSB TECHSHOW VDOT Construction Contracts Specifications by James Germano 54 CLE Calendar 61 Professional Notices VIRGINIA LAWYER REGISTER 62 Classified Ads and Advertiser’s Index 55 Disciplinary Proceedings 58 Nominations Sought For Awards 56 Disciplinary Summaries 58 Law In Society Essay Contest 57 Notices To Members: 58 Save The Dates Columns 57 Supreme Court of Virginia 58 Comments Sought On Proposed Approves Amendments Rule Changes 10 President’s Message 57 Supreme Court of Virginia 58 Nominations Sought For District 12 Executive Director’s Message Approves Legal Ethics Opinions Committee Vacancies 14 Bar Counsel’s Message 57 Council Approves Rule Changes, 59 Nominations Sought For LEO Committee Vacancies 50 Virginia Law Foundation 60 President-Elect Causey Seeks 51 Law Libraries 58 Criminal Law Seminar Members For Virginia State Bar 58 Free Legal Answers Committees 52 Technology and the Practice of Law
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Repsonse to Executive the show is exemplified by the fact that Director’s Message Council meetings are fairly perfunctory. Membership on the Council may look Thank you for the informative Executive good on member resumés but doesn’t Letters Director’s Message in this month’s mean they play a meaningful role in bar Virginia Lawyer (October, 2016). Based governance. Send your letter to the editor to: upon the information you provided, as I do agree that diversity is a good [email protected] or compared to North Carolina, it appears thing and should be encouraged but Virginia State Bar, that Bar Council is being fiscally respon- a diverse governing body does not sible in its expenditures. It also makes Virginia Lawyer Magazine, necessarily mean an organization will efficient and expeditious use of council 1111 E Main Ste 700, be well governed. Having a few hard- members’ time. You have quite rightly Richmond VA 23219-0026 working, dedicated “board” members outlined the advantages of having a ro- will go a long way towards facilitating bust number and diversity of represen- an organization accomplishing its goals. Letters published in Virginia Lawyer may tative voices on Bar Council. According When cost becomes a consideration, I to your article, both the size and diver- be edited for length and clarity and are would opt for committing resources to sity of Bar Council mostly reflect the subject to guidelines available at supporting effective participation over size and diversity of our bar. Assuming http://www.vsb.org/site/publications/ having an unnecessarily large governing those facts are true, unless there is a body. valawyer/. mandate to reduce costs significantly or an identified problem with our Bar Roger Detweiler Council’s ability to act due to its size or Bend, Oregon breadth of diversity, I see no reason to make such a significant change. Other here you are CHAMPIONING IT ON than the potential for problems listed in YOUR COVER. This article would be Repsonse to Lawyers at more appropriate in a fraternity mag- the Hastings article, unless I missed it in Leisure Cover Story your message, none of those appear to azine than a professional publication. I be actual problems for us. I just received the most recent issue of wish I subscribed to your publication so I have not served on Bar Council Virginia Lawyer, and I felt compelled to that I could cancel my subscription in and cannot give a firsthand perspective. write because I found the cover article protest. I can appreciate the inherent efficiency of Vol. 65/No.2 (August 2016) to be in reducing the number of decision incredibly offensive. What struck me Kathi Lublin Paul makers. However, from where I sit, it first was the blindingly white male cover Charlottesville looks like the work is getting done with- of this issue. It is GLARINGLY out of in a conservative budget. As they say, if date. I would have expected to see a Having received Virginia Lawyer for it’s not broken…. picture like this in the 1950s, or perhaps years, and honestly not ever recalling the 1970s, and it even could have been seeing a cover representing the diver- Rosalie Pemberton Fessier forgiven in the early 1990s, but it is sity of the Virginia bar membership, I Staunton, Virginia 2016. Our Virginia State Bar consists of shouldn’t be taken aback by the August members far beyond the white mid- 2016 cover, since it’s more of the same. Having served as the director of state dle-aged men pictured here. Initially, But, in this case, sixfold. They like to and national professional associa- I gave you the benefit of the doubt. I surf, take “guy trips” and have silly nick- tions including a state bar, your recent thought, “this must be some ‘fun’ way names for each other. Rather than more Executive Director’s Message in the of photographing our bar president of this, I suggest that Virginia Lawyer Virginia Lawyer (October, 2016) regard- and his staff. It’s shocking that our bar should advance inclusion rather than ing bar governance is of interest. leadership is all middle-aged white men. engender exclusion. I must say I was a bit taken aback We need more diversity in our bar lead- by the large number of members on ership.” But, when I flipped to see the Ann Adams the Council. Effective governance by article, it is not even about these men as Evanston, Illinois such an unwieldy body would seem to lawyers! It is an article about their “old me to be very difficult. There is a much boy’s network.” A glaring “in your face” smaller Executive Committee, which in to all lawyers of diversity who are trying all likelihood really governs the orga- to forge their careers in our state and nization. Credence to the notion that who are facing roadblock after road- the Executive Committee really runs block due to racism and sexism. And,
8 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org
President’s Message by Michael W. Robinson “The Times They Are A-Changin”
Come gather around people develop evidence and try cases, altered nity in the unmet legal needs of the Wherever you roam how we store sensitive client and busi- middle class. And admit that the waters ness information, and brought new • Cyber security is, and will remain, a Around you have grown competitors and competitive pressures. hot topic. The FBI has issued warn- And accept it that soon The ABA and state bars and ings that law firms are a frequent You’ll be drenched to the bone bar associations have attempted to target of cyber-attacks, and many examine the changing tides. The VSB firms have already suffered breaches. And if your time to you is committee studying the future practice Lawyers must be vigilant in making worth saving of law recently issued its initial report sure they are taking reasonable steps Then you better start swimming (available at www.vsb.org). The com- to protect their clients’ informa- or you’ll sink like a stone mittee examined on-going changes tion in a digital world, an issue now For the times they are a-changing in the profession, the external forces expressly addressed in Rule 1.6 of the driving those changes, and the positive Rules of Professional Conduct. Recent Nobel Laureate Bob Dylan and negative disruptors to the pro- • Potential alternative business struc- penned those words fifty-two years ago fession and legal market. It provided tures — whether to allow non-lawyers proclaiming the massive social, polit- several specific recommendations, and to have ownership interests in law ical, and generational changes under- identified issues that require further firms or the corporate practice of way in the country. I thought of those attention. The report is available on law — remains controversial. But lines when considering the changes our the VSB website, and I encourage the approach is gaining slow but profession has recently seen and con- members of the bar to review it. steady ground in other countries. The tinues to face. We lawyers can be slow The report examines many issues, traditional reasons for prohibiting to embrace change; remember, one of and the following highlights just a few: non-lawyers from having an own- our key decision-making tools—prec- • The access to justice gap is increasing, ership interest in a law firm must be edent—relies on past decisions as an and legal services are out of reach for reexamined. Analytically, it would essential guide to settle current issues. the economically disadvantaged and seem that appropriate rules could be But the scope and pace of change has the middle class. In addition, eco- developed to safeguard our bedrock hit like a flood, and as Dylan warned, nomic and generational changes have duties of loyalty, confidentiality, and we better start swimming. led to a noticeable increase in pro lawyer independence. But there is Numerous factors have driven the se litigation. Courts are struggling little empirical evidence or experi- changes we see in the practice of law. to address programs to assist pro se ence, and the issue requires addition- But chief among them is the advent litigants and to likewise narrow the al study. of technology and an Internet-based, access to justice gap. • Lawyer advertising and marketing are e-connected populace and economy. • Internet based non-lawyer providers so different in the current informa- The digital age has changed the way of legal services and information are tion age that our rules regarding people obtain and exchange infor- creating new competitive pressures. lawyer advertising, as well as sharing mation, shop, communicate, make Avvo and Legal Zoom are perhaps the our fees and participation in third “friends,” learn, and do just about two best known. But in the last two party “for profit” referral services everything else. For lawyers, it has years, more than 1,000 new non-law- may need to be reexamined, making remade and spawned entire practice yer legal start-up companies — not sure that the rules continue to serve areas. It has changed the way we com- law firms — were formed. And there public protection goals. Lawyers must municate with clients and each other, is significant equity funding available recognize that participation in cer- changed the way we market and how for these start-ups; millions of dollars tain referral or legal service programs clients — individual and corporate are being poured into them. The — choose lawyers, changed how we capital markets sense great opportu- President’s Message continued on page 13
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Virginia Lawyer April 2015 You’re going places.
Take us with you. Check your contact information of record, certify courses, and access Fastcase from anywhere, using Security Clearance the same login and Lawyers password you now use on your computer. McAdoo Gordon & Get it for free in the Associates, P.C. iTunes store. 202-293-0534 www.mcadoolaw.com Executive Director’s Message by Karen A. Gould An Update on Legal Ethics and Unauthorized Practice of Law Opinions at the Virginia State Bar
The Supreme Court of Virginia at its October 7, 2016. It is pending be- 1689: Attorney participation in referral made substantial revisions in 2015 and fore the Supreme Court of Virginia for service (legal-friend) that offers legal 2016 to Paragraph 10 of Part 6, § IV approval. The petition seeking review referrals to members at discount of the Rules of Court governing the and approval can be found on the bar’s 1743: Virginia law firm forming part- Virginia State Bar. Paragraph 10 deals website via this link: http://www.vsb. nership with a foreign legal consultant with the promulgation of legal ethics org/docs/prop-1886-petition-101916. (FLC) when the FLC is a nonlawyer and unauthorized practice of law pdf. under the unauthorized practice opinions, informal staff opinions, and On October 31, 2016, the Supreme rules and is not licensed in the United complaints of unauthorized practice of Court of Virginia approved eight older States. law. This column is to update you on opinions that had not been approved The status of LEOs can be tracked those changes and others. previously: Legal Ethics Opinions on the VSB’s website under Professional 1329, 1438, 1584, 1606, 1742, 1792, Regulation/Ethics Questions and Legal Ethics Opinions 1856, and 1869. Opinions/Actions on Legal Ethics Members of the Virginia State Bar may The Virginia State Bar’s Standing Opinions or search on this link: request a written legal ethics opinion Committee on Legal Ethics has https://www.vsb.org/site/regulation (LEO) from the Standing Committee withdrawn the following legal ethics /leo-status. on Legal Ethics. A legal ethics opinion opinions: Rule changes continue to be sub- applies ethics rules to a hypothetical 821: Advertisements ject to the review and approval of the set of facts and states whether the 835: Fees—Collections Supreme Court of Virginia. activity or conduct complies with or 856: Solicitation of employment—Free violates such ethics rules. This proce- estate planning seminars Unauthorized Practice of Law dure is outlined in Paragraph 10-2. In 862: Solicitation letter Paragraph 10 requires that unautho- 2015, the Supreme Court required that 926: Lawyer referral services rized practice of law complaints be all LEOs be forwarded to the Court 1003: Attorney—Relationship with investigated by VSB investigators and for review after Council, the VSB’s financial advisor then evaluated by VSB staff counsel. governing body, approves or modifies 1290: Nonlawyer employee: Use of for As a result of rule changes made by an LEO.1 Paragraph 10-3.A. The Court soliciting prospective clients the Supreme Court of Virginia to then has an opportunity to approve, 1348: Advertising and solicitation— Paragraph 10 in May of 2016, the modify, or disapprove the LEO. Lawyer referral service: Propriety of initial handling of UPL complaints Paragraph 10-4. nonlawyer screening calls and referring continues to be the same, but recom- On September 30, 2016, the Court potential claims for attorney members mendations of case dispositions will approved the first LEO submitted 1380: Fees—Law firms—Aiding unau- then be reviewed independently by the under this new process, Legal Ethics thorized practice of law—Splitting fees clerk of the Disciplinary System, a lay Opinion 1884, entitled “Conflicts withnonlawyer: Arrangement between person. Paragraph 10-6.D. The clerk arising from a lawyer-legislator’s em- multi-jurisdictional offices of law firm has the power to veto or modify deci- ployment with a consulting firm owned 1543: Advertising—Recommendation sions reviewed, after an independent by a law firm.” LEO 1884 had been of professional employment: Attorney analysis. Paragraph 10-6.E. The clerk’s unanimously approved by Council at paying “referral” service for “exclusive decisions are final. Id. The Standing its June 16, 2016, meeting. rights” to all prospective clients in four Committee on the Unauthorized LEO 1886, which concerns the counties Practice of Law, composed of lawyers duty of partners and supervisory law- 1600: Aiding unauthorized practice and two lay members, was removed yers in a law firm when another lawyer of law—Nonlawyer personnel— from the UPL complaint process. in the firm suffers from significant Misconduct: Level of direct supervi- The UPL Committee withdrew impairment, was approved by Council sion of nonlawyer personnel required the following opinions on April 12,
12 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Executive Director’s Message
2016: 67, 73, 75, 84, 86, 88, 91, 94, 96, 97, 100, 103, 107, 110, 113A, 119, 120, 121, 126, 127, 130, 137, 138, 139, 141, 143, 148, 149, 156, 159, 165, 167, 169, 175, Let’s Build Your Practice Together 188. http://www.vsb.org/site /regulation/upl-opinions-on-line-alpha -index. Should you have any questions on these matters or any others involving the Virginia State Bar, do not hesitate to contact me at [email protected] or Ethics Counsel Jim McCauley at McCauley@ vsb.org.
Endnote: 1 Prior to this change, the VSB on occa- sion had forwarded LEOs to the Court asking for their approval. The Virginia Lawyer Referral Service offers an easy, inexpensive way to meet new clients, grow your law practice, and market yourself as a Virginia lawyer. We make 12,000 referrals a year in 300 areas of practice. If you’re just hanging out your new shingle, or expanding your successful practice, we want to help you! Check out www.VLRS.net and sign up for this unmatched service.
President’s Message continued from page 10 offered by companies such as Avvo, This point was particularly belong to such a gang. But we will not for example, may be precluded by brought home by the committee’s be able to rely merely on experience. current restrictions on fee sharing, discussion of artificial intelligence. The We must confront and embrace the paying something of value for refer- impact of “thinking” robots on the changes in our profession or face the rals, handling of client funds, and fee practice of law sounds like a theoret- risk and likelihood that the profession agreements. ical debate, fit for an upper-class phi- simply will pass us by regardless of In thinking about the report, a losophy-of-mind course. But the the- training, skill, and ability. couple of quotes other than Dylan’s oretical debate will soon be buttressed Finally, as Yogi Berra warns, “If lyrics came to mind. “The future by empirical evidence; as the report you don’t know where you’re going, is now.” This apocryphal quote is notes, law firms are already starting to you might end up somewhere else.” frequently attributed to the late NFL license IBM’s Watson and Ross and are We should not risk this as a pro- coach George Allen. It applies in two looking at other “learning” computers fession. The report is not an end in senses. First, the challenges and issues not just as research tools but to analyze itself. It should be properly seen as the addressed by the committee are not complex and simple legal issues. beginning of an ongoing discussion. simply projections of what’s coming Second, George Allen’s reference Reviewing the changes in our pro- down the road. The practice has al- to the future as now was directed to fession and in the legal marketplace, ready forever changed and that process an assembly of players referred to — gives needed information on where is accelerating. For those who thought perhaps lovingly — as the “over the we are going and what we need to do they would simply ride things out and hill gang,” players who may have been to get there successfully. After all, we retire without dealing with the seismic considered too old but nevertheless don’t want to be surprised and end up changes; it’s too late. continued performing successfully at somewhere else. a high level. Some of us may feel we
www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 13 Bar Counsel’s Message by Edward L. Davis Acts of Inadvertence or Neglect — Should Attorneys Be Concerned about Disciplinary Action?
Every year the Virginia State Bar The remaining complaints set counsel determines that the evidence publishes summaries of more than forth allegations that, if true, would available shows that the attorney did 100 public disciplinary actions against constitute violations of the Rules of not commit the misconduct alleged, attorneys. These actions, imposed by Professional Conduct. Nonetheless, that the conduct alleged was not three-judge circuit courts or the vol- rather than open formal disciplinary unethical, that there is no credible unteers serving on the Virginia State case files, in some cases the bar reached evidence of misconduct, or that the Bar Disciplinary Board and seventeen out to the attorneys and encouraged allegations cannot be proven by clear district committees throughout the them to resolve the matters with and convincing evidence.5 commonwealth, are in addition to their clients.2 The bar does this in “What if I just missed a dead- dozens of other private disciplinary some cases where relatively minor line or failed to return one telephone actions issued for relatively minor acts misconduct is alleged and there is no call? Is the bar going to sanction of misconduct.1 Should practitioners pattern of inattention or neglect by me for something like that?” Earlier be concerned about disciplinary action the attorney, and little or no history statutes provided for the imposition for simple failures to communicate of misconduct. Examples are clients of discipline on lawyers who were or to timely handle matters that they who allege that they are unable to found guilty of “any malpractice,”6 have agreed to undertake? The answer reach their attorneys,3 or clients who and Disciplinary Rule (DR) 6-101(A) depends upon a number of factors, allege that they have discharged their (3) of the former Code of Professional such as the existence of a pattern of in- attorneys but cannot obtain their case Responsibility provided that “a law- attention or neglect by an attorney, or files for themselves or successor coun- yer shall not neglect a legal matter a prior disciplinary record. The grand sel.4 If there are no other allegations entrusted to him.” Noting that these majority of such complaints, however, of misconduct, typically the bar will rules and statutes, if applied with full are closed with no action taken as the forward the complaint to the attorney force, would permit, if not require, Virginia State Bar strives to resolve acts and ask them to address the issue with the disciplining of attorneys even for of minor misconduct through reme- the client and to inform the bar when trivial and insignificant issues, the dial measures without creating formal they have done so, thereby avoiding Disciplinary Board chose to consider disciplinary records. the opening of a formal disciplinary the issue in a 1980 disciplinary case. In During the fiscal year that ended case file. Last year 668 complaints, or the matter of Fifth District Committee on June 30, 2016, the bar received 21 percent of all complaints received, v. Williamson, VSB Docket Number 3,162 inquiries alleging attorney were resolved in this fashion. The 493 79-27, the Disciplinary Board deter- misconduct. Does the bar assume that remaining complaints, 15.6 percent of mined that the literal language of the someone is guilty when it receives all complaints received, were assigned rule and statute, which is appropriately allegations of misconduct? No. The to the bar counsel’s staff for prelimi- aspirational, must be tempered by a first tier of review for all complaints is nary investigation. narrower application in a disciplinary the bar’s intake department, staffed by Does the opening of a formal proceeding. three attorneys. Their role is to review disciplinary case file mean that the bar Accordingly, the Board de- all complaints and determine within concluded that the attorney commit- termined that, “…isolated acts of three days whether to open formal dis- ted professional misconduct? No. At inadvertence or errors of judgment on ciplinary case files or to take no action. this stage the bar asks the attorney to the part of a lawyer, although perhaps Last year, these attorneys closed 1,977, submit a response that is then fur- sufficient to subject him to civil liabili- or 62.5 percent of all of the inquiries nished to the complaining party for ty to his client, standing alone will not it received upon determining that the comment. The Rules of Court provide ordinarily be of sufficient magnitude allegations, even if true, did not impli- for the bar to take no further action if, to be considered a violation of the cate the Rules of Professional Conduct. upon review of the materials, the bar Bar Counsel continued on page 21
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Is there any question that the tal health conditions.”1 The Mental Health Block Grant provided approximately $483.7 criminal justice system has been over- million in 2015 towards mental illness ser- whelmed recently by people suffering vices, which include jail diversion programs.2 from mental health issues? This article In 2010, the Commonwealth of Virginia spent about $717 million in total on mental health is an update to the 2013 article pub- agencies.3 lished in this magazine (December In recent years, several jurisdictions throughout the country have been organizing 2013) addressing the adjudication and Mental Health Dockets and Courts. As of the warehousing of mentally ill criminal writing of this article, there are approximately 357 active adult Mental Health Courts and/or defendants. Although statistical data is Dockets spread throughout the United States.4 unavailable to account for the number These programs have had tremendous success of felony convictions since 2013 by in assisting the mentally ill to gain control of their illnesses. It has been reported that people diagnosed with mental ill- in 2014 people who completed the Mental nesses, it is clear from recent national Health Court programs experienced recidi- vism rates of 53.9 percent.5 events that it remains a significant and The Norfolk Mental Health Docket growing problem. began in September of 2011. At the time, the Norfolk General District Court was one of Mentally Ill Defendants three6 misdemeanor courts, out of Virginia’s The Mental Health Services Administration is thirty-two judicial General District Courts,7 the lead federal agency to “provid[e] targeted to establish a Mental Health Docket. Recently, funding for states to implement proven and however, this number has increased to at least effective services for individuals with . . . men- eight, including the General District Courts
16 VIRGINIA LAWYER | December 2016 | Vol. 65 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST of two of Virginia’s largest jurisdictions, Virginia Beach and Although the commonwealth has recently taken steps Fairfax County. However, the Commonwealth of Virginia still toward addressing its mentally ill defendants, further advance- only has one official Mental Health Circuit Court Docket in ments are being proposed to properly assist these individuals Norfolk. The cities of Norfolk and Virginia Beach have the in maintaining control of their conditions. only two misdemeanor courts in the Hampton Roads area that redirect defendants with a mental illness to a Mental Health Endnotes: Docket. The cities of Chesapeake and Portsmouth are also 1 National Council for Behavioral Health, Federal Budget (2015), in the process of initiating a specialty docket for mentally ill http://www.thenationalcouncil.org/topics/federal-budget/. defendants. 2 Id. Eighty-six defendants have been on the Norfolk Mental 3 Mental Health Spending: State Agency Totals, Governing the States and Localities, http://www.governing.com/gov-data/health Health Docket since January 2016. While the docket has eli- /mental-health-spending-by-state.html. gibility criteria, the defendants continue to participate in the 4 Adult Mental Health Treatment Court Locator, SAHMSA http:// program voluntarily. The Norfolk Mental Health Circuit Court www.samhsa.gov/gains-center/mental-health-treatment Docket has resulted in a “substantially higher rate of access to -court-locator/adults?field_gains_mhc_state_value=VA. services, less time spent incarcerated, better collaboration of 5 Ray, B. (2014). Long-Term Recidivism of Mental Health Court services, improved mental health and engagement of treat- Defendants. International Journal of Law & Psychiatry. 37(5). ment, and lower recidivism rates . . .”8 6 Norfolk, Petersburg, and Richmond 7 Office of the Executive Secretary, Supreme Court of Virginia, Changes in Law Virginia’s Court System, http://www.courts.state.va.us/courts In recent years, Virginia and most other states have cut the /home.html. funding required to care for this vulnerable group. In 2014, 8 Virginia Is Not For Lovers of Mental Health, WordPress (Mar. 25, 2013), https://powerofadvocacy.wordpress.com/2013/03/25 the commonwealth had only 17.6 psychiatric beds available 9 /virginia-is-not-for-lovers-of-mental-health-courts/. per 10,000 people. This is less than 40 percent of the recom- 9 Sy Mukherjee, Creigh Deeds Introduces Mental Health Reform 10 mended minimum. As a response to this problem, Senator Bills After Son’s Tragic Suicide, ThinkProgess (Jan. 7, 2014), Creigh Deeds presented legislation to the General Assembly in http://thinkprogress.org/health/2014/01/07/3126291/ an effort to recognize the plight of the mentally ill within the creigh-deeds-mental-health-legislation/. Virginia criminal justice system. This legislation was subse- 10 Id. quently adopted into law, and awareness for the mentally ill 11 Nikki Schwab, Creigh Deeds Tells Son’s Mental Health Horror took on new meaning. Story, U.S. News and World Report (Mar. 31, 2014, 6:58 PM), The law used to require that, unless an available psychi- http://www.usnews.com/news/blogs/washington-whispers atric bed for a mentally ill patient could be located within six /2014/03/31/creigh-deeds-tells-sons-mental-health-horror-story. hours, a magistrate could not issue a temporary detention 12 Id. 13 VA Code § 16.1-340. order.11 The new legislation, however, provides state agents 14 VA Code § 37.2-308.1. with twelve hours to find an available psychiatric bed, and it further states that if an available bed is not found within twelve hours, the state hospitals will be required to admit the mentally ill patient.12 If an officer has probable cause that a minor has a mental illness, the law used to permit the officer to hold that minor in emergency custody for a period not exceeding four hours; however, this period has now been extended to eight hours.13 Additionally, the officer is now required to notify the community services board, which is responsible for conducting an evaluation of the patient suspected to have a mental illness. The new legislation further states that the Department of Behavioral Health and Development Services will establish an online acute psychiatric bed registry that will provide informa- Joseph A. Migliozzi Jr. was Denisa Muhametaj is a second tion on the availability of beds in psychiatric facilities.14 This appointed to the Norfolk year law student at Regent change in the law has provided the mentally ill with the ability General District Court bench University School of Law. She in 2009. Beginning in 2002, obtained her undergraduate to obtain necessary aid with respect to their conditions. he served as the southeastern degree from James Madison Finally, to address one of the most relevant of current district’s capital defender, rep- University, where she studied issues within the policing community, there has been a resenting people charged in Justice Studies and Mathematics. death-penalty-eligible cases. She was a summer clerk for The significant increase in the number of Virginia police depart- Honorable Joseph A. Migliozzi ments that require CIT (Crisis Intervention Team) training. Jr. in the Norfolk Circuit Court Such training familiarizes local law enforcement officers with during the summer of 2016. She is from Chesapeake and upon methods to de-escalate potentially harmful situations involving graduating law school she plans mentally ill suspects. to sit for the Virginia Bar. www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | December 2016 | VIRGINIA LAWYER 17 Shaking the Virginia Gun Rights 8 Ball by Seth Saunders photo by Deirdre Norman Deirdre by photo
Clients often come into our to “Reply hazy, try again,” “Cannot predict now,” and my personal favorite, “Concentrate offices asking for the one thing, even and ask again.” The pertinent questions with all of our schooling and experi- that must be addressed by the “Legal 8 Ball” now are: (1) If a client’s firearm rights were ence, we cannot provide — certainty. restored during the April 22–July 22 window Our clients shake us around like a when their civil rights were validly restored, Magic 8 Ball, hoping to tap into our are their firearm rights still valid absent a re- grant of their civil rights following the Court’s infinite knowledge in our areas of decision? and (2) Will commonwealth’s attor- expertise, waiting for us to respond ney’s offices and circuit court judges apply a higher level of scrutiny to firearm rights peti- with “As I see it, yes,” “Outlook good,” tions involving the current wave of civil rights or “It is decidedly so.” In my chosen grants coming from the governor’s office?
field, firearm rights restoration, maybe Restored or not restored? more so than any other legal specialty, Virginia law not only prohibits firearm rights a degree of certainty could be some- for convicted felons, it also provides the mechanism for having those rights restored.1 what certain. Essentially, it is a two-part process, involving a felon obtaining a restoration of civil rights But that changed markedly with from the governor’s office, then petitioning Governor McAuliffe’s April 22 executive order the circuit court for restoration of firearm restoring the civil rights of 206,000 felons and rights. With the April 22 order, 206,000 peo- the Supreme Court of Virginia’s subsequent ple immediately became eligible to petition nullification of that order on July 22. Now, the the circuit courts to have their firearm rights answers I find myself giving are much closer restored. My office did not see a noticeable
18 VIRGINIA LAWYER | December 2016 | Vol. 65 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST uptick in inquiries following the order, but the judge might be able to explain what has most of the cases we did see in late April, happened with the Virginia Supreme Court May, and June involved individuals whose decision and how it voided their order . . . it is civil rights were restored on April 22. Under our intention to work with the individual to Virginia Code, their cases were ripe to be ensure that they are following the law.”6 heard since they possessed a valid order of So, where do the clients granted their civil rights restoration. And in all the cases firearm rights during the April 22–July 22 my office handled, petitions for firearm rights window stand as it relates to the restoration predicated upon the April 22 civil rights of their firearm rights? The answer seems to restoration were granted. What’s unclear now be “Reply hazy.” If your rights were restored is whether those petitions were voided by the and you try to purchase a firearm, the Virginia Court’s decision. State Police clearly articulated that they will That decision was clear on civil rights: not allow your purchase absent a new grant the governor’s order was an overreach of his of civil rights from the governor and an clemency power and all civil rights restored updated order of restoration from the circuit were invalid.2 There was even a directive to court reflecting that new grant. As it pertains the state’s registrars’ offices to clear the rolls to possessing and carrying a firearm, the of the affected people. However, the Court safest course of action is probably to heed failed to address the domino-effect the deci- the Virginia State Police recommendation. sion would have on corresponding firearm However, if a client possessing or carrying rights restoration petitions. Even Governor a firearm with a restoration order from the McAuliffe, when asked about the subject, had April 22–July 22 window, without notice that no definitive answer on the interplay between their gun rights were invalid, is cited for un- the two saying, “My actions were about giving lawful possession of a firearm, it would seem you the right to vote, to serve on a jury, and difficult to proceed with filing charges since a run for political office. My action, I didn’t successful prosecution would be foggy given think it had anything to do with gun rights. I the unique circumstances. Absent some over- stayed away from that.”3 Hence, our uncertain arching edict from the Court, Magic 8 Ball answers surrounding the subject. the answer to the question of The commentary from the pertinent ac- whether the firearm resto- tors in the process has been anything but uni- rations during this period will form since the Court’s decision. Through its be valid will remain in the spokesman Michael Kelly, Virginia Attorney “Cannot predict now” catego- General Mark Herring’s office opined that, ry. “This is a pretty unusual situation without a clear answer. The Supreme Court dealt with Increased Scrutiny? voters in its order, but not other Virginians While the first query involves who had relied on the governor’s order to a nuanced issue that will exercise certain rights and privileges. The only affect a limited number situation will ultimately require some judicial of people, the second issue clarification from a circuit court, or perhaps prompted by this summer’s the Supreme Court itself.”4 events could potentially The Virginia State Police took a more impact the entire restoration Norman Deirdre by photo definitive stance, explaining that, “Individuals of firearm rights process. Prior to the April 22 need to refer to the governor’s website for order and the cascade of events that followed, direction on how to proceed concerning the the grant of firearm rights restoration peti- steps necessary to secure a valid restoration of tions was, unofficially, heavily dependent on their voting rights. Once that’s accomplished, the governor’s grant of civil rights. The circuit then those individuals will need to re-apply court and the commonwealth’s attorney’s through the circuit court to have their gun offices reviewed the petition, conducted the rights restored.”5 hearing, and made the final grant of firearm Shannon Taylor, the commonwealth’s rights, but the completion of each of those attorney for Henrico County, said that, “[F]or steps lay upon the foundation of the gover- the one or two individuals who fall into this nor’s grant of civil rights. category, we will issue a show-cause motion In fact, a bipartisan group of forty-three to bring them back before the court so that commonwealth’s attorneys articulated this www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | December 2016 | VIRGINIA LAWYER 19 GENERAL INTEREST point in their amicus brief to the Court in the Howell case, Constitution of Virginia to provide that a person convicted of voicing their concern that: a felony’s “right to possess, transport or carry [a firearm] is au- tomatically restored upon the restoration of his civil rights.”10 [The] executive order shifts the entire burden of this vital If approved by the General Assembly and subsequently by review process onto Commonwealth’s Attorneys and cir- Virginians in the 2018 general election, HB1406 would take cuit courts. It is essential that Commonwealth’s Attorneys effect January 1, 2019.11 discharge this burden effectively, given the public safety Numerous hurdles need to be cleared before HB1406 concerns associated with felons’ possession of firearms. becomes the law, but if enacted, firearm rights restoration in Their resources will thus be additionally taxed by the fire- Virginia would experience quite the facelift. In petitions in- arm restoration process.7 volving non-violent felons, the courts and the commonwealth’s attorney’s offices would be removed from the decision-making Joel Branscom, the commonwealth’s attorney in Botetourt process. This would seemingly eliminate the questions raised County, echoed those concerns: “[The governor’s grant of civil here around scrutiny of firearm rights petitions in the com- rights has] always been the main factor. Once the governor has monwealth’s new streamlined civil rights restoration world. weighed in, it’s been pretty regular [practice] for them to get Conversely, it would simultaneously discard two valuable their rights restored. That meant something.”8 firearm rights restoration gatekeepers. If 2016 is any indica- Formerly, a felon seeking to restore his civil rights went tion, Virginia firearm rights restoration will no longer be the through a rigorous process, fraught with paperwork and commonwealth’s “You may rely on it” field of law. Instead, it extended waiting times. Because of the scrutiny involved in will require multiple shakes of the Legal 8 Ball and answers of, that process, the weight given to a governor’s restoration of “Concentrate and try again.” civil rights during the restoration proceedings was substantial. And understandably so. As the barriers surrounding civil rights Endnotes: restoration continue to fall, it remains to be seen how circuit 1 Va. Code § 18.2-308.2 (A) and (C) courts and commonwealth’s attorney’s offices will respond. In 2 Howell v. McAuliffe, __ Va. __ (Va. 2016) the firearm rights cases my office has overseen involving civil 3 Portnoy, Jenna. “In Virginia, felon voting rights mean simpler rights restorations post-July 22, there has yet to be a discernible path to gun ownership.” The Washington Post, May 20, 2016. 4 Nolan, Jim. “Reversal of McAuliffe’s voting rights order leaves difference in how the petition process is handled. The petitions restored gun rights in limbo.” Richmond Times-Dispatch, August that we expected to be scrutinized based on the underlying 20, 2016. charges were, and the petitions we expected would be granted 5 Id. without many speed bumps also were, just as it was prior to the 6 Id. genesis of these questions on April 22. 7 Brief of Amici Curiae Commonwealth’s Attorneys In Support of In my experience with firearm rights restoration cases, Petitioners, p. 12, June 17, 2016. it always becomes plainly evident how seriously circuit court 8 Portnoy, Jenna. “In Virginia, felon voting rights mean simpler judges and commonwealth’s attorneys take these cases. Judges path to gun ownership.” The Washington Post, May 20, 2016. routinely caution my clients about the weight of the court’s 9 House Bill 1406, Sess. of 2017 (Va. 2017), http://lis.virginia.gov/ decision, the responsibility that falls upon my clients once cgi-bin/legp604.exe?171+ful+HB1406. their rights are restored, and the responsibility that could fall 10 Id. 11 Id. on the courts should my clients forsake the responsibility of their newly-restored rights. That level of scrutiny, and the weight that is borne upon the shoulders of the courts and the commonwealth’s attorneys, has been the consistent “Outlook good” during the “Cannot predict now” of the firearm rights restoration process over the last six months. My expectation is that will continue, regardless of the mechanics around the restoration of civil rights that precedes it.
Moving Forward The uncertainty around civil rights restoration and its effect on firearm rights restoration is not moving to the background. In September, House Delegate Gregory D. Habeeb introduced House Bill 1406, which would put a constitutional amend- ment on the ballot during the November 2018 general elec- tion allowing non-violent felons who have their civil rights restored to simultaneously have their firearm rights restored 9 without petitioning the circuit court. The bill proposes to Seth Saunders specializes in the restoration of amend Article II, Section 1 and Article V, Section 12 of the firearm right at his practice in Glen Allen.
20 VIRGINIA LAWYER | December 2016 | Vol. 65 | GENERAL INTEREST FEATURES www.vsb.org Bar Counsel continued from page 14 These principals have withstood that no substantial harm to the com- the test of time, and are the standards plainant or the public has occurred, Code of Professional Responsibility, by which the bar’s staff and disci- and that no further disciplinary action or of Sections 54-73 and 54-74 of plinary authorities evaluate complaints is necessary. the Code.” The Board set forth more today. The Board in the Williamson 2 The Rules of Court, Part 6, Section IV, Paragraph 13-10.C, authorize the specific criteria, holding that, “The case stated that the previous disci- circumstances of each case must be summary resolution of complaints plinary rules and related statutes were through informal or abbreviated considered in light of the experience, aspirational. The current Rules of investigations. or lack of experience, on the part of Professional Conduct are in fact de- 3 Rule of Professional Conduct (RPC) the lawyer; the degree or culpability signed to provide guidance to lawyers 1.4(a) provides that an attorney shall of the neglect; the harm, if any, to the and a structure for regulating conduct keep a client reasonably informed client; the existence of any pattern of as opposed to a basis for civil liability.8 about the status of a matter and neglect or inattention by the lawyer; Isolated acts of inattention, neglect or promptly comply with reasonable the lawyer’s candor with his client in malpractice should not evoke fear of requests for information. accepting responsibility for his neglect; disciplinary action as long as attorneys 4 RPC 1.16(e) provides that certain and the extent to which the lawyer has adhere to the principals set forth in the file materials are the property of the client and that an attorney, upon been able to rectify or compensate his case authorities above. client for harm caused by the lawyer’s termination of the representation, must furnish those materials to the neglect.” Endnotes: client or successor counsel regardless The Supreme Court of Virginia 1 The Rules of the Supreme Court of of whether the client has paid the fees followed with a similar standard in Virginia, Part 6, Section IV, Paragraph and costs owed to the attorney. a 1986 case, holding that, “Neglect 13-1, define Private Discipline as an 5 Rules of the Supreme Court of involves indifference and a consistent Admonition without Terms issued Virginia, Part 6, Section IV, Paragraph failure to carry out the obligations by a subcommittee sua sponte, a 13-10.E. Private Reprimand or any form which the lawyer has assumed to his 6 Virginia Code Sections 54-73 and of discipline that is not public. 54-74, Code of Virginia (1950) client or a conscious disregard for the A Private Reprimand means any responsibility owed to the client. The (Repealed). form of non-public discipline that 7 Pickus v. Virginia State Bar, 232 VA 5, concept of ordinary negligence is dif- declares privately the conduct of ferent. Neglect usually involves more 11, 348 SE2d 202 (1986), citing ABA the Respondent improper but does Comm. on Ethics and Professional than a single act or omission. Neglect not limit the Respondent’s right to Responsibility, Informal Op. 1273 cannot be found if the acts or omis- practice law. A Private Admonition is (1973). sions complained of were inadvertent defined as a private sanction issued 8 Rules of the Supreme Court of or the result of an error of judgment by a subcommittee sua sponte or by Virginia, Part 6, Section II, Preamble: made in good faith.”7 agreed disposition upon a finding that A Lawyer’s Responsibilities. misconduct has been established but
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www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 21 They All Fall Down: An Overview of the Law on Deck and Balcony Collapses by Matthew W. Broughton, Gregory D. Habeeb, and Nicole A. Poltash shutterstock.com
Imagine a summer holiday as Ensuing litigation can be quite compli- cated and highly technical. Statutes of repose, you enjoy a cookout with family and determination of the plaintiff’s status (guest, friends. With a cool, refreshing bever- trespasser, tenant, landlord, owner), and the age and a hot dog in hand, you walk deck’s composition (wood, concrete, metal, to the back deck to join your friends. or some combination) are among issues to be considered. As soon as you step outside, the deck breaks away from the house. Laughter The Cause turns to screams as everyone on the One must determine the cause of the col- lapse, including the portion of the deck that deck plunges twelve feet to the con- gave way and why (e.g., flaws in the origi- crete below. nal construction, modification, or repair). An examination of the deck by a building There are more existing decks and balconies inspector or qualified contractor will help now than will be built in the next five to identify the cause. fifteen years.1 With the continued aging of decks and balconies, the probability of a sud- Building Codes den, traumatic, and preventable scenario will Building codes determine what construction likely increase in the future. More people are standards the deck or balcony should have “injured in accidents related to faulty wooden met and whether the plaintiff has a claim for decks and balconies than from injuries stem- negligence per se. Which building codes apply ming from all other wood building compo- may depend on when the deck was construct- nents combined.”2 Further compounding this ed, inspected, or repaired. issue is grandfathering, which can circumvent Assume that a defective ledger board building codes. was constructed in the late 1990s, repaired
22 VIRGINIA LAWYER | December 2016 | Vol. 65 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST in 2007, and collapsed in 2010. The 2006 within two years.8 Thus, one should quickly Virginia Construction Code (VCC) and identify the applicable statute(s) of limitation International Residential Code (IRC) would or repose and ensure that a party files its case not apply to the repairs because their state- within the appropriate time limits. wide statutory effective date was May 1, 2008.3 Instead, the preceding 2003 building codes Parties’ Status would govern.4 County codes can also influ- Either parties’ status as invitee, trespasser, ence this analysis. tenant, landlord, owner, or a repair company can significantly change the outcome of a Grandfathering case. When a deck or balcony collapses due to Landlords and property owners in issues with the original construction, a defen- Virginia have statutory duties to keep the dant may be grandfathered in under previous common areas of their properties safe building codes. This protection can disappear through good construction, repair, and where there is negligent repair work or main- maintenance. Those duties are detailed in the tenance. Virginia Construction Code (13 VAC 5-63-10, For example, section R502.2.1 of the 2003 et seq.) and the Virginia Maintenance Code IRC (incorporated into the 2003 VCC via (13 VAC 5-63-450, et seq.).9 Their purpose is paragraph 101.2) required that decks/balco- to protect the health, safety, and welfare of nies be positively anchored to the structure, residents of the commonwealth.10 the attachment not be accomplished with Accordingly, landlords and owners are nails subject to withdrawal, and where a liable to tenants and guests for any injury positive connection cannot be verified, then caused by a failure to exercise reasonable the decks/balconies shall be self-support- care in maintaining common areas in proper ing. Consequently, as of the effective date repair and a safe condition.11 By contrast, they of November 16, 2005, decks and balconies owe no such duty for any part of the leased constructed in Virginia must have been premises under a tenant’s exclusive control, well-connected to buildings. If not properly unless an exception applies.12 One such excep- connected, the decks/balconies should have tion exists when a landlord or owner under- self-supporting beams or columns.5 takes repairs of premises within a tenant’s In 2006, the IRC and VCC requirements exclusive control and does so negligently.13 for decks were significantly expanded and became specific to include minimum require- Common Areas ments for the proper size, penetration, and Whether a particular part of an apartment placement of bolts used to affix decks and is a common area or not is a question of fact balconies to structures.6 Moreover, section within the province of the jury.14 Examples 103.5 (exception two) of the 2006 VCC of structures within a tenant’s exclusive indicates that any repairs to decks/balconies possession and control include a cabinet,15 located more than thirty inches above grade malfunctioning furnace,16 and stairs17 located must meet all of the current code provisions inside the leased apartment. A stairway that for structural loading capacity, connections, provides the only access to two apartments and structural attachment. on the second floor, by contrast, is a common area.18 Decks may or may not be common Statutes of Repose area depending on the facts of your case. Like a statute of limitation, a statute of repose cuts off certain legal rights if they are not Notice acted upon by a specific deadline. In a negligent repair and maintenance claim If the collapsed deck or balcony was “[a]ctual or constructive knowledge on the recently constructed, Virginia Code section part of landlord of the defect causing the 8.01-250 would govern and any action to injury is necessary to render him liable. The recover damages would have to be brought burden is on the injured tenant to show that within five years of its construction.7 However, the landlord knew of the defect or that it had if the deck or balcony collapsed due to defec- been in an unsafe condition for such a length tive repairs, section 8.01-243 would govern of time that he should have known of it.”19 and any action would have to be brought Proof of such notice can include complaints www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | December 2016 | VIRGINIA LAWYER 23 GENERAL INTEREST
from previous or current residents.20 No action to recover for any injury to Alternatively, a plaintiff may be barred property, real or personal, or for bodily injury from recovering if they had notice of the de- or wrongful death . . . shall be brought . . . fect before the accident.21 In Caudill v. Gibson more than five years after the performance or Fuel Company, the tenants knew the porch furnishing of such services and construction. 8 Virginia Code section 8.01-243(a), entitled was rotten and that two holes had already 22 Personal action for injury to person or property broken through during their tenancy. They generally; extension in actions for malpractice 23 asked the landlord to fix the defect. The against health care, states: “Unless otherwise Supreme Court of Virginia held that “[i]f provided in this section or by other statute, negligence in permitting a dangerous condi- every action for personal injuries, whatever tion is to be charged to the defendant, then the theory of recovery . . . shall be brought equal negligence in using the porch is to be within two years after the cause of action attributed to the plaintiff. . . . [They] were put accrues.” Exceptions may exist such as when on equal notice.”24 the injured party is an infant. Overall, cases involving deck and balcony 9 See also Paytan v. Rowland, 208 Va. 24, 26, 155 collapses can be very complicated. The issues S.E.2d 36, 37 (1967) (“[The owner] has a duty to use ordinary care to maintain in reasonably set forth above are by no means exhaustive,25 safe condition any part of the leased premises but provide a starting point for evaluating a that was reserved for the common use of all case. Be sure to consider all of them so your tenants.”). argument does not become the next trap 10 Virginia Construction Code § 102 (13 VAC door. 5-63-20). 11 Williamson v. Wellman, 156 Va. 417, 423-7, 158 Endnotes: S.E. 777, 778-780 (1931) (“[I]f the landlord 1 Lynn Davis, Research Focuses on Deck Safety, knew, or by the exercise of reasonable care Awareness, Virginia Tech: Invent the should have known of the defective condi- Future (May 10, 2010), http://www.vt.edu/ tion long enough before the accident to have spotlight/impact/2010-05-10-deck-safety/ made the repairs and failed to do so, then he is safety.html. liable, not only to the tenant but to an invitee 2 Id. of the tenant’s family, for injuries received by 3 The 2003 Virginia Construction Code’s reason of this defect.”). effective date was November 16, 2005. The 12 Id. at 421, 158 S.E. at 778 (“Neither of the 2006 Virginia Construction Code’s effective tenants could have exclusive control or exclu- date was May 1, 2008. The 2009 Virginia sive use and occupancy of these approaches. Construction Code’s effective date was March Therefore neither would have any responsi- 1, 2011. bility for keeping them in repair or in proper 4 Specifically 2003 Virginia Maintenance Code condition for the use of the other. It follows § 105.1 and 2003 International Building Code that the possession and control of the stairway § 3403.2 (incorporated in the 2003 Virginia and platform remained in the landlord.”); Construction Code per § 101.2) would gov- Paytan, 208 Va. at 26, 155 S.E.2d at 37. ern. They require that if unsafe or unsound 13 Holland v. Shively, 243 Va. 308, 415 S.E.2d conditions are found while making repairs, 222 (1992). Note, also, that negligence per se then the unsound element should be made to claims can be based on violations without a conform to the requirements for new struc- building official’s pre-accident finding of a tures. code violation. See McGuire v. Hodges, 273 Va. 5 Per Section 3403.2 of the 2003 International 199, 639 S.E.2d 284 (2007) (reversing Circuit Building Code (“IBC”), these same require- Court’s judgment for owner where claim for ments apply to repairs of existing decks when negligence per se was based on building code the contractor performing repairs finds that violations related to a non-code compliant the uncovered structural elements are un- latch on a pool gate which caused infant’s sound or otherwise structurally deficient. drowning death). There is also no language in 6 See Paragraphs R502.2.2 in the 2006 these codes indicating that modifications and International Residential Code and Table maintenance are only required after a building R502.2.2.1 in the 2006 Virginia Construction official has deemed a building to be unfit. Code Instead, landlords and owners have a duty 7 Virginia Code section 8.01-250, entitled to make inspections themselves. Gumenick v. Limitation on certain actions for damages United States, 213 Va. 510, 518-19, 193 S.E. 2d arising out of defective or unsafe condition of 788, 795 (1973); Taylor v. Va. Constr. Corp., improvements to real property, states in rele- 209 Va. 76, 78, 161 S.E.2d 732, 734 (1968). vant part:
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14 Paytan, 208 Va. at 26, 155 S.E.2d at 38 (re- and did not exercise ordinary care by failing to versing the Circuit Court’s entry of summary inspect the porch). judgment because the question of whether the 19 Revell v. Deegan, 192 Va. 428, 433, 65 S.E.2d tenant had exclusive possession of the back 543, 546 (1951) (citation omitted). The length porch or whether it was a common area was a of time includes however long it would have question of fact for the jury). taken to discover the defect if the landlord or 15 Luedtke v. Phillips, 190 Va. 207, 56 S.E.2d 80 owner had exercised reasonable care. (1949) (landlord not liable when tenant’s 20 This assumes that, following a complaint, an cabinet fell on tenant). inspection of the underside of the deck by a 16 Wohlford v. Quesenberry, 259 Va. 259, 523 reasonably competent contractor would have S.E.2d 821 (2000) (landlord not liable for neg- confirmed the defects. ligence per se based on building codes because 21 An analysis of this issue should include tenant had “exclusive possession and control” whether the plaintiff could see the defects of the defective premises). from his demised premises or from any other 17 Isbell v. Commercial Inv. Assocs., 273 Va. 605, location accessible to him and whether the 618, 644 S.E.2d 72, 78 (2007). defects were latent to the defendant. 18 Wellman, 156 Va. at 421, 158 S.E. at 778 22 185 Va. 233, 237-38, 38 S.E.2d 465, 469 (1946). (“Neither of the tenants could have exclusive 23 Id. control or exclusive use and occupancy of 24 Id. at 242, 38 S.E.2d at 470. these approaches. Therefore neither would 25 Other considerations include insurance have any responsibility for keeping them coverage and whether the deck or balcony in repair or in proper condition for the use was being used for its intended and lawful of the other. It follows that the possession purposes (e.g., not exceeding allowable load and control of the stairway and platform capacity), to name a few. remained in the landlord.”); see also Taylor v. Va. Constr. Corp., 209 Va. 76, 161 S.E.2d 732 (1968) (reversing Circuit Court’s judgment because landlord was liable for the plaintiff’s injury caused by negligently maintained door in common area of an apartment complex); Gumenick v. United States, 213 Va. 510, 193 S.E. 2d 788 (1973) (affirming judgment awarding tenant damages for injuries from a fall off an apartment’s defective porch because owners breached the duty to maintain porch and its railings in a reasonable state of repair
Matthew W. Broughton is a Gregory D. Habeeb is a litigation Nicole A. Poltash is an attorney senior partner and serves on partner at Gentry Locke who with Redgrave LLP in Northern the Management Committee at specializes in complex business Virginia. Her focus in on repre- Gentry Locke. He is head worker’s and catastrophic injury cases. senting individuals and corpora- compensation counsel for some He represents individuals and tions in connection with criminal of the largest and most successful companies in courts throughout and government investigations, companies in America including Virginia and the nation. Habeeb including white collar and qui Wal-Mart and FELD Entertainment is also a member of the Virginia tam claims. Additionally, she (Ringling Brothers, Monster Truck, House of Delegates where he has experience with commercial Disney on Ice). Broughton heads represents Virginia’s 8th District litigation in the construction and the Plaintiff’s/Personal Injury/ and serves on the Courts, restaurant industries. Subrogation practice areas at Gentry Commerce & Labor, Rules and Locke. During his decades of experi- Transportation Committees, as ence, he has tried hundreds of com- well as on the Code Commission plex cases in the areas of personal and the Coal & Energy injury, business disputes, worker’s Commission. compensation, and aviation law, many involving millions of dollars. www.vsb.org GENERAL INTEREST FEATURES | Vol. 65 | December 2016 | VIRGINIA LAWYER 25 CALL FOR NOMINATIONS
Tradition of Excellence Award The Virginia State Bar General Practice Section annually recognizes an outstanding lawyer who embodies the highest tradition of personal and professional excellence in Virginia. This special award recognizes attorneys who have devoted significant amounts of time, efforts, and/or funds to activities that benefit their community and help enhance the image and esteem of general practice attorneys in the Commonwealth. All candidates must be current members of the VSB in good standing, with a minimum of ten years of law practice, at least five of which must have been as a general practitioner.
Announcement The General Practice Section of the Virginia State Bar is seeking nominations for its 30th Annual Tradition of Excellence Award, which will be presented at the Virginia State Bar Annual Meeting in Virginia Beach on Saturday morning, June 17, 2017. This award recognizes an outstanding lawyer who embodies the highest tradition of personal and professional excellence in Virginia and, in doing so, enhances the image and esteem of attorneys in the Commonwealth.
General Qualifications To qualify, nominees must be current members of the Virginia State Bar in good standing who have practiced for a minimum of ten years, five of which must be in general practice. Nominees also should have achieved both personal and professional distinction in their community.
Nominations Nominations must be submitted in writing to VSB General Practice Section, c/o Catherine Huband 1111 East Main Street, Suite 700 Richmond, Virginia 23219-0026 and include the following information: 1. Name, age, and address of nominee; 2. Brief biographical information and photograph; 3. Firm or employment affiliation for past ten years or more; 4. Bar memberships; 5. Courts where admitted to practice; 6. Details of significant community activities and/or contributions; 7. Details of significant activities and/or contributions that have helped to enhance the image and esteem of general practice attorneys in the Commonwealth; 8. A brief statement explaining why the nominee should be awarded the Tradition of Excellence Award; and 9. Any other information that may be of assistance to the selection committee. Nominees may also be interviewed by the selection committee or a representative of the committee at any time after submission of the nomination.
Deadline The General Practice Section must receive your nomination by close of business on Monday, March 20, 2017.
Notification of Winner The recipient of this year’s Tradition of Excellence Award will be determined on or before Monday, April 3, 2017. The recipient will be invited to be the honored guest of the General Practice Section at the VSB Annual Meeting.
See a list of past recipients online at www.vsb.org/site/sections/generalpractice/tradition-of-excellence-award.
For more information, contact Catherine Huband at the Virginia State Bar at (804) 775-0514 or [email protected] Construction and Public Contracts Law
by Jennifer A. Mahar
The Construction Law and Public Contracts Differing Site Conditions clause contained in Section is pleased to present three articles the VDOT Specifications. VDOT has added highlighting recent developments concerning language to include an enforcement mech- legal issues that can be a challenge for con- anism for instances where a contractor fails tractors dealing with the Federal Government to provide written notice of an encountered or the Commonwealth of Virginia — com- differing site condition. He examines how pliance with contract notice provisions the Supreme Court of Virginia’s decision in and individual accountability for corporate Commonwealth v. AMEC Civil, LLC may be wrongdoing. Arnie B. Mason, the chair of indicative of the Court’s interpretation of our publications committee, led the effort to VDOT’s amendment in future cases. recruit authors from our section to share their Our Section is in its 37th year of offer- professional insights on these critical issues. ing exceptional networking and educational We hope that you find takeaways in these opportunities in the areas of construction articles useful in your practice. and government contract law to our mem- In Individual Accountability and bers. Our annual program lineup includes Corporate Cooperation — A Year in Review, our popular two-day CLE program in early Dawn L. Merkle provides a useful overview of November, where section members at all the US Department of Justice’s focus on in- experience levels from across the common- dividual accountability for corporate wrong- wealth meet to discuss the latest developments doing in its enforcement of federal statutes in our practice areas and to network. We such as the False Claims Act (FCA) and the produce a semi-annual newsletter to keep our Foreign Corrupt Practices Act (FCPA). She members informed of recent judicial deci- highlights the September 2015 Individual sions and new legislation. Our members have Accountability for Wrongdoing memorandum access to the Construction Law Handbook, issued by US Deputy Attorney General Sally a comprehensive resource that indexes and Yates, in what has become known as the “Yates digests construction law cases decided in Memorandum.” She also discusses the effects Virginia’s state and federal courts. We also to date of this policy memorandum on DOJ’s sponsor CLEs, webinars, and several network- enforcement activities, including DOJ’s recent ing events throughout the year, the details application of the cooperation credit in its of which are announced on our section’s decision-making process. webpage (http://www.vsb.org/site/sections/ In Good Law, Smart Business and Sound construction). Public Policy: Strict Compliance with Notice I invite you to join our vibrant section. Provisions in Virginia’s Public Construction Please feel free to contact me for more infor- Contracts, Rodolfo R. “Rudy” Remigio ad- mation on what our section has to offer. dresses the law, business, and public policy behind Virginia courts’ strict enforcement of notice provisions in construction contracts. Because compliance with notice provisions can make or break a contractor’s contract claim against a Virginia public owner, notice issues are frequently at the center of these dis- putes. He also explores the risks and benefits Jennifer A. Mahar is a member of Smith Pachter to both the commonwealth and contractors McWhorter PLC, focusing her practice on commercial resulting from this judicial approach. disputes in the government contracting and construc- In Changes to Differing Site Conditions tion industries. She represents contractors and sureties in all phases of project development and construction. Clause in VDOT Construction Contracts A former assistant commonwealth’s attorney, she has Specifications, James R. “Jimmy” Germano an active trial practice in federal and state courts and before boards of contract appeals. She is the chair of reviews the Virginia Department of the board of governors of the Construction Law and Transportation’s 2016 amendment to the Public Contracts Section of the Virginia State Bar. www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 27 Individual Accountability and Corporate Cooperation — a Year in Review by Dawn L. Merkle © Batcom | Dreamstime.com | Dreamstime.com © Batcom
Government contractors are subject to the same criminal and civil laws as all other businesses in the United States, including laws governing the environment, workplace safety, labor and employment relationships, antitrust, corruption and bribery, and mail and wire fraud. In addition, government con- tractors, including subcontractors and others performing on federally funded projects, are subject to laws aimed at curtailing fraud, waste, and abuse in gov- ernment spending through the imposition of civil and criminal penalties. These laws include the False Statements Act,1 Major Fraud Act,2 Small Business Act (misrepresentations of size),3 and the False Claims Act (FCA).4 In the past year, the Department of Justice’s announced focus on individual accountability for corporate wrongdoing, and its impact on government contractors has been the topic of many client alerts.
28 VIRGINIA LAWYER | December 2016 | Vol. 65 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION www.vsb.org INDIVIDUAL ACCOUNTABILITY AND CORPORATE COOPERATION
Role of the Department of Justice tion absent extraordinary circumstances or The Department of Justice (DOJ) is the chief approval; enforcer of these laws, handling both criminal • Clear plans for resolving individual cases prosecutions and civil claims on behalf of the when resolving corporate cases; United States. A top DOJ priority is to protect • Decision to bring civil suit against individ- public interests by “discouraging business uals should be based “on considerations practices that would permit or promote beyond that individual’s ability to pay.”12 unlawful conduct at the expense of the public Since the Yates Memorandum’s release, interest.”5 Recent cases involving government there have been a number of alerts and arti- contractors and highlighted by the DOJ cles from law firms, scholars, and government include: contracting organizations. Many alerts opined • A former officer and owner of a construc- that the memorandum would “significant- tion company pleading guilty to conspiracy ly impact corporate enforcement actions” to commit wire fraud in a scheme in which while others noted that it did not introduce 13 the small businesses would receive govern- anything new. Regardless, it does signify a ment contracts but the large business would renewed focus on individual accountability. illegally perform all of the work.6 • An investigative services company forfeiting False Claims Act and the Yates Memorandum $30 million in payment to settle an FCA According to Acting Associate Attorney case brought by a whistleblower for “cir- General Bill Baer, more than 630 qui tam ac- 14 15 cumvent[ing] contractually required quality tions were filed last year. In remarks at the reviews of completed background investi- ABA’s National Institute on Civil False Claims Act and Qui Tam Enforcement in June 2016, gations in order to increase the company’s Baer counseled that government contractors revenues and profits.”7 “should not assume [the DOJ] will be amena- • Affiliated companies agreeing to pay more ble to releasing individuals from False Claims than $1 million to settle an FCA case alleging Act liability when we settle with the organiza- overcharges to the government in a qui tam tion. The presumption is flipped in the other action in which the relator received more direction.”16 This “flip” appears to be born out than $200,000.8 in the increase of clauses requiring companies Because the DOJ has found that “[o]ne of to cooperate fully with investigations of indi- the most effective ways to combat corporate viduals who may be involved in misconduct misconduct is by holding accountable all in- in FCA cases. According to Bloomberg BNA, dividuals who engage in wrongdoing,” its U.S. in the first half of 2016, 46 percent of health Attorney’s Manual instructs its attorneys to care related FCA settlements included such “focus on wrongdoing by individuals from the clauses, compared to 17 percent to 32 percent very beginning of any investigations of corpo- in the previous eight years.17 9 rate misconduct.” In September 2015, Deputy Recent settlements highlighted by Baer in Attorney General Sally Yates issued a memo- his remarks underscored the DOJ’s emphasis randum entitled “Individual Accountability on individual accountability: payment of $4 for Corporate Wrongdoing.” The “Yates million by the estate of a company’s deceased Memorandum’s” (despite Yates’s efforts to CEO; a $1.65 million settlement with the dissuade use of that title10) stated purpose was owner of a company; a $10.3 million settle- “to strengthen [the DOJ’s] pursuit of individ- ment with a company and its owner; and ual corporate wrongdoing,”11 and it outlined payment of $40 million by a contractor and six steps for doing so: its former president to resolve the claim.18 • Corporations must provide the DOJ all rele- vant facts relating to individuals responsible The Importance of “Cooperation Credit” for corporate misconduct to qualify for any Cooperation is a factor the DOJ considers in cooperation credit; determining whether to charge a corporation, • Investigations should focus on individuals offer a non-prosecution or deferred prosecu- from the outset; tion agreement, settle or dismiss a civil claim, • Criminal and civil attorneys should commu- or seek civil and regulatory alternatives to nicate routinely on corporate investigations; criminal prosecution.19 For criminal pros- • Individuals will not be released from liability ecutions, the federal Sentencing Guidelines when resolving a matter with a corpora- provide a reduction in penalties for cooper- www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 29 INDIVIDUAL ACCOUNTABILITY AND CORPORATE COOPERATION
ation.20 The DOJ’s Fraud Section offers the “all relevant facts that it learned during the most illustrative examples of cases demon- course of its internal investigation.”23 strating how the DOJ has been applying coop- • In July 2016, the DOJ entered into a de- eration credit since the Yates Memorandum: ferred prosecution agreement with Latam • In February 2016, the DOJ entered into a Airlines Group S.A. The agreement filed in non-prosecution agreement with Parametric US District Court for the Southern District Technology companies for improper gifts of Florida stated that the company did not and entertainment provided to Chinese voluntarily disclose violations of the law government officials. The letter agreement until after a newspaper ran a story about the between the companies and the DOJ ex- alleged misconduct. The company, however, plained that the companies did not receive did fully cooperate subsequently with the voluntary disclosure credit even though DOJ’s investigation and “provided all rele- they had disclosed misconduct to the DOJ vant facts known” to the company, including because they “did not disclose relevant facts information about individuals involved known to [them through an internal investi- in the misconduct. The agreement noted gation] at the time of the initial disclosure,” further that a “relevant consideration” was but received partial credit of 15 percent off the inadequacy of the company’s compliance the bottom of the Sentencing Guidelines fine program at the time of the misconduct, range for cooperating in the DOJ’s investiga- the failure of the company to discipline in tion by “collecting, analyzing, and organizing any way the responsible employees, and voluminous evidence.” Although they had the company’s subsequent implementation not disclosed all information initially, the of a compliance program. The “credit” the companies did provide “all relevant facts company received based upon these factors known to them, including information was the deferred prosecution and a criminal about individuals involved ... [and they] penalty “25 percent above the low end” of engaged in extensive remedial measures,” the Sentencing Guidelines range.24 factors that the DOJ considered in determin- ing not to prosecute.21 Obtaining Cooperation Credit • In another Foreign Corrupt Practices Act Whether a company obtains “full” or “partial” case settled in February 2016, the DOJ credit and the factors for which it receives entered into a deferred prosecution agree- credit impacts the DOJ’s decision to prosecute ment with VimpelCom Limited and Unitel or defer prosecution, the amount of the fines LLC. Under the agreement, the companies that a company will pay, and other condi- agreed to pay more than $230 million in tions the company must meet such as having criminal penalties to the US. The DOJ’s its compliance independently monitored.25 press release noted that a factor contributing The U.S. Attorneys’ Manual26 and the recent to the resolution was the “significant credit” settlement of fraud cases highlight the steps a the companies received for their “prompt ac- company should take to obtain cooperation knowledgement of wrongdoing” after being credit, as summarized below: informed of the investigation, and extensive • Identify all individuals involved in or cooperation in the investigation. This credit responsible for the misconduct leading to resulted in a 45 percent reduction off the the civil or criminal investigation. This is a bottom of the US Sentencing Guideline fine prerequisite for the company to receive any range. The companies did not receive other cooperation credit.27 mitigation credit, however, because they “did • Have a robust compliance program that not voluntarily self-disclose their miscon- can deter and detect misconduct. Such a duct to the department after an internal program should: investigation uncovered wrongdoing.”22 ° Inform employees of the company’s • In June 2016, the DOJ entered into a program and commitment to it; non-prosecution agreement with BK ° Be designed to detect the types of Medical ApS in which the DOJ agreed not misconduct typical in the company’s to prosecute the company criminally. The industry; company received “full credit” for voluntary ° Allow corporate directors to exercise disclosures, but did not receive full coop- independent review over officers’ rec- eration credit because it did not provide ommendations;
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° Have internal audit functions that quests not be transmitted (such as demonstrate the program’s indepen- information that could lead to conceal- dence and accuracy; and ment of assets by an individual). ° Provide officers and directors infor- mation so they can reach informed Conclusion decisions regarding compliance. Whether the Yates Memorandum represents a • Take appropriate remedial measures, includ- significant policy shift, “business as usual” or, ing disciplining employees who engage in as Yates describes it, “somewhere in the mid- misconduct, termination of relationships dle,”28 it certainly has heightened the aware- with officers, directors, subcontractors, affili- ness of lawyers and government contractors ates, and others who are involved in miscon- to the significance of compliance programs, duct, and making restitution. internal investigations, and cooperation • Voluntarily disclose a violation or poten- with the DOJ. Cooperation credit can be the tial violation of the law and all relevant difference that allows a company to minimize facts known to the company at that time. the penalties it may pay for misconduct and Disclosure should occur when the miscon- to avoid the high costs of defending a case duct is discovered during the course of busi- brought by the DOJ. In addition, taking the ness or an internal investigation. Disclosure steps that can earn the company cooperation of the misconduct is not sufficient for full credit, such as a strong compliance program credit. Other than information legitimately and voluntary disclosure, could help the com- protected under the attorney-client privilege pany avoid civil claims, criminal charges, and or work-product doctrine, the company monetary penalties, and curtail misconduct must provide all relevant facts , including: altogether. According to Yates, “[the DOJ’s] ° how and when the alleged misconduct new approach is causing positive change occurred; within companies. Compliance officers have ° who promoted or approved the miscon- said that our focus on individuals has helped duct; and them steer officers and employees within their ° who was responsible for committing the organizations toward best practices and high- misconduct. er standards.”29 The DOJ’s goal of protecting • Once DOJ begins an investigation, cooperate the public interest, in the end, serves not only fully by: taxpayers but government contractors as ° compiling and organizing relevant doc- well by fostering fair competition for public uments; contracts. ° making current and, to the extent possible, former officers, directors, and My thanks to Erin M. Vincent, juris doctorate employees available for interviews and candidate at the University of Richmond for her testimony; and superb research. ° safeguarding sensitive information that the DOJ has provided and re- Endnotes: 1 18 U.S.C. § 1001 (2006). 2 18 U.S.C. § 1031 (2006). 3 15 U.S.C. § 645 (2006). 4 31 U.S.C. § 3729 (2000). 5 U.S. Department of Justice, U.S. Attorneys’ Manual, Principles of Federal Prosecution of Business Organizations, § 9-28.010 (hereinafter “U.S. Attorneys’ Manual”). Dawn L. Merkle is a partner in the Government 6 www.justice.gov/opa/pr/former-mcc-con- Contracts practice at Willcox & Savage PC, where struction-company-officer-and-own- she represents clients in all aspects of state, local, er-pleads-guilty-conspiring-defraud-govern- and federal government contracting — from initial ment (Aug. 23, 2016) (last visited Sept. 11, proposal to project close-out. She previously served as assistant general counsel and corporate counsel 2016). on strategic projects for a large construction firm. Prior to that position, she was in private practice for a number of years. Accountability continued on page 41 www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 31 Good Law, Smart Business, and Sound Public Policy: Strict Compliance with Notice Provisions in Virginia Public Construction Contracts by Rodolfo R. “Rudy” Remigio shutterstock.com
Virginia courts strictly enforce The strict compliance rule is sometimes criti- cized by contractors (and their lawyers) given notice provisions in construction con- the potentially harsh consequences of the rule tracts when the notice is a prerequisite and the prevalence of notice provisions in construction contracts.3 In light of the criti- to a contractor’s right to sue or relates cisms of this beneficial rule, it is worthwhile to an event that increases the time or to examine some of the law, business, and public policy behind the rule in Virginia and cost of construction.1 Under the “strict the shortcomings of the alternative preferred 4 compliance rule,” a contractor’s claim by critics, the “no-prejudice rule.” generally will be dismissed, regardless The Good Law Behind the Strict Compliance Rule of the merits, where it fails to meet Whether a contractor is required by statute the time and form requirements of a or contract to provide notice to the own- er, Virginia courts will strictly enforce the notice provision, including when the requirement if it is unambiguous, and the contractor relies on oral notice but the notice operates as a mandatory prerequisite to suit. When those elements exist, compli- 2 provision requires written notice. ance is part of a contractor’s prima facie case,
32 VIRGINIA LAWYER | December 2016 | Vol. 65 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION www.vsb.org GOOD LAW, SMART BUSINESS, AND SOUND PUBLIC POLICY and Virginia courts will not rewrite or ignore As one court explained, a notice provision the notice requirement to excuse a failure to “allows [public owners] to efficiently manage comply. the construction project by forcing prompt A contractor’s statutory duty to submit identification of potential disputes.”15 In a “notice of intent to file a claim” (NOI) particular, an NOI informs the public owner is strictly enforced by Virginia courts.5 On “when a . . . dispute has started down [the] most Virginia state road and bridge projects, path [toward litigation],” which enables it “to compliance with the NOI requirement is a make difficult judgments about continued “condition precedent.”6 Therefore, providing management of the contract.”16 an NOI in the time and manner prescribed The public owner cannot make judg- is “a mandatory prerequisite to filing suit ments on matters it is unaware of.17 The against the Commonwealth,” an “element [of contractor is the first to know if a problem or the contractor’s] prima facie case,” and “part dispute exists and whether it intends to recov- of the [contractor’s] substantive cause of er any resulting cost from the owner. When action.”7 On projects governed by the Virginia the contractor notifies the owner of a problem Public Procurement Act (VPPA), the giving of or dispute, the owner has the opportunity to an NOI is a “mandatory, procedural require- take appropriate action, including: ment which must be met in order for a court • mitigating or eliminating the underlying to reach the merits of a [contractor’s] case.”8 issue or future damages;18 The requirement to submit a timely, • investigating claims while evidence and written NOI is “clear and unambiguous” un- memories are still fresh;19 der the Virginia Code.9 Therefore, to permit • documenting the actual costs of any extra or a substitute for this requirement, such as disputed work;20 actual notice, is to “create an exemption that • weighing alternatives and avoiding unneces- has no basis in the text of the statute,” which sary costs;21 is improper because “courts must apply [a • budgeting for project completion and cal- statute’s] plain meaning, and . . . are not free culating the effect of a claim on an agency’s to add to language, nor to ignore language, procurement budgets;22 and contained in statutes.”10 • determining whether the contract should be The legal analysis of a statutory notice adjusted prior to suit.23 requirement in Virginia compares to the Although waiver of a contractor’s claim analysis of a contractual notice requirement. if it fails to comply with a notice requirement Virginia courts apply traditional rules of con- is a harsh result, this prospect incentivizes the tract interpretation and enforce the require- contractor’s compliance because waiver makes ments as written.11 Therefore, when a contract the cost of failing to comply outweigh the cost states that failure to provide a notice will of compliance.24 Without prompt notice of result in a waiver of claim, or where the notice a problem or dispute, “the Government is at is found to operate as a “condition precedent” a significant disadvantage . . . . This deprives to the right to sue, the courts are unlikely to the Government of control of the work and excuse a failure to strictly comply.12 of the amount of financial resources needed to complete it.”25 Lack of timely notice can The Business and Public Policy Behind result in the “runaway project,” where the Notice Provisions and the Strict Compliance owner has no opportunity to evaluate claims Rule for Public Owners before related work is performed and costs are There are generally two types of notice in incurred, or where the time to resolve issues Virginia’s construction contracts: a “notice is prolonged.26 The owner is also unable to of change,” which alerts public owners to cir- scrutinize a contractor’s claims or curb its cumstances outside of the original contractual “opportunistic” behaviors without timely undertaking, such as extra work, delays, or notice.27 differing site conditions; and an NOI, which alerts public owners of potential disputes.13 Strict Compliance With Notice Provisions Courts have explained that the “salu- Is Smart Business Practice for Virginia tary purposes” behind such notices in public Government Contractors works contracts “merit strict enforcement.”14 The strict compliance rule is criticized as The primary purpose is to keep a public a one-sided rule that owners can use in owner informed and in control of its project. combination with “arduous notice provisions www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 33 GOOD LAW, SMART BUSINESS, AND SOUND PUBLIC POLICY
to receive work for free.”28 This argument, mutually beneficial because disputes are com- however, is hollow as it relates to Virginia’s mon on construction projects and many end construction contracts.29 in litigation.42 Strictly enforcing written notice First, Virginia contractors employ the requirements eliminates the issue of “what strict compliance rule to force public owners is notice,” which is a costly fact-based ques- to comply with their own notice obligations.30 tion given the various forms and theories of Second, notice provisions in Virginia’s notice, such as actual, constructive, implied, construction contracts empower contrac- and oral notice.43 Furthermore, written notice tors to preserve their rights.31 In dismissing “avoid[s] the credibility contests that arise in a claim for extra work where the contractor cases of alleged oral modification and waiver did not obtain a written change order before of written contract provisions.”44 performing the work, the Supreme Court In refusing to excuse a party’s failure of Virginia explained, the contractor “could to provide notice in the time and manner have fully protected [itself],” i.e., preserved its prescribed by statute or contract, courts entitlement and right to sue, if it had followed recognize that the prescribed notice grabs the contractual “method by which [it] could the attention of the responsible government insure the recovery of the cost of such extra employee in a way that other forms of notice work.” 32 This method includes submitting an may not.45 This is especially true on complex NOI when a demand for extra work is not government construction projects as “most made by written change order.33 . . . generate an avalanche of . . . documenta- Third, Virginia’s construction contracts tion.”46 include notice requirements that are relatively When a clause governing an unantici- straightforward and “typical” for public works pated event includes a prompt, written notice contracts.34 An NOI must be submitted “at the requirement, the public owner often assumes time of the occurrence or beginning of the the risk of the unanticipated event if the con- work upon which the claim is based.”35 On tractor submits the notice and meets other re- most Virginia road and bridge projects, a con- quirements.47 This benefits the owner because tractor must provide notice that extra work the contractor will not include a contingency is necessary to fulfill the contract’s intended in its bid price for taking on the risk of the scope “before performing any such work.”36 unanticipated event.48 By receiving prompt Requiring notice before performing notice if the unanticipated event occurs, the work “is the least burdensome of the numer- owner also benefits because it has the oppor- ous ‘extra work notice’ provisions found in tunity to take immediate action to limit its construction contracts.”37 Furthermore, the risk. Furthermore, the contractor benefits by timing and form of an NOI depends on “the knowing it has a reliable way to shift the risk circumstances of each case.”38 of the unanticipated event to the owner. Finally, strictly complying with notice When a contractor strictly complies with requirements prevents the communications notice provisions, it triggers the contractual failure that often results in a waiver of a procedures for resolving claims or requested contractor’s claim: the contractor performs changes.49 This promotes early resolution work without first notifying the owner of its of issues and provides opportunity for the “subjective hope that a change order might parties to assess their interests in a timely someday be issued by the owner,” but the manner.50 owner is unaware of this hope.39 A contrac- Finally, if the courts can be expected to tor’s intentions may be misunderstood from strictly enforce notice provisions, contractors statements made at a project meeting or and owners are more likely to comply with actions on the job site, but a contractor clearly them.51 communicates its intentions and preserves its rights when it provides the prescribed Is the “No-Prejudice Rule” a Better Option? notice.40 Under the no-prejudice rule, “the requirement for giving formal written notice is disregard- The Mutual Benefits of Strictly Enforcing ed if the party against whom a claim is made Notice Requirements cannot prove practical prejudice to its interest Most notice provisions in Virginia’s con- due to lack of timely notice.”52 From a public struction contracts require the contractor to owner’s perspective, this rule is more detri- provide written notice to the owner.41 This is mental than beneficial.
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The rule creates an exception to a notice requirement Any opinions expressed in this article are those of the author and where none exists. When a court does this to a statutory notice do not reflect the views of his employer, the Office of the Attorney requirement it practices “judicial legislation,” which is for- General, or any Virginia state agency. The author would like to bidden in Virginia.53 Similarly, when the no-prejudice rule is thank and acknowledge Jeffrey M. Bourne, Randall H. Wintory, applied to a contractual notice requirement, courts basically and Arnie B. Mason for their assistance in editing this article. rewrite the requirement, but Virginia courts are “not at liberty to rewrite a contract simply because the contract may appear Endnotes: to reach an unfair result.”54 1 See, e.g., Commonwealth v. AMEC Civil, LLC, 54 Va. App. 240, The no-prejudice rule does not recognize that a contrac- 252, 677 S.E.2d 633, 639 (2009), rev’d in part on other grounds, tor’s failure to strictly comply with a notice requirement in 280 Va. 396, 699 S.E.2d 499 (2010) (“AMEC I”) (“It is thus fair to many cases poses an inherit prejudice to a public owner.55 The say, as most commentators do, that ‘strict compliance with notice of claim requirements has become the clearly established rule General Assembly essentially took this position when, after [in Virginia]’”) (citing Robert K. Richardson, Notice of Claim balancing the interests of the parties in adopting the VPPA, it Requirements Under the Virginia Public Procurement Act: Owner’s made the duty to submit a timely, written NOI a prerequisite Friend – Contractor’s Nightmare, 48 Va. Lawyer 34, 36 (Oct. to a contractor’s right to bring suit under the statute but did 1999)); 1 Richard F. Smith et al., Virginia Construction not include a no-prejudice exception to this duty.56 Law Deskbook §§ 7.1901, 7.1902, 7.2003, 10.501 & 11.501, and The no-prejudice rule is an exception that swallows the cases cited therein (3d ed. 2015); W. v. U. S. Postal Serv., 907 F. notice requirement. As one court explained, “[t]he thirty-day Supp. 154, 158 (E.D. Va. 1995); United States v. Centex Constr. notice provision [in the federal changes clause] . . . rapidly Co., 638 F. Supp. 411, 412 (W.D. Va. 1985); City of Richmond v. developed an exception [the no-prejudice rule] so broad that A. H. Ewing’s Sons, Inc., 201 Va. 862, 869, 114 S.E.2d 608, 613 very little was left of the rule.”57 This confirms the concerns of (1960). courts that have refused to embrace anything less than strict 2 5 Phillip L. Bruner & Patrick J. O’Conner, Bruner & O’Connor on Construction Law § 15:71 (2016); see, e.g., compliance with notice provisions.58 Commonwealth v. AMEC Civil, LLC, 280 Va. 396, 408, 699 Finally, in contrast to the strict compliance rule, the S.E.2d 499, 506 (2010) (“AMEC II”) (holding that owner’s no-prejudice rule makes the parties battle over prejudice, actual knowledge or project meeting minutes were insufficient which “is fact-specific and can be a lengthy and distracting to satisfy a contractor’s duty to submit a “notice of intent to issue.”59 Under this rule, the owner must show that it was file a claim” [“NOI”]); William E.S. Flory Small Bus. Dev. Ctr., prejudiced by the contractor’s failure to comply with its notice Inc. v. Commonwealth, 261 Va. 230, 237-38, 541 S.E.2d 915, 919 requirements.60 Therefore, while the no-prejudice rule creates (2001) (“Flory”); Main v. Dep’t of Highways, 206 Va. 143, 149-50, opportunity for contractors, it puts public owners at a costly 142 S.E.2d 524, 529 (1965); MCI Constructors v. Spotsylvania disadvantage. Cty., 62 Va. Cir. 375, 379-81 (2003); D. R. Hall Constr., Inc. v. Spotsylvania Cty. Bd. of Supervisors, 40 Va. Cir. 260, 269 (1996); Conclusion Gen. Excavation, Inc. v. Fairfax Cty. Bd. of Supervisors, 33 Va. Cir. 120, 121-22 (1993). Notice requirements in Virginia’s construction contracts 3 See, e.g., John P. Ahlers & Lindsay K. Taft, Construction Contract require strict enforcement in light of the underlying law, Draconian Notice Provisions: Is Prejudice Still the Issue? 66 No. 5 business, and public policies. Strict compliance with notice Washington State Bar News 11 (May 2012). requirements allows public owners to make important project 4 See, e.g., 5 Bruner & O’Connor, supra note 2, §15:71; Ahlers & management decisions, contractors to preserve their rights, Taft, supra note 3, at 13-15. and both parties to identify and resolve problems quickly and 5 The statutory requirement to submit a NOI on a Virginia state apart from litigation. Although the no-prejudice rule helps a construction project derives from Va. Code § 2.2-4363 of the contractor avoid the consequences of failing to comply with Virginia Public Procurement Act (“VPPA”), which governs most a notice requirement, it is incompatible with Virginia law and “vertical” construction projects (buildings and similar struc- poses public policy issues and practical concerns for public tures), and Va. Code §§ 33.2-1101 and 33.2-1103, which govern owners. most “horizontal” construction projects (roads and bridges) administered by the Virginia Department of Transportation (“VDOT”). 6 Va. Code § 33.2-1103; see AMEC II, 280 Va. at 406, 699 S.E.2d at 505. 7 AMEC II, 280 Va. at 406-07, 699 S.E.2d at 505. 8 Flory, 261 Va. at 238, 541 S.E.2d at 919. 9 AMEC II, 280 Va. at 408, 699 S.E.2d at 506. 10 Id. at 407-08, 699 S.E.2d at 506 (citation omitted). 11 See, e.g., Faulconer Constr. Co. v. Branch & Assocs. Inc., 85 Va. Rodolfo R. “Rudy” Remigio serves as an assistant attorney general in the Cir. 85, 86, 88 (2012) (barring subcontractor’s claim for failure Construction Litigation Section of the Office of the Attorney General. His to comply with contractual notice provisions, and explaining practice is primarily focused on litigating breach of public construction it is not the court’s duty to rewrite the contract but “to declare contract claims on behalf of Virginia state agencies, including the Virginia Department of Transportation. what the instrument itself says it says”); SBC-Lavalin Am., Inc. www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 35 GOOD LAW, SMART BUSINESS, AND SOUND PUBLIC POLICY
v. Alliant Techsystems, Inc., No. 7:10CV00540, 2011 U.S. Dist. 70 American Economic Review Papers and Proceedings LEXIS 118312, at *14-21 (W.D. Va. Oct. 13, 2011); Modern Cont’l 356, 356-62 (1980), reprinted in part in Henry N. Butler and South v. Fairfax Cty. Water Auth., 70 Va. Cir. 172, 189-90 (2006); Christopher R. Drahozal, Economic Analysis For Lawyers, McDevitt & St. Co. v. Marriott Corp., 713 F. Supp. 906, 922 (E.D. 247, 247-50 (2d ed. 2006) (explaining that to incentivize com- Va. 1989), aff’d on relevant grounds, rev’d in part, 911 F.2d 723 pliance with a contract provision the cost of non-compliance (4th Cir. 1990); Centex Constr. Co., 638 F. Supp. at 413-14; Serv. should outweigh the cost of compliance, and in order to achieve Steel Erectors Co. v. SCE, Inc., 573 F. Supp. 177, 178-81 (W.D. Va. this result in some cases the provision must include an “un- 1983). fair” sanction being imposed in the case of non-compliance). 12 Id.; see also TC MidAtlantic Dev., Inc. v. Commonwealth, 280 Va. Similarly, in strictly enforcing a notice provision of the Virginia 204, 209, 210, 212-13, 695 S.E.2d 543, 546, 547, 548 (2010). Tort Claims Act, the Supreme Court of Virginia recognized, “the 13 See, e.g., Virginia Department of General Services, town’s [actual] knowledge had no effect on whether the claimant General Conditions of the Construction Contract (2015) substantially complied with the statute. We explained that the [hereinafter “DGS General Conditions”] §§ 7(b) [notice of arbitrary and peremptory provisions of the statute are necessary differing site condition], 39 [notice of extra work], 43(a) and to accomplish the purposes of the enactment.” Halberstam v. (b) [notice of excusable non-compensable delay and notice Commonwealth, 251 Va. 248, 252, 467 S.E.2d 783, 785 (1996) of compensable delay], and 47(a) [NOI] (the DGS General (citation omitted). Conditions govern most Virginia state “vertical” construction). 25 Cibinic & Nash, supra note 17, at 471; see, e.g., McDevitt, 713 F. See also Virginia Department of Transportation, 2016 Supp. 906 at 919. Road and Bridge Specifications (2016) [hereinafter “VDOT 26 See MCI Constructors, 62 Va. Cir. at 379-80; Modern Cont’l South, Specifications”] §§ 104.03 [notice of differing site condition], 70 Va. Cir. at 190; 1 Bruner & O’Connor, supra note 2, § 4:35 & 109.05(a)(1) [notice of extra work], 108.04 [notice of excusable nn. 5, 5.50, & 6 and cases cited therein, including Seneca Valley, non-compensable delay], 109.05(e) [notice of compensable Inc. v. Caldwell, 808 N.E.2d 422, 428 (Ohio Ct. App. 2004). delay], and 105.19(a) [NOI] (the VDOT Specifications govern 27 See, e.g., A.H.A. Gen. Constr., 92 N.Y.2d at 33, 699 N.E.2d most Virginia state road and bridge construction). at 376; John D. Yates, Conflict and Disputes in the Hong 14 Huff Enters., Inc. v. Triborough Bridge & Tunnel Auth., 191 A.D.2d Kong Construction Industry: a Transaction Cost Economics 314, 316, 595 N.Y.S.2d 178, 181 (1993) (citations omitted). Perspective, (July 1998) (unpublished M.A. thesis, the University 15 Modern Cont’l South, 70 Va. Cir. at 190. of Hong Kong) at 158, http://hub.hku.hk/handle/10722/33940 16 AMEC I, 54 Va. App. at 255-56, 677 S.E.2d at 641. (last visited Sept. 30, 2016) (explaining that deliberately depriv- 17 See John Cibinic, Jr. & Ralph C. Nash, Jr., Administration ing an owner of information is a form of “opportunism,” and of Government Contracts 471 (3d ed. 1995); Barry B. an informed owner is well positioned to curb a contractor’s Bramble & Michael T. Callahan, Construction Delay opportunism). Furthermore, the courts have recognized the im- Claims § 2.08 (5th ed. 2016). portance of scrutinizing a contractor’s clams in light of their op- 18 VDOT Specifications, supra note 13, § 105.19(a); Yates Constr. portunistic behaviors. See, e.g., Jefferson Hotel Co. v. Brumbaugh, Co. v. Fairfax Cty. Water Auth., No. 96-1946, 1997 U.S. App. 168 F. 867, 875 (4th Cir. 1909). One opportunistic behavior that LEXIS 14862, at *5-6 (4th Cir. June 19, 1997). contractors engage in “almost as a routine custom and practice, 19 1 Bruner & O’Connor, supra note 2, § 4:35; VDOT [is] a game of ‘claim inflation.’ This is when a contractor pads a Specifications, supra note 13, §§ 104.03, 105.19, 108.04, claim for the purpose of giving . . . arbitrators room to ‘split the 109.05(e); MCI Constructors, 62 Va. Cir. at 379, 380; Johnson baby’ without undue impact upon the claimant’s bottom-line Constr. v. Rugby Mun. Airport Auth., 492 N.W.2d 61, 62-64 (N.D. recovery expectations.” 1 Bruner & O’Connor, supra note 2, § 1992). 4:50. 20 VDOT Specifications, supra note 13, §105.19; 1 Bruner & 28 Paige Spratt, Strict Compliance with Construction Contract Notice O’Connor, supra note 2, § 4:35; Johnson Constr., 492 N.W.2d at Provisions: Detrimental to Contractors and Taxpayers, 40 Pub. 63-64. Con. L.J., 911, 922 (Summer 2011). 21 MCI Constructors, 62 Va. Cir. at 380; A.H.A. Gen. Constr. v. New 29 The idea that the strict compliance rule is a tool that owners York City Hous. Auth., 92 N.Y.2d 20, 34, 699 N.E.2d 368, 376 use to obtain work for free is not only hollow as it relates to (1998). Virginia state construction contracts for the reasons discussed 22 AMEC I, 54 Va. App. at 256, 677 S.e.2d 633, 641; A.H.A. Gen. in this article, but it is probably not true in general as “[o]wners Constr., 92 N.Y.2d at 34, 699 N.E.2d at 376. often fail to use notice provisions to their advantage or fail to 23 A.H.A. Gen. Constr., 92 N.Y.2d at 34, 699 N.E.2d at 376; Johnson protect their interests when considering claims.” Bramble & Constr., 492 N.W.2d at 63-64. Furthermore, the courts have not- Callahan, supra note 17, § 2.08. In addition, governments ed that compliance with notice provisions puts a public owner often impose formalities and demand strict compliance in the position to take other steps, including: avoiding waste therewith not to cheat contractors but because they are useful of public funds, re-examining the drawings and the contract in preventing malfeasance and protecting the integrity of the with respect to the claim, selecting less costly alternatives of public procurement process. See, e.g., MCI Constructors, 62 Va. construction, hiring a different contractor to perform the extra Cir. at 379; A.H.A. Gen. Constr., 92 N.Y.2d at 33, 699 N.E.2d at work or eliminating contract work, budgeting to meet possible 376; Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947); 2 liability, and documenting communications in connection to a Bruner & O’Connor, supra note 2, §§ 4:23 n. 1 & 4:43. claim. See id.; McDevitt, 713 F. Supp. 906 at 919-20; 1 Bruner & 30 See, e.g., A. H. Ewing’s Sons, Inc., 201 Va. at 869, 114 S.E.2d at 613. O’Connor, supra note 2, § 4:35 & n. 5. In addition, prime contractors in Virginia are entitled to strict 24 See generally Benjamin Klein, Transaction Cost compliance with the notice provisions or written change order Determinants of “Unfair” Contractual Arrangements, requirements in their subcontracts. See, e.g., Faulconer Constr.
36 VIRGINIA LAWYER | December 2016 | Vol. 65 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION www.vsb.org GOOD LAW, SMART BUSINESS, AND SOUND PUBLIC POLICY
Co., 85 Va. Cir. at 85-88; Centex Constr. Co., 638 F. Supp. at 413; to file a claim based upon the nature of the dispute”) (citation Service Steel Erectors Co., 573 F. Supp. at 178-81; John W. Johnson, omitted). Inc. v. J.A. Jones Constr. Co., 369 F. Supp. 484, 494 (E.D. Va. 1973). 41 See, e.g., contract clauses cited supra note 13. 31 See, e.g., contract clauses cited supra note 13. 42 See, e.g., Brinderson Corp. v. Hampton Rds. Sanitation Dist., 825 32 Main, 206 Va. at 149-50, 152, 142 S.E.2d at 529, 530-31; see, e.g., F.2d 41, 42 (4th Cir. 1987). Pa. Elec. Coil, Ltd. v. City of Danville, No. 4:06CV00080, 2008 U.S. 43 2 Bruner & O’Connor, supra note 2, § 5:109 ¶ 4.3.5. Dist. LEXIS 27630, at *15, *21-22 (W.D. Va. Apr. 4, 2008) (citing 44 Promo-Pro Ltd. v. Lehrer McGovern Bovis, Inc., 306 A.D.2d 221, Main, 206 Va. 143, 142 S.E.2d 524; Kirk Reid Co. v. Fine, 205 Va. 222, 761 N.Y.S.2d 655, 656 (2003); see also Huff Enters., Inc., 191 778, 139 S.E.2d 829 (1965)). A.D.2d at 315, 595 N.Y.S.2d at 180. In addition, a contempo- 33 See Main, 206 Va. at 149-50, 142 S.E.2d at 529; VDOT raneous written notice can help deal with a persistent factor in Specifications, supra note 13, § 105.19. This method incorpo- construction disputes, “witnesses who slant the facts heavily in rates what was once considered to be “basic in all Government favor of their own side.” Smith, supra note 1, § 1.704. contracts that [the contractor] cannot do work which it is not re- 45 See, e.g., Halberstam, 251 Va. at 252, 467 S.E.2d at 785. quired to do by the contract, without registering a protest against 46 AMEC I, 54 Va. App. at 255-56, 677 S.E.2d at 640-41. being required to do it, or securing an order for extra work, and 47 See, e.g., the contract clauses cited supra note 13; 1 Bruner then later make a claim against the Government for additional & O’Connor, supra note 2, § 4:2. Having the risk of an compensation.” J. A. Ross & Co. v. United States, 115 F. Supp. 187, unanticipated event shift from the contractor to the owner 190 (Ct. Cl. 1953). upon receipt of notice makes practical sense given that the 34 2 Bruner & O’Connor, supra note 2, § 7:140 n. 25. Before a con- contractor is, initially, in the best position to deal with a risk of tractor places his bid on a Virginia state construction project, the an unanticipated event as it is the first to know when the event notice requirements and the consequence for failure to comply occurs and it has exclusive control of the task of providing no- are made known as the specifications are available for inspec- tice. See, e.g., 1 Bruner & O’Connor, supra note 2, § 4:36.50. tion prior to the placement of bids. See, e.g., DGS General 48 See Asphalt Rds. & Materials Co. v. Commonwealth, 257 Va. 452, Conditions, supra note 13, § 47. 458, 512 S.E.2d 804, 807 (1999). Furthermore, in general, a 35 Va. Code § 2.2-4363; see also Va. Code § 33.2-1101. contractor is unlikely to include a contingency in its bid, or will 36 VDOT Specifications, supra note 13, § 109.05(a)(1). include one that is as small as possible to secure the work, when 37 2 Bruner & O’Connor, supra note 2, § 5:109 ¶ 4.3.5; see also a contract’s risk allocation incorporates two principles: 1) a risk Smith, supra note 1, § 10.501. is allocated to the party that is best able to manage or control it 38 MCI Constructors, 62 Va. Cir. at 378 (citing Flory, 261 Va. at 238, if it occurs, and 2) exposure to a risk is split between the owner 541 S.E.2d at 919). Although routine construction documents and contractor by clearly defining a point at which the risk is will not suffice to satisfy the NOI requirement, the form of an transferred from one party to another. See David B. Ashley et NOI “does not require the sophistication of a legal pleading. Any al., Guide to Risk Assessment and Allocation for Highway document can suffice if it clearly and timely states the contrac- Construction Management 31-35 (2006). Both of those ele- tor’s intention to later file an administrative claim.”AMEC I, 54 ments exist when an owner agrees to assume the risk of a change Va. App. at 255, 256, 677 S.E.2d at 641. but conditions it on the contractor providing notice. The risk of 39 In Atlantic & D. R. Co. v. Delaware Constr. Co., the Supreme a change is on the contractor initially because he is first to dis- Court of Virginia made a similar point when it explained that cover the issue and he is, thus, in the best position to handle the provisions requiring the contractor and owner to agree to a risk. The provision of notice of the change is the point at which change order before performing extra work are meant “to avoid the risk is transferred from the contractor to the owner. subsequent disagreement, and prevent just such a controversy 49 Michael Harris, The Importance and Value of “Notice” as has arisen in this case.” 98 Va. 503, 512, 37 S.E. 13, 16 (1900); Provisions in Construction Contracts 1, 2 (2016), http://www see also Perry Eng’g Co. v. AT&T Commc’ns, Inc., No. 90-0153-H, .long-intl.com/articles.php (last visited Sept. 30, 2016). 1992 U.S. Dist. LEXIS 12332, at *11 (W.D. Va. July 31, 1992); 50 Id. For example, strict compliance with the notice provisions in 1 Bruner & O’Connor, supra note 2, § 4:37. Furthermore, in VDOT’s contracts may explain why “[for] [fiscal year] 2015, of strictly enforcing notice provisions, courts have recognized the 76 potential claims on construction/maintenance contracts, that an owner’s actual knowledge of work or facts underlying only 7 were filed as actual claims . . . .” Letter from Charles A. a claim are not “tantamount to knowledge” that the contractor Kilpatrick, Commissioner, VDOT, to Hal E. Greer, Director, intends to file a claim or the contractor’s opinion that the work Joint Legislative Audit and Review Commission (June 3, 2016), in question is extra or a directed change. W. Sur. Co. v. Dep’t of in Joint Legislative Audit and Review Commission, Transp., 326 Ga. App. 671, 679, 757 S.E.2d 272, 278-79 (2014). Development and Management of State Contracts in See, e.g., McDevitt, 713 F. Supp. at 919-20; Pa. Elec. Coil, Ltd., No. Virginia, at Appendix G, 125, 126 (2016). 4:06CV00080, 2008 U.S. Dist. LEXIS 27630 at *16-17 (W.D. Va. 51 See, e.g., Modern Cont’l South, 70 Va. Cir. at 192. Apr. 4, 2008); R.J. Crowley, Inc. v. Fairfax Cty. Sch. Bd., 41 Va. Cir. 52 5 Bruner & O’Connor, supra note 2, § 15:71. 55, 56-57 (1996). 53 Halberstam, 251 Va. at 252, 467 S.E.2d at 785; see AMEC II, 280 40 See, e.g., AMEC II, 280 Va. at 408, 699 S.E.2d at 506 (holding that Va. at 407-08, 699 S.E.2d at 506; Jackson v. Fid. & Deposit Co., 269 meeting minutes do not satisfy a written NOI requirement be- Va. 303, 313, 608 S.E.2d 901, 906 (2005); AMEC I, 54 Va. App. at cause such statements are “merely a recorded summary of what 253-55, 677 S.E.2d at 640. was said at meetings”); AMEC I, 54 Va. App. at 257, 677 S.E.2d at 54 Dominick v. Vassar, 367 S.E.2d 487, 489 (1988); see Modern Cont’l 641 (noting a written NOI specifically informs the owner of the South, 70 Va. Cir. at 181, 189-90. contractor’s intent, and explaining “[i]t [is] not enough that the contracting agency could have intuited the contractor’s intent Compliance continued on page 41 www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 37 Changes to Differing Site Conditions Clause in VDOT Construction Contracts Specifications by James Germano © Kcphotos | Dreamstime.com | Dreamstime.com © Kcphotos
Contractors performing work The VDOT Specifications “are standard for all contracts awarded by the Commonwealth on public construction projects in Transportation Board or the Commissioner.”1 Virginia should pay close atten- Therefore, the VDOT Specifications are tion to the 2016 changes to the part of the contract for public construction Differing Site Conditions (DSC) projects, and contractors performing work on public projects must abide by the terms in the clause in the contract specifications VDOT Specifications, including requirements issued by the Virginia Department for DSCs. of Transportation (the VDOT There are generally two types of DSCs, which include: conditions that materially Specifications). While preserving the differ from those described in the contract requirement for notice of DSCs, the documents (a “Type I” DSC); and conditions DSC clause has been modified to add of an unusual nature that materially differ an enforcement mechanism such “from those ordinarily encountered and gen- erally recognized as inherent” in the type of that no adjustment will be made to work required. The general rationale for DSC the contract price to the benefit of clauses is that they act to shift the risk (and the contractor unless that contractor the cost) from the contractor to the owner of encountering a materially differing condition has provided the required written that could potentially change the scope of notice. Thus, contractors will want to work or contract price. DSC clauses promote be vigilant and timely in providing the policy goals of allowing contractors to notice of a DSC claim, or they may bid on projects in a more uniform manner, without having to include speculative markup be precluded from seeking a contract for unforeseeable conditions, and thereby adjustment. increasing the opportunity for competitive
38 VIRGINIA LAWYER | December 2016 | Vol. 65 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION www.vsb.org CHANGES TO DIFFERING SITE CONDITIONS CLAUSE IN VDOT CONSTRUCTION CONTRACTS SPECIFICATIONS pricing for the benefit of the owner. An owner the Government’s drawings” and, as a result, can, in theory, evaluate those bids for a project was consistently behind schedule.5 After the in a more uniform manner and presume government terminated the contractor for that all contractors have included the same default, the contractor claimed that the piping factors in their respective bids. To ensure that issue was a DSC for which it was entitled to the risk remains with owners, however, DSC additional time to complete the work. The clauses typically require contractors to notify parties agreed that the contractor did not sub- the owner when a DSC is encountered so mit a written DSC notice, but the court ex- the parties can evaluate how to proceed and plained that “[federal] case law indicates that whether an equitable adjustment is merited the notice need not be in any particular form with respect to the contract price, contract (despite the FAR requirement of a writing) time, or the scope of work. so long as it is sufficient to generally inform These principles remain true on a VDOT the Government of the facts surrounding the project. Specifically, when a contractor on a claim.”6 The court expounded further, how- VDOT job encounters either a Type I or Type ever, that “[m]ere notice or knowledge that II DSC, the VDOT Specifications require that the contractor encountered a ‘condition’ falls the contractor “promptly notify the [e]ngi- short of the contractual requirement that the neer in writing of the specific differing condi- contractor notify the Government that it con- tions before the site is disturbed further and sidered the condition to constitute a ‘differing before the affected work is performed.” This site condition.’”7 Lastly, the court indicated preliminary requirement was not changed that there was prior “authority that indicates materially in the 2016 version of the VDOT that if the contractual notice requirement Specifications. is deficient, yet the Government hadactual In 2016, however, VDOT modified the knowledge of the differing site condition and DSC clause to add: “No adjustment that suffered no injury or prejudice due to the results in a benefit to the [c]ontractor will be deficiency, the contractor’s failure to comply allowed unless the [c]ontractor has provided with the formal notice requirements does the required written notice.”2 This provision not bar its claim.”8 Under the facts of EMS, applies to both Type I and Type II DSCs and however, the court held that the contractor’s the original language requiring contractors to failure to provide any notice whatsoever to provide written notice remains. This new lan- the government proved fatal to its DSC claim. guage arguably provides a tool to the owner In this regard, federal courts interpreting the to enforce the notice requirement by barring FAR DSC provision have been more flexible a DSC claim should the contractor fail to pro- regarding notice than Virginia courts; the vide the requisite notice. Before this language revised language of the DSC clause in the was added, a contractor was required to give VDOT Specifications continues that trend. notice, but the VDOT Specifications did not As explained above, in federal cases, as address the effect of a failure to provide such long as a contractor was able to demonstrate notice. that the owner received actual notice and that Before 2016, the DSC clause in the the owner was not prejudiced, courts have VDOT Specifications tracked the language of been willing to overlook the written notice the parallel Federal Acquisition Regulation requirement for DSC claims. In this regard, (FAR) section.3 Federal case law interpreting federal courts have taken a practical, sub- the parallel FAR section on DSCs clarified stance-over-form approach to this condition that, depending upon the circumstances, precedent. In Virginia, however, courts have written notice may not always be required, applied these notice requirements more strict- even though the FAR also explicitly requires ly. Now that VDOT has added an enforcement contractors to provide written notice. In mechanism to its written notice requirement Engineered Maintenance Services, Inc. v. United for DSCs, the Supreme Court of Virginia States,4 for example, the contractor was may be called upon to clarify its meaning awarded the construction contract for a fed- and effect as it pertains to whether the failure eral government project to replace steam and to comply strictly with the written notice condensate piping in Alabama. The contractor requirement will bar a contractor’s recovery “encountered piping that was not indicated in on its DSC claim. www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 39 CHANGES TO DIFFERING SITE CONDITIONS CLAUSE IN VDOT CONSTRUCTION CONTRACTS SPECIFICATIONS
By way of example, the Supreme Court language expressly prohibits adjustment of of Virginia, in Commonwealth v. AMEC Civil, a contract to the benefit of the contractor if LLC,9 addressed the issue of written notice that contractor fails to provide the required in the context of Virginia Code § 33.1-386.10 written notice. The negative implication of In AMEC, after performing construction this language is that, even without notice, the work on the Route 58 Clarksville Bypass in contract price or scope of work could still be Mecklenburg County, the contractor sub- reduced for the benefit of the owner. Again, mitted various claims to VDOT. Among the Supreme Court of Virginia may be called those claims were various DSC issues, as well upon to clarify VDOT’s intent in this regard. as delay claims due to soft ground encoun- Regardless, contractors performing con- tered while drilling the shafts that formed struction work on public contracts in Virginia the bridge foundation. On appeal from the will need to pay close attention to the new en- Virginia Court of Appeals, the Supreme Court forcement mechanism in the DSC clause and of Virginia held: ensure that they provide timely written notice Code § 33.1–386(A) is to be strictly of DSCs. The failure to do so may preclude an construed, and is clear and unambiguous, adjustment to the contractor’s benefit. stating that contractors “shall” provide “written notice” to VDOT. We hold that Endnotes: actual notice cannot satisfy the written 1 The commissioner is “[t]he Chief Executive notice requirement in Code § 33.1– Officer of the Virginia Department of Transportation, whose full title is the 386(A), and that written notice is re- Commissioner of Highways or as otherwise quired. See also BBF, Inc. v. Alstom Power, designated by the Code of Virginia.” Inc., 274 Va. 326, 331, 645 S.E.2d 467, 469 2 See VDOT Specifications § 104.03 (2016). (2007) (“In construing a statute, we must 3 48 C.F.R. § 52.236-2. apply its plain meaning, and we are not 4 55 Fed. Cl. 637, 641–42 (2003), aff’d, 89 Fed. free to add [to] language, nor to ignore Appx. 267 (Fed. Cir. 2004). language, contained in statutes.”).11 5 Id. at 640. Thus, even though the Court did not spe- 6 Id. at 641 (citations omitted) (parenthetical in original). cifically address DSC notice issues, it quickly 7 Id. at 641-42 (citations omitted). dispensed with the notion that “actual” (and 8 Id. at 642 (citations omitted) (emphasis in not written) notice was sufficient. Instead, original). the Court required strict compliance with a 9 699 S.E.2d 499 (Va. 2010). public contracts notice provision. The Court’s holding in AMEC may be indicative of how 10 Virginia Code Section § 33.1-386 was changed it will interpret the revised DSC clause in the in 2014 to § 33.2-1101. VDOT Specifications. 11 AMEC, 699 S.E.2d at 408 (emphasis in original). It is noteworthy, however, that the new language added in 2016 to the DSC clause only goes one way. To be clear, the new
James Germano represents owners, contractors, subcontractors, and architects in drafting con- tracts and resolving construction disputes. He has represented numerous architects, contractors, and owners in construction litigation, arbitration, and mediation, as well as numerous other individual and corporate clients in premises and professional liability cases.
40 VIRGINIA LAWYER | December 2016 | Vol. 65 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION www.vsb.org Compliance continued from page 37 For confidential, 55 See 2 Bruner & O’Connor, supra guage.” Cibinic & Nash, supra note note 2, § 5:109. ¶ 4.3.5. 17, at 476. free consultation 56 Modern Cont’l South, 70 Va. Cir. at 58 See Huff Enters., Inc., 191 A.D.2d at 194-95 (citation omitted). 317, 595 N.Y.S.2d at 181; Modern available to all Virginia attorneys 57 Appeal of Powers Regulator Co., Cont’l South, 70 Va. Cir. at 192; see on questions related to: GSBCA No. 4668, 80-2 B.C.A. (CCH) also Halberstam, 251 Va. at 250, 467 ¶ 14,463, (Apr. 30, 1980), available S.E.2d at 784. legal malpractice avoidance, at 1980 WL 2546 (citation omitted). 59 1 Bruner & O’Connor, supra note 2, claims repair, professional liability § 4:35. Furthermore, notice requirements insurance issues, and law office in federal changes clauses “are 60 Id. enforced sporadically . . . [or] when management, call Fairfax County fairness demands. This has created lawyer, John J. Brandt, who acts the anomalous situation in which the under the auspices of the notice requirements currently being Virginia State Bar at imposed on contactors are those found in the decisional law rather than those found in the contract lan- (703) 281-2600 x101
Accountability continued from page 31
7 www.justice.gov/opa/pr/us-investiga- (Sept. 9, 2015) (hereinafter the “Yates 19 U.S. Attorneys’ Manual, supra note tions-services-agrees-forego-least-30- Memorandum”). 7, § 9.28-200. million-settle-false-claims-act-allega- 12 Yates Memorandum, supra note 13. 20 See Federal Sentencing Guidelines tions (Aug. 19, 2015) (last visited Sept. 13 See, e.g., Joseph W. Yockey, Manual § 8C2. 11, 2016). Beyond Yates: From Engagement to 21 Letter Agreement between USDOJ 8 www.justice.gov/opa/pr/jacin- Accountability in Corporate Crime, 12 and Parametric Technology toport-international-llc-and-sea- N.Y.U. J.L. & Bus. 407 (2015-2016). (Shanghai) Software Co. Ltd and board-marine-ltd-agree-set- 14 Qui tam actions are FCA cases filed Parametric Technology (Hong Kong) tle-false-claims-allegations (Aug. 1, by an individual (called “relators”) on Limited (Feb. 16, 2016). 2016) (last visited Sept. 11, 2016). behalf of the government in which 22 https://www.justice.gov/opa/pr/ 9 U.S. Attorneys’ Manual, supra note the DOJ may choose to intervene. vimpelcom-limited-and-unitel-llc 7, §9-28-010; see also id. §4-3.100 Relators are often former employees -enter-global-foreign-bribery (“Government attorneys handling and other “whistleblowers,” though it -resolution-more-795-million (Feb. corporate investigations should can be any individual with knowledge 18, 2016) (last visited Sept. 11, 2016). maintain a focus on potentially liable of a violation of the act. Relators are 23 Letter Agreement between USDOJ individuals and maximize the ac- awarded a portion of any settlement and BK Medical ApS (June 21, 2016). countability of individuals responsible or judgment against the defendant. 24 United States of America v. Latam for wrongdoing….”). See 31 U.S.C. § 3730 (2000). Airlines Group, S.A., No. 0:16-cr-60195- 10 Deputy Attorney General Sally Q. 15 Acting Associate Attorney General DTKH (S.D. Fla. July 25, 2016) (Document Yates Delivers Remarks at the New Bill Baer, Remarks on Individual No. 2, Deferred Prosecution Agreement). York City Bar Association White Accountability at American Bar 25 See, e.g., id. Collar Crime Conference (May Association’s 11th National Institute 26 See U.S. Attorneys’ Manual, supra 10, 2016) (“I have to tell you how on Civil False Claims Act and Qui note 7, §§ 9-28.700 – 9-28.1000. disconcerting it is to hear something Tam Enforcement (Washington, D.C.) 27 Id. § 9-28.700. described as the ‘Yates Memo.’ I call it (June 9, 2016). This number does not 28 https://www.justice.gov/opa/speech the Individual Accountability Policy, include matters that agencies referred /deputy-attorney-general-sally-q-yates but I may have long since lost that to the DOJ. -delivers-remarks-new-york-city-bar battle.”). 16 Id. -association (May 10, 2016) (last 11 Memorandum from Deputy 17 http://www.bna.com/doj-increasingly visited Sept. 11, 2016). Attorney General Sally Q. Yates, US -demanding-n57982072932/ (last 29 Id. Department of Justice, to Assistant visited Sept. 9, 2016). Attorney General and US Attorneys 18 Baer, supra note 17.
www.vsb.org CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 65 | December 2016 | VIRGINIA LAWYER 41 Access to Legal Services Pro Bono Conference Features Powell Award, New Frankie Muse Freeman Award
This year’s Virginia State Bar Lewis F. (above) The guest of honor at the dinner was Frankie Muse Freeman Powell, Jr. Pro Bono Conference and (second from left). She was Ceremony featured not only the winner joined by (from left to right) her of the Powell award, but the inaugura- daughter Shelbe Freeman Bullock, tion of the new Frankie Muse Freeman and family members Andrea Organizational Pro Bono Award. Muse, Cynthia Watkins, and Fred Freeman, whose 100th birthday was Watkins. in November, attended the October 26 (right) VSB President-elect Doris event to receive the first annual award, Causey of the Central Virginia which honors her contributions to Legal Aid Society posed for a the legal profession. She thanked the picture with Ms. Freeman and approximately 200 lawyers from across her daughter. the state who attended. “I have tried for Photos by Deirdre Norman more than sixty years to do what this or- ganization has been doing so well,” she said. “You should be honored for all you Board of education, and in 1952 she assist Blue Ridge Legal Services and have are trying to do and I thank you, thank was lead counsel on an NAACP case, contributed more than 3,200 hours in you, thank you.” Davis v. St. Louis Housing Authority, more than 560 cases to date. The firm Freeman was born in Danville in that ended legal racial discrimination in has provided more than $820,000 in pro 1916 and graduated from Hampton public housing there. She later won the bono value over twenty-five years. University before receiving her law Supreme Court appeal of that case. Also given special recognition at the degree from Howard University in 1947. The Lewis F. Powell, Jr. Pro Bono ceremony for his long service to the le- She served as co-counsel on a successful Award went to Hoover Penrod PLC of gal aid community was Jack Harris, who NAACP law suit against the St. Louis Harrisonburg. The lawyers at the firm recently retired as executive director of
42 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Access to Legal Services
(above left) The directors of many of the Legal Aid organizations in Virginia, including David Neumeyer of the Virginia Legal Aid Society (at the podium), presented Jack Harris (left) with a resolution recognizing his long service to the Legal Service Corporation of Virginia and the Virginia Poverty Law Center. Harris recently retired as the director of the Virginia Trial Lawyers Association.
(above right) The guest speaker at the dinner, Jeffrey Robinson, deputy legal director and director of the Center for Justice at the American Civil Liberties Union, gave a multi-media presentation that used quotes from Bob Dylan and Yogi Berra to illustrate the value of pro bono service.
(left) David A. Penrod, of Hoover Penrod PLC in Harrisonburg, accepted the Lewis F. Powell, Jr., Pro Bono Award from VSB Director of Access to Legal Services Karl Doss and Tara L. Casey, co-vice chair of the Access to Legal Services Committee. the Virginia Trial Lawyers Association. have no clue who it is you’re helping. Harris was among the founders of the You have no idea who that person will Photos by Deirdre Norman Legal Services Corporation of Virginia turn out to be.” He ended his presenta- in 1979 and the Virginia Poverty Law tion by reminding the lawyers that, “We Center in 1980 and served on their are the heroes we’ve been waiting for.” boards throughout his career. The guest speaker at the event was Jeffrey Robinson, deputy legal director and director of the Center for Justice at the ACLU. He lauded the assembled legal aid lawyers for the work they do on behalf of the poor and unrepresented. Robinson began his remarks by praising the room full of legal aid lawyers for taking on clients despite not knowing what they are getting into. “You
www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 43 Access to Legal Services Putting a Life Back Together by D. Bradley Kent
Rarely do we summer interns make a for his termination. Because he couldn’t said, “you fought for him, you tell him.” lasting impact with clients. The life of a afford an attorney, he took his case to The conversation that came next will lawsuit is long, spanning months if not the legal aid office. stay with me until my last breath. After years. The short three-month stint with Luckily, the attorneys at my firm hearing the commission’s decision, the a law firm allows an intern to see bits gave their time, attention, and energy man broke down into tears. Through and pieces of a case. It allows the intern to assisting the legal aid office. Quickly, his tears he explained that he had been to draft a motion, answer discovery, or my supervising attorney filled me in living in a homeless shelter and that this possibly argue a substantive issue. But on the man’s case. Researching the money would allow him to get a place this essay is about the rare opportunity applicable law, I became convinced for himself again. This money would for an intern to see a case through and the Employment Commission made a allow him to put his life back together. to change a man’s life for the better. This mistake in denying the man’s claim for As I type this, I can still hear the essay also is about why it is so important benefits. My first appeal to the commis- man’s voice. As our desks pile up with for lawyers to never stop fighting for sion was a telephone interview involving files and our phones buzz seemingly their clients. me, the employer, and an examiner from every minute with a new e-mail, a new In the Spring of 2014, a man lost the commission. Several days later, I demand for our time and attention, it his mother. She lived in another part of received the first loss of my legal career. can be easy to forget that what we do the country so naturally the man went The commission again sided with the can change lives. What we do can take to mourn with the rest of his family and employer. The man would not receive a man living in a homeless shelter and bury the woman who had given him life. unemployment benefits. give him a new lease on life. What we do After he arrived, he found out that his I continued to believe that the can provide closure to a person whose mother had died without enough mon- man’s case had merit, that the com- darkest days are now behind him. ey for a proper burial. Neither he nor mission was incorrect in its decision. I This essay is also a call to give some any other member of his family was well re-doubled my effort, pouring over the of your time to those less fortunate. to do, but he had enough money in his case law, combing through the regula- Find an area of the law for which you name to pay for an adequate memorial tions and decisions handed down by have a passion and find a cause for service and headstone. Unfortunately, the commission looking for holes in which you can make a difference. For paying for the funeral wiped him out. its decision. Armed with my research, me, it was employment law. Your work, Lacking enough money to return home, I informed the man that I still believed your clients’ knowledge that they have he was forced to stay in his mother’s city. in his case. Days later I stood before someone on their side fighting for them, He frantically called his employer back the appeals commissioner. After what and the reaction when you become home and explained the situation. He seemed like an hour of thrusting and victorious on their behalf will have an was told not to worry; he would have a parrying difficult questions, explaining impact on you that will last a lifetime. job when he returned. He also explained and distinguishing the man’s case from to the employer that he would be willing the thousands of cases that had come to transfer to a company location closer before, the man’s fate was once again in to his new city. His fear temporarily the hands of the commission. alleviated, he began looking for ways to A month later, long after my intern- assemble enough money to return home ship with the firm had ended, I received and return to work. Family members a call from my supervising attorney. The offered what they could. His church commission had reversed its decision; community collected donations. the man would begin receiving unem- When he finally saved enough ployment benefits. More importantly, D. Bradley Kent is a trial attorney with the law money to return home, he was told he the man would receive benefits dating firm of Marks & Harrison where he practices no longer had a job. What was worse, back to when his employer fired him. in the area of Plaintiff’s Personal Injury. his employer was denying him unem- “Excellent,” I told my supervising attor- ployment benefits. The employer cited ney, “let me know what the man says his failure to come to work as grounds when you tell him.” “No,” my supervisor
44 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Thirteenth Annual Indigent Criminal Defense Advanced Skills for the Experienced Practitioner
Save The Date: Wednesday, May 3, 2017
A Day-Long Advanced Trial Skills CLE
Registration information and details will be available in early January at www.vsb.org/site/events.
Fee Dispute Resolution Program
Now that your work is done, do you find yourself in a dispute with your client over fees and costs? The Virginia State Bar offers another way to settle those disputes, without resorting to costly litigation.
The Special Committee on the Resolution of Fee Disputes oversees the Fee Dispute Resolution Program to provide an avenue, other than litigation, for the expeditious and satisfactory resolution of fee disputes between attorneys and their clients through mediation and uniform arbitration proceedings and works to foster trust and communication among attorneys and clients. For information on the program, go to our website at www.vsb.org/site/about/resolution-of-fee-disputes.
www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 45 Noteworthy > VSB NEWS Highlights of the Virginia State Bar Council Meeting
At its meeting on October 7, 2016, in proposed amendments will be presented Amendments to Part 6, Section IV, Roanoke, the Virginia State Bar Council to the Supreme Court of Virginia for its Paragraph 13.1 heard the following significant reports consideration. The council unanimously approved and took the following actions: amendments to Paragraph 13.1 regard- Revision to Section 54.1-3935 ing suspension for failure to complete Mandatory Reporting of Pro Bono The council unanimously approved the Professionalism Course. The amend- By a vote of 25-29, the council rejected a a revision to Section 54.1-3935 of the ments authorize the VSB executive proposal to endorse the Access to Justice Code of Virginia, which provides the director to grant, for good cause, an Commission proposal to adopt manda- procedure for an attorney or the VSB to extension request from a member who tory pro bono reporting in Virginia. demand that an attorney disciplinary fails to complete the Professionalism matter proceed before a three-judge Course by the deadline. The proposed Amendments to Paragraph 13-24 circuit court in lieu of a district com- amendments will be presented to the The council unanimously approved mittee or the disciplinary board of the Supreme Court of Virginia for its con- proposed amendments to Part 6 § IV, VSB. The revision was prompted by sideration. ¶ 13-24 regarding reciprocal discipline. concerns that the statute’s provisions The amendments would clarify what are antiquated, predate the current Legal Ethics Opinion 1886 qualifies as another jurisdiction for Rules of Court that govern disciplinary The council unanimously approved reciprocal discipline purposes; clarify proceedings, and do not reflect the proposed LEO 1886, which concerns the the disciplinary board’s authority to actual practice of the courts or the duty of partners and supervisory law- impose the same, equivalent, or lesser VSB in attorney disciplinary matters. yers in a law firm when another lawyer discipline as another jurisdiction; allow The proposal is subject to approval by in the firm suffers from significant -im for leniency as appropriate; and provide the Supreme Court of Virginia before pairment. The proposal will be present- the disciplinary board with discretion forwarding to the Virginia legislature for ed to the Supreme Court of Virginia for in enforcing the default provision. The consideration. its consideration.
IP Section Student Writing Competition Awards
The VSB Intellectual Property Section were presented at the section’s 28th an- presented its 2016 Law Student Writing nual fall CLE meeting in Williamsburg. Competition award to Mary Catherine Each year, the IP Section runs Amerine, a third-year student at the the Law School Student Writing College of William & Mary Law School. Competition for students at law Amerine’s paper was titled “Wrestling schools in Virginia or Virginia residents Over Republication Rights: Who Owns attending law schools outside of the the Copyright of Interviews?” The state. The winning papers are chosen Amerine Parker section also presented a second place by former section chair Judge Richard award to Kalina Parker, a 2016 gradu- Linn of the US Court of Appeals for the ate of the College of William & Mary Federal Circuit. The winner receives a Law School. Parker’s paper was titled $5,000 cash award and the runner-up “Diluting Designers: An Analysis of receives a $2,500 cash award. Details Whether Designer-Department Store about the competition and copies of Partnerships Constitute Self-Dilution the winning papers are available at the and Whether Such Behavior Should section’s website. Have Legal Consequences.” The awards
46 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org PEOPLE < Noteworthy In Memoriam
Douglas C. Arthur The Honorable Judith Donovan Gregory David Morin Strasburg Washington, DC Boston, Massachusetts July 1942 – August 2016 October 1940 – September 2016 April 1983 – March 2016
Robert Thomas Barker G. Warthen Downs Patricia Ann Lacey Nunley Memphis, Tennessee Glen Allen Richmond February 1966 – July 2016 December 1933 – September 2016 June 1955 – June 2016
Edward Bell Jr. James Meegan Erikson Henry G. Pannell Ft. Myers, Florida Williamsburg Atlanta, Georgia August 1939 – July 2016 June 1943 – June 2016 July 1937 – September 2016
Robert W. Bendall James Anthony Falletta The Honorable Charles A. Perkinson Manassas North Tonawanda, New York Lawrenceville April 1947 – April 2016 August 1951 – February 2016 December 1938 – August 2016
John Ernest Betts Jerald Saul Feingold Benton H. Pollok Springfield Fairfax Urbana December 1946 – September 2016 July 1952 – July 2016 September 1927 – May 2016
Stephen Winston Bricker Alan G. Fleischer Leonard Sargeant III Richmond Richmond Williamsburg April 1947 – October 2016 May 1917 – August 2016 March 1931 – September 2016
William Lundy Brown Jeffrey Alan Fleischhauer Peter Nash Swisher Alexandria Roanoke Crozier March 1922 – April 2016 July 1954 – September 2016 January 1944 – June 2016
Kelly Ann Chang Anthony J. Gambardella Kenneth Dale Tremain Chesapeake Richmond South Salem, New York April 1987 – September 2016 October 1946 – October 2016 December 1934 – August 2016
R. C. Coleburn B. F. Jennings Charles Edward Wehland Clifton Fairfax Raleigh, North Carolina March 1923 – April 2016 August 1925 – September 2016 March 1930 – July 2016
George Burton Cooley Jr. Robert Wayne Lawrence Frederick Lee Welther Hillsville Newport News Falls Church May 1953 – August 2016 March 1948 – August 2016 July 1938 – February 2016
James Nichol Deinlein Ralph G. Louk Daniel Paul Westman Charlottesville Fairfax McLean June 1945 – August 2016 August 1925 – June 2016 June 1956 – May 2016
Ralph M. Dillow Jr. Barbara Grant Mason Roger Louis Williams Bristol Emporia Richmond August 1929 – October 2016 April 1953 – October 2016 December 1952 – October 2016
Cornelius H. Doherty Jr. James Bryan Miller Woodbridge Arlington August 1935 – January 2016 August 1932 – September 2016 www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 47 Conference of Local Bar Associations Local and Specialty Bar Elections Solo & Small-Firm Practitioner Forum Virginia Association of Defense Attorneys The Solo & Small-Firm Practitioner Forum focuses on issues that confront attorneys Brian Nelson Casey, President who practice alone or in small firms. Law office management and ethics are among Donald Cameron Beck Jr., several topics covered at these CLEs. President-elect These CLEs are free, include lunch, and are available on a first-come, first-served Melissa Hogue Katz, Secretary basis. See registration information and agenda on the CLBA website at John Becker Mumford Jr., Treasurer www.vsb.org/site/conferences/clba-calendar.
April 7, 2017 Call for Solo & Small-Firm Practitioner Forum Nominations Holiday Inn Downtown, Lynchburg
VSB Conference of Local Bar Associations nominations are due April 28, 2017. Awards will be presented at the CLBA Annual Meeting and Breakfast in June at Virginia Beach. Bar Leaders Institute Award of Merit Competition recog- nizes outstanding projects and programs Lewis Ginter Botanical Garden, Richmond of Virginia bar associations. Bar Association of the Year Award March 10, 2017 recognizes a member bar association that has best fulfilled the attributes member For more information, please visit: associations strive to attain. www.vsb.org/site/conferences/clba-calendar. Local Bar Leader of the Year Award recognizes past and presently active lead- or contact Paulette Davidson at [email protected]. ers in their local bar associations who have continued to offer important ser- vice to the bench, bar and public. Specialty Bar Leader of the Year rec- ognizes past and presently active leaders in their specialty bar associations who have continued to offer important ser- vice to the bench, bar and public.
For more information, please visit the website at http://www.vsb.org/site/con- ferences/clba/clba-awards.
48 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org TheThe Virginia Virginia State State Bar Bar TECHSHOWTECHSHOW AprilApril 25, 2016 24, 2017 | Richmond | 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 8:30Agenda Welcome—VSB TECHSHOW Chair Sharon 8:00–8:30Nelson, Registration/Continental VSB President Ed Weiner and breakfast Justice of the 8:30Supreme Welcome—VSB Court of Virginia TECHSHOW Cleo E. Powell Chair Sharon 8:45–9:45Nelson, First VSB Sessions President Michael Robinson 5 Ethics:and JusticeWhat Does of theBeing Supreme Competent Court Mean of in Virginiathe Digital Era?Cleo (Sharon E. Powell Nelson-President, Sensei Enterprises, 12:05–12:45 Lunch 8:45–9:45Fairfax, VA/ReidFirst Sessions Trautz—American Immigration Lawyers 12:45–1:4512:05–12:45 Fourth Lunch Sessions • Ethics:Assn, Practical Washington, Budget-Friendly DC) Cybersecurity at 12:45–1:455 Using Tech Fourth to Do SessionsMore Legal Work in Less Time (Reid 5 Warp Technology Speed (Sharonfor Trial Lawyers Nelson (Tom — President, Mighell—Contoural, Sensei • AvoidingTrautz/Natalie Ethical Kelly—Director Missteps in the of Digital Law Practice Era (Reid Mgmt at Inc., Dallas, TX/Brett Burney—Burney Consultants, State Bar of Georgia) Enterprises, Fairfax, VA/John Simek-Vice President, Trautz — American Immigration Lawyers Assn, Chagrin Falls, OH) 5 How to Store Your Law Firm Data in the Cloud Ethically Sensei Enterprises, Fairfax, VA) Washington, DC/Nerino Petro) 9:55–10:55 Second Sessions • A Lawyers(Brett Burney/Jim Guide to Calloway—Director Case Management of MgmtSystems Asst • 5Taking Microsoft Your 365,Law Matter Firm Paperless: Center and A Windows Step by 10:Step Guide Program at Oklahoma Bar Assn, Oklahoma City, OK) (Natalie Kelly — Director of Law Practice Mgmt at (CatherineThe Three Sanders Hottest MicrosoftReach — TopicsDirector for ofLawyers Law Practice (Ben 1:55–2:55 Fifth Sessions MgmtSchorr-CEO, and Technology, Roland, Schorr Chicago and Tower,Bar Association, Flagsta, AZ) 5State The Bar Microsoft of Georgia, Word Atlanta,Power Hour GA/Debbie for Lawyers Foster) (Ben 5Chicago, The Ethical IL) Sand Traps of E-Discovery (Tom Mighell/ 1:55–2:55Schorr/Debbie Fifth Sessions Foster) 9:55–10:55Brett Burney) Second Sessions • 5Encryption How Law Firmsis Simple, are Successfully Easy and Cheap Reinventing — and Themselves May Be 11:05–12:05• Building a ThirdVirtual Sessions Law Practice, Including a Client EthicallyThrough Required Technology (John (Jim Simek/Dave Calloway) Ries) 5 Portal What (Jim Are Callowaythe “Reasonable” — Director Cybersecurity of Mgmt Steps Asst You Must 3:05–4:05•Everything Sixth Lawyers Sessions Need to Know About Backing Up Take to Ethically Protect Your Confidential Data (Sharon 5 The Ethical Perils of Marketing Online (Natalie Kelly/Reid Program at Oklahoma Bar Assn, Oklahoma City, — In or Out of the Cloud (Catherine Sanders Reach/ Nelson/John Simek—Vice President, Sensei Enterprises, Trautz) OK/Nerino Petro-Chief Information Officer, Jim Calloway) Fairfax, VA) 3:05–4:055 Budget-friendly Sixth Sessions Technology for Solo/Small Firm Lawyers 5HolmstromKennedy Essential PDF skills for PC, Lawyers Rockford, (Britt IL) Lorish-Anity (John Simek/Britt Lorish) • Macs in Law: The Year Behind and the Year Ahead • Time/Billing/Accounting Consulting Group, Roanoke, Software: VA/Debbie Everything Foster-Anity Lawyers 4:15–5:15 Plenary—60 Tech Tips in 60 Minutes NeedConsulting to Know Group, (Britt Tampa, Lorish FL) — Affinity Consulting (Sharon(Tom Mighell) Nelson/Debbie Foster/Jim Calloway/Tom Mighell) Group, Roanoke, VA) • Controlling Your Inbox: It CAN be Done (Reid Trautz/ Register11:05–12:05 now!Third Sessions Natalie Kelly) CLE hours Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to • Essential Law Office Tech — On a Budget (Britt 4:15–5:15 Plenary—ALL NEW: 60 Tech Tips(pending) in 60 Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026 Lorish/Debbie Foster — Affinity Consulting Group, Minutes (Sharon Nelson/Debbie Foster/Jim Calloway/Tom NameTampa, FL) • Digital Transactions: E-Signatures, E-Contracts and Mighell) AddressAuthentication (Tom Mighell-Contoural, Inc., Dallas, TX/Dave Ries — Clark Hill PLC, Pittsburgh, PA) 7 CLE hours (pending) City State Zip Code Register online now! PhoneSpace is limited and first come/first served. Online registration is available athttps://vsbevent .virginiainteractive.org/Home/Search. The $100 registration fee will include free Wi-Fi, continental E-mail address* breakfast, lunch, and coffee breaks, as well as CLE credit. *Confirmations and materials will be sent via e-mail. Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made. Virginia Law Foundation A Momentous Year Brings VLF into the Light by Irving M. Blank
It has been my great honor to serve you can help share in what we do by members Jim Cox and Jeanne Dahnk, as president of the Virginia Law investing in us and with us, please go to VACLE has emerged from a very trou- Foundation during this past year. 2016 our totally redesigned website at www. bled few years to again claim its place as was momentous for the VLF. In fact, I virginialawfoundation.org. one of the nation’s top CLE programs. can say without reservation that 2016 After many years of what I describe The esprit de corps of VACLE instilled was the most significant year since 1974, as passive leadership, the foundation by David and Ray has spilled over to when the foundation was created to found itself being led by Frank Thomas the foundation and the results will, no be the philanthropic arm of Virginia’s who recognized that we had to signifi- doubt, allow us to look at increasing our legal community. Since its creation, the cantly change our governance if we were funding for some of our most important foundation has adhered to its mission to remain relevant to our mission. programs, such as access to justice and statement in: Frank was followed by Judge Lawyers Helping Lawyers. I am certain · Ensuring that no Virginian is de- Manuel Capsalis who had been presi- that the consolidation of the VLF and prived of meaningful access to justice; dent of the Virginia State Bar. Manny VACLE will result in the VLF becoming · Raising awareness regarding the im- was followed by Jim Meath, who was an industry-leading bar foundation. portance of the rule of law and how it is followed by John Epps, both former The consolidation has already the cornerstone to the American judicial presidents of the VBA. These three lead- produced a new website with a state-of- system; and ers brought their history of leadership, the-art online presence. Try it out! · Providing the best and most rel- creativity, and problem solving to the We are using a story-telling evant legal education throughout the VLF. The results cannot be overstated. approach to our work. This should commonwealth. First, the administrative function surprise no one who knows me, but the My sense is that most of our lawyers of the VLF was overhauled. Ray White, format includes testimony from grant do not know what the VLF is or what it the executive director of VACLE agreed recipients, fellows, donors, board mem- does. In fact, our former Chief Justice, to take the same position with the bers, and VACLE faculty, all to promote Cynthia Kinser, labeled us “the best kept VLF. We closed the office in Richmond VLF and VACLE. secret of Virginia’s legal community” and moved to the CLE building in We gave our executive director the when she honored our 40th anniversary. Charlottesville. We acquired staff from ability to make spot grants, a significant I welcome this opportunity to ex- VACLE, all of whom proved to be change that is already having an impact. plain what occurred in 2016 and before dedicated and creative. We were able to When the Virginia State Bar to position the VLF to become a much reduce the administrative costs to less dropped its sponsorship of the Midyear larger contributor to the three objec- than what was being raised. We focused Legal Seminar, after forty-two years, tives of our mission statement. First, a on our fellows program under the lead- VACLE took over this very import- little history and lot of credit needs to ership of George Shanks, improved the ant and successful program. Its first articulated. The VLF has a little over selection process, and began to look at International Travel CLE will be in $12 million in its “endowment.” Most more involvement by our fellows in the London, where the lawyers of London of this money came from a bygone VLF. George has passed his chairman- have opened legal London to Virginia’s era of mandatory IOLTA accounts for ship to Judge Capsalis who has already lawyers. Virginia’s attorneys and meaningful in- begun to remake the fellows program. We are bringing experience CLEs terest rates. Today, most of our “income” Under the guidance and leadership to Mt. Vernon, the Virginia Holocaust is from return on investments. We have of Vice-President Steve Busch, we have Museum, and baseball and basketball raised money in the past from special spent over a year renovating our by-laws games, while engaging in new areas of programs and contributions, most of and methods of governance. fundraising through golf tournaments, which came from our distinguished and In April, 2016, we consolidated the concerts, and other creative events. All community-minded fellows. A total of VLF and VCLE, both the financial and of which have been new, successful, and more than $24 million has been paid workforces. This was clearly the most enjoyable. in grants since the creation of the VLF. momentous achievement since the We are solidifying our long-held For more information about who we formation of the foundation. Under Ray relationships with LINC, the Hill-Tucker support, our fellows who are so instru- White’s leadership, guided by Chairman mental in supporting them, and how David Bobzien and longtime board VLF continued on page 53
50 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Law Libraries Preparing for the Battlefield and Avoiding the War: Recently Released Construction Litigation Resources by Marie Summerlin Hamm
As one court observed, “except in the Model Jury Instructions: Construction includes a plethora of practical tips. middle of a battlefield, nowhere must men Litigation, 2d ed. In addition to addressing interrogato- coordinate the movement of other men With its clear presentation of elements ries, depositions, and classic means of and all materials in the midst of such and definitions, this insightfully edited document discovery, an overview of chaos and with such limited certainty of and well-organized edition is a superb electronic discovery is offered, along present facts and future occurrences as in secondary resource that would be a with suggestions for creating an effective a huge construction project …”1 It is little helpful addition to any construction law e-discovery plan. Recognizing that wonder that in navigating the minefield practitioner’s bookshelf. This reorga- construction projects increasingly span of legal issues that litter the landscape of nized and expanded compilation begins international borders, international dis- the construction project conflicts arise, with a series of instructions covering covery is explored. The book concludes negotiations fail, and both sides prepare fundamental elements of contract for- with a chapter dedicated to discovery in for battle. Although Sun Tsu’s Art of mation, but tailored, as appropriate, to arbitration proceedings. War undoubtedly has some applica- construction contract disputes. Because bility, a few titles recently published by of its relevance to recovery where the Green Building and the Construction the ABA Forum on Construction Law requirements for contract formation Lawyer: A Practical Guide to should also find a place in your war have not been met, instructions address- Transactional and Litigation Issues room arsenal. ing the doctrine of promissory estoppel The movement towards use of sus- are incorporated. Beyond the basics, tainable building methods and ma- Building the Construction Case: A included instructions cover contractor’s terials continues to gain momentum. Blueprint for Litigators obligations before bidding, bidding, What was once considered fad is now This a practice-oriented guide is de- implied contract terms, changes and a foundational consideration as states signed to aid the construction litigator extra work, delay and disruption, breach and municipalities alike adopt green from the initial client meeting to case of contract, breach of warranty, termi- building and energy conservation stan- conclusion. The pragmatic approach nation, defenses, damages, and payment. dards and LEED becomes law. Though offered by authors George Burns and Virginia practitioners, of course, need to many industry watchers predicted an Michael Bosse reflects their decades as be mindful of jurisdictional distinctions onslaught of litigation, few cases have practitioners. Readers benefit from the and should consider perusing Kristan B. been filed, with only a handful gener- type of insight that generally comes only Burch’s recent article on the topic.2 ating some sort of appellate decision. with experience and expensive mistakes. Written by preeminent experts, the book Case examples illustrate the “general Discovery Deskbook for Construction explores a limited but instructive body principles typically encountered at the Disputes, 2d ed. of case law and offers invaluable guid- crossroads of substantive construction Completely revised and updated, the ance to the lawyer tasked with advising law and litigation.” Topics covered second edition of Discovery Deskbook clients about the pitfalls and possibilities include: understanding clients, inter- for Construction Disputes addresses inherit in green building projects. The preting contracts, litigation concepts every aspect of the discovery process. book is divided into five parts. Part including prosecuting and defending Acknowledging that the typical con- I begins with a broad description of damage claims, discovery and document struction dispute is seldom tried to ver- green building practices and concludes management, handling expert witnesses, dict, the editors emphasize the critical with a case law survey co-authored by as well as settlement, arbitration, and role discovery plays not only in prevail- noted Virginia practitioner Christopher appeals. In essence, the authors em- ing in litigation, but also in negotiating G. Hill. Part II focuses on contractual phasize practice and methodology over settlements. Authored by an impressive issues, with an emphasis on the im- scholarship and theory and the result is collection of noted practitioners, the portance of managing expectations, a handy guide applicable to projects of title covers the discovery process from all scales. its inception, including pretrial, and Resources continued on page 53 www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 51 Technology and the Practice of Law The Augmented and Virtual Practice of Law by Hyatt B. Shirkey
“[M]odern cell phones...are now such a We can map areas of a scene our- sive equipment is now being shared by pervasive and insistent part of daily life selves to use later with our clients and children with smartphones. that the proverbial visitor from Mars experts. If you have a scene that is differ- The cost of the phones with the op- might conclude they were an important ent because objects were taken away, for erating systems can reach nearly $1,000, feature of human anatomy.”1 For so example, you can put those objects back and the viewers are also a few hundred many, technology is a major part of our with an AR/VR app. Some apps can dollars. However, you may find the value lives. Now, and for many years to come, even scan an object, find it for sale, and of owning all the options is worth the our reality may become infused with use the retailer’s own measurements to cost. The ability to see what we know technology in a much greater way. display its size.4 can lead to better settlement choices, Not many people are familiar with Another app will allow you to place easier client interactions, and more the abbreviation AR, which means markers around you over a large area.5 passionate arguments. augmented reality. It is akin to the more You can then walk around and view well-known VR, which means virtual those markers through your phone. Endnotes: reality. AR/VR technology allows you to You can interact with locations and see 1 Riley v. California (2014) 573 U.S. ––––, 134 S.Ct. 2473 2484, 189 L.Ed.2d 430 interact with people, places, and things how they relate to each other. You can (2014). that aren’t actually present. AR/VR apps2 also have your client or others interact 2 I will provide examples of apps, but I technology will be a valuable tool in the with your space to see relationships that do not endorse or certify any aspect of practice of law. would have otherwise been lost. the app. Imagine your crash reconstruc- The practice of law can benefit 3 Google’s “Tango” (formerly “Project Tango”) is specifically designed to allow from AR/VR without us using it. Clients tion expert being able to see the exact interaction with virtual objects. measurements in an accident scene. He can use an app to map an object to 4 SnapShot Showroom (free) or she can then walk around where the compare it to another mapped object. 5 Augmented Car Finder on iOS (free), accident happened. After the expert de- People can map an accident scene from Car Finder AR on Android ($2.75). termines what happened, he or she can their phones while waiting for the program the vehicles to follow certain police to arrive. Measurements, loca- determinations and live it where it hap- tions, and other details would be nearly pened. There are many ways we can use perfect. Once we have a shared object or AR/VR in our practices. A key feature location, we can repeatedly go back and is called mapping, which simply means relive it as we prepare. recording every angle of an object or With AR/VR technology, all we space, and, frequently, various data would have to do is load the object, put points such as height, width, and depth.3 on an AR/VR headset, and we could When we review physical evidence walk around it, pick it up, and see it of an opposing party, we are limited in in comparison to other objects. Other the amount of information we can col- potentially useful AR/VR apps provide lect. With AR/VR technology, not only crime data for the area around you, keep can we map a perfectly sized model, but you or your children entertained during we can then virtually use it when we get downtime, and even help you stay on the road while traveling from court- Hyatt B. Shirkey is a member of the Virginia back to the office. For example, the O. J. State Bar’s Special Committee on Technology Simpson trial may have gone differently house to courthouse. and the Practice of Law. His Roanoke-area AR/VR may have been designed practice includes criminal defense, elder law if the prosecutor could have mapped the litigation, custody, and work as a guardian glove, and then virtually put the glove primarily for entertainment, but it is ad litem. He has taught courses on Microsoft on Simpson before asking him to put it now much more. Information that Applications and undergraduate courses on law. He has also been published in the area of on for the jury. formerly required an expert with expen- law and psychology.
52 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org VLF continued from page 50 Institute, CAIR, Tahirih Justice Center, Lastly, I think we have continued and, of course LHL and various access the efforts of my predecessors in forg- to justice programs. ing better cooperation and relations All of this has been largely due between the VSB and the VBA. to the increased financial stability of It has been a privilege and an hon- VACLE and reduced costs to the VLF. or to serve as president. When asked by As stated, it is my belief that 2016 Frank Thomas to do this, I first refused Irving M. Blank is a partner at ParisBlank will be remembered as a most signif- for fear of not knowing enough to LLP and a former president of the Virginia icant year for the VLF, but also as a lead the VLF. Now that I know I was State Bar. springboard for both VLF and VACLE. right, I also know that when you have The future leadership is in place at the Capsalis, Meath, and Epps leading the VLF with Pia Trigiani, Steve Busch, way and Ray White making certain you and Andy Morse set to enjoy and en- keep the train on the tracks, ignorance large on the progress that we accom- is easily overcome. plished these past few years. David Thank you again and remember, Bobzien will continue to contribute we have an obligation to do good as his steady hand and experience to lead we do well and a contribution to the VACLE. Both the VLF and VACLE will Virginia Law Foundation is a great way continue to benefit from the creativity, to achieve that goal. dedication, and thoughtful leadership of Ray White.
Resources continued from page 51 understanding exposure, and clearly or perhaps, more ideally, to avoid the allocating the risks. Part III explores courtroom. insurance and bonding considerations. Part IV delves into the science of green Endnotes: and sustainable development practices 1 Blake Const. Co., Inc. v. C. J. Coakley and measures, specifically focusing on Co., Inc., 431 A.2d 569, 675 (D.C. 1981). energy and water performance. The 2 Kristan B. Burch, The Effective Use of Marie Summerlin Hamm is assistant book concludes with an examination Jury Instructions in Construction Cases, director for collection development at of litigation considerations for the 64 Va. Lawyer 22 (2015). Regent University Law Library, and an adjunct professor of law at the Regent project owner, the design profession- University School of Law. She is a past al, the prime contractor, as well as president of the Virginia Association of third-party claims. Law Libraries. As Sun Tsu declared, “The supreme art of war is to subdue the enemy without fighting.” Armed with the resources above, the construction law practitioner will be prepared to enter
Got an Ethics Question? The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by click- ing on the blue “E-mail Your Ethics Question” box on the Ethics Questions and Opinions web page at www.vsb.org/site /regulation/ethics/.
www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 53 CLE Calendar
Virginia CLE Calendar Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.
January 7–12 January 24 36th Annual National Trial Advocacy Representation of Incapacitated College 2017 Persons as a Guardian Ad Litem — Live — Charlottesville 2016 Qualifying Course Video — Abingdon, Alexandria, January 10 Charlottesville, Norfolk, Richmond, The Rocket Docket: Trying Cases in the Roanoke Eastern District of Virginia 9 am–4:05 pm Video — Alexandria, Charlottesville, Fredericksburg, Norfolk, Richmond January 25 8:55 am–1:25 pm Representation of Incapacitated Persons as a Guardian Ad Litem — 2016 Qualifying Course January 11 Video — Tysons The Rocket Docket: Trying Cases in the 9 am–4:05 pm Eastern District of Virginia Video — Tysons, Williamsburg February 3 8:55 am–1:25 pm 47th Annual Criminal Law Seminar 2017 January 11 Live — Williamsburg CLE and Washington Capitals Hockey: 8:15 am–5 pm Smooth Skating Through Third-Party Discovery — Tips and Tactics for February 6 Subpoenas, Depositions, and Private CLE and Washington Wizards Investigators Basketball: Ethical Advocacy in Live — Washington, DC/Telephone Mediation 5–7 pm Live — Washington, DC 4–6 pm January 17 Representation of Children as a February 8 Guardian Ad Litem — Smooth Skating Through Third-Party Virginia State Bar 2016 Qualifying Course Discovery — Tips and Tactics for Harry L. Carrico Video — Abingdon, Alexandria, Subpoenas, Depositions, and Private Charlottesville, Norfolk, Richmond, Investigators Professionalism Course Roanoke Telephone 8:30 am–5:15 pm (Richmond video 11 am–1 pm begins at 9 am) February 10 January 10, 2017, Alexandria 47th Annual Criminal Law January 18 Seminar 2017 March 2, 2017, Alexandria Representation of Children as a Live — Charlottesville Guardian Ad Litem — 8:15 am–5 pm 2016 Qualifying Course See the most current dates and Video — Tysons February 21 8:30 am–5:15 pm Adoption Law: Understanding the registration information at Nuts and Bolts of the Practice in www.vsb.org/site/members/new. January 19 Virginia Arbitration Today: Goals and Reality Live — Charlottesville/Webcast/ Webcast/Telephone Telephone 1–3 pm 11 am–2:15 pm
54 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Virginia Lawyer Register
DISCIPLINARY PROCEEDINGS
Respondent’s Name Address of Record Action Effective Date
DISCIPLINARY BOARD Alexander M. Chanthunya Silver Spring, MD Suspension – August 26, 2016 Indefinite with the right to apply for reinstatement after 60 days. Wayne Richard Hartke Reston, VA Suspension – 3 years October 27, 2016 Wright Hayden Lewis Potomac Falls, VA Suspension – 9 Months w/Terms October 7, 2016 Michael Thomas Reynolds Atlanta, GA Suspension – 2 years retroactive to October 30, 2013 Alecia Marie Schmuhl Warrenville, IL Revocation November 17, 2016 James Fred Sumpter Midlothian, VA Revocation October 19, 2016 Deborah Michelle Wagner Williamsburg, VA Revocation October 24, 2016 Michael Robert Walsh Jr. Tewksbury, MA Suspension – 120 Days September 2, 2016 Kathryne Louise Ward Herndon, VA Suspension – 1 year w/Terms March 10, 2016 Michael Alan Ward Fairfax, VA Revocation September 19, 2016
DISTRICT COMMITTEES James Lawrence Grandfield Suffolk, VA Admonition with Terms November 17, 2016 Cameron Heaps Ippolito Alexandria, VA Public Reprimand September 20, 2016 George Holton Yates Virginia Beach, VA Public Reprimand w/Terms November 17, 2016
Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted David Peter Buehler New Orleans, VA September 29, 2016 Mead Ira Greenberg Studio City, CA September 26, 2016 Richard Morris Gummere La Plata, MD November 1, 2016
Suspension – Failure to Comply with Subpoena Mark Howard Allenbaugh Cleveland, OH November 15, 2016 William Peter Wittig Arlington, VA November 15, 2016
Impairment Clifton Carlyle Hicks Norfolk, VA October 26, 2016
www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 55 Virginia Lawyer Register
DISCIPLINARY SUMMARIES been summarily suspended on September 2, 2016, pending a show cause hearing. Rules Part Six, §IV, ¶13-24 www.vsb.org/docs/Reynolds-101416.pdf The following are summaries of disciplinary actions for vio- lations of the Virginia Rules of Professional Conduct (RPC) Alecia Marie Schmuhl (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, Warrenville, Illinois 2000) or another of the Supreme Court Rules. 17-000-107316 Copies of disciplinary orders are available at the Web link On November 17, 2016, the Virginia Stat Bar revoked Alecia provided with each summary or by contacting the Virginia Marie Schmuhl’s license to practice law based on her convic- State Bar Clerk’s Office at (804) 775-0539 or [email protected]. tion for five felonies in the Circuit Court of Fairfax County. In VSB docket numbers are provided. consenting to the revocation, Schmuhl acknowledged that the charges against her are true and they she could not successfully defend against them. Her license was summarily suspended on October 28. Rules Part 6, § IV, ¶ 13-28 DISCIPLINARY BOARD www.vsb.org/docs/Schmuhl-112116.pdf
Alexander Manjanja Chanthunya James Fred Sumpter Silver Spring, Maryland Midlothian, Virginia 17-000-106756 17-000-107369 Effective August 26, 2016, the Virginia State Bar Disciplinary On October 19, 2016, the Virginia State Bar disciplinary board Board indefinitely suspended Alexander Manjanja revoked James Fred Sumpter’s license to practice law based Chanthunya’s license to practice law based on his indefinite on his conviction for a felony in the US District Court for the suspension by the Court of Appeals of Maryland. Chanthunya Eastern District of Virginia, Alexandria Division. In consent- has the right to reapply to practice in Virginia on or after ing to the revocation, Sumpter acknowledged that the charges October 25, 2016, provided he provides proof of his reinstate- against him are true and that he could not successfully defend ment in Maryland. Chanthunya’s license had been summarily against them. Rules Part 6, § IV, ¶ 13-28 suspended on September 2, 2016, pending a September 23, www.vsb.org/docs/Sumpter-110416.pdf 2016, show cause hearing. Rules Part Six, §IV, ¶13-24 www.vsb.org/docs/Chanthunya-110416.pdf Deborah Michelle Wagner Williamsburg, Virginia Wayne Richard Hartke 17-000-107106 Reston, Virginia On October 24, 2017, the Virginia State Bar revoked Deborah 17-000-107101 Michelle Wagner’s license to practice law based on her con- On October 27, 2016, the Virginia State Bar Disciplinary Board viction for a felony in the US District Court for the Eastern suspended Wayne Richard Hartke’s license to practice law for District of Virginia. In consenting to the revocation, Wagner three years based on his failure to comply with the terms of a acknowledged that the charges against her are true and that six-month suspension imposed on March 27, 2015. Rules Part she could not successfully defend against them. Her license was Six, § IV, ¶ 13-18(O) summarily suspended on October 7, 2016. Rules Part 6, § IV, ¶ www.vsb.org/docs/Hartke-110416.pdf 13-28 www.vsb.org/docs/Wagner-111716.pdf Wright Hayden Lewis Potomac Falls, Virginia Michael Robert Walsh Jr. 17-000-107011 Tewksbury, Massachusetts Effective October 7, 2016, the Virginia State Bar Disciplinary 17-000-106764 Board suspended Wright Hayden Lewis’s license to practice law Effective September 2, 2016, the Virginia State Bar Disciplinary for nine months with terms based on his conviction for a felo- Board suspended Michael Robert Walsh Jr.’s license to practice ny in the Circuit Court of Fairfax County. His license had been law for four months based on his four-month suspension by summarily suspended on October 7. Rules Part 6, § IV, ¶ 13-22 the Commonwealth of Massachusetts, Supreme Judicial Court www.vsb.org/docs/Lewis-111716.pdf for Suffolk County. The suspension is effective until Walsh meets the requirements for reinstatement in Massachusetts as Michael Thomas Reynolds provided in the Massachusetts order. Walsh’s license had been Atlanta, Georgia summarily suspended on September 2, 2016, pending a show 17-000-106757 cause hearing. Rules Part Six, §IV, ¶13-24 On September 23, 2016, the Virginia State Bar Disciplinary www.vsb.org/docs/Walsh-101416.pdf Board suspended Michael Thomas Reynolds’s license to prac- tice law for two years, with a period of probation for which he must show proof of compliance, retroactive to October 30, 2013. The suspension is based on his two-year suspension by the Supreme Court of Arizona. Reynolds’s Virginia license had
56 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Virginia Lawyer Register
Kathryne Louise Ward NOTICES TO MEMBERS Chandler, Arizona 17-000-106772 SUPREME COURT OF VIRGINIA APPROVES Effective March 10, 2016, the Virginia State Bar Disciplinary Board suspended Kathryne Louise Ward’s license to practice AMENDMENTS law for one year, with terms, based on her one-year suspension The Supreme Court of Virginia approved the following chang- by the Supreme Court of Arizona. This was an agreed disposi- es to the Rules of the Court, effective January 1, 2017: tion. Rules Part Six, §IV, ¶13-24 • Relocation of Rule 5:8A to replace Rule 1:2 regarding Appeal www.vsb.org/docs/Ward-110416.pdf From Partial Final Judgment in Multi-Party Cases; • Amendment to Rule 1:5 regarding Counsel and Parties Michael Alan Ward Appearing Without Counsel; Fairfax, Virginia • Amendment to Rule 4:1(b)(4)(D) regarding General 16-051-104943, 16-051-106148 Provisions Governing Discovery; On September 19, 2016, the Virginia State Bar Disciplinary • Amendment to Rule 5:24 regarding Security for Appeal; and Board revoked Michael Alan Ward’s license to practice law • Amendment to Rule 5A:17 regarding Security for Appeal. based on his affidavit consenting to the revocation. In con- The Court also made the following changes: senting to the revocation, Ward acknowledged that the charges • Addition of Rule 1:25 regarding Specialty Dockets (effective against him are true and that he could not successfully defend January 16, 2017); against them. Rules Part 6 § IV, ¶ 13-28 • Addition of Rule 1:24 regarding Requirements for Court RPC 1.1; 1.3(c); 1.4(c); 1.5(a)(1-8); 1.15(a)(1)(b)(3,5)(d)(1,2); Payment Plans For the Collection of Fines and Costs (effective 3.5(f); 4.1(a); 5.5(c); 8.1(a-d); 8.4(a-c) February 1, 2017); and www.vsb.org/docs/Ward-101416.pdf • Amendment to Rule 5:30 regarding Briefs Amicus Curiae (effective January 1, 2017).
DISTRICT COMMITTEES SUPREME COURT OF VIRGINIA APPROVES LEGAL James Lawrence Grandfield ETHICS OPINIONS Suffolk, Virginia The Supreme Court of Virginia has approved the following 16-010-105219 Legal Ethics Opinions: On November 17, 2016, the Virginia State Bar First District • LEO 1329: Aiding A Non-Lawyer in the Unauthorized Subcommittee issued an admonition with terms to James Practice of Law — Real Estate/Title Services: Attorney Lawrence Grandfield for violating professional rules that gov- Retained by Client/Title Agency to Assist it in Preparation of ern diligence and communication. This was an agreed disposi- Documents Incident to Conducting a Real Estate Closing. tion of misconduct charges. RPC 1.3(a), 1.4(a) • LEO 1438: Splitting Fees with a Nonlawyer: Attorney www.vsb.org/docs/Grandfield-112116.pdf Compensating an Advertising Agency Based on a Profitsharing Plan. Cameron Heaps Ippolito • LEO 1584: Partnership with a Nonlawyer. Multijurisdictional Alexandria, Virginia Law Firm with Nonlawyer Partner Practicing in Virginia 15-031-102634 Through Licensed Virginia Bar Member. On September 20, 2016, the Virginia State Bar Third District • LEO 1606: Fees (Compendium Opinion). Subcommittee issued a public reprimand to Cameron Heaps • LEO 1742: Activities of Closing Attorney in Connection with Ippolito for violating a Georgia Rule of Professional Conduct Real Estate Transaction when Title Company Is Representing that governs special responsibilities of a prosecutor. This was Seller. an agreed disposition of misconduct charges. Virginia RPC 8.5; • LEO 1792: Is It Considered Assisting in the Unauthorized Georgia RPC 3.8(d) Practice of Law for an Attorney to Instruct a Social Worker to www.vsb.org/docs/Ippolito-101416.pdf Assist Pro-Se Litigants to Fill-Out Small Claims Forms? • LEO 1856: Scope of Practice for Foreign Lawyer in Virginia. George Holton Yates • LEO 1869: Assisting Pro Se Litigants — Courthouse Virginia Beach, Virginia Assistance Program. 15-022-101725 Details: www.vsb.org/site/regulation/leos On November 17, 2016, the Virginia State Bar Second District Subcommittee issued a public reprimand with terms to George Holton Yates for violating professional rules that govern safe- COUNCIL APPROVES RULE CHANGES, LEO keeping property. This was an agreed disposition of miscon- On October 7, the Virginia State Bar Council approved and duct charges. RPC 1.15(a)(1)(3)(i,ii)(b)(5)(c)(1)(2)(i,ii)(d)(1)(4) sent to the Supreme Court of Virginia for its consideration: www.vsb.org/docs/Yates-112116.pdf • Amendments to Paragraph 13-24 regarding reciprocal discipline. Details: www.vsb.org/pro-guidelines/index.php/ rule_changes/item/para_13-24_another_jurisdiction www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 57 Virginia Lawyer Register
• Amendments to Part 6, Section IV, Paragraph 13.1 regard- COMMENTS SOUGHT ON PROPOSED RULE CHANGES ing suspension for failure to complete the Professionalism The Virginia State Bar Clients’ Protection Fund Board Course. Details: www.vsb.org/pro-guidelines/index.php/ seeks comments on proposed amendments to the Clients’ rule_changes/item/para-13_1-2016 Protection Fund Rules. Details: www.vsb.org/pro-guidelines/ • Legal Ethics Opinion 1886, which concerns the duty of part- index.php/rule_changes/item/proposed_CPF_rules_2016-11 ners and supervisory lawyers in a law firm when another law- yer in the firm suffers from significant impairment. Details: www.vsb.org/site/regulation/draft_leo_1886 NOMINATIONS SOUGHT FOR DISTRICT COMMITTEE VACANCIES The Standing Committee on Lawyer Discipline calls for CRIMINAL LAW SEMINAR nominations for district committee vacancies to be filled by The 47th Annual Criminal Law Seminar, sponsored by the Council in June. Note that there are vacancies which may VSB Criminal Law Section and Virginia CLE, is scheduled for not become available because some members are eligible for February 3 in Williamsburg and February 10 in Charlottesville. reappointment. www.vsb.org/site/sections/criminal/annual-seminar To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 – Establishment of District Committees, specifically 13-4.E FREE LEGAL ANSWERS (Qualifications of Members) and 13-4.F (Persons Ineligible for Sign up for Virginia.freelegalanswers.org. The website is part of Appointment). an ABA multi-state initiative to provide online pro bono civil legal assistance to Virginia residents with income levels of 250 FIRST DISTRICT COMMITTEE: percent of the poverty guidelines or less (a household in- 2 attorney vacancies; 2 non-attorney vacancies (1 member is come of just over $29,000 annually for a single adult). Details: eligible for reappointment). Vacancies are to be filled by mem- https://virginia.freelegalanswers.org/ bers from the 1st, 3rd, 5th, 7th or 8th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION I: NOMINATIONS SOUGHT FOR AWARDS 1 attorney vacancy (current member is eligible for reappoint- The VSB is seeking nominations for the following awards: ment); 3 non-attorney vacancies (1 member is eligible for • Betty A. Thompson Lifetime Achievement Award reappointment). Vacancies are to be filled by members from www.vsb.org/docs/sections/family/lifetimeaward2017.pdf the 2nd or 4th judicial circuits. • Family Law Service Award www.vsb.org/docs/sections/family/serviceaward2017.pdf SECOND DISTRICT COMMITTEE, SECTION II: 4 attorney vacancies (2 members are eligible for reappoint- ment); 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are to be filled by members from LAW IN SOCIETY ESSAY CONTEST the 2nd or 4th judicial circuits. The annual Law in Society essay contest for high school stu- dents is accepting entries. THIRD DISTRICT COMMITTEE, SECTION I: www.vsb.org/site/public/law-in-society 1 attorney vacancy; 3 non-attorney vacancies (1 member is eligible for reappointment.) Vacancies are to be filled by mem- bers from the 6th, 11th, 12th, 13th or 14th judicial circuits. SAVE THE DATES • March 10, 2017 – Bar Leaders Institute, Lewis Ginter THIRD DISTRICT COMMITTEE, SECTION II: Botanical Garden, Richmond. www.vsb.org/site/conferences 2 attorney vacancies; 1 non-attorney vacancy. Vacancies are /clba-calendar/bar_leaders_institute to be filled by members from the 6th, 11th, 12th, 13th or 14th • April 7, 2017 – Solo & Small-Firm Practitioner Forum, judicial circuits. Holiday Inn Downtown, Lynchburg. www.vsb.org/site /conferences/clba-calendar/solo_small_firm_practitioner THIRD DISTRICT COMMITTEE, SECTION III: _forum3 3 attorney vacancies (1 member is eligible for reappointment); • April 24, 2017 – VSB TECHSHOW, Richmond. 2 non-attorney vacancies (1 member is eligible for reappoint- www.vsb.org/site/events/item/vsb_techshow ment). Vacancies are to be filled by members from the 6th, • May 3, 2017 – 13th Annual Indigent Criminal Defense 11th, 12th, 13th or 14th judicial circuits. Seminar, Greater Richmond Convention Center with web- casts in Weyers Cave and Wytheville. www.vsb.org/site/events FOURTH DISTRICT COMMITTEE, SECTION I: /item/all_day_13th_annual_indigent_criminal_defense _seminar 3 attorney vacancies (2 members are eligible for reappoint- ment); 1 non-attorney vacancy. Vacancies are to be filled by members from the 17th or 18th judicial circuits.
58 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org Virginia Lawyer Register
FOURTH DISTRICT COMMITTEE, SECTION II: NOMINATIONS SOUGHT 3 attorney vacancies (2 members are eligible for reappoint- FOR COMMITTEE VACANCIES ment); 1 non-attorney vacancy (current member is eligible for Volunteers are needed to serve the Virginia State Bar’s boards reappointment). Vacancies are to be filled by members from and committees. The Nominating Committee will refer nomi- the 17th or 18th judicial circuits. nees to the VSB Council for consideration at its June meeting. FIFTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (1 member is eligible for reappointment). Vacancies in 2017 are listed below. All appointments will be Vacancies are to be filled by members from the 19th or 31st for the terms specified, beginning on July 1, 2017, unless oth- judicial circuits. erwise noted.
FIFTH DISTRICT COMMITTEE, SECTION II: EXECUTIVE COMMITTEE: 6 vacancies (2 current members 3 attorney vacancies; 2 non-attorney vacancies (both members are not eligible for reappointment, and 4 current members are are eligible for reappointment). Vacancies are to be filled by eligible for reappointment). Filled from ranks of the council members from the 19th or 31st judicial circuits. for 1-year terms, by council appointment.
FIFTH DISTRICT COMMITTEE, SECTION III: CLIENTS’ PROTECTION FUND BOARD: 3 vacancies (1 2 attorney vacancies (1 member is eligible for reappointment); current lawyer member from the 3rd disciplinary district is not 1 non-attorney vacancy (current member is eligible for reap- eligible for reappointment; 2 current lawyer members from pointment). Vacancies are to be filled by members from the the 6th and 8th disciplinary districts are eligible for reappoint- 19th or 31st judicial circuits. ment). May serve 2 consecutive 3-year terms. Appointment by council. SIXTH DISTRICT COMMITTEE: 3 attorney vacancies (1 member is eligible for reappointment); JUDICIAL CANDIDATE EVALUATION COMMITTEE: 6 1 non-attorney vacancy. Vacancies are to be filled by members lawyer vacancies (of which 4 vacancies are to be filled by a from the 9th or 15th judicial circuits. member from the 3rd, 4th, 9th or 10th judicial circuits and 2 member at-large vacancies). May serve 1 full 3-year term. SEVENTH DISTRICT COMMITTEE: Appointment by council. 2 attorney vacancies (1 member is eligible for reappointment); 2 non-attorney vacancies. Vacancies are to be filled by mem- VIRGINIA LAW FOUNDATION BOARD: 2 vacancies (of bers from the 16th, 20th or 26th judicial circuits. which 1 current lawyer member is not eligible for reelection and 1 current lay member is eligible for reelection). May serve EIGHTH DISTRICT COMMITTEE: 2 consecutive 3-year terms. Appointment by VLF Board on rec- 2 attorney vacancies (both members are eligible for reappoint- ommendation of council. Term commences January 1, 2018. ment); 2 non-attorney vacancies (1 member is eligible for reappointment). Vacancies are to be filled by members from VIRGINIA CLE COMMITTEE: 6 lawyer vacancies (of which the 23rd or 25th judicial circuits. 6 lawyer members are eligible for reelection to 1-year terms). Appointment by VLF Board on recommendation of council. NINTH DISTRICT COMMITTEE: Term commences January 1, 2018. 3 attorney vacancies (2 members are eligible for reappoint- ment) 2 non-attorney vacancies. Vacancies are to be filled by AMERICAN BAR ASSOCIATION DELEGATES: 4 lawyer va- members from the 10th, 21st, 22nd or 24th judicial circuits. cancies (of which 4 current members are eligible for reappoint- ment). May serve 3 consecutive 2-year terms. Appointment by TENTH DISTRICT COMMITTEE, SECTION I: council. Term commences September 1, 2017. 3 attorney vacancies (1 member is eligible for reappointment. Vacancies are to be filled by members from the 27th, 28th, 29th Nominations, along with a brief résumé, should be sent by or 30th judicial circuits. March 10, 2017, to VSB Nominating Committee, c/o Asha Holloman, Virginia State Bar, 1111 East Main Street, Suite 700, TENTH DISTRICT COMMITTEE, SECTION II: Richmond, VA 23219-0026. 3 attorney vacancies (1 member is eligible for reappointment); [email protected] 2 non-attorney vacancies. Vacancies are to be filled by mem- bers from the 27th, 28th, 29th or 30th judicial circuits.
Nominations, along with a brief résumé, should be sent by February 28, 2017, to Stephanie Blanton, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 23219-0026. [email protected] www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 59 President-elect Causey Seeks Members for Virginia State Bar Committees With Terms Commencing July 1, 2017 To: Members of the Bar From: Doris H. Causey, 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, 2017, to June 30, 2020, 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 • 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 24, 2017, by mail or e-mail to Asha B. Holloman: Virginia State Bar 1111 East Main Street, Suite 700 Richmond, VA 23219-0026 [email protected]
VSB Committee Preference Form (term commencing July 1, 2017) Please complete this form and return it with a brief resume by February 24, 2017.
Name: VSB Attorney No.:
Address:
City/State/Zip: Phone: E-mail:
Choice Committee Name Have you ever served on this committee? Length of Service
1st Choice Yes No
2nd Choice Yes No
3rd Choice Yes No
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 Professional Notices
James V. McGettrick has joined the law firm of Norton Rose Fulbright as of counsel in its Washington, DC, office. McGettrick joins McGettrick the firm as a public finance and tax law attorney after many years with Fairfax County devel- oping and implementing major public Clark & Bradshaw PC finance initiatives and defending county tax policies and practices in court. Three Harrisonburg lawyers and a Harrisonburg law firm have been recognized for their pro bono work on behalf of Blue Ridge Legal Wharton Aldhizer & Weaver PLC Services, the Shenandoah Valley’s non-profit legal aid society. has announced that Alexandra E. Honored were Darren Bostic of Bostic & Bostic PC, John Krall Humphreys and Lucas I. Pangle have of Ritchie Law Firm PC, and Laura Thornton of Laura A. Thornton Bostic joined the firm. Humphreys focuses her PLC. Clark & Bradshaw PC was also recognized for its many years practice on civil litigation and family of service to pro bono efforts, including multiple cases handled by and domestic law. Pangle focuses his several lawyers at the firm during the past year. practice on corporate, commercial and John Whitfield, Blue Ridge’s executive Director, presented the business law, intellectual property, and awards during the Harrisonburg-Rockingham Bar Association’s civil litigation. annual Professionalism Seminar on October 19. “These award recip- ients were champions of the poor in some tough cases this year. The Krall clients they assisted, and the community as a whole, are better for their pro bono service.” Professional Notices E-mail your news and high-resolution professional portrait to hickey@vsb Justine Fitzgerald has joined Hirschler Mary Charlotte Horner has .org for publication in Virginia Lawyer. Fleischer’s Tysons office as a partner in joined MercerTrigiani as an Professional notices are free to VSB the firm’s Real Estate Practice. Fitzgerald associate. She will advise members and may be edited for length counsels clients involved in the acqui- community associations and clarity. sition and disposition, development, on contract matters, voting financing, and leasing of commercial Horner and proxy issues, quorum properties throughout the Washington metropolitan area and around the and meeting requirements, country. and provide litigation support on client matters, including assessment collection. Juan Carlos Flamand has LITIGATION joined the Phoenix office Richmond attorneys Hunter Jamerson FINANCE of Hammond Law Group and Alexander Macaulay have es- PLLC, where he will manage tablished a new firm, Macaulay & the firm’s Phoenix office. He Jamerson, which focuses on government Funds available represents employers and Flamand foreign nationals in immi- affairs and health care law. The firm for all types of gration matters. lobbies the General Assembly and state agencies across all subject areas, and it cases. Special Counsel Allen C. provides compliance advice and legal Goolsby, of Hunton & representation to health care providers. Contact Williams, has been elected a fellow of the American Kaitlyn E. Martin has [email protected] College of Governance joined the Lynchburg law Counsel, an exclusive Goolsby firm of Petty, Livingston, professional, educational, All information and honorary association of Dawson & Richards as an Strictly North American lawyers widely recog- associate. She will handle Martin nized for their achievements in the field estate planning and admin- Confidential. of corporate governance. istration, tax, and corporate matters. www.vsb.org Vol. 65 | December 2016 | VIRGINIA LAWYER 61 Classified Ads
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62 VIRGINIA LAWYER | December 2016 | Vol. 65 www.vsb.org ANNUAL Discover even more with our MEETING Annual 79 Meeting VIRGINIA STATE BAR JUNE 15-18 2017 mobile app V I R G I N I A B E A C H returning this spring!
We invite you to be a part of the 79th VSB Annual Meeting. Last year, more than 600 lawyers, judges, and their families took part in CLEs, lunches, receptions, award ceremonies, investitures, speeches, and athletic events. Mark your calendar to take part in the inspiration, camraderie, and networking at your Annual Meeting.
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