Virginia LawyerVOL. 66/NO. 3 • OCTOBER 2017 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

Health Law Taking Aim at Virginia’s Opioid Crisis through Changes in Public Health Law False Claims Act Liability Exceptions in Healthcare Contracting

The Clients’ Protection Fund Steps In What I learned from Justice Cynthia D. Kinser About Being a Lawyer Virginia Merger Statutes Future-Proofing Your Law Practice PASSION FOR LAW PURPOSE FOR LIFE

OUR STUDENTS RECEIVE UNPARALLELED SKILLS TRAINING SO THEY CAN START MAKING A DIFFERENCE IMMEDIATELY.

• A preLaw magazine top 20 school for public defenders and prosecutors • 2016 overall first-time bar pass rate of 83 percent across 18 jurisdictions Training Champions for Christ since 1971 • A National Jurist top 20 school for practical training — the highest in Virginia [email protected] • Awarded an A- in Trial Advocacy concentration by preLaw magazine (434) 592-5300 Liberty.edu/VALaw facebook.com/LibertyUniversityLaw LEARN HOW LIBERTY LAW IS HELPING THE NEXT GENERATION OF LAWYERS FIND THEIR PASSION FOR LAW AND PURPOSE FOR LIFE. Virginia Lawyer The Official Publication of the Virginia State Bar October 2017 Volume 66/Number 3

Features Access to Legal Services 46 Celebrate! October Is Pro Bono GENERAL INTEREST Month 48 Immigration Lawyer Receives 2017 21 The Clients’ Protection Fund Steps In VSB Pro Bono Award by Gordon Hickey 49 McGuireWoods Receives Frankie 24 The Reverse Triangular Merger is the Favorite, Muse Freeman Pro Bono Award and Often Wrong, Option by Joel Nied

26 Future-Proofing Your Law Practice by Sharon D. Nelson and John W. Simek

28 What I learned from Justice Cynthia D. Kinser About Being a Lawyer by John P. O’Herron Noteworthy HEALTH LAW SECTION VSB NEWS 33 Health Law 50 In Memoriam by Bruce D. Gehle 51 William L. Schmidt 34 False Claims Act Liability Has a New Implied 50 NOTICE: Check Your Certification Standard, or Does It? MCLE Hours Online Now PASSION FOR LAW by Robert B. Vogel 38 Navigating Harbors and Exceptions in Healthcare Contracting Departments by Andrew T. Wampler 6 Letters PURPOSE FOR LIFE 51 Conference of Local and Specialty 42 Taking Aim at Virginia’s Opioid Crisis through Bar Associations Changes in Public Health Law by Health Services Section, Office of the Attorney 55 CLE Calendar General 60 Professional Notices 61 Classified Ads 62 Advertiser’s Index VIRGINIA LAWYER REGISTER

58 Disciplinary Summaries 58 MCLE Discontinues Mailing 58 Notices to Members: Interim Report OUR STUDENTS RECEIVE UNPARALLELED SKILLS TRAINING SO Columns 58 VSB’s Standing Committee 58 Criminal Law Seminar THEY CAN START MAKING A DIFFERENCE IMMEDIATELY. 10 President’s Message on Legal Ethics Seeking Public 59 VSB Disciplinary Board To Hear Comment on LEOs Anne Marston Lynch Wilber’s 14 Executive Director’s Message • A preLaw magazine top 20 school for public defenders and prosecutors 58 Clients’ Protection Fund Reinstatement Petition On 16 Ethics Counsel’s Message • 2016 overall first-time bar pass rate of 83 percent across 18 jurisdictions Training Champions for Christ since 1971 December 8, 2017 58 Pro Bono Conference 18 Legal Aid • A National Jurist top 20 school for practical training — the highest in Virginia [email protected] 59 Disciplinary Proceedings 58 Professional Development 52 Law Libraries • Awarded an A- in Trial Advocacy concentration by preLaw magazine (434) 592-5300 Liberty.edu/VALaw Conference 53 Technology and the Practice of Law facebook.com/LibertyUniversityLaw LEARN HOW LIBERTY LAW IS HELPING THE NEXT GENERATION OF LAWYERS FIND THEIR PASSION FOR LAW AND PURPOSE FOR LIFE. Cover: Health Law — Taking Aim at Virginia’s Opioid Crisis through Changes in Public Health Law ©Shutterstock.com Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2017–18 OFFICERS 17th Circuit Doris Henderson Causey, President Timothy B. Beason, Arlington http://www.vsb.org Leonard C. Heath, Jr., President-elect John H. Crouch, Arlington Michael W. Robinson, Immediate Past President Adam D. Elfenbein, Arlington Editor: Karen A. Gould, Executive Director and Chief Gregory T. Hunter, Arlington Gordon Hickey Operating Officer William H. Miller, Arlington ([email protected]) EXECUTIVE COMMITTEE 18th Circuit Doris Henderson Causey, Richmond, President Barbara S. Anderson, Alexandria Assistant Editor and Advertising: Leonard C. Heath, Jr., President-elect Foster S. B. Friedman, Alexandria Stacey Rose Harris, Alexandria Deirdre Norman Michael W. Robinson, Tysons Corner, Immediate Past President ([email protected]) 19th Circuit Brian L. Buniva, Richmond Brian C. Drummond, Fairfax Marni E. Byrum, Alexandria David J. Gogal, Fairfax Graphic Design: Nancy C. Dickenson, Abingdon Richard A. Gray, Fairfax Caryn B. Persinger Eugene M. Elliott, Roanoke Chidi I. James, Fairfax ([email protected]) Beverly P. Leatherbury, Eastville Douglas R. Kay, Tysons Corner Jay B. Myerson, Reston David L. Marks, Fairfax B. Alan McGraw, Tazewell, CLBA Chair Gary H. Moliken, Fairfax Carole H. Capsalis, Leesburg, Diversity Jay B. Myerson, Reston VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Conference Chair Luis A. Perez, Falls Church is published six times a year by the Virginia State Bar, Robert E. Hawthorne, Kenbridge, SLC Chair William B. Porter, Fairfax Christopher R. Fortier, Oakton, YLC President Dennis J. Quinn, Tysons 1111 East Main Street, Suite 700, Richmond, Virginia William L. Schmidt, Fairfax COUNCIL 23219-0026; Telephone: (804) 775-0500. Subscription Melinda L. VanLowe, Fairfax Rates: $18.00 per year for non-members. This material 1st Circuit Edward L. Weiner, Fairfax Andrew D. Kubovcik, Chesapeake is presented with the understanding that the publisher 20th Circuit 2nd Circuit Christine H. Mougin-Boal, Leesburg and the authors do not render any legal, accounting, Ryan G. Ferguson, Virginia Beach Susan F. Pierce, Warrenton or other professional service. It is intended for use by Steven G. Owen, Virginia Beach 21st Circuit Daniel M. Schieble, Virginia Beach attorneys licensed to practice law in Virginia. Because of Joan Ziglar, Martinsville 3rd Circuit the rapidly changing nature of the law, information 22nd Circuit Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham contained in this publication may become outdated. As 4th Circuit 23rd Circuit a result, an attorney using this material must always Ann B. Brogan, Norfolk Eugene M. Elliott, Jr., Roanoke research original sources of authority and update Gary A. Bryant, Norfolk K. Brett Marston, Roanoke Neil S. 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Periodical postage paid at Richmond, 29th Circuit 10th Circuit Joseph M. Bowen, Tazewell Virginia, and other offices. Charles H. Crowder, III, South Hill 30th Circuit 11th Circuit William E. Bradshaw, Big Stone Gap Dale W. Pittman, Petersburg 31st Circuit POSTMASTER: 12th Circuit Maryse C. Allen, Prince William Graham C. Daniels, Chester Send address changes to MEMBERS AT LARGE VIRGINIA LAWYER 13th Circuit Marni E. Byrum, Alexandria MEMBERSHIP DEPARTMENT Paula S. Beran, Richmond Nancy C. Dickenson, Abingdon Brian L. Buniva, Richmond Afshin Farashahi, Virginia Beach 1111 E MAIN ST STE 700 Dabney J. Carr, IV, Richmond William E. Glover, Fredericksburg RICHMOND VA 23219-0026 Leah A. Darron, Richmond Eva N. Juncker, Falls Church Christy E. Kiely, Richmond Beverly P. Leatherbury, Eastville Eric M. Page, Richmond Lorrie A. Sinclair, Leesburg J. Tracy Walker, IV, Richmond A Benjamin Spencer, Charlottesville Rhonda S. VanLowe, Reston 14th Circuit Craig B. Davis, Richmond Conference of Local Bar Associations Chair Marissa D. Mitchell, Henrico B. Alan McGraw, Tazewell Daniel L. Rosenthal, Richmond Diversity Conference Chair 15th Circuit Carole H. Capsalis, Leesburg Virginia State Bar Staff Directory Jennifer L. Parrish, Fredericksburg Senior Lawyers Conference Chair Frequently requested bar contact 16th Circuit Robert E. Hawthorne, Kenbridge information is available online at R. Lee Livingston, Charlottesville Young Lawyers Conference President Palma E. Pustilnik, Charlottesville Christopher R. Fortier, Oakton www.vsb.org/site/about/bar-staff.

4 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org

Letters

VOL. 66/NO. 2 • AUGUST 2017 if we are reading different cases. There is Virginia Lawyer absolutely no hint of political commen- VIRGINIA LAWYER REGISTER The Offi cial Publication of the Virginia State Bar tary in the opinion, and its conclusions concerning the intent of the founders are all but indisputable. The same goes for the Court’s ruling that Congress had no authority to prohibit the expan- sion of slavery into new territories. The Constitution very clearly treated political decisions about such questions as what species of property could be legally owned by citizens as being within the competence of the citizens of a state Bracton’s Warning and Hamilton’s Reassurance by The Honorable D. Arthur Kelsey or territory, and not that of the federal Lawyers Helping Lawyers government. Intellectual Property Law Taney was a superb lawyer and a distinguished public servant in several Incorrect on Chief Justice Taney capacities. The modern tendency to The defense of originalist theory by treat him and the Dred Scott opinion as Justice D. Arthur Kelsey appearing in suffering from “an appalling stench” is the August edition (“Bracton’s Warning unfair and unjustified. and Hamilton’s Reassurance”) deserves a lot of praise. It was persuasive and Thomas Dugan Virginia State Bar Hilliard, Ohio timely. But the judge is incorrect in his Staff Directory criticism of the opinion of Chief Justice Taney in Scott v Sanford. His criticism suggests that the Supreme Court’s ruling Justice Kelsey Responds Frequently requested bar contact is based on the political opinions of a I respectfully disagree with Mr. Dugan’s information is available online at defense of Dred Scott. majority of the justices rather than on www.vsb.org/site/about/bar-staff. authentic constitutional underpinnings. Instead, I share Professor Amar’s To fit within that narrative, Justice view that Chief Justice Taney’s opinion Kelsey describes Taney and the majority in Dred Scott belongs in the “lowest as being “pro-slavery.” The Chief Justice circle of constitutional Hell.” Akhil emancipated the cadre of slaves that he Reed Amar, America’s Unwritten inherited from his family and was op- Constitution 270 (2012). The opinion posed to slavery on moral and religious was a “preposterous garbling of the Letters grounds. In spite of his personal views, Constitution as that document was Send your letter to the editor to: he felt compelled to do exactly as Justice publicly understood when ratified” [email protected] or Virginia State Bar, Kelsey argues that all judges should and was “harshly criticized on precisely these grounds by notable contemporar- Virginia Lawyer Magazine, do in connection with constitutional 1111 E Main Ste 700, ies.” Id. at 271. One of them, President litigation: attempt to determine whether Richmond VA 23219-0026 the founding fathers intended to treat Abraham Lincoln, openly challenged the African Americans as citizens. This he reasoning of Dred Scott as influenced Letters published in Virginia Lawyer may did in a masterful study of constitution- by “apparent partisan bias” and “based be edited for length and clarity and are al history. I challenge anyone to read the upon assumed historical facts which subject to guidelines available at http://www.vsb.org/site/publications/ opinion and point out a logical or intel- are not really true.” 2 The Collected valawyer/. lectual flaw. Justice Kelsey believes that Works of Abraham Lincoln 401 (Roy the majority members of Taney’s court P. Basler ed., 1953). Justice Scalia agreed, “got their politics wrong.” It’s almost as Letter continued on page 8

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describing Dred Scott as a patently As for Chief Justice Taney, I pass FREE HOUR “erroneous” opinion that “covered” the no judgment upon him personally. I of Legal Research Court “with dishonor and deprived [it] instead take issue with the “extreme For New Clients Only of legitimacy.” Planned Parenthood of Se. proslavery position in his opinion,” Timothy S. Huebner, Roger B. Taney and Use only the free hour, or apply the Pa. v. Casey, 505 U.S. 833, 998 (1992) the Slavery Issue: Looking Beyond — and free hour to a larger project. (Scalia, J., dissenting). Aside from its flawed reasoning, Before — Dred Scott, 97 J. Am. Hist. 17, Briefs • Trial Memos • Motions Dred Scott suffered from several other 17 (2010), which rested not on sound Legal Research improprieties, including the “covert legal reasoning, but on the view that efforts of President Buchanan to influ- African Americans were “beings of an 35 Full-Time Attorneys inferior order, and altogether unfit to ence the decision,” Taney’s refusal “to 50,500 Attorneys Served associate with the white race, either in allow the dissenters to have a copy of the 173,500 Cases social or political relations; and so far opinion,” and Taney’s “secret revisions” inferior, that they had no rights which 4,907 Virginia Attorneys have used to the majority opinion after the deci- the white man was bound to respect.” sion was announced — which added 18 Scott v. Sandford, 60 U.S. (19 How.) 393, National Legal pages of additional text to the opinion 407 (1857). Research Group according to Justice Curtis. Daniel CHARLOTTESVILLE, VA In short, I believe that Dred Scott A. Farber, Symposium, A Fatal Loss of justly deserves its “unique place of Call for a free consultation Balance: Dred Scott Revisited, 39 Pepp. infamy in American constitutional law.” 1-877-689-6432 L. Rev. 13, 39–40 (2011); see also Earl Farber, supra, at 15. M. Maltz, Slavery and the Supreme [email protected] Court, 1825–1861, at 240–44, 268–69 D. Arthur Kelsey www.nlrg.com (2009). Supreme Court of Virginia

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This issue of Virginia Lawyer Let’s have Legalcare and Legalaid. Thus, the need for more attor- focuses on health law, and with all Legalaid would be a jointly funded neys to do pro bono. Many attorneys the news concerning the overhaul federal-state legal insurance program do low bono cases after completing a of the Affordable Healthcare Act I for low-income and needy people. minimum number of pro bono cases, began to think about the concept of Legalcare would be a federal program which is similar to medical providers. creating legal insurance for everyone that provided legal coverage if you are The Access Now program is a local — legal insurance similar to medical 65 or older, or have a severe disability. program where doctors/specialists insurance. I’m thinking about legal Legalcare and Legalaid are just an idea provide a fixed number of free services insurance programs that are federally that could possibly help. to the uninsured or underinsured. and state sponsored and supported by How would this model work? This program could also work with federal and state funding — similar to Legal aid programs (similar to feder- legal services. Firms, as well as general Medicare and Medicaid. Private legal ally funded health care centers) would and solo practitioners, would donate insurance would be available as well, continue to assist those households representation for a fixed number of creating a new legal marketplace. Most that have gross incomes below 125 cases for individuals that are legally importantly, this would also signifi- percent of the federal poverty guide- uninsured or underinsured. However, cantly reduce the justice gap. lines and up to 200 percent in certain they would continue to represent oth- It is disheartening to see citizens cases. However, legal aid programs ers accordingly. This insured represen- of Virginia facing evictions, writs of could also charge according to a tation would only apply to individuals fieri facias, warrants in debts, fore- sliding fee scale. Fees would be based — not companies. closure, garnishments, bankruptcy, on the gross household income that There are a few firms throughout etc., without any legal representation. is above the 125 percent of the federal the country that have begun to model Across the commonwealth, many law- poverty guidelines. For example, if a this thought. The firms represent yers are working very hard on closing person fell within 126 percent to 200 individuals that fall below the pover- the justice gap. While people have a percent of the poverty guideline they ty guidelines for a reduced rate, and right to an attorney in criminal cases, would pay a rate of $50/hour and the increase the rate as the household they don’t in civil cases, and many rate would increase along the scale. income increases. Open Legal Services citizens in Virginia cannot afford an Thus, attorneys could all receive in Utah is an example of a program attorney in civil cases. This population some federal or state reimbursement with income-based fees. Thus, prepaid of clients that cannot afford an attor- based on the number served in a par- legal services has modeled the health ney certainly deserves the same level ticular category. It would be an opt-in insurance marketplace for years. and quality of representation as those program for every legal provider. The benefits of legal insurance who can afford to pay an experienced Currently, every medical provider does would be great. Legal insurance would attorney. Additionally, when a person not accept federal or state insurance assist the community, attorneys, and has legal representation, the probabil- and legal providers should have the the courts. Many of the alternative ity of receiving a favorable outcome same option. Every service provid- legal service providers/insurance increases. How can we accomplish the er, including legal aids, could accept providers are doing very well finan- goals of providing legal representation private legal insurance. This idea does cially. The market for affordable legal to all in civil cases and eliminating the not advocate for the end of pro bono services is huge — and the benefits of justice gap? These persons could have services. As we have seen with the such a market immeasurable. It would legal insurance similar to Medicare medical models, pro bono will still be and Medicaid. greatly needed. Legalcare and Legalaid continued on page 12

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Legalcare and Legalaid continued from page 10 Care Act (Obamacare) were all created to assist with medical needs. They have assist in law students having jobs upon not solved the medical needs or insur- completion of law school and passing Free and Low Cost ance gaps. Moreover, legal insurance will the bar. Individual citizens would have a not solve all the legal needs. Your help Legal Resources variety of places to receive services. The is still greatly needed. Until everyone is Pamphlet courts would have more represented lit- entitled to an attorney in both civil and igants. On the other hand, many would A guide for helping low- and criminal cases, we must live up to Rule think before filing lawsuits if the other modest-income Virginians obtain 6.1. side was also represented. They would legal services. Sign up for Virginia.freelegalanswers do the right thing. See: http://bit.ly/2xdBBM6 .org. The legal need will still be great. Support your local legal aid society. Medicare, Medicaid, and the Affordable

The Greater Richmond Bar Foundation wishes to thank its loyal volunteers, donors, community and corporate part- ners, Firms In Service — Richmond and the Virginia Law Foundation for supporting our efforts to close the justice gap.

In 2016, our Richmond Pro Bono Promise participants (listed below) provided over 38,000 hours of pro bono service and over $200,000 in monetary support of pro bono service programs.

GRBF Pro Bono Promise Participants (Richmond area only): Capital One Christian & Barton Dominion Goodman Allen Donnelly Hirschler Fleischer Hunton & Williams LeClairRyan McCandlish Holton Morris McGuireWoods Richmond Bar Association - Board of Directors Sands Anderson Spotts Fain ThompsonMcMullan Troutman Sanders Williams Mullen www.grbf.org

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The National Task Force on From the report, “…legal employ- and have events that do not involve Lawyer Well-Being1 has issued a report ers should launch a well-being initia- alcohol. on how to improve well-being in the tive by forming a Lawyer Well-Being For example: legal profession. It is directed to law Committee or appointing a Well-Being • Offer a non-alcoholic signature drink firms, legal employers, bar regulators, Advocate.” • Use drink coupons to reduce excess Supreme Courts, admission officials, consumption and others. It has a very simple prem- Assess Lawyers’ Well-Being • Have morning yoga, meditation, fun ise: “To be a good lawyer, one has to be Gathering data should be a corner- run/walk the morning after a social a healthy lawyer.” It states that between stone of any well-being programs. event involving alcohol 21 percent and 36 percent of lawyers Measure the impact of well-being qualify as problem drinkers, and that programs. Actively Combat Social Isolation and approximately 28 percent struggle with Some suggestions for assessment: Encourage Interconnectivity some level of depression, 19 percent • an anonymous survey conducted to One of the most common thing I hear suffer from anxiety, and 23 percent measure lawyer and staff attitudes from lawyers who are struggling from are dealing with stress symptoms. It and beliefs about well-being chronic stress/anxiety, depression, advocates for change accompanied by • stressors in the firm that significantly alcohol/substance abuse is this — the a “wide-eyed and candid assessment of affect well-being feeling of isolation perpetuates the our members’ state of being, accom- • organizational support for improving problem. panied by courageous commitment to well-being in the workplace. As discussed in the report, “Social re-envisioning what it means to live support from colleagues is an import- the life of a lawyer.” The report’s au- Monitor For Signs of Work Addiction ant factor for coping with stress and thors advocate for a holistic approach and Poor Self-Care preventing negative consequences like to giving lawyers a chance to enjoy Burnout, chronic stress, and anxiety is burnout.” life more. The Well-Being Report is a sadly the reality for too many law- Work on creating a work envi- thoughtful amalgam of findings, rec- yers in law firms. The report suggests ronment where it’s safe to talk about ommendations, and resources. You can establishing policies and practices to personal struggles. For example, it read the report by accessing this link support lawyer well-being. would be acceptable to talk about your on the VSB website: http://www.vsb. org/site/news/item/lawyer_well_being. Numerous health and relationship struggles with cancer at the office, One lawyer commentator has problems, including depression, anger, right? Similarly, it should be okay to posted helpful suggestions for law anxiety, sleep problems, weight gain, talk about mental health issues. firms to carry out the recommen- high blood pressure, low self-esteem, dations of the Well-Being Report’s low life satisfaction, work burnout, and Recommendations recommendations:2 family conflict can develop from work The report has specific recommenda- addiction. tions for a regulatory bar such as the Form a Lawyer Well-Being Committee Another suggestion is to de-em- Virginia State Bar. Those recommen- Lawyers love to form committees but phasize alcohol at law firm social dations are listed below with the VSB’s surprisingly, many law firms don’t events. This is a topic that comes up response or stated intention: have a well-being committee. This is frequently in my conversations on an obvious place to start. If your firm planning wellness events. Leaders Should Demonstrate a doesn’t have a well-being committee, My advice is to not eliminate Personal Commitment to Well-Being start one! alcohol but rather offer alternatives The officers of the VSB support the

14 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Executive Director’s Message core values and well-being concepts set Director Renu Brennan went to the The MCLE Board briefly discussed the forth in the Well-Being Report. July VBA meeting to accomplish the issue of whether the MCLE rule should same goal. LHL presented panels on be amended to include a well-being A Lawyer Well-Being Committee September 12 to JIRC and on September requirement at its meeting on August Should Be Created 20 at the VSB Solo & Small-Firm CLE. 21, 2017. No decision was reached. To The Supreme Court of Virginia has Also, LEO 1887, approved by the Court date, Virginia does not require that any created a Lawyer Well-Being Committee, effective August 30, 2017, is another way of its MCLE hours be limited to any one with Justice Mims chairing it. Len the VSB has been proactive in address- particular area, except for the two hours Heath, VSB president-elect, has been ing and assisting lawyers with substance required for ethics/professionalism. The appointed to the SCV committee. abuse issues. It deals with the duty of MCLE Board is going to amend MCLE oversight of lawyers with substance Opinion #19, which deals with approv- Provide High-Quality Educational abuse issues who do not practice in a al of courses dealing with substance Programs about Lawyer Distress and firm setting. abuse, mental health disorders, stress, Well-Being and work/life balance topics to specifi- The VSB’s support of Lawyers Helping Recommendation to De-Emphasize cally address and clarify that well-being Lawyers (LHL), Virginia’s lawyer assis- Alcohol at Social Events topics will be approvable. There will be tance program, is well known. The Bar The report recommends that alcohol more discussion by the MCLE Board on has provided financial assistance to LHL be de-emphasized at social events. One the topic of well-being. since approximately 1995. The VSB is suggestion is to have a broad selection now the primary funding source for of non-alcoholic beverages. Do our Recommendation 22.1: Implement LHL at $150,000, just over one-half of its members think that there is too much Proactive Management-Based current budget. The Lawyer Well-Being emphasis on alcohol at VSB events? Programs (PMBP) that Include Lawyer Report recommends that all stakeholders What should be done about it? Well-Being Components ensure a stable and sufficient funding The Department of Professional source. A recent informal survey of lawyer Recommendation 20.1: Adopt Regulation is surveying what other dis- assistance programs serving similarly Regulatory Objectives3 that Prioritize ciplinary agencies have proposed or ad- sized bar populations supports LHL’s Lawyer Well-Being opted for proactive management-based position that it is underfunded. The Department of Professional regulation. The Future of Law Practice The VSB also has several employ- Regulation has been asked to craft Committee is also looking at proactive ees who serve on the LHL Board: Renu regulatory objectives, including a lawyer management-based regulation as part of Brennan, deputy executive director, and well-being objective. Currently, no such its study of the future of law practice. Jim McCauley, ethics counsel. objective exists. The Study Committee The August 2017 Virginia Lawyer revising the UPL rules is also drafting Recommendation 22.2: Adopt a has two featured articles on LHL, in- regulatory objectives. The Future of Law Centralized Grievance Intake System cluding a discussion of LHL’s lighthouse to Promptly Identify Well-Being plan. The articles are consistent with, Practice Committee is also looking at regulatory objectives. Concerns and implement, core suggestions in the The VSB has a centralized grievance Well-Being Report about educating law- Recommendation 20.2: Modify the intake system that identifies well-being yers about lawyer distress and well-be- concerns. ing, and support of LHL programs. Rules of Professional Conduct to LEO 1886, approved by the Court Endorse Well-Being as Part of a Recommendation 22.3: Modify effective December 15, 2016, is currently Lawyer’s Duty of Competence Confidentiality Rules to Allow One- a centerpiece of LHL CLEs. LEO 1886 The Standing Committee on Legal Way Sharing of Lawyer Well-Being covers the ethical duty of partners and Ethics will consider the issue of amend- Related Information from Regulators supervisory lawyers in a law firm when ing Rule 1.1 to include a well-being to Lawyer Assistance Programs another lawyer in the firm suffers from component at its next meeting in The Standing Committee on Lawyer significant impairment. VSB Ethics September. Discipline will consider a recommen- Counsel Jim McCauley appeared at dation from the VSB Department of the February 2017 VBA meeting and Recommendation 20.3: Expand Professional Regulation that Paragraph talked extensively on LEO 1886 during Continuing Education Requirements the LHL CLE. VSB Deputy Executive to Include Well-Being Topics. Well-Being continued on page 17 www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 15 Ethics Counsel by James M. McCauley Legal Ethics Committee Concludes that Lawyers May Not Participate In Avvo Legal Services

On September 13, 2017, the opinion for comment going the other Avvo insists that it does not “rec- Standing Committee on Legal Ethics direction, holding that lawyers may ommend” the participating lawyer but voted to present Legal Ethics Opinion participate in an online platform for rather allows the consumer to choose 1885 (LEO 1885) to the Council of the finding and employing lawyers if cer- from a list of lawyers that offer the Virginia State Bar (VSB) for approval tain requirements are met.2 desired legal service in the particular at its next meeting on October 27, Avvo Legal Services is operated location. At the beginning of each 2017. If Council approves the opinion, by a privately owned corporation month, Avvo pays each participating the VSB will petition the Supreme that describes itself as an online legal lawyer all of the legal fees generated Court of Virginia to adopt LEO 1885. services marketplace. ALS disputes the by that lawyer in the preceding month LEO 1885 holds that a lawyer may not characterization in some ethics opin- and separately charges a “marketing pay the current marketing fee to par- ions that it is a “lawyer referral service.” fee,” the amount of which is tethered ticipate in Avvo Legal Services (ALS) Proposed LEO 1885 does not reach to the specific fixed fee charged for because the marketing fee payment is that conclusion nor is it necessary, al- each type of legal service. As the price an improper sharing of legal fees with though Virginia lawyers currently may of the legal service increases, so does a nonlawyer entity and an improp- not participate in a for-profit lawyer the “marketing fee.” The range starts er payment for recommendation of referral service. Rule 7.3(d)(2). as low as a $10 marketing fee for a $39 employment. See Virginia Rules of ALS allows a consumer to choose service (i.e., a 15 minute telephone Professional Conduct, Rules 5.4(a) a fixed-fee, limited-scope service consult) up to a $400 marketing fee for and Rule 7.3(d). Although the opinion that could include, for example, legal a $2,995 service. The marketing fee for does not mention ALS anywhere, the advice for matters such as immigra- the uncontested divorce priced at $995, business model described in the opin- tion, divorce, custody, employment, is $200. ion obviously applies to ALS. real estate, landlord-tenant; document Proposed LEO 1885 concludes On March 23, 2017, the VSB review services; document preparation that the business model used by ALS is published a proposed draft of LEO (wills, trusts, powers of attorney lease one in which lawyers are ceding con- 1885 for comment. At its next meeting agreements, eviction notices, employ- trol of the delivery of legal services to on May 17, 2017, after discussion of ment contracts, contracts and docu- a nonlawyer because the company sets some of the comments received, the ments for starting up a business); or the legal fees, not the lawyer, and the committee voted not to submit the start to finish support for legal services company collects and holds the legal proposed LEO to Council at its June such as, for example, an uncontest- fees and disburses earned fees to the meeting, in order to study further the ed divorce, which ALS advertises for participating lawyer after the service is issues raised by the comments. The $995. Once the customer has chosen completed. In so doing, the participat- current proposed draft differs very a legal service, she selects a lawyer in ing lawyer is circumventing Rule 1.15’s little from the draft previously pub- the selected area of practice and locale, requirements to hold advance fees in lished for comment. So far, five states purchases the legal service or elects to the lawyer’s trust account. The Rules have issued ethics opinions1 holding “have a lawyer call me now.” Once the of Conduct also require that the lawyer that lawyer participation in Avvo consumer has selected a lawyer (or and the client agree on the scope of Legal Services is unethical and violates opted for “have a lawyer call me now”), the representation. Rule 1.2(a). A third their Rules of Professional Conduct: the consumer clicks on a button that party intermediary, such as ALS, inter- Ohio, South Carolina, Pennsylvania, says “buy now,” makes a credit card feres with that process by prescribing a New Jersey, and New York. One state, payment for the desired legal service legal service that may not be suited to North Carolina, has issued a proposed and the lawyer then contacts the client. the consumer’s needs and the fee for

16 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Ethics Counsel which may not be reasonable. See Rule employment. Nevertheless, the ques- Endnotes: 1.5 (a lawyer’s fee shall be reasonable tions and concerns raised by ALS have 1 Supreme Court of Ohio, Bd. Of Prof. Conduct, Ethics Op. 2016-3 (June 3, and adequately explained to the client). generated an extensive and vigorous 2016); South Carolina Bar Ethics Op. Some are concerned whether the ALS policy debate over whether these Rules 16-06 (July 14, 2016; Pennsylvania website informs a consumer accurate- of Professional Conduct unreasonably Bar Assoc. Legal Ethics & Prof. Resp. Comm. Op. 2016-200 (September ly of all the necessary expenses and stifle innovative methods of deliver- 2016). A joint opinion issued by three fees associated with all of the fixed-fee ing legal services, and that alternative committees appointed by the Supreme limited-scope services it advertises on business methods such as ALS fill a legal Court of New Jersey, ACPE Joint its website. Lawyers have an obliga- need or “gap” that more traditional Opinion 732 (June 21, 2017) accom- panied by an alert to all bar members, tion to advertise and explain their fees methods of marketing and providing warned that it is impermissible for accurately and not make any misleading legal services have left unfulfilled. On lawyers to participate in Avvo Legal statements about the fees they charge for the other hand, a business model such as Services, Legal Zoom, Rocket Lawyer, and other similar online companies. legal services. Rule 7.1. ALS raises traditional and fundamental The latest opinion issued by the New Under the current rules, the “mar- concerns that nonlawyer entities should York State Bar Association on August keting fee” charged by ALS cannot be not control or manage the delivery 8, 2017 holds that a lawyer may not pay the current marketing fee to Avvo Legal construed as a reasonable and usual of legal services or interfere with the Services without violating New York’s payment for advertising and marketing, lawyer-client relationship and a lawyer’s Rules of Professional Conduct. New but rather an improper sharing of legal professional judgment and indepen- York State Bar Ass’n Comm. on Prof. fees with a nonlawyer and an improp- dence. See Cmt. [1], Rule 5.4. Ethics, Op. 1132 (August 8, 2017) 2 North Carolina State Bar. Proposed er payment for a recommendation of 2017 Formal Eth. Op 6 (July 27, 2017)

Well-Being continued from page 15 VSB Seeks 13 be amended to provide for one- thoughts and comments on its way communication of confidential recommendations. The well-being Representative information to LHL in certain circum- of Virginia’s lawyers is important to for the ABA House stances. the profession and public protection, of Delegates which is integral to the VSB’s mis- Recommendation 22.4: Adopt sion. As always, you can contact me at The Virginia State Bar is seeking a repre- Diversion Programs and Other [email protected]. sentative to immediately fill a two-year Alternatives to Discipline that are term as a representative in the ABA House Proven Successful in Promoting Well- Endnotes: of Delegates. The current representative Being 1 The Task Force was chaired by Bree Buchanan, Texas State Bar had to step down as a VSB delegate after The Department of Professional Lawyers Assistance Program being elected to represent Virginia as its Regulation is studying what other Director, and James C. Coyle, State Delegate. In addition, the Virginia states have done regarding diversion Attorney Regulation Counsel for State Bar is recruiting members interested programs and other disciplinary the Colorado Supreme Court. in serving as alternates in the ABA House alternatives. The question is whether a Members were Chief Justice Donald of Delegates in the event any of its regular rule change can be fashioned allowing Lemons; Anne Brafford; Donald D. Campbell; Josh Camson; Charles delegates are unable to attend a meeting. certain complaints to be closed with Gruber; Terry L. Harrell; David Such an appointment would need to no disciplinary record if the affect- Jaffee; Tracy Kepler; Patrick R. Krill; be made with very little notice. Persons ed lawyer complies with terms and Saray Myers; Chris Newbold; Jayne conditions that address the lawyer’s Reardon; Judge David Shaheed; Lynda interested in either position should submit well-being. This is a significant step Shely and William Slease. their letters of interest and resumes by beyond the abbreviated investigation 2 http://jeenacho.com/2017/08/20/can- November 1, 2017, to Karen A. Gould, law-firms-promote-well-suggestions- (“proactive investigation”) process that Executive Director, Virginia State Bar, 1111 national-task-force-lawyer-well/. E. Main St., Suite 700, Richmond VA, Intake uses now. 3 Regulatory objectives are a statement 23219-0026, or e-mail to nominations@ Please review the Well-Being of the goals you attempt to achieve Report in full and give us your through regulation. vsb.org. www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 17 Legal Aid by David Neumeyer VLAS Serving Some of the Poorest Areas in the State

Sarah’s daughter was a VLAS closes about 3,000 cases each computer whether VLAS or another freshman in high school when her year, helping more than 6,600 people provider is best source of help for the ongoing anxiety became disabling, on issues related to housing, consumer caller’s needs, sends the caller to the preventing her from functioning in protection, income and benefit pro- correct system, and then provides the school. The school responded with tection, education, and other family most appropriate help for the caller. a Section 504 plan, which provided concerns. People can also apply on our website, some limited accommodations for The area we serve offers three www.vlas.org, where they are given a the girl. particular challenges. The first is that code that allows them to complete the The plan wasn’t working. Sarah it includes some of the poorest parts application by phone while moving (whose name has been changed to pro- of Virginia. Twelve of the twenty-six their case to the front of the phone tect her family’s privacy) pleaded for cities and counties we serve have pov- queue. Every eligible caller receives an Individualized Education Program, erty rates of at least 20 percent, nearly some form of assistance, from legal which provides special instruction or double the statewide average of 11.2 advice, to materials that can help call- services for the student. “They told percent. The rest of the state com- ers help themselves, to representation me she was too smart,” Sarah said. “It bined, served by eight other legal aid by a lawyer, to referrals, to additional didn’t matter that she couldn’t stay in societies, has only twenty jurisdictions resources. the classroom because her hands were with poverty this high. To increase pro bono engagement, shaking so bad she couldn’t hold a The second challenge is that much VLAS has launched a three-part proj- pencil.” of our service area is sparsely populat- ect to work with local bar associations, Desperate, the parents turned to ed, creating obstacles for connecting operate a clinical program with the Virginia Legal Aid Society. A VLAS applicants with lawyers; and the third Liberty University School of Law, and attorney persuaded the school to do an is that less than a third of the lawyers help connect all Virginia legal aid pro- extensive evaluation of the student. As in our area take part in our pro bono grams with a planned statewide online a result, the school reconsidered and program. pro bono portal. determined the student was eligible for VLAS has always sought to Every five years, VLAS re-exam- special education services. increase efficiency through new ines our entire operation, from client Sarah is convinced that if it technology. In the 1980s, we adopted outreach and interaction to our prac- weren’t for the efforts of VLAS, “my computers for all staff and a Telephone tice’s areas of emphasis. We distribute daughter might not even be here now. Access Project that moved the appli- surveys on paper and online, hold My daughter needed more, and could cation process for rural clients from focus group discussions in our four of- do more, and they helped make it a in-person to a telephone line staffed by fices, and conduct community forums reality. They’re amazing.” a paralegal. in almost every county and city we Virginia Legal Aid Society, which In 2001, we created a statewide serve. The collected information is the is celebrating its 40th anniversary toll-free phone line, 866-LEGL-AID, heart of our strategic planning process, in 2017, uses legal skills to solve the connecting callers to their local legal which guides the types of cases we most critical problems of low-income aid programs, and in 2005, we created focus on, the technology we use and people in a six-city, twenty-county LawLine, an intake and advice ho- the grants we pursue. As this article region that covers Central, Southside, tline staffed by six paralegals and two goes to press, we are approaching the and Western Tidewater Virginia. With lawyers. completion of this year-long process to fifteen full-time lawyers and eight We now receive 18,000 calls create our plan for 2018–22. paralegals operating from four offices, per year from new applicants. Our David Neumeyer is the executive director of the plus 170 pro bono volunteer lawyers, LawLine triage system determines via Virginia Legal Aid Society.

18 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Wear the Pin That Says You’re a Super Lawyer.

Answer 15 questions or more on Virginia.freelegalanswers.org and we’ll send you a pin to wear with pride.

Virginia.freelegalanswers.org — A national ABA-sponsored program bringing legal answers to people who cannot afford an attorney.

Questions? Contact Karl Doss at [email protected] or (804) 775-0522.

Do Pro Bono. Do Good.

What Seniors Need to Know.

The Senior Citizens Handbook is an invaluable resource with just about everything a senior would want to know about the law and a compendium of community- service organizations that provide senior services.

For more information, or to order copies of the Senior Citizens Handbook, please e-mail Stephanie Blanton at [email protected] or call (804) 775-0576.

www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 19 CALL FOR NOMINATIONS William R. Rakes Leadership in Education Award The Section on the Education of Lawyers in Virginia Virginia State Bar

The Section on the Education of Lawyers in Virginia has established an award to honor William R. Rakes, of Gentry Locke, for his longstanding and dedicated efforts in the field of legal education, both in Virginia and nationally. The inaugural award was presented to Mr. Rakes in conjunction with the 20th Anniversary Conclave on the Education of Lawyers in Virginia sponsored by the Virginia State Bar’s Section on the Education of Lawyers in April 2012.

2017 Recipient — James E. Moliterno 2014 Recipient — Hon. Elizabeth B. Lacy 2016 Recipient — Hon. Donald W. Lemons 2013 Recipient — W. Taylor Reveley III 2015 Recipient — Hon. B. Waugh Crigler 2012 Inaugural Recipient — William R. Rakes Criteria This award recognizes an individual from the bench, the practicing bar, or the academy who has: (1) demonstrated exceptional leadership and vision in developing and implementing innovative concepts to improve and enhance the state of legal education, and in enhancing relationships and professionalism among members of the acad- emy, the bench, and the bar within the legal profession in Virginia. (2) made a significant contribution (a) to improving the state of legal education in Virginia, both in law school and throughout a lawyer’s career; and (b) to enhancing communication, cooperation, and meaningful collaboration among the three constituencies of the legal profession.

Nomination Process Nominations will be invited annually by the Section on the Education of Lawyers. A selection committee appointed by the section’s board of governors will meet annually to discuss possible nominations. The selection committee will include five members: at least three members of the Section on the Education of Lawyers, with one each from the bench, the practicing bar, and the academy, including the chair of the section; and at least one former award winner. The award may only be made from time to time at the discretion of the selection committee. When a nominee is selected, the award will be presented at a special event to include a reception for the honoree and his/ her family, friends and colleagues; past award recipients; and special guests. The law firm of Gentry Locke has agreed to un- derwrite the award and the special event to honor award recipients on an ongoing basis. Please submit the nomination form below, together with a letter describing specifically the manner in which your nominee meets the criteria established for the award. Nominations should be addressed to John M. Bredehoft, chair, Section on the Education of Lawyers, and submitted with your nomination letter to the Virginia State Bar: 1111 East Main Street, Suite 700, Richmond, VA 23219-0026. Nominations must be received no later than December 8, 2017. For questions about the nomination process, please contact Maureen D. Stengel, Director of Bar Services: [email protected] (804) 775-0517.

WILLIAM R. RAKES LEADERSHIP IN EDUCATION AWARD NOMINATION FORM Please complete this form and return it with your nomination letter to the Virginia State Bar: 1111 East Main Street, Suite 700, Richmond, VA 23219-0026. Nominations must be received no later than December 8, 2017.

Name of Nominee: ______

Profession: ______

Employer/Affiliation (Law Firm, Law School, Court):______

Address of Nominee: ______

City: ______State: ______Zip: ______

Name of Nominator: ______Telephone: ______

Email: ______Signature: ______The Clients’ Protection Fund Steps In by Gordon Hickey

The yearly fees that lawyers pay The bar has long recognized that while discipline protects the public from any future to the Virginia State Bar support nu- misconduct by the lawyer, it doesn’t reverse merous civic activities and profession- the lawyer’s previous conduct. The bar must al improvements, but perhaps nothing sometimes act to make right the damage done by dishonest lawyers. does more to enhance the profession One case, which was investigated by cur- than the small fee paid to the Clients’ rent VSB President Doris Henderson Causey, Protection Fund (CPF). involved a lawyer, Darryl A. Parker, who was

The fund, which is supported by an annual fee of $25 paid by Virginia lawyers — $10 starting The bar must sometimes act to make right the in July 2018 — reimburses people who have suffered a financial loss because of the dishon- damage done by dishonest lawyers. est conduct of a Virginia lawyer. In most cases, the offending lawyer has been disciplined by the bar for unethical hired by a woman who doesn’t speak English behavior and the lawyer’s license has been re- to represent her disabled son with a lawsuit voked or suspended. In a few cases, the lawyer filed against a public school system. The boy’s involved has died and the clients are left with arm was broken while he was at school and no other way to get their money back. the school system had taken responsibility. www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | October 2017 | VIRGINIA LAWYER 21 GENERAL INTEREST

The client had agreed to a one-third con- other than a phone call from an employee of tingency fee. Parker worked out a settlement Shephard’s law firm indicating negotiations through the school’s insurance carrier for were going to start, no work was performed. $60,000. Eventually, the client went to the law firm Parker received the check and had the cli- office and found that it was closed. ent endorse it. He then deposited the money Shephard’s license was revoked by the in his trust account and promised to send the VSB Disciplinary Board on November 20, client her son’s share. Despite repeated calls to 2015. Her client in this matter was ultimately Parker, the client was never able to collect any reimbursed the entire $10,500 by the CPF. money. Instead, Parker spent the money on One more representative case involved a personal and other expenses. woman’s dispute with a used car dealer. The After getting nowhere with Parker, the woman had agreed to trade in her car and pay client eventually filed a bar complaint. On $1,500 for another used car. When the deal August 28, 2015, Parker’s license was revoked fell through, the dealer refused to return the by the Virginia State Bar Disciplinary Board. trade-in or the $1,500. While that action advanced the bar’s mis- The woman hired Jean Jerome Dandy sion of protecting the public and regulating Ngando Ekwalla’s firm, the Ngando Law the profession, the disciplinary system is not Firm, which filed suit. The client paid the set up to reimburse clients for the dishonest firm $2,850 and several other fees during conduct of their lawyer. That’s where the CPF the course of the case, which was to go to steps in. arbitration. The client paid all the fees, which totaled $8,423.70, but Ekwalla never paid the arbitration fee and later refused to refund the money to the client. On October 29, 2015, Ekwalla’s license was revoked by the VSB Disciplinary Board. ... the disciplinary system is not set up to reimburse The CPF paid the client $8,423.70 to reimburse her for her losses to Ekwalla. To clients for the dishonest conduct of their lawyer. date, the CPF has paid more than $150,000 in claims to Ekwalla’s clients. He has been con- That’s where the CPF steps in. victed of eight counts of writing bad checks and is awaiting sentencing. While too often the CPF is asked to deal with cases involving people who desperately need the money reimbursed, desperation is The client’s petition to the CPF for reim- not a defining criterion. bursement was assigned to Causey, who was Margaret Nelson, the immediate past a member of the CPF board at the time. chair of the CPF board, describes a case where “Everything that was done on the case was a family was defrauded by a trusted longtime done in English, and they couldn’t speak friend. The lawyer represented an elderly cou- English,” Causey said. “The family desperately ple, and when one of them died he assisted needed the money to take care” of the boy. the executor of the estate and took control of After her investigation, Causey recommended the couple’s assets. “After the second spouse the board pay the client $50,000, which was died, the family discovered that all the money the maximum allowed at the time. That limit was gone,” Nelson said. has since been increased to $75,000. The family had no inkling anything was The files of the CPF contain many cases wrong because the second spouse had been like the one involving Parker where people of well taken care of. “This was a family that had modest means were taken advantage of by a loved and taken care of their parents. They dishonest lawyer. were mortified that this lawyer did this to In another case, lawyer Tawana Shephard them,” Nelson said. was hired to represent a client in a loan The lawyer was convicted of embez- modification case. The client reported that zlement and was disbarred, but none of the Shephard promised results within two family’s money could be recovered. The CPF months for fees totaling $10,500, which the granted the beneficiaries $50,000 each, the client paid. The CPF investigator found that maximum allowed at the time. Had the limit

22 VIRGINIA LAWYER | October 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST been what it is now, the petitioners would have been eligible for $75,000 each. The Virginia Clients’ Protection Fund paid its first claim in 1978. The During the last fiscal year, the Clients’ fund is underwritten by an annual fee paid by Virginia lawyers. No tax- Protection Fund distributed more than payer money is used. A fourteen-member board of volunteer lawyers $343,000 to clients who suffered financial and laypeople administers the fund. Board members investigate all losses because of the dishonest conduct of a claims on the fund and decide on the amount of any awards. Virginia lawyer whose license was suspended For claims to qualify, the lawyer named in the claim can no longer or revoked, or who had died. The payments, be practicing and the loss must be caused by dishonest conduct. The which involved thirteen lawyers, were made fund is considered an avenue of last resort after other possible pay- between July 1, 2016, and June 30, 2017. ment sources such as insurance and the accused lawyer have already The Virginia State Bar takes its fiscal duty been exhausted or are not available. to its members extremely seriously and rec- ognizes that even a $25 per annum fee must Awards have been made in cases where the lawyer: serve an important purpose. By allowing the • stole or embezzled money or property from a client VSB to make whole those who have suffered • could not refund, or refused to refund, the portion of the client’s financial losses as the result of corrupt behav- ior by Virginia lawyers, the Clients’ Protection fee that the lawyer had not earned Fund elevates the reputation of the entire pro- • did sham work that did not advance the client’s goal fession and ensures that the bad behavior of • performed work that was fraudulent or unethical, such as prepar- a few lawyers does not leave innocent clients ing documents with information the lawyer knew to be false. with no course of restitution.

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

Agenda Please indicate your choice for each session. 8:00–8:30 Registration/Continental breakfast Bar Leaders8:30 Welcome—VSB TECHSHOW Chair Sharon Nelson, VSB President Ed Weiner and Justice of the Supreme Court of Virginia Cleo E. Powell Institute8:45–9:45 First Sessions 5 Ethics: What Does Being Competent Mean in the Digital Era? (Sharon Nelson-President, Sensei Enterprises, 12:05–12:45 Lunch Lewis Ginter Fairfax, VA/Reid Trautz—American Immigration Lawyers 12:45–1:45 Fourth Sessions Assn, Washington, DC) 5 Using Tech to Do More Legal Work in Less Time (Reid Botanical Garden5 Technology for Trial Lawyers (Tom Mighell—Contoural, Trautz/Natalie Kelly—Director of Law Practice Mgmt at Inc., Dallas, TX/Brett Burney—Burney Consultants, State Bar of Georgia) Richmond Chagrin Falls, OH) 5 How to Store Your Law Firm Data in the Cloud Ethically 9:55–10:55 Second Sessions (Brett Burney/Jim Calloway—Director of Mgmt Asst 5 Microsoft 365, Matter Center and Windows 10: SAVEProgram at Oklahoma THE Bar Assn, Oklahoma DATE City, OK) The Three Hottest Microsoft Topics for Lawyers (Ben 1:55–2:55 Fifth Sessions Schorr-CEO, Roland, Schorr and Tower, Flagsta”, AZ) 5 The Microsoft Word Power Hour for Lawyers (Ben March 9, 20185 The Ethical Sand Traps of E-DiscoveryThe (Tom only Mighell/ thing changingSchorr/Debbie faster Foster) than the law is technology … and Brett Burney) 5 How Law Firms are Successfully Reinventing Themselves 11:05–12:05 Third Sessions staying technologicallyThrough competentTechnology (Jim Calloway) not only benefits your practice, For more information, please5 What visit: Are the “Reasonable” Cybersecurity Steps You Must 3:05–4:05 Sixth Sessions Take to Ethically Protect Your Confidentialit is Data a (Sharonkey part 5 of The the Ethical Rules Perils of Marketingof the Online Supreme (Natalie Kelly/Reid Court of Virginia. www.vsb.org/site/conferences/clbaNelson/John Simek—Vice President, Sensei Enterprises, Trautz) Fairfax, VA) 5 Budget-friendly Technology for Solo/Small Firm Lawyers or contact Paulette Davidson5 Essential PDF skills for Lawyers (Britt Lorish-AŸnity (John Simek/Britt Lorish) Consulting Group, Roanoke, VA/Debbie Foster-AŸnity 4:15–5:15 Plenary—60 Tech Tips in 60 Minutes at [email protected] Group, Tampa, FL) (SharonApril Nelson/Debbie Foster/Jim23, Calloway/Tom2018 Mighell) Register now! CLE hours Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to (pending) Paulette J. Davidson, Virginia State Bar | 1111 E.Greater Main Street, Suite Richmond 700 | Richmond, Virginia Convention 23219-0026 Center, Richmond

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www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | October 2017 | VIRGINIA LAWYER 23 City State Zip Code

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E-mail address*

*Confirmations and materials will be sent via e-mail. Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made. The Reverse Triangular Merger is the Favorite, and Often Wrong, Option by Joel Nied

A frequently used merger technique is the reverse triangular merger. Despite its popularity, it is a fairly convoluted process. Some even call it awkward.1 The reverse triangular merger uses three companies, some obscure terms like “transitory subsidiary” and a little bit of “corporate magic.”2 GENERAL INTEREST

The reverse triangular merger is accomplished The Share Exchange by a multi-step process starting with an Virginia is one of those states that has a better acquiring corporation forming a subsidiary. way to accomplish those goals. It has often The acquirer then funds the subsidiary with been noted by legal scholars that Virginia securities or cash. Next, the subsidiary is corporation law is superior to Delaware merged into the acquired (target) corpora- corporation law.5 The merger statutes are no tion. The plan of merger states that the target exception. While the instinct may be to reach survives the merger and that its shareholders for the reverse triangular merger out of habit, receive the cash or securities of the parent in Virginia corporations have a better option: exchange for their target stock. As a result, the the share exchange. target corporation becomes the subsidiary of Someone unfamiliar with the Virginia the parent/acquirer. mergers and acquisitions statutes may think Mergers are used for a variety of reasons that share exchanges are only useful when an instead of asset or stock purchases. Reverse acquirer exchanges shares with the share- triangular mergers, however, are typically used holders of a target. Such a person would be for the same reasons other forms of mergers guilty of skimming the relevant passages of are used, plus one other goal: to ensure that the Virginia Stock Corporation Act, regardless the acquired entity is, legally, the same entity as to how well they are organized. The share it was immediately prior to the merger. exchange provides much more flexibility. Va. Under most states’ laws, the consider- Code Ann. § 13.1-717.A.1. spells out, in sim- ation the shareholders of a target receive in a ple-to-understand language, the elegant share merger, including a reverse triangular merger, exchange procedure: can be cash.3 In other words, despite the A domestic corporation may acquire all of convoluted process of the acquirer forming a the shares of one or more classes or series subsidiary, merging the target into the subsid- of shares of another domestic or foreign iary, and sprinkling the whole procedure with corporation, or all of the eligible interests a little corporate magic, the ultimate goal is to of one or more classes or series of eligible put cash into the hands of the shareholders of interests of a domestic or foreign eligible the target. A merger resulting in the share- entity, as well as rights to acquire any such holders of the target receiving cash is often shares or eligible interests, in exchange for called a “cash-out merger.” shares or other securities, eligible inter- Reverse triangular mergers are popular ests, obligations, rights to acquire shares, for a variety of reasons. One of those reasons, other securities or eligible interests, cash, however, has nothing to do with a tax benefit, other property or any combination of the efficiency, or liability reduction. Rather, it is foregoing, pursuant to a plan of share ex- simply a knee-jerk reaction of many practi- change. tioners. Like all reflexive actions, it has its ori- The process is simple and flexible: a gin in utility. People are accustomed to imple- corporation acquires the shares of another menting reverse triangular mergers because corporation. In exchange for those shares, that complex process is often the only way in the acquirer can provide consideration to the many states to effectuate the three goals of 1) shareholders of the target corporation in the a merger 2) that results in the survival of the form of, among other things, cash. target entity and 3) provides cash to the target It seems so much simpler than the reverse shareholders. triangular merger. There is a reason for that. In Delaware, the reverse triangular It is simpler. In fact, the share exchange is merger is often the single manner available to simpler than any form of merger. Not only accomplish all three goals. Because so many is it simpler, it is arguably the only way to corporations around the country are formed perform a “cash-out merger” in Virginia. In in Delaware, attorneys throughout the nation Barris Industries, Inc. v. Bryan,6 the plaintiffs are well-schooled in the limited merger tech- sought to perform a reverse triangular merg- niques afforded by the Delaware statute gov- er: “As reverse triangular mergers are typically erning corporations — the Delaware General explained, Media General as the target is the Corporation Law.4 Through repeated use of acquired entity, while one of the plaintiffs will the reverse triangular merger, many attorneys be the acquiring entity.”7 In exchange for their have developed a reflex to use that process even in states whose merger statutes afford a more efficient method. Merger continued on page 31 www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | October 2017 | VIRGINIA LAWYER 25 Future-Proofing Your Law Practice by Sharon D. Nelson and John W. Simek © 2017 Sensei Enterprises, Inc.

As we travel around the com- But take heart, there are ways to compete — and not only to survive, but thrive. monwealth lecturing to lawyers on technology and security topics, we’ve It’s a Digital World There is no way of getting around the need met a lot of lawyers worrying about to educate yourself on the digital world. You the future of their practices. Some are don’t need to be a technologist, but you do need a fundamental knowledge of the tech- resigned. It is not uncommon to hear, nology you are (and should be) using. Not “I just want to hang on for a cou- only do ethical rules require that, it just makes ple more years. Then I’ll retire.” The sense. There are lots of CLE courses to assist you. younger lawyers don’t have that op- If you haven’t gone paperless, it is tion. They are inclined to ask, “What way past time. Lawyers waste interminable amounts of otherwise billable time searching can I do? How will I survive?” for files. You can’t compete if you refuse to take advantage of tools to keep everything VSB Executive Director Karen A. Gould wrote organized electronically. a column in the last issue of Virginia Lawyer If you haven’t started to automate your (August 2017) in which she laid out all of practice yet, it is also past time. Incorporate as the competition today’s lawyer faces, from many efficiencies as you can into your prac- LegalZoom, Avvo and a host of alternative tice. However, as one of our friends points legal services providers. We are sure some of out, many law firms have terrible processes. you found it dismal reading. He advises “decrapifying your legal processes

26 VIRGINIA LAWYER | October 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST before you automate them.” Memorable and Cybersecurity — Getting to Good excellent advice. No law firm cybersecurity is perfect. And Outlook is not a case management perfect is not the goal. “Getting to good” is a system. You will improve your efficiency and start. As we often say in our CLEs, law firms your client services by using a bona fide case have data on many individuals and businesses; management system. You should also be using hence, they are especially valued targets. And a time and billing software product. A best they hold a lot of PII (personally identifiable practice would be to implement a practice data) as well as a lot of regulated data (SOX, management system that includes managing HIPAA, Graham-Leach-Bliley, etc.) Fines and matter information and billing/accounting. penalties for not adequately securing data can Maybe it is time to explore a client portal, be stiff. Public shaming in the press can lead where clients can securely access documents, to clients beating a path to the exit door. look at their invoices, etc. Many case man- Recognizing that an advanced hack- agement systems include secure client portals er with sufficient skill and funding WILL these days. Attorneys are flocking to client get into to your network, you need to have portals and clients love them. You want your systems in place to detect a breach. You need clients to love their lawyer, right? to have an Incident Response Plan because Remember, law practices are all about no one thinks clearly in a crisis. You need clients. Please them and you will reap refer- to have your backups engineered so they rals. Lawyers are beginning to understand are impervious to ransomware. At least one that having emotional intelligence is critical backup should always be unconnected to your to their success. If you don’t know that term, network. Yes, cloud backups are fine, but you Google it for stories of how it helps lawyers need at least two backup sets. Develop cyber- get and keep clients. One example? Clients security policies – and enforce them. Train today want to pay less for more — making your employees in cybersecurity at least annu- your practice more efficient can accomplish ally and form a “cybersecurity culture” where that. Now you can more readily compete with everyone is mindful of security and trained in alternative legal providers. And, by sympa- the “See something? Say something.” way of thizing and responding to your clients’ needs, thinking. you have the perfect occasion to demonstrate If you are not in a large firm (over 500 the extent of your emotional intelligence, employees), become familiar with the NIST providing a win-win scenario. Cybersecurity Framework standards. By the time you read this, a new version 1.1 will Fish Where the Fish Are probably have been adopted. As that hasn’t This is an old saying of boat captains — and happened as we write, just Google it. good advice for the modern lawyer. Where are your prospective clients today? Online. So Think Outside the Box make sure your website is easy to use, modern This is not your grandmother’s or grand- in appearance and kept up-to-date. Make sure father’s law practice. Clients want greater it loads quickly and that it is mobile phone availability — they don’t want to have to take friendly. More than 50 percent of our own website traffic comes from smartphones, which is also why you need to be running Google Analytics reports on your website each Get to understand the effective use of online month — learn where your traffic is coming from. These reports will also help you see marketing tools such as blogs and social whether improvements you’ve made on your website are bearing fruit. media sites. Get to understand the effective use of online marketing tools such as blogs and social media sites. Reporters follow Twitter time off from work to see you. Offer extend- and scan for subject matter experts across ed hours. There’s a reason that major stores social media. If your name is out there and sometimes have law offices in them — you your material is good, you’ll get calls. One of may be better located in a strip mall than in a the best forms of advertising is being quoted in major publications. Future-Proofing continued on page 30 www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | October 2017 | VIRGINIA LAWYER 27 What I Learned from Justice Cynthia D. Kinser About Being a Lawyer by John P. O’Herron

For more than 50 years, the VBA has commissioned por- traits of each new justice of the Supreme Court of Virginia and donated it to the commonwealth. When justices leave the bench, the portraits are hung in the courtroom. Left: Chief Justice Kinser, her husband, and grandchildren at the Supreme Court of Virginia. Photo by Marilyn Shaw/The Virginia Bar Association. Center: Portait of Cynthia D. Kinser, retired chief justice of the Supreme Court of Virginia. Right: John O’Herron spoke at the ceremony that marked the hanging of her portrait in the court. Photo by Marilyn Shaw/ The Virginia Bar Association.

It’s not every day you are asked Justice Kinser has influenced so many people throughout her career, and her list of ad- to give remarks at a ceremony hon- mirers stretches from 9th and Franklin in oring a former chief justice of the Richmond, all the way to Lee County in the Supreme Court of Virginia. This past great Southwest of Virginia. Participating in the ceremony allowed me to both share a side June, I was blessed with this incredible of Justice Kinser that many were not familiar opportunity on the occasion of the with, and to reflect on how working for her portrait hanging ceremony for Justice has shaped my legal career. There are so many things I could say Cynthia D. Kinser. After clerking for about Justice Kinser and my time clerking for Justice Kinser for five years, four of her, but I want to highlight the three things which coincided with her tenure as I learned from working for her that have shaped my approach to the practice of law. chief justice, I was honored even to be invited to the ceremony. But the Be Humble ability to share some of what I learned Anyone who has met Justice Kinser knows of her striking humility. Most people know, from Justice Kinser as her law clerk and I knew prior to working for her, that was a true once-in-a-lifetime honor. Justice Kinser is a cattle farmer. As someone

28 VIRGINIA LAWYER | October 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST with farmers in my family, that fact alone was No matter how heavy the workload, though, important: being rooted to a patch of earth, Justice Kinser always put in the time to be working with animals and the land, relying prepared. From when those briefs arrived at on the weather — these all have a way of the office, to the final edits of an opinion, no eliminating even the semblance of arrogance. stone was left unturned. This took on many But as a law clerk, you never really know your forms: making sure the research was thor- boss until, for the first time, you have to drive ough; ensuring the clearest analysis to decide her somewhere….in your 1997, stick-shift a case and inform the bar; knowing what Honda Civic, with several doors that do not questions should be asked; poking possible work and the ceiling fabric drooping down. holes in the arguments, and more. I learned As I shamefully apologized for the state of my immediately that whether it was the weighti- vehicle, she truly could not have cared less. est case drawing public scrutiny, or a petition This was a microcosm of who she was: Justice for appeal seemingly destined for refusal, ev- Kinser never put on airs, did not feel like she ery case warranted the same quality of work. deserved royal treatment, and was as down This is something that my fellow clerks to earth as you can be at the pinnacle of your and I carried from our clerkships into our profession. legal practices. From our most significant In a profession not generally known for cases and clients to the least, every matter its humility, Justice Kinser’s down-to-earth deserves our best preparation. Providing the humanity was a constant example to her law best service to clients, and more importantly clerks. Both personally and intellectually, she being the best attorneys that we can be, is the approached everything with humility and surest way to both success and fulfillment in with that rare gift of listening. She always our careers. solicited and valued the ideas and input of her clerks, and not simply to confirm what Prioritize Family and Community she already believed about an issue. She never Finally, and I believe most importantly, Justice acted as if she had all the answers, and she Kinser showed me how prioritizing family approached every complex question with an and community make one a better attorney. earnest desire to get it right. This, I believe, is As the eighth of nine children, family has the distinct hallmark of a good judge. These always been of primary importance to me, simple lessons have served and will contin- and it was a true joy to clerk for someone who ue to serve me well in the practice of law. shared that belief. To Justice Kinser, time with Whether it is working with a client, interact- family was not fleeting, or simply an add-on: ing with colleagues or opposing counsel, or it was part of her everyday life. Whether it was trying to persuade a judge, approaching these interrupting her day to care for her parents or responsibilities with humility is a must — by play with her grandkids, playing the organ on listening and learning from others, we can her weekends, or speaking to a local organiza- truly excel in the practice of law. Justice Kinser tion, Justice Kinser always took the time to be never told me to approach the practice of law with those she loves. And she expected me to with humility; she just lived it and taught all do the same. Nearly every conversation began of us in the process. Prepare In a profession not generally known for its humility, In case you were wondering: being a justice on the Supreme Court of Virginia is a lot of work. Justice Kinser’s down-to-earth humanity was a Preparing for merits cases and writing opin- ions would be plenty to keep a justice busy, constant example to her law clerks. but when you add the approximately 30 cases every seven weeks that appear on the writ panels, the “to-read-and-research pile” stacks with “How is the family?” and she was always up. Factoring in the enormous responsibilities interested to hear what my wife and children of also being the chief justice, Justice Kinser’s were up to. Justice Kinser also made sure that workload was intense to say the least. (And I structured my work schedule around any yes, at the risk of piling on, she also regularly family needs that arose, and she was always commuted approximately six hours from willing to make sacrifices herself to accommo- her home in Pennington Gap to Richmond). date them. www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | October 2017 | VIRGINIA LAWYER 29 GENERAL INTEREST

Although Justice Kinser was devoted to her family and to clerk for Justice Kinser. And it will be a continuing honor those of her clerks, to me there was also a larger lesson: Not to practice in the courtroom that displays her portrait and only did success and excellence as an attorney not have to reminds me of those lessons. come at the price of family, but life outside the law enriched a legal career. By spending time with family, putting aside our interests to serve others, and being present to loved ones, we can live a life of purpose. In doing so, our work takes on added significance and we can bring additional focus and efficiency to our jobs. A refreshed spirit and healthy relation- ships make us better lawyers. I hope to continue following Justice Kinser’s example throughout my career. I could go on. In so many ways that I already see, and countless more I’m sure to realize down the road, clerking John P. O’Herron is an associate at ThompsonMcMullan PC, where he practices civil and appellate litigation in both state and federal court. for Justice Kinser has shaped my career and approach to be- He represents business, government, and individual clients in a wide variety of areas, including insurance defense, constitutional and civil ing a lawyer. I am immeasurably blessed for having had the rights law, and trusts and estates. Prior to joining ThompsonMcMullan, opportunity to work at the Supreme Court of Virginia, and he clerked for Justice Kinser from 2009 until her retirement in 2014.

Future-Proofing continued from page 27

traditional law office. Rotate shifts with other lawyers. Keep point in bemoaning the work that will be lost to lawyers asking yourself what clients want. — but there is plenty of work out there for those who are Set aside quiet time to figure out how you can distin- energized enough to strategize for the future. guish yourself from your colleagues and how to make your skills known. Speak, write, network with other lawyers, etc. And yes, networking is still key — so cultivate those personal relationships. Make a plan for the future and follow up on the plan. If you practice law the way it was practiced 20 years ago, you are going to get run over by technology and alternative legal providers. Instead of being afraid that you will lose your job to artificial intelligence, figure out what new opportunities Sharon D. Nelson is the president of Sensei Enterprises Inc., a digital exist. As an example, we have certainly seen a marked in- forensics, information security, and information technology firm in crease in the number of lawyers handling data breaches and Fairfax. She is the author of the noted electronic evidence blog, Ride the Lightning, and is a co-host of the Legal Talk Network podcast series privacy law matters. “Sniffing the air” for emerging oppor- called “The Digital Edge: Lawyers and Technology” as well as “Digital tunities is a great way to make sure there is viable legal work Detectives.” She is a former president of the Virginia State Bar and a for you to do. past president of the Fairfax Law Foundation. Finally, remember that many current lawyer functions — drafting wills, contract review, e-discovery review, busi- ness formation, legal research, etc. — are automated already or will be shortly. Some of this work is automated through expert systems and some through artificial intelligence — it really doesn’t matter which. Just as we were writing this article, a news story was published saying that the number of patents filed within the category “legal services and handling John W. Simek is vice president of Sensei Enterprises Inc. He has a legal documents” has risen 484 percent in the last five years national reputation as a digital forensics technologist and has testified as an expert witness throughout the United States. He provides infor- according to an analysis by Thomson Reuters of data from mation technology support to hundreds of Washington, DC, area law the World Intellectual Property Organization. There is little firms, legal entities, and corporations.

30 VIRGINIA LAWYER | October 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST

Merger continued from page 25 shares, the shareholders of Media General Inc. (the target) were less of how the parties to a transaction structure the deal, to receive $61.50 per share.8 courts applying Virginia law to a cash-out merger will likely The court, however, ignored the fact that the company consider it a share exchange. As one observer stated, a share ex- controlled by the plaintiffs formed a new subsidiary, planned change “is subject to the same safeguards as a statutory merger, to fund that subsidiary with cash and merge the target into such as shareholder approval and dissenters’ rights. It is a the subsidiary and then, finally, give all the shareholders of the procedure whereby one entity may become the subsidiary of target cash, thereby removing them all another without the awkward process as shareholders of record of the target. of a reverse triangular merger.”12 Despite the intricate form of the It has often been noted by legal Attorneys advising Delaware transaction, the court boiled it down corporations may have no choice but to its basic elements. The court stated to recommend the awkward reverse that Virginia’s share exchange statute, scholars that Virginia corpora- triangular merger. Attorneys advising not the merger statue, governed: “Any Virginia corporations, however, would ‘cash-out’ merger which by its terms tion law is superior to Delaware be remiss to not advise their clients forces all shareholders to exchange of the availability of a share exchange their shares for other corporate secu- corporation law. when the goal is to cash out the target rities or for cash, effects or constitutes shareholders. Mergers and acquisition a ‘share exchange’ within the meaning attorneys should fight the mechan- of Article 12 of the Virginia Stock Corporation Act.”9 In other ical habit of resorting to the reverse triangular mergers when words, regardless as to what the parties call the transaction or Virginia corporations are involved. Instead, they should opt for which statutes they cite in the articles of merger, the courts will the simpler and more elegant share exchange. view a cash-out merger as a share exchange pursuant to Va. Code Ann. § 13.1-717. Endnotes: There is an argument, admittedly a weak one, that the 1 See Murphy, The New Virginia Stock Corporation Act: A Primer, 20 share exchange statute (§ 13.1-717) does not provide the same U.Rich.L.Rev. 67, 121 (1985). post-closing certainty as the merger statute (§ 13.1-716). A 2 The Portable MBA in Finance and Accounting, Theodore casual observer comparing Va. Code Ann. § 13.1-721.A.(8) Grossman, John Leslie Livingstone, John Wiley & Sons, Oct 8, (which describes some of the effects of a merger) to 13.1- 2009, p. 207. “Through an example of corporate magic known as 721.B. (which describes the effects of a share exchange), may the reverse triangular merger, the newly formed subsidiary of the think that the merger statute states the limitations on the rights acquirer may disappear into ... the target corporation ….” 3 See, e.g. DEL. CODE ANN. tit. 8, § 251(b)(5). of the target’s former stockholders while the share exchange 4 DEL. CODE ANN. tit. 8, § 101 et seq. statute does not. As described below, that interpretation is not 5 See, e.g., Wheaton and Nied, Virginia or Delaware? No Reason to only incorrect, it is irrelevant in the case of a cash out merger. Leave the Old Dominion, Virginia Lawyer magazine — June/July 2003, p. 21. Rights 6 Barris Industries, Inc. v. Bryan, 686 F. Supp. 125 (E.D. Va. 1988). To the detriment of an acquirer, and contrary to the frail 7 Id. at 131. argument above, a merger provides more rights to the former 8 Id. at 126. shareholders than does a share exchange. Under both a merger 9 Id. at 132. and share exchange, the target shares’ rights “are entitled only 10 Va. Code Ann. §§ 13.1-721.A.(8) and 13.1-721.B. to the rights provided to them in the [plan of share exchange/ 11 Id. plan of merger] or to any rights they may have under Article 15 12 Murphy, supra, 20 U.Rich.L.Rev. 67, at 121 (1985). (§ 13.1-729 et seq.) ....”10 Under a merger, however, the target shares and shareholders are also entitled to additional rights that are not granted in the case of a share exchange: those granted by “the organic law of the eligible entity”.11 The tar- get’s shareholders’ rights, ultimately, are irrelevant in the case of a cash-out merger (whether it is a reverse triangular merger or a share exchange) because, at the end of the transaction, the target shareholders will no longer be shareholders. They will be simply cash-holders. With regard to the amount of cash they Joel Nied is the chair of the corporate group at Price Benowitz LLP. He are entitled to receive, Va. Code Ann. § 13.1-741.1.A. puts the focuses his practice on corporate and securities, mergers and acquisitions, same limitations on a shareholder’s remedies for both mergers debt and equity financings, and intellectual property. His transactions-based and share exchanges. practice includes representing clients in matters relating to contracts, secu- By all accounts, a share exchange is superior to a reverse rities regulation, Blue Sky law, and private placements. He also has extensive experience handling transactions involving debt and equity financings, triangular merger: it is simpler and it arguably affords more joint ventures, fund formation, licensing agreements, engineering services protection to the acquirer than a merger. In addition, regard- contracts, development agreements and supply agreements. www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | October 2017 | VIRGINIA LAWYER 31 CALL FOR NOMINATIONS Harry L. Carrico Professionalism Award VSB Section on Criminal Law The Harry L. Carrico Professionalism Award was established Criteria in 1991 by the Section on Criminal Law of the Virginia State Bar The award will recognize an individual who meets the following to recognize an individual (judge, defense attorney, prosecutor, criteria: clerk, or other citizen) who has made a singular and unique con- tribution to the improvement of the criminal justice system in the u Demonstrates a deep commitment and dedication to the highest Commonwealth of Virginia. ideals of professionalism in the practice of law and the administra- tion of justice in the Commonwealth of Virginia; The award is made in memory of the Honorable Harry L. Carrico, former Chief Justice of the Supreme Court of Virginia, u Has made a singular and unique contribution to the improve- who exemplified the highest ideals and aspirations of profession- ment of the criminal justice system in Virginia, emphasizing profes- alism in the administration of justice in Virginia. Chief Justice sionalism as the basic tenet in the administration of justice; Carrico was the first recipient of the award, which was instituted u at the 22nd Annual Criminal Law Seminar in February 1992. Represents dedication to excellence in the profession and “per- Although the award will only be made from time to time at the forms with competence and ability and conducts himself/herself discretion of the Board of Governors of the Criminal Law Section, with unquestionable integrity, with consummate fairness and cour- the Board will invite nominations annually. Nominations will be tesy, and with an abiding sense of responsibility.” (Remarks of Chief reviewed by a selection committee consisting of former chairs of Justice Carrico, December 1990, Course on Professionalism.) the section and Chief Justice Carrico. Submission of Nomination Prior Recipients Please submit your nomination on the form below, describing spe- The Honorable Harry L. Carrico 1992 Overton P. Pollard, Esquire 2005 cifically the manner in which your nominee meets the criteria estab- James C. Roberts, Esquire 1993 Hon. Paul B. Ebert 2006 lished for the award. If you prefer, nominations may be made by letter. Oliver W. Hill, Esquire 1995 Rodney G. Leffler 2007 Nominations should be addressed to Timothy J. Heaphy, Esq., Chair, Hon. Robert F. Horan 1996 Prof. Ronald J. Bacigal 2008 Criminal Law Section, and mailed to the Virginia State Bar Office: 1111 Reno S. Harp III, Esquire 1997 Hon. Jere M.H. Willis Jr. 2010 East Main Street, Suite 700, Richmond, VA 23219-0026. Nominations Hon. Richard H. Poff 1998 Melinda Douglas 2012 must be received no later than December 4, 2017. Please be sure to Hon. Dennis W. Dohnal 1999 Claire G. Cardwell 2013 include your name and the full name, address, and phone number of the Hon. Paul F. Sheridan 2000 nominee. Hon. Donald H. Kent 2001 Gerald T. Zerkin 2014 Craig S. Cooley, Esquire 2002 Hon. Jerrauld C. Jones 2015 If you have questions about the nomination process, please call Prof. Robert E. Shepherd 2003 Hon. Michael N. Herring 2016 Maureen D. Stengel, Director of Bar Services, Virginia State Bar, at Richard Brydges, Esquire 2004 Philip J. Hirschkop 2017 (804) 775-0517.

Harry L. Carrico Professionalism Award NOMINATION FORM Please complete this form and return it to the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 23219- 0026. Nominations must be received no later than December 4, 2017.

Name of Nominee: ______Profession: ______Employer/Firm/Affiliation:______Address of Nominee: ______City ______State ______Zip ______

Name of person making nomination ______Telephone ______(Please print) E-mail ______Signature ______

(Please attach an additional sheet explaining how the nominee meets the criteria for the Harry L. Carrico Professionalism Award.) Health Law

Probably no other enterprise in the United ards facing providers and their counsel as they States is as regulated as health care. Health- form business entities and relationships in his care lawyers must pilot their clients through article, “Navigating Harbors and Exceptions treacherous regulatory waters avoiding the in Healthcare Contracting.” often hidden and deceptive administrative, Misuse, albeit of medications, not money, civil, and criminal penalties lurking like so is also the underlying cause of the changes in many icebergs. public health law highlighted by the Office of One of the most financially significant Attorney General (OAG) in its article, “Taking hazards is a False Claims Act violation. In Aim at Virginia’s Opioid Crisis Through the wake of the 2016 United States Supreme Changes in Public Health Law.” The OAG de- Court decision in Universal Health Services, scribes the devastating toll of prescription drug Inc. v. United States ex rel. Escobar, Robert overdoses in Virginia and recent legislative ef- Vogel brings proof requirements for False forts to tighten up prescribing practices as well Claims Act litigation up to date in his article, as make reversal agents widely available. “False Claims Act Liability Has a New Implied Certification Standard, or Does It?” He points out that while the “implied certification” theory is now unequivocally valid, defining “materiality” remains an elusive goal. In addition to federal concerns such as the False Claims Act, there are also both state and federal laws imposing penalties for im- proper relationships (e.g., Stark and anti-kick- Bruce D. Gehle is chief operating officer for Piedmont back statutes) between health care providers Liability Trust, which is the professional liability and entities, all in an effort to ensure that the self-insurance program for the University of Virginia Physicians Group. Prior to joining the trust, Gehle tax dollars of the citizenry are not wasted or was a medical malpractice defense litigator in private misused. Andrew Wampler outlines the haz- practice.

www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 33 False Claims Act Liability Has a New Implied Certification Standard, or Does It? by Robert B. Vogel

Suppose a law school wishes to merely by handing in an exam, im- ensure compliance with a school pliedly attest to all of the rules appli- policy that prohibits students from cable to exam-taking that are found in cheating on final exams. As a means of the handbook?1 compliance, the law school instructs This vignette exposes one of the central ques- each student to sign an affidavit at tions that has plagued analysis of the False the end of an exam stating that the Claims Act (FCA) in recent years. To succeed student did not give or receive help. in an FCA action, the plaintiff must show by a preponderance of the evidence that the defen- By signing, the student has expressly dant knowingly made a claim that was false or attested to his honesty. But what if the fraudulent while seeking payment or approval 2 law school’s student handbook states from the United States government. Circuit courts have split over whether so-called “im- that there shall be no cheating on final plied certification” is a valid means of proving exams? Doesn’t the law student then, whether a claim is “false or fraudulent.” Does

34 VIRGINIA LAWYER | October 2017 | Vol. 66 | HEALTH LAW SECTION www.vsb.org FALSE CLAIMS ACT LIABILITY a government contractor impliedly certify law makes clear that a healthcare provider’s compliance with any law or regulation that noncompliance with conditions of payment pertains to the claim that was submitted, just is sufficient to establish the falsity of a claim as the law student attests to all the rules in the for reimbursement . . . .” Universal appealed to handbook? the Supreme Court.6 Circuit Courts were split over whether a contractor does impliedly certify compliance What is Materiality? with the voluminous statutes and regulations Prior to Escobar, if the given circuit accepted that pertain to his claim. If the court did implied certification theory, there were gen- accept implied certification as a legal theory, erally two standards that were used to assess then it had to decide how to apply it. One of “materiality”: the so-called “prerequisite to the critical points of analysis on which the cir- payment” test7 and the “natural tendency to cuits split was whether the false certification influence” test.8 The “prerequisite to payment” was “material” to the government’s decision (or “condition of payment”) test made mate- to pay the claim. On June 16, 2016, the United riality dependent on whether the underlying States Supreme Court issued a unanimous statute or regulation itself expressly stated that decision in Universal Health Services, Inc. v. compliance was a condition of payment with United States ex rel. Escobar upholding the which the contractor must comply in order implied certification theory, while imposing to be paid. Other circuit courts followed the what was thought to be a new standard of so- “natural tendency to influence” test employ- called “materiality.”3 Now that we are a year ing language from the Fraud Enforcement out from the Escobar decision, it is instructive and Recovery Act of 2009 (FERA), signed by to see how the Circuit Courts of Appeal have President Obama as an amendment to the applied the Escobar standards. FCA, which defined “materiality” as “having a natural tendency to influence, or be capable of Facts of Escobar influencing, the payment or receipt of money In Escobar, a patient, who was a Massachusetts or property.”9 One of the questions now being Medicaid beneficiary, received counseling asked is whether the Escobar materiality stan- services from a mental health facility owned dard is more well-defined and will be more by Universal Health Services Inc. After the pa- uniformly applied than the “natural tendency” tient died from an adverse reaction to a med- language of FERA. ication prescribed at the facility, her parents discovered that many of the counselors that What Standard for Materiality Did the had cared for their daughter were unlicensed Supreme Court Set in Escobar? and unauthorized to prescribe medication In Escobar, the Supreme Court validated the without appropriate supervision, which did existence of the implied certification theory not exist.4 as a whole and attempted to define a “mate- The lawsuit, filed in a district court in the riality” standard. The Court stated that the First Circuit, claimed, in part, that submission “materiality” standard requires that at least of claims for the mental health counseling of two conditions must be satisfied for implied the patient violated the FCA under implied certification theory to apply: “[F]irst, the certification theory. The plaintiffs argued that claim does not merely request payment, but Universal’s submission of Medicaid claims also makes specific representations about was “false or fraudulent” because utilizing the goods or services provided; and second, improperly licensed counselors impliedly the defendant’s failure to disclose noncom- violated the government’s conditions of pay- pliance with material statutory, regulatory, ment. Despite the fact that the First Circuit or contractual requirements makes those had previously recognized implied certifi- representations misleading half-truths [that cation theory and the “conditions of pay- were material to the government’s payment ment” materiality standard, the district court decision].”10 granted Universal’s motion to dismiss, finding The Court said that it is relevant, al- none of the cited violations as preconditions though not dispositive, for the noncompliance of payment.5 to technically be a “condition of payment” On appeal, the First Circuit reversed the or have given the government the option to lower court, broadening its own interpreta- withhold the payment.11 The Court explained tion of materiality and stating: “[O]ur case that it would be evidence of materiality if www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 35 FALSE CLAIMS ACT LIABILITY the contractor knows that the government routinely fails to regulators in the state government were aware and did not seek pay claims when the given provision is violated.12 Therefore, to recoup payment. The court did say that if, upon discovery, it it seemed from the plain language of the opinion that the is found that MassHealth knew about the violations and paid, misrepresentation must be outcome determinative; if the gov- the matter could be reheard in light of this evidence.20 ernment had paid earlier claims on the same contract knowing In January 2017, the Ninth Circuit affirmed a district of the noncompliance, then it would be “very strong evidence” court ruling granting summary judgment to a government that the misrepresentation was not material.13 contractor, SERCO, who was alleged to have violated the FCA The Court concluded that the First Circuit’s view that any by failing to comply with statutory and regulatory law regard- statutory, regulatory, or contractual violation is material so ing the filing of monthly cost reports.21 The Ninth Circuit long as the defendant knows that the government would be used a straightforward reading of Escobar to find that on both entitled to refuse payment were it aware of the violation was prongs the relator had, in the first instance, failed to show that far too expansive. The Court makes clear that, in order to be SERCO had impliedly certified “specific representations” about material to the government’s decision to pay a claim, the viola- its performance and, secondly, failed to show that compliance tion must be caused by a nondisclosure that lead to it being a with the specific regulation at issue was material to payment half-truth or at least misleading. The case was remanded to the and that the government did not rely on the cost reports in First Circuit for a ruling in keeping with this new standard.14 deciding whether to pay. The Ninth Circuit concluded that a In the immediate aftermath of the Escobar decision, there mere request for payment does not contain representations was reason for both FCA plaintiffs and defendants to feel specific enough to satisfy the pleading requirements in an emboldened: implied certification had been upheld as a valid implied certification case.22 legal theory, but it seemed as if the materiality requirement Setting up a potential new circuit split, the Fourth Circuit had been stringently narrowed. Indeed, the Court said that “[t] broke ranks with the straightforward reading of Escobar by the he materiality standard is demanding” and should be rigor- Ninth Circuit with regard to what a “specific representation” ously applied.15 Noncompliance is not material, said the Court, is. In May 2017, the Fourth Circuit found in the case of United where it is “minor or insubstantial.”16 States ex rel. Badr v. Triple Canopy, Inc., upon remand from the Supreme Court, that in order to satisfy the first prong of Cases that Have Been Decided Applying the Escobar, the defendant was required to disclose its contractual Escobar Standard noncompliance in its requests for payments from the gov- Not surprisingly perhaps, interpretations of the Supreme ernment.23 Triple Canopy had argued that it made no specific Court’s decision in Escobar have yielded disparate results, with representations regarding the marksmanship skill of the guards the district and appeals courts in some cases following Escobar that it supplied to the government, as was required in its and in others continuing to forge their own path. contract, when it requested payment.24 The question remains The most anticipated ruling post-Escobar was the First open about whether the Fourth Circuit would adopt the First Circuit’s decision on the Escobar remand. They were now again Circuit’s approach and reconsider the materiality if the govern- ruling on the district court’s motion to dismiss. A panel of the ment knew about the poor marksmanship and paid anyway. First Circuit used what they called a “holistic approach” to an- Other circuit courts that have decided FCA implied certi- swer the question of whether the government’s decision to pay fication cases sinceEscobar included the Seventh Circuit, which Universal for mental health counseling from allegedly unqual- had previously rejected the concept of implied certification. In ified individuals was material.17 The First Circuit said that the the case before it, a former employee alleged that a for-profit plaintiffs had adequately pleaded materiality for the purposes college had violated Title IV Higher Education Act require- of surviving a motion to dismiss because complying with the ments involving recruitment and retention policy. The Seventh regulation in question was, in their opinion, a “condition of Circuit, relying on Escobar, decided that the government’s payment,” and while recognizing that this was not dispositive, decision to pay the college would not have been different had it it was strong evidence of materiality and the qualifications of known of the alleged noncompliance.25 the counselors was at the core of the program expectations.18 The Eighth Circuit decided that if the government had These findings are in keeping with the Supreme Court’s opin- known that a for-profit college was not keeping accurate ion in Escobar and reiterated the First Circuit’s own previous student records it would not have supplied financial aid funds decision. The most controversial finding of the First Circuit to the college. Noting that the government had previously in this remand was with respect to the “knowledge” that the terminated colleges from receiving financial aid funds for government must have of the noncompliance before paying a falsifying records, the Court found that the college’s promise to claim. They determined that there was a difference between the maintain accurate grade and attendance records influenced the knowledge of “the entity paying [the claim]” and other state government’s decision to enter into a contractual relationship regulators. The Supreme Court opinion failed to make this with the college.26 distinction, only recognizing the “government’s” knowledge more generally.19 In this case, the court found that there was no Conclusion evidence that the paying entity, MassHealth, had paid claims Relators and the government may now argue that the Escobar despite being aware of violations, but it was clear that other decision did little to change the definition of “material” as

36 VIRGINIA LAWYER | October 2017 | Vol. 66 | HEALTH LAW SECTION www.vsb.org FALSE CLAIMS ACT LIABILITY it was already defined by the FCA under FERA as “having a materiality when it decided Allison Engine Co. v. United States natural tendency to influence, or be capable of influencing, the ex rel. Sanders, 128 S. Ct. 2123 (2008). In Allison, the Supreme payment or receipt of money or property.”27 As expected, the Court said, “What § 3729(a)(2) demands is not proof that the relators and the government will encourage a “holistic ap- defendant caused a false record or statement to be presented proach” that utilizes the materiality factors discussed in Escobar or submitted to the Government but that the defendant made a false record or statement for the purpose of getting ‘a false or as merely guidelines for an overall materiality approach. We fraudulent claim paid or approved by the Government.’” Id. at can expect defense attorneys to attempt to defeat materiality by 2130. Therefore, a subcontractor violates § 3729(a)(2) if the submitting evidence that the government knew about the pre- subcontractor submits a false statement to the prime contractor sumed violation and paid anyway. After Escobar, we now know intending for the statement to be used by the prime contractor that implied certification is here to stay as an FCA theory, and, to get the Government to pay its claim. Id. In announcing the despite the fact that we have Supreme Court guidelines, how Escobar standard, the Supreme Court did little to compare that materiality will be proven is still an open question. standard to the standard in Allison Engine. 10 Escobar, 136 S. Ct. at 2001. Endnotes: 11 Id. at 2003-04. “A misrepresentation cannot be deemed material 1 This hypothetical is modeled after the one discussed in United merely because the Government designates compliance with a States v. Kellogg Brown & Root Services., Inc. See U.S. v. Kellogg particular statutory, regulatory, or contractual requirement as a Brown & Root Servs., Inc., 800 F. Supp. 2d 143, 154-55 (D.D.C. condition of payment. Nor is it sufficient for a finding of mate- 2011). It is also found in my law review article that was published riality that the Government would have the option to decline to in the Liberty University Law Review in the Spring of 2014. pay if it knew of the defendant’s noncompliance.” Id. at 2003. At that time, there was a debate about whether the concepts of 12 Id. at 2003. express and implied certification should be dropped and envel- 13 Id oped into a “materiality” assessment. See Robert B. Vogel, M.D., 14 Id. at 2004 Implied Certification and Materiality Should be Distinct Elements 15 Id. at 2003 when Assessing False Claims Act Liability 8, Liberty U. L. Rev. 16 Id. 449 (2014); see also Monica P. Navarro, Materiality: A Needed 17 U.S. ex rel. Escobar v. Universal Health, 842 F.3d 103, 109 (1st Cir. Return to Basics in False Claims Act Liability, 43 U. Mem. L. Rev. 2016). 105 (2012). 18 Id. at 110-11. 2 31 U.S.C. § 3729(a)(1)(A)-(G). 31 U.S.C. § 3729(a)(1)(A) says, 19 Id. at 111-12. “knowingly presents, or causes to be presented, a false or fraud- 20 Id. at 112. ulent claim for payment or approval” and § 3729(a)(1)(B) says, 21 U.S. ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 328-29 (9th Cir. 2017) “knowingly makes, uses or causes to be made or used, a false . . . 22 Id. at 334-35. or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A-B). 23 U.S. ex. rel. Badr v. Triple Canopy, Inc., 857 F.3d 174, 178-79 (4th 3 Universal Health Servs., Inc. v. U.S. ex. rel. Escobar, 136 S. Ct. Cir. 2017 1989, 2003-04 (2016). 24 Id. at 178. 4 Id. at 1997. 25 U.S. ex rel. Nelson v. Sanford-Brown, 840 F.3d 445, 447-48 (7th 5 Id. at 1997-98. The Supreme Court opinion cites United States ex Cir. 2016). rel. Hutcheson v. Blackstone Medical, Inc., 647 F. 3d 377, 385–87 26 U.S. ex rel. Miller v. Weston Educ., 840 F.3d 494, 503-05 (8th Cir. (1st Cir. 2011) as an example of the First Circuit’s evaluation of 2016). materiality prior to Escobar. Id. at 1998. 27 31 U.S.C. § 3729(b)(4) (2012). 6 U.S. ex rel. Escobar v. Universal Health Servs., 780 F.3d 504, 517 (1st Cir. 2015). 7 This article will not attempt to break down the nuances of the circuit split over the materiality analysis prior to Escobar. The “prerequisite to payment” test is best seen in United States ex rel. Mikes v. Strauss, 274 F.3d 687 (2d. Cir. 2001). In Mikes, the Second Circuit said, “Specifically, implied false certification is appropriately applied only when the underlying statute or regulation upon which the plaintiff relies expressly states the provider must comply in order to be paid. Mikes, 274 F.3d at 700 (emphasis in original). The Court went on to say that “[l]iability under the Act may properly be found therefore when a defen- dant submits a claim for reimbursement while knowing – as that term is defined by the Act — that payment expressly is precluded because of some noncompliance by the defendant.” Id. (citation Robert B. Vogel is an attorney at the law firm of Overbey, Hawkins and Wright in Lynchburg. He is also a practicing eye surgeon, specializing in omitted). diseases of the retina, at Piedmont Eye Center. Dr. Vogel teaches health law 8 31 U.S.C. § 3729(b)(4) (2012). at both Liberty University School of Law and Liberty University College of 9 It seems that Congress meant to undercut the strict standard Medicine. He is the author of a monthly health care compliance blog for for materiality that circuit courts and the Supreme Court were AHC Media. Dr. Vogel has done eyecare-related mission work locally and in imposing on the materiality standard in the wake of Mikes. See Nepal and Costa Rica. He is an avid rower, canoer, and standup paddle- supra note 7. The Supreme Court had tightened the standard of board racer. www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 37 Navigating Harbors and Exceptions in Healthcare Contracting by Andrew T. Wampler

Lawyers are well versed in con- Regulators seek to ensure care based on medi- cal decision-making rather than financial. tracts. Offer, acceptance, and consid- eration are usually straightforward. Myriad Restrictions The maze of laws to prevent healthcare fraud However, there can be many indus- creates traps for the unwary for what appear try-specific issues, particularly in to be appropriate business decisions. When healthcare clients call, it is important to health care. Several laws place re- understand compliance hazards. Prohibited strictions on arrangements between relationships are those that create incentives healthcare providers, some of which to bill services that should not be billed or pay for patient referrals. seem counterintuitive. Courts recognize the complexity provid- ers face. In an appeal upholding a multi-mil- Providers face increasing difficulty struc- lion-dollar judgment, Judge Wynn of the turing practices. There is a push to deliver Fourth Circuit wrote: “It seems as if, even for quality care with decreasing reimbursement. well-intentioned health-care providers, the As the largest payer of services, the govern- Stark Law has become a booby trap rigged ment applies intense scrutiny.1 Providers who with strict liability and potentially ruinous treat Medicare or Medicaid patients have an exposure — especially when coupled with the obligation to prevent unnecessary billing. False Claims Act.”2

38 VIRGINIA LAWYER | October 2017 | Vol. 66 | HEALTH LAW SECTION www.vsb.org NAVIGATING HARBORS AND EXCEPTIONS IN HEALTH-CARE CONTRACTING

The following federal laws impact anyone who “knowingly and willfully offers, providers: Physician Self-Referral Law pays, solicits, or receives remuneration in (“Stark”), Anti-Kickback Statute (AKS), False order to induce business reimbursed under Claims Act (FCA), Civil Monetary Penalties the Medicare or Medicaid programs.”8 Induce Law (CMPL), and Exclusion Authorities. referrals need be only one purpose of a trans- Virginia has complimentary laws: Virginia action. Fee-Splitting Act, Virginia Practitioner Self- Safe harbors describe practices that are Referral Act, and Virginia Anti-Kickback not treated as kickbacks. Regulations specify Statute. This article does not discuss nuances allowable “safe” financial relationships. Safe of applicable laws, outline all exceptions and harbors exist for numerous arrangements, safe harbors to illegal relationships, or discuss both common and uncommon, such as all agreement types. There are treatises that do employment agreements, leases, electronic that. This article provides basic overview of prescribing, warranties, investment interests, some common situations to help practitioners recruitment, and discount programs. Under spot issues and minimize risk. AKS, transactions that do not have specific safe harbors are not automatically violations Stark but are reviewed case-by-case for their effect The physician self-referral law, or Stark Law, on payment programs.9 prohibits referrals for designated health ser- vices (DHS) payable by Medicare to an entity False Claims Act with which the physician (or immediate fam- FCA imposes liability on those who “know- ily) has a financial relationship.3 The statute ingly present[], or cause[] to be presented, prohibits DHS-furnishing entities from filing a false or fraudulent claim for payment claims with Medicare for services referred by or approval.”10 Knowingly involves actual that physician. Financial relationships include knowledge of falsity, deliberate ignorance, or direct or indirect ownership, investment, or reckless disregard.11 This scienter requirement compensation for services. The government avoids punishing “honest mistakes” or “mere is prohibited from paying claims that violate negligence.”12 One defense is good faith reli- Stark. The law allows commercially reason- ance on the advice of counsel.13 able arrangements when physicians are paid FCA’s purpose is to indemnify the gov- market value without considering value or ernment against fraud. FCA is often a vehicle volume of referrals.4 Specific exceptions out- to assert Stark and AKS violations. line relationships deemed not to pose a risk to payment programs. Civil Monetary Penalties Law & Exclusion DHS includes many services patients Authorities need. When in question, providers can CMPL creates civil monetary penalties for generally assume that services are included.5 fraud. Many acts can constitute violations Originally, the law applied to laboratory from presenting a claim to including false services, but the legislature expanded to DHS statements on program applications to vio- and included Medicaid. Changes and phases lating Medicare assignment provisions. The of adoption require constant evaluation of Office of Inspector General (OIG) has man- current regulations and enforcement efforts. datory and permissive authority to exclude Stark was created to provide “bright line” from program participation. The authorities rules to “ensure compliance and minimize . . arise under the Social Security Act.14 CMPL is . costs.”6 It has provided anything but bright interconnected with the web of federal restric- lines. Stark has strict liability, thus intent does tions and used in conjunction with other laws. not matter, and there is no defense for techni- The OIG seeks different penalties depending cal violations. on the conduct and which laws are implicated.

Anti-Kickback Statute Virginia Laws AKS is a criminal statute, prohibiting one The Virginia Fee-Splitting Statute prohibits from offering something of value to influence physicians from sharing “any professional fee the referral of business.7 Both parties can be received for the provision of health services … liable, and conviction can include signifi- to a patient with another physician licensed to cant fines and imprisonment. AKS applies to practice medicine … in return for such other www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 39 NAVIGATING HARBORS AND EXCEPTIONS IN HEALTH-CARE CONTRACTING physician’s making a referral … or [accepting] any portion of a be to induce referrals. For employees, the OIG has established professional fee paid to another physician”15 an Employee safe harbor which simply requires a bona-fide The Virginia Physician Self-Referral Statute prohibits employment agreement.22 OIG has more rigorous safe har- patient referral to an entity outside the practitioner’s practice bors such as Management Contracts and Personal Services, if the practitioner (or immediate family) is an investor.16 The requiring aggregate compensation in a fixed amount.23 Unlike statute applies to all services and all patients, whether the gov- strict compliance under Stark, the AKS analysis is intent based. ernment is a payer. Virginia enforces the statute in a manner Therefore, providers can aim to meet the majority of require- consistent with Stark. The Department of Health Professions ments since failure to comply completely does not establish a provides advisory opinions on arrangements and maintains per se violation. them on its website along with regulations.17 The Virginia Anti-Kickback Statute states that any person Leases who “knowingly and willfully solicits or received any remuner- Stark has a Rental of Office Space exception, which requires ation, including any kickback, bribe, or rebate, directly or in- a written arrangement with a one-year term.24 There can be directly, overtly or covertly, in cash or in-kind” for a referral or shared common areas, but clinical space must be exclusive. for “purchasing, leasing or ordering any goods, facility, service Rent must be fair market value set in advance, not based on or item for which payment may be made in whole or in part business between the parties. 18 under medical assistance” commits a felony. Interpreted to For equipment, Stark has Rental of Equipment and Fair be consistent with AKS, the statute does not prohibit disclosed Market Value exceptions.25 There are documentation, term discounts, bona-fide employment, or other AKS-permitted length, and fair market value requirements. The Rental excep- conduct. tion requires exclusive use, and both prohibit percentage-based or per-unit payments. Contract Compliance Both Equipment and Space lease safe harbors require Federal rules and regulations address arrangements that are part-time use to be scheduled in advance and aggregate com- deemed legal under the various restrictions. Many excep- pensation to be set in advance. 26 As with other safe harbors, tions and safe harbors include specific drafting or procedure failure to meet all requirements does not necessarily indicate a requirements. They differ from one type of arrangement to violation. another. But there are general principles to keep in mind. Basic rules are that all payments be fair market value and services Changes in 2016 actually be needed and medically necessary. The question Because enforcement, implementation, and interpretation of is whether payments are consistent with comparable arm’s- Stark has been fluid, proposed arrangements require review length transactions and are commercially reasonable. of current regulations. With the complexities and the possi- Of the many agreement types, service agreements and bility of running afoul of requirements, providers have called leases are two of the most common; while there is not room to discuss all provider arrangements, this article lists excep- for more flexibility. As of 2016, a new Final Rule relaxes some 27 tions and safe harbors for these forms of agreements. Service Stark requirements. agreements include employment and independent contractor Historically, time-share leases have been extremely agreements. Leases can cover space, equipment, or personnel. complicated. Under a new Time-Share License exception, a provider can use an office, including personnel, equipment, Service Agreements and furnishings, on a periodic, fluctuating basis. Exclusive use For employment agreements, Stark has an Employment excep- is required, but the license is flexible. Unlike a lease that trans- tion. This exception requires fair market value compensation fers control, a license offers the privilege to access. This license set in advance, but allows referrals in certain circumstances.19 must be signed, specifying location and services. Productivity payments are based on personally performed ser- The rule also relaxed standards for a writing under various vices and cannot take into account facility fees.20 For employ- exceptions. Several exceptions now use the term “arrangement” ees, there is also an In-Office Ancillary Services exception. rather than “agreement” or “contract.” Document collections For Independent contractors, Stark has Personal Service can show course of conduct to establish an arrangement.28 Arrangement and Fair Market Value exceptions.21 These excep- Board minutes, communications, fee schedules, and time tions apply to medical director, call coverage, professional ser- sheets are examples. Documents must be contemporane- vice, and management services agreements. These agreements ous, and there is no grace period. Centers for Medicare and must be for a year or longer, and if terminated in the first year, Medicaid Services (CMS) still states that “the surest and most a new agreement cannot be executed for the same services. straightforward means” to be compliant is to have a single They must pay fair market value and not take into account writing. referrals or business between the parties. The rule outlines a 90-day window to obtain signatures For services agreements, AKS may also be implicated and relaxes some one-year-term requirements, provided the because AKS applies when one purpose of a payment could arrangement lasts for a year.

40 VIRGINIA LAWYER | October 2017 | Vol. 66 | HEALTH LAW SECTION www.vsb.org NAVIGATING HARBORS AND EXCEPTIONS IN HEALTH-CARE CONTRACTING

Suggestions 7. Durable medical equipment and supplies. Many arrangements create some level of risk. These risks can 8. Parenteral and enteral nutrients, equipment, and supplies. 9. Prosthetics, orthotics, and prosthetic devices and supplies. be managed by an understanding of the concepts underlying 10. Home health services. the prohibitions. There are few strategies that help: 11. Outpatient prescription drugs. 1. Be wary. Request prior legal reviews. 12. Inpatient and outpatient hospital services. 6 66 F.R. 856, 860 (Jan. 4, 2001). 2. Identify pertinent aspects of the arrangement. 7 42 U.S.C. § 1320a-7b. 8 Section 1128B(b), Social Security Act. 3. Consider fair market value. 9 OIG Dept. HHS, Fact Sheet Nov. 1999, Federal Anti-Kickback 4. Consider commercial reasonableness. Laws and Regulatory Safe Harbors. 10 31 U.S.C. § 3729(a)(1)(A). 29 5. Document fair market value/commercial reasonableness. 11 Id. § 3729(b)(1). Specific nature of relationship matters, not business in 12 United States v. First Kuwaiti Gen. Trading & Contracting Co., 612 general. F.3d 724, 728 (4th Cir. 2010). 13 United States v. Newport News Shipbuilding, Inc., 276 F. Supp. 2d 6. Review all party arrangements. Aggregation can cause 539, 565 (E.D. Va. 2003). issues. 14 42 U.S.C. § 1320a-7. See https://oig.hhs.gov/exclusions/authori- 7. Specify services and compensation. Don’t change them ties.asp (accessed July 23, 2017). 15 Va. Code § 54.1-29.62. retroactively. 16 Va. Code § 54.1-2411. 8. Check family members. 17 https://www.dhp.virginia.gov/bhp/bhp_PSR.htm (accessed July 23, 2017). Application procedure: http://law.lis.virginia.gov/ 9. Get signed agreements, even if not mandatory. They pro- admincode/title18/agency75/chapter20/section60 (accessed July vide the best protection. 23, 2017). See 18 VAC 75-20-10 et seq. 10. Ensure services are necessary and performed. Conduct 18 Va. Code § 32.1-315. 19 42 C.F.R. § 411.354(d). matters. 20 42 C.F.R. § 411.357(c). Healthcare contracting raises unique concerns that require 21 42 C.F.R. § 411.355(b). care. Compliance with Stark and AKS is necessary, but numer- 22 42 C.F.R. § 1001.952(i). 23 42 C.F.R. § 1.952(d). ous other issues need attention as well, from government audit 24 42 C.F.R. § 411.357(a). requests to hazardous substance management to accrediting 25 Id. body standards to protected health information. Asking ques- 26 42 C.F.R. § 1001.952(b), (c). tions with a critical eye to regulations is an important first step 27 80 F.R. 220 (Nov. 16, 2015). representing providers who come calling for contract advice. 28 Id. at 71314. 29 66 F.R. 856, 944-45 (Jan. 4, 2001). Cost attestations, price lists, and compensation surveys are options. Best practice is to obtain an in- Endnotes: dependent valuation. Reports should be updated every two years. 1 Government has “strong interest” in preventing fraud because “[f]raudulent claims make the administration of Medicare more difficult, and widespread fraud would undermine public con- fidence in the system.” United States ex rel Drakeford v. Tuomey d/b/a Tuomey Healthcare System, Inc., No. 13-2219, 792 F.3d 364 (4th Cir. 2015). 2 Id. at 395 (Wynn, J., concurring). 3 42 U.S.C. § 1395nn. 4 42 C.F.R. § 411.357(p). 5 Following are DHS: 1. Clinical laboratory services. Andrew T. Wampler is a shareholder at Wilson Worley PC, in Kingsport, 2. Physical therapy services. TN, where he serves as president of the firm. He is licensed in Virginia and 3. Occupational therapy services. Tennessee and represents clients in both states, handling a range of busi- ness and litigation matters. He has represented healthcare clients for 16 4. Outpatient speech-language pathology services. years including a multi-hospital health system, multi-specialty practices, Radiology and certain other imaging services. physician groups, and individual providers. He is Certifed in Healthcare .5 6. Radiation therapy services and supplies. Compliance.

Join the Health Law Section The membership of the Health Law Section consists of those in legal practice devoted to dealing with the administration of health care. The section has been active in the continuing legal education field, including co-sponsorship of an annual health law legislative update with The Virginia Bar Association and the Virginia Hospital Association. Since 2006, the section has spearheaded an annual, statewide Health Care Decisions Day to raise public awareness for the need to plan ahead for health care decisions related to end of life care and for medical decision-making. Visit http://www.vsb.org/site/sections/health/

www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 41 Taking Aim at Virginia’s Opioid Crisis through Changes in Public Health Law by Health Services Section, Office of the Attorney General

Health Services Section of the Office of the Attorney General staff: Front row from left to right: Karen A. Taylor, Allyson K. Tysinger, Erin L. Barrett, Amanda L. Lavin; Middle row from left to right: Pamela B. Beckner, Robin V. Kurz, Charis A. Mitchell; Back row from left to right: Sean J. Murphy, Braden J. Curtis, James E. Rutkowski.

What is the leading cause of both overdoses increased by 40.3 percent.4 unnatural death and accidental death According to the Virginia Department in Virginia? Surprisingly, it is not mo- of Health (VDH), on average three tor vehicle accidents or guns. The an- Virginians die of drug overdose and swer is drug overdose.1 The number of over two dozen are treated in emer- individuals who die from drug over- gency departments for drug overdose dose has been on the rise every year each day.5 The opioid epidemic that since 2012, with the most recent data Virginia is experiencing is not mere- showing a 38.9 percent increase in the ly a criminal justice problem; it is a number of drug overdose deaths from matter of public health. In fact, State 2015 to 2016.2 Opioids, including Health Commissioner Dr. Marissa both prescription opioids and illicitly Levine declared opioid addiction produced opioids such as heroin and to be a public health emergency on fentanyl, account for approximately November 21, 2016.6 Discussed below 75 percent of all fatal drug overdos- are recent legislative and regulatory es annually in Virginia.3 From 2015 public health efforts Virginia has un- to 2016, the number of fatal opioid dertaken to address the crisis.

42 VIRGINIA LAWYER | October 2017 | Vol. 66 | HEALTH LAW SECTION www.vsb.org TAKING AIM AT VIRGINIA’S OPIOID CRISIS THROUGH CHANGES IN PUBLIC HEALTH LAW

Access to Prescription Opioids Also during the 2017 legislative session, Until 2015, the leading category of drugs the General Assembly amended Virginia Code causing or contributing to death in Virginia § 54.1-2522.1 related to prescribers’ usage was prescription opioids.7 As a result of the of the Prescription Monitoring Program declaration of a public health emergency by (PMP).15 The PMP, which is maintained the State Health Commissioner, the Virginia and administered by the director of the Board of Medicine began drafting emer- Department of Health Professions (DHP), gency regulations governing the prescribing monitors the dispensing of certain covered of opioid medications in December 2016.8 substances, including opioids.16 Under the After receiving extensive input from practi- 2017 amendment, prescribers must query tioners, patients, and the general public, the the PMP if the prescription of opioids is regulations, adopted in March 2017, establish anticipated to last more than seven consec- requirements for practitioners prescribing utive days.17 Requiring PMP queries enables opioids for both acute pain and chronic pain prescribers to be aware of all current and treatment. Those requirements include opting recent prescriptions for a patient, potentially for non-opioid treatment where possible,9 preventing the patient from going to different limits on dosage amounts,10 and other mea- practitioners in order to receive opioids. Every sures aimed at preventing misuse of the medi- board that has adopted emergency regulations cation.11 Since the Board of Medicine adopted governing opioid prescribing has required its its emergency regulations, the Committee of licensees to consult the PMP at regular inter- the Joint Boards of Nursing and Medicine, vals during opioid treatment.18 the Board of Dentistry, and the Board of In 2016, the General Assembly amended Veterinary Medicine have also adopted similar Virginia Code § 54.1-2523.1 to direct the emergency regulations regarding opioid PMP to develop a method to analyze the data prescribing. Each of these boards’ emergen- it collected to identify unusual patterns of cy regulations are similar to the emergency prescribing or dispensing of covered sub- regulations of the Board of Medicine with stances by individual prescribers or dispensers some differences due to the specific scope of or potential misuse of a covered substance by practice of the practitioners that each board a recipient.19 The director of DHP was given regulates. the authority to disclose information regard- During its 2017 session, the General ing unusual prescribing or dispensing to the Assembly passed legislation directing the Enforcement Division of DHP for potential Boards of Medicine and Dentistry to adopt administrative investigation that could lead permanent regulations governing the pre- to disciplinary action.20 The director of DHP scribing of opioids that include guidelines was also permitted to disclose information for treatment of acute and chronic pain. That about a specific recipient who may be misus- legislation was codified at Virginia Code § ing a covered substance to his prescribers to 54.1-2708.4 and 54.1-2928.2, and requires the prevent misuse or to certain law enforcement permanent regulations to address the same agents for the purpose of an investigation into areas that the boards addressed in their emer- possible drug diversion.21 In 2017, the General gency regulations.12 Each board that adopted Assembly further directed the PMP to annu- emergency regulations is in the process of ally provide a report to the Joint Commission adopting permanent regulations. on Health Care on the prescribing of opioids In addition to the regulations that govern that includes data on reporting of unusual the prescribing of opioids, the Board of patterns of prescribing or dispensing.22 Pharmacy has adopted regulations, effec- tive September 7, 2017, that allow a patient Decreasing Overdose Fatalities or prescriber to request a prescription for Naloxone is an opioid antagonist drug that a Schedule II drug to be filled in a partial reverses the effects that opioids have in the quantity. This allowance enables a patient brain. When a person overdoses on opioids, or prescriber to avoid the possibility of the the opioid overwhelms the brain, resulting receipt of more medication than the patient in decreased respiration and heart rate until ultimately needs.13 This action brings the the heart stops altogether. Naloxone allows commonwealth into conformity with a re- a person’s body to resume respiration.23 cently enacted federal law, the Comprehensive Naloxone was previously available only by Addiction and Recovery Act of 2016.14 prescription, but Virginia law now authorizes www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 43 TAKING AIM AT VIRGINIA’S OPIOID CRISIS THROUGH CHANGES IN PUBLIC HEALTH LAW the State Health Commissioner, as well as other prescribers, to rized by DBHDS to lead REVIVE! trainings, is acting on behalf issue a standing order that permits an individual to purchase of an organization that provides services to individuals at risk naloxone from a pharmacy and possess and administer it to of experiencing an opioid overdose or training in administra- someone who appears to be experiencing an opioid overdose.24 tion of naloxone for overdose reversal, and obtains a controlled Commissioner Levine issued a statewide standing order for substances registration may also dispense naloxone without naloxone at the time she declared a public health emergency, charge to an individual who has completed a REVIVE! training enabling the purchase of naloxone at any pharmacy in the program.29 commonwealth.25 Virginia law provides liability protection for those in- Under protocols established by the Board of Pharmacy in volved in the naloxone effort. If a person in good faith pre- consultation with the Board of Medicine and VDH pursuant scribes, dispenses, or administers naloxone to an individual to Virginia Code § 54.1-3408(X), the pharmacist must provide who is believed to be experiencing or about to experience a a recipient of naloxone with life-threatening opiate over- counseling in opioid overdose dose, the person shall not be prevention, recognition, and liable for civil damages for response, and the administra- ordinary negligence if acting tion of naloxone.26 This coun- within the authority described seling cannot be waived by the in the preceding paragraphs.30 recipient unless the pharma- In addition to cham- cist verifies that the recipient pioning the laws discussed has completed the REVIVE! above that enhance access training program.27 The to naloxone, the Attorney Department of Behavioral General’s Office proposed and Health and Developmental supported a safe reporting law Services (DBHDS), in col- in 2015.31 This law establish- laboration with VDH, DHP, es an affirmative defense to and community recovery prosecution of an individual organizations, developed for certain drug charges if the and implements REVIVE!, individual seeks or obtains the commonwealth’s Opioid emergency medical attention Overdose and Naloxone for an overdose for himself or Education Program. The another individual by report- REVIVE! program began ing the overdose to a firefight- as a pilot project in 2013 er, emergency medical services under authority set forth in personnel, a law enforcement 2013 Va. Acts ch. 267, and is officer, or an emergency 911 now a statewide program. system and the individual re- REVIVE! provides training to mains at the scene until a law lay rescuers and others such This is a societal issue blurring enforcement officer arrives.32 as law enforcement officers and firefighters on how to traditional public health and Other Health Issues recognize and respond to an Associated with Opioid Use opioid overdose emergency criminal justice lines that we Reported cases of hepatitis with the administration of C, especially among indi- naloxone. Virginia Code § viduals aged 18 to 30, have 54.1-3408(X) also specifically must all address together. been increasing since 2013.33 permits law-enforcement Concern regarding the spread officers, firefighters, and- em of hepatitis C and HIV from ployees of the Department of Forensic Science, the Office of injection drug use led to the enactment of a cutting edge law the Chief Medical Examiner, and the Division of Consolidated that authorizes VDH to operate a safe syringe program. Passed Laboratory Services who have completed a REVIVE! training in 2017, the law permits the State Health Commissioner to program to possess and administer naloxone.28 establish and operate local or regional comprehensive harm re- In addition to training lay rescuers, REVIVE! has a second duction programs during a declared public health emergency.34 component that trains individuals to lead REVIVE! lay res- Such programs shall be located in communities where data cuer trainings. Developing trainers will ensure that REVIVE! indicate a risk of transmission of, or increases in the trans- programs are available in communities throughout Virginia. mission of, HIV, viral hepatitis, or other blood-borne disease Under Virginia Code § 54.1-3408(Y), a person who is autho- as a result of injection drug use.35 Through the program, the

44 VIRGINIA LAWYER | October 2017 | Vol. 66 | HEALTH LAW SECTION www.vsb.org TAKING AIM AT VIRGINIA’S OPIOID CRISIS THROUGH CHANGES IN PUBLIC HEALTH LAW commissioner may authorize persons to dispense or distribute Endnotes: hypodermic needles and syringes.36 VDH is currently devel- 1 Fatal Drug Overdose Quarterly Report, 1st Quarter, 2017, Edition 2017.1 published July 2017, found at http://www.vdh oping the required protocols that will address provision and .virginia.gov/content/uploads/sites/18/2016/04/Fatal-Drug disposal of needles and syringes, security of program sites, -Overdoses-Quarterly-Report-Q1-2017_Updated.pdf. education materials on prevention and treatment, individual 2 Id. counseling, access to overdose prevention kits, and verification 3 Id. 4 Id. that supplies distributed were obtained from the program. 5 Remarks delivered by State Health Commissioner Dr. Marissa Levine, Nov. 21, 2016, found at http://www.vdh.virginia.gov/ Treatment blog/2017/06/01/state-health-commissioner-comments-on Although this article has intentionally focused on the regu- -opioid-addiction-declaration/. 6 Declaration of Public Health Emergency, Nov. 21, 2016, found at latory and legislative actions taken by Virginia to address the http://www.vdh.virginia.gov/commissioner/opioid-addiction opioid crisis, the necessity of available treatment for substance -in-virginia/declaration-of-public-health-emergency/. use must be recognized. DBHDS is expediting the licensing 7 Fatal Drug Overdose Quarterly Report, supra. process for new substance use treatment services. Ninety-three 8 Vol. 33, Iss. 16 Va. Reg. Regs. 1928-32 (Apr. 3, 2017) (18VAC85- 21-10 et seq.). new substance use treatment services were licensed in the past 9 Id. at 1929-1930 (18VAC85-21-30(A); 18VAC85-21-70(A)). year. Also, effective April 1, 2017, the Department of Medical 10 Id. (18VAC85-21-40; 18VAC85-21-70). Assistance Services implemented an enhanced substance use 11 Id. at 1928-31 (18VAC85-21-30(B); 18VAC85-21-60(A); 18VAC85-21-80; 18VAC85-21-90; 18VAC85-21-100; 18VAC85- disorder benefit known as the Addiction Recovery Treatment 21-110; 18VAC85-21-120). Services (ARTS) program. The increase in Medicaid rates un- 12 2017 Va. Acts ch. 291, codified at Va. Code Ann.§§ 54.1-2708.4 der the ARTS program is increasing the number of addiction and 54.1-2928.2. treatment providers who participate in Medicaid. In addition, 13 Vol. 33, Iss. 24 Va. Reg. Regs. 2718-20 (July 24, 2017) (18VAC110- 20-310(E)). the ARTS program is utilizing the evidence-based criteria of 14 Pub. L. No. 114-198, § 702 (2016). care developed by the American Society of Addiction Medicine 15 2017 Va. Acts ch. 249. (ASAM), and DBHDS is funding provider training in the 16 Va. Code Ann. § 54.1-2520(A). ASAM criteria to standardize care across the system. 17 2017 Va. Acts ch. 249, codified at Va. Code Ann. § 54.1-2522.1. 18 Vol. 33, Iss. 16 Va. Reg. Regs. 1928-32 (18VAC85-21-30(B); 18VAC85-21-60(A)(7); 18VAC85-21-100(C); 18VAC85-21- Conclusion 140(A); 18VAC85-21-150(E), (H)); Vol. 33, Iss. 24 Va. Reg. Regs. Virginia’s state officials and policy makers have been for- 2266-2268 (May 29, 2017) (18VAC90-40-150(C); 18VAC90-40- ward-thinking in treating this epidemic as a public health 180(B)(7); 18VAC90-40-220(C); 18VAC90-40-260(A)); Vol. 33, Iss. 19 Va. Reg. Regs. 2112-13 (May 15, 2017) (18VAC60-21-102; crisis and enacting laws and regulations that together create a 18VAC60-21-103). coordinated public health approach intended to reduce access 19 2016 Va. Acts ch. 98. to prescription opioids, prevent overdose deaths and other 20 Id. 21 Id. health issues, and increase treatment availability. Continued 22 2017 Va. Acts ch. 291. collaboration amongst all stakeholders, including health care 23 REVIVE! Opioid Overdose and Naloxone Education for Virginia, providers, law enforcement personnel, first responders, legisla- June 2015, found at http://www.dbhds.virginia.gov/library tors, state and local public officials, and advocacy organizations /substance%20abuse%20services/revive%20pharmacy%20 dispensing%20brochure%20v10.pdf. will be needed to halt the sharp increases in annual fatal opioid 24 Va. Code Ann. § 54.1-3408(X). overdoses that Virginia has been experiencing. This is a societal 25 Virginia Statewide Standing Order for Naloxone, Nov. 21, 2016, issue blurring traditional public health and criminal justice found at http://www.vdh.virginia.gov/content/uploads lines that we must all address together. /sites/4/2016/11/Standing-Order-w-o-DEA-FINAL.pdf. 26 Protocol for the Prescribing and Dispensing of Naloxone, Nov. 10, 2016, found at http://www.vdh.virginia.gov/content/uploads The Health Services Section of the Office of the Attorney General /sites/4/2016/11/NaloxoneProtocolForPharmacists-11-10-16 includes Erin L. Barrett, Pamela B. Beckner, Braden J. Curtis, Robin -CURRENT-version.pdf. 27 Id. V. Kurz, Amanda L. Lavin, Charis A. Mitchell, Sean J. Murphy, James 28 Va. Code Ann. § 54.1-3408(X). E. Rutkowski, Karen A. Taylor, and Allyson K. Tysinger. The Section 29 Va. Code Ann. § 54.1-3408(Y). represents the Virginia Department of Health and its 35 local health 30 Va. Code Ann. § 8.01-225(A)(18). districts, the Department of Behavioral Health and Developmental 31 2015 Va. Acts ch. 436. 32 Va. Code Ann. § 18.2-251.03. Services, the Department of Health Professions and its 14 health 33 Opioid Overdose Data Quarterly Report, 4th Quarter 2016, regulatory boards, the Department for Aging and Rehabilitative found at http://www.vdh.virginia.gov/content/uploads/sites Services, the Department for the Blind and Vision Impaired, and the /13/2016/09/Opioid-Overdose-Data-Quarterly-Report-Q4- Department for the Deaf and Hard of Hearing. Collectively the team 2016_013117.pdf. 34 Va. Code Ann. § 32.1-45.4. has over 80 years of service to the Commonwealth with the Office of 35 Id. the Attorney General. 36 Id. www.vsb.org HEALTH LAW SECTION | Vol. 66 | October 2017 | VIRGINIA LAWYER 45 Access to Legal Services Celebrate! October Is Pro Bono Month

October 23–28, 2017, marks the ninth annual National Celebration of Pro Bono. The American Bar Association’s Standing Committee on Pro Bono and Public Service established the weeklong celebration to develop a “nationally coordinated strategy for recognizing pro bono across the country” and to raise the profile of local pro bono projects during the timeframe.1 In a letter dated October 30, 2009, recognizing the cele- bration, President Barack Obama wrote, “Pro bono lawyers work tirelessly to break down barriers to opportunity and justice, volunteering countless hours to provide critical legal services to our most vulnerable citizens.”2 Since its inception, 49 states, Puerto Rico, the District of Columbia, and Canada have held thousands of Celebrate Pro Bono events that “provide a format for showcasing the incredible difference that pro bono lawyers make to our nation, to our system of justice, to our communities, and, most of all, to the clients they serve.”3 The governors or judiciaries of a number of states, including Alabama,4 Massachusetts,5 Michigan,6 Missouri,7 Tennessee,8 Washington,9 and West Virginia,10 have issued “Pro Bono Week” or “Pro Bono Month” proclamations during October to bring attention to the importance of attorney pro bono. In recent years, the VSB Access to Legal Services Committee has un- officially celebrated October as “Pro Bono Month” by hosting the Pro Bono Conference, offering free pro bono trainings, and recognizing outstanding pro bono service by attorneys with the presentation of the Lewis F. Powell Jr. Pro Bono Award. In 2016, the com- mittee established the Frankie Muse Freeman Organizational Pro Bono Award as a second means of recognizing President Hilarie Bass urged “all bar the celebration by volunteering for pro exemplary pro bono service. This year, associations, law firms, corporate legal bono events that provide counsel, ad- Governor Terry McAuliffe has issued a departments, law schools and others to vice, and representation to low income Certificate of Recognition that desig- organize programs during the celebra- individuals and the organizations that nates October as Pro Bono Month in tion that recognize the critical value serve them.”12 Virginia.11 of pro bono to our profession and to A number of Virginia Pro Bono In comments marking the 2017 our communities” Furthermore, she Month events are scheduled for October National Celebration of Pro Bono, ABA encouraged all lawyers “to participate in including:

46 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Access to Legal Services

• Legal Aid Society of Eastern by Virginia Poverty Law Center and of Northern Virginia celebrates the Virginia Pro Bono Celebration and Virginia’s legal aid programs. This 10th Anniversary of its Attorney of Recognition Program, Thursday, year’s event offers more than 30 edu- the Day program with a luncheon and October 5, 2017, 3:30 – 5:00 p.m., cational sessions including more than CLE program for attorneys providing Norfolk Circuit Court Rotunda, 150 20 CLE sessions and is open to those pro bono legal assistance to protective St. Paul’s Boulevard, Norfolk. LASEVA outside Virginia’s legal aid community, order petitioners in cases involving will recognize its volunteers for their including sessions for professionals intimate partner violence. http:// pro bono efforts and share updates in management, administrative staff, bit.ly/2wfgmco. FREE. about their access to justice programs. community advocates, and others, Additionally, several organizations Justice S. Bernard Goodwyn, Supreme http://bit.ly/2xE4pR8. $275.00 plus as well as state, local, and specialty bar Court of Virginia, will provide com- meals. associations will be hosting pro bono ments, and light hors d’oeuvres and • Pro Bono Webinar: The Nuts service projects and other events to beverages will be served. For more and Bolts of Handling Pro Bono encourage and support attorney pro information please contact Tameeka Uncontested Divorce Cases, Monday, bono and access to justice in Virginia. M. Williams, director of Pro Bono October 23, 2017, 1:00 – 2:30 p.m. Please visit the Virginia State Bar Access and Private Attorney Involvement. Many legal aid offices are overwhelmed to Legal Services Facebook page for LASEVA, [email protected]. FREE with applications for assistance with up-to-date information about Pro Bono but RSVP is required. uncontested divorces and are in need Celebration events in Virginia, http:// • The Virginia State Bar Pro Bono of pro bono lawyers to help with bit.ly/2wUMFNO or the events page on Conference, Wednesday, October 18, these cases. This FREE webinar is a the Celebrate Pro Bono website, http:// 2017, 9:00 a.m. – 5:30 p.m., DoubleTree collaboration among the VSB Special bit.ly/2hxmLKu. by Hilton Hotel, 990 Hilton Heights Committee on Access to Legal Services, Road, Charlottesville. Program the VSB Young Lawyers Conference, Endnotes: includes a business meeting of the Legal Services of Northern Virginia, 1 Overview of the National Celebration VSB Special Committee on Access to and Kelly, Byrnes & Danker PLLC, and of Pro Bono, https://www.probono will train attorneys to represent clients .net/celebrateprobono/events Legal Services and Continuing Legal /location.2017-10-01 Education sessions on Providing in uncontested divorce proceedings in 2 About the National Pro Bono Pro Bono Representation to Justice- any jurisdiction in Virginia. The CLE Celebration, https://www.probono.net Involved Veterans; Basic Life Planning will cover both procedural and sub- /celebrateprobono/about/ Documents; Simple Wills, Advanced stantive aspects of these type of cases. 3 Id. Medical Directives and Powers of http://bit.ly/2fOqZNN. 4 https://www.alabar.org/assets/uploads/ Attorney; and Update on JusticeServer • Greater Richmond Bar Foundation 2016/09/Pro-Bono-Month- Triage Launch and Annual Pro Bono Proclamation-2016-Locals.pdf 2.0, and a Networking Reception with 5 http://www.mass.gov/governor/ attendees of the Statewide Legal Aid Celebration, Wednesday, October 25, constituent-services/recognition/ Conference. http://bit.ly/2xIUzhu. 2017, 3:00 – 8:00 p.m., McGuire Woods issued-proclamations/2016/pro-bono FREE. LLP, 800 East Canal Street, Richmond. -month.html • The Virginia State Bar Pro Bono This event will launch the GRBF Triage 6 http://www.michigan.gov/snyder/ Awards Dinner, Wednesday, October Project, the country’s first effort to cre- 0,4668,7-277-57577_59874_75291- 18, 2017, 6:30 – 8:30 p.m., DoubleTree ate a second ring around legal aid, with 394689--,00.html private attorneys taking on all matters 7 http://www.mobar.org/pdf/pro-bono by Hilton Hotel, 990 Hilton Heights -proclamation.pdf Road, Charlottesville. The VSB will in twelve practice areas so that legal aid 8 http://www.tba.org/sites/default/files/ honor Fairfax immigration lawyer offices can concentrate their limited re- proclamation_2011.pdf Ofelia Calderón, recipient of the 2017 sources on core specialties. This event 9 http://www.courts.wa.gov/content/ Lewis F. Powell Jr. Pro Bono Award, will include a plenary session on the WSBA%20pro%20bono%20week%20 and McGuireWoods LLP, recipient Triage strategy and breakout CLE ses- proclamation.pdf of the 2017 Frankie Muse Freeman sions covering the outsourced practice 10 http://www.courtswv.gov/court -administration/access-to-justice/ Organizational Pro Bono Award. areas. The program concludes with a Pro_Bono_Week_Proclamation.pdf Anita Earls, executive director of the cocktail reception and presentation of 11 http://governor.virginia.gov/newsroom Southern Coalition for Social Justice, the annual GRBF Benjamin Rice Lacy, /proclamations/proclamation/2017 will be the keynote speaker. http://bit IV Volunteer of the Year Award and the -pro-bono-month/ .ly/2y7mwRb. $20.00. George H. Hettrick Leadership Award. 12 ABA President Hilarie Bass welcomes • The Statewide Legal Aid Conference, Visit http://bit.ly/2xvHad4. FREE. you to the National Celebration of Wednesday, October 18, 2017, 1:30 • Stop the Violence/Attorney of the Pro Bono!, https://www.youtube.com/ watch?v=XSPwIfqTMOM&feature p.m. – Friday, October 20, 2017, 12:45 Day Pro Bono CLE, Thursday, October =youtu.be p.m., DoubleTree by Hilton Hotel, 990 26, 2017, 12:30 – 4:30 p.m., Fairfax Hilton Heights Road, Charlottesville. County Courthouse, 4110 Chain This educational conference is hosted Bridge Road, Fairfax. Legal Services www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 47 Access to Legal Services Immigration Lawyer Receives 2017 VSB Pro Bono Award

The 2017 Lewis F. Powell Jr. Pro Bono Immigration Appeals Screening Project, Award has been awarded to Ofelia the Legal Aid Justice Center, Tahirih Calderón. Justice Center, CAIR Coalition Referrals Calderón, a founding partner in of Pro Bono Cases, and most recent- Calderón Seguin PLC in Fairfax, was ly the Dulles Justice Project, which is nominated for the award by Christine working to address claims of those neg- Lockhart Poarch, of Poarch Law, atively impacted by federal travel bans and endorsed by Simon Y. Sandoval- in 2017. Moshenberg, of the Legal Aid Justice Sandoval-Moshenberg said of Center in Falls Church. Calderón that, in addition to running In her nomination, Poarch wrote a busy private practice, she has taken The Powell Award was established by of Calderón, “She is the standard-bear- on many pro bono cases including “at the Special Committee on Access to er among the private bar for what pro least six cases from the Legal Aid Justice Legal Services of the Virginia State Bar bono service looks like, or she should Center” and “…has also devoted much to honor attorneys and attorney groups be, and for someone who is at the top of her time to public service with the that have made outstanding pro bono of her field with a busy practice of her National Immigration Project, Capital contributions. This year’s award will own, she still finds the time to none- Area Immigrants’ Rights Coalition, the be presented October 18 during the theless serve as model and mentor to Virginia Women Attorneys Association, Virginia State Bar Pro Bono Conference countless fellow attorneys.” and as president of the Hispanic Bar and Celebration in Charlottesville. Poarch cited Calderón’s involve- Association of Virginia.” ment over the years in the Board of

The Virginia State Bar Access to Legal Services Committee invites you to the 2017 VSB Pro Bono Conference and Celebration Wednesday, October 18, 2017 DoubleTree by Hilton Hotel Charlottesville

Free Continuing Legal Education Sessions (4.0 hours MCLE credits pending)* and Reception

Joint Legal Aid Conference/Pro Bono Conference Reception Pro Bono Awards Dinner and Ceremony ($20.00 fee) with keynote speech by Anita Earls, Executive Director, Southern Coalition for Social Justice.

Find more info and register now at http://bit.ly/2wEwBQE. Please contact Karl A. Doss at (804) 775-0522 or [email protected] for more information.

48 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Access to Legal Services McGuireWoods Receives Frankie Muse Freeman Pro Bono Award

The Virginia State Bar Access to Legal Right: McGuireWoods Richmond partner Tennille Checkovich (center) with then-University of Virginia Services Committee has awarded School of Law students Katrina Callsen (left) and McGuireWoods LLP the 2017 Frankie Shannon Parker. The students assisted the firm on pro bono matters referred by Legal Aid Justice Center’s Muse Freeman Organizational Pro Bono JustChildren Program. Award, which is named for the famed civil rights leader who is the first woman Below: McGuireWoods Richmond partner Tennille Checkovich (center) with McGuireWoods lawyers in appointed to the US Commission on 2014 who were associates she supervised in handling Civil Rights. numerous serious offender review cases referred to the firm by JustChildren. From left: former McGuireWoods McGuireWoods attorneys have lawyer Jeffrey McMahan, Washington counsel Matthew donated 18,834 pro bono hours over the Reynolds, Richmond associates Jonathan Wolfson and Michael Baudinet, former firm lawyer Chadwick Welch, past 19 months, just from their Virginia Checkovich, Richmond partner Beth Sieg, former firm offices, in areas ranging from uncon- lawyer Myra Chapman, and Richmond associates Andriana Shultz and Stanley Roberts. tested divorce cases in southwestern and central Virginia, to refugee children in Special Immigrant Juvenile cases, to youth tried as adults in serious juvenile offender cases, to non-profit organi- zations in Charlottesville. They’ve also represented thousands of individuals whose drivers licenses were suspended for unpaid court costs and fines. McGuireWoods was nominated by Legal Aid Justice Center Executive Director Mary Bauer. She noted that the firm, by assisting the Legal Aid Justice Center on its Drive Down the Debt Campaign by handling litigation that challenges the suspension of driver’s licenses of poor people who lack the means to pay fines and court costs, has committed significant organizational resources to dismantling systems that disproportion- ately impact and penalize poor people. “This is pro bono leadership,” she UVA law students on a variety of pro Dinner during the VSB Pro Bono wrote in her nominating letter. “Not just bono cases. The firm also provides Conference on Wednesday, October 18, a few hours here, or a few hours there, leadership, along with the Greater 2017, at the DoubleTree by Hilton Hotel fulfilling the commitment to access to Richmond Bar Foundation and Central in Charlottesville. justice in its most hollow form. But rec- Virginia Legal Aid Society, to help ognizing a systemic injustice that devas- expand the access to legal services to tates the lives of hundreds of thousands clients with issues in “non-core” legal of low-income people and their families aid cases through the Greater Richmond using the resources, influence, and legal Bar Foundation Triage Project. prowess of the firm to make it right.” The Frankie Muse Freeman Additionally, a team of Organizational Pro Bono Award will McGuireWoods attorneys supervises be presented at the Pro Bono Awards www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 49 Noteworthy > VSB NEWS In Memoriam

Richard A. Bartl Brenda Lee Hoffman Peter T. Straub Alexandria Falls Church Alexandria May 1935 – August 2017 August 1965 – June 2017 March 1939 – July 2017

Thomas Joseph Casey Charles Bernard Miller Calvin Herritage Thigpen Stamford, Connecticut Winston-Salem, North Carolina Petersburg February 1952 – May 2017 September 1947 – April 2017 January 1924 – January 2017 Barbara Rose Cohen S. Lee Miller Arlington Barrington, Rhode Island Cyrus P. Trowbridge August 1942 – June 2017 September 1932 – May 2017 Stuart, Florida August 1928 – May 2017 Rose Marie Crellin Lewis S. Minter Etowah, North Carolina Richmond Harry Benjamin Vincent November 1944 – February 2017 March 1926 – August 2017 Emporia December 1932 – April 2017 John Engel Frank N. Perkinson Jr. Washington, DC Roanoke Mary Ann Walker March 1943 – January 2017 January 1927 – June 2017 Alexandria Gary Joseph Funderlich John Charles Reid August 1953 – February 2017 West Middlesex, Pennsylvania Arlington November 1961 – March 2017 January 1969 – March 2017 Thomas Jennings Winans McLean Jennifer Elizabeth Gladieux Anne Wilson Scott July 1933 – August 2017 Alexandria Midlothian November 1968 – January 2017 March 1946 – April 2017 Grover C. Wright Jr. Virginia Beach John Michael Gray Wilson E. Sheridan May 1933 – June 2017 Fairbanks, Alaska Richmond March 1953 – June 2017 July 1933 – July 2017

Gregory Wayne Hair Robert Lee Stephens Jr. McLean Irvington March 1963 – July 2017 January 1958 – August 2017

NOTICE: Check Your MCLE Hours Online Now

The Mandatory Continuing Legal Education compliance deadline is October 31, 2017. Go to https://member.vsb.org/ vsbportal/ to review your MCLE record. Now is the time to check your online record and plan your MCLE compliance. Please apply for any non-approved courses now to avoid a late application fee for applications received over 90 days after course attendance. Reminder: Of the 12.0 CLE hours required each year, 2.0 must be in ethics and 4.0 must be from live, interactive programs. If you have any questions, please contact the MCLE Department at (804) 775-0577 or [email protected].

50 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org VSB NEWS < Noteworthy William L. Schmidt Local and William L. Schmidt, a pillar of the Specialty Bar Virginia State Bar who was admired equally for his work as a lawyer and Elections for his service to the community, died Hampton Roads Chapter, VWAA October 1. Rose Ellen Coley, President Bill Schmidt served three terms Carmelou G. Aloupas, President-elect on the VSB Council beginning in 2001. Michelle Casale Anderson, Secretary Additionally, he served two terms on the Karen Beth Elligers, Treasurer Virginia Law Foundation, was a member of the Harry L. Carrico Professionalism Hill Tucker Bar Association Course faculty, and was a regular attend- Christina Tandra Parrish, President ee of the Bar’s Annual Meeting and Veronica Dionne Brown-Moseley, Midyear Legal Seminar. Vice President Schmidt, who was born in Edward L. Weiner, also a former presi- Jontille Dionne Ray, Secretary Makiba Anastasia Jackson, Treasurer Pittsburgh, was the founder and presi- dent, wrote that Schmidt “… genuinely dent of William L. Schmidt & Associates believes that being a lawyer is a privilege. Local Government Attorneys PC in Fairfax. He believes having that privilege de- of Virginia Schmidt was widely known for his mands a concern for the common man Tara Ann McGee, President long service to the Salvation Army, and and empathy for the ‘human struggle.’” Roderick Benedict Williams, was once featured in USA Today for his Schmidt was also an enthusiastic Vice President devotion to bell-ringing and fundraising advocate for the City of Fairfax Band, Lola Rodriguez Perkins, Secretary for the organization. In 2012, he was the of which he has served as a member of Timothy Ross Spencer, Treasurer recipient of the Tradition of Excellence the board of directors and as chair of Award given by the Virginia State Bar’s the board. Metropolitan Richmond Women’s Bar Association General Practice Section. He received his law degree from Elizabeth Wilson Hanes, President At the time Schmidt won the award, American University Washington Joanna Lee Suyes, President-elect former Bar President Jon D. Huddleston College of Law in 1972. He is survived Joley LaBelle Steffens, Vice President noted: “For more than 20 years, starting by his wife Pat, four children, and a Michele Lynn Satterlund, Secretary on the first Saturday after Thanksgiving number of grandchildren. Candace Stinson Mundy, Treasurer through the Christmas Holiday, Bill has rung the bell for the Salvation Army as a Powhatan Bar Association greeter…. His selfless dedication to this Robert Ceaser Cerullo, President charity has helped raise thousands upon Michael Glendon Henkle, Vice President thousands of dollars to provide food for Gretchen Hutt Brown, Secretary Philip Leroy McDaniel, Treasurer the hungry and toys and gifts for the less fortunate.” Tazewell County Bar Association Manuel A. Capsalis, another former Andrew Thurman Scruggs, President president of the Bar, wrote of Schmidt: William Taylor Corbett, Vice President “Bill personifies professional leadership Chase Duane Collins, and community service, and always with Secretary-Treasurer a sense of humility and purpose.” www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 51 Law Libraries Medicare and Medicaid: Getting Your Grounding and Staying up to Date by Frederick W. Dingledy

Medicare and Medicaid are two of the trative rulings. Harvey L. McCormick’s this paper was published in 2014, best-known government programs in Medicare and Medicaid Claims and so some things may have changed). the United States. They have appeared Procedures (4th ed. 2005, updated an- Virginia CLE does not have any pub- in the news quite a bit recently, often nually, available in print or on Westlaw) lications solely focused on Medicaid, mentioned during discussions about describes both programs and discusses but its treatise Elder Law in Virginia the Affordable Care Act. Numerous the law in extensive detail. (3d ed. 2017) has a chapter devoted Virginians rely on these medical-as- to Medicaid practice. Drafting Special sistance programs. Out of roughly Medicare Needs Trusts and Medicaid Planning 8.4 million residents of the common- The Library of Congress’s nonpartisan Seminar Materials (Va. CLE 2015) has a wealth, over 1.3 million are enrolled in Congressional Research Service (CRS) section that focuses on how to arrange Medicare, and at least another 1.3 mil- is known for its well-regarded reports the assets of elderly clients who may lion in Medicaid.1 With so many people summarizing important political and soon need Medicaid assistance with affected by these programs, an attorney legal issues. CRS’s Medicare Primer paying for long-term care. The website may find a client asking for help with (CRS no. R40425, 2017, available at for Virginia’s Department of Medical them. Happily, there are several resourc- https://fas.org/sgp/crs/misc/R40425.pdf Assistance Services, www.dmas.virginia. es lawyers can use to get an orientation or https://perma.cc/ACA6-658N) is an gov/, is also an excellent resource for in this area of law. excellent nutshell of Medicare’s history, information on Medicaid in Virginia Medicare and Medicaid are often coverage, financing, and administrative which includes rules for eligibility and discussed together, but they are actu- organization. CCH’s Medicare Explained for covered services, as well as a section ally two separate programs. Medicare, (published annually) is akin to a desk- explaining how the ACA has changed mainly designed to assist elderly people book for Medicare law, similar to the Medicaid in the commonwealth. and people with disabilities, is run company’s annual Master Tax Guide — a by the federal government. Medicaid, detailed look at Medicare designed for a Keeping up to date primarily intended to help people with lawyer or beneficiary to quickly look up Once you’ve learned the basics of low income, is jointly operated by the answers to their questions. The official Medicare and Medicaid, there are sever- federal and state governments. Some federal government website, Medicare. al resources to help keep you informed of the resources listed here cover both gov, is a useful resource with sections of new events. BloombergBNA has a programs, while others focus on one or explaining benefits and describing how number of daily and weekly newsletters the other. If your office does not have to file claims and appeals. The website that discuss Medicare and Medicaid: access to the resources listed here, your also provides links to useful forms and Health Care Daily, Health Care Policy local academic or public law library may publications with more detailed expla- Report, State Health Care Regulatory have them. nations. Alert, Health Insurance Report, and Health Law Reporter. The Center for Medicare + Medicaid Medicaid Medicare & Medicaid Service’s free The attorney who wants one source A CRS produced report titled Medicaid: weekly MLNConnects newsletter https:// that covers both programs has a couple An Overview (CRS No. R43357, 2014, www.cms.gov/Outreach-and-Education/ of options. The CCH Medicare and available at https://fas.org/sgp/crs/misc/ Outreach/FFSProvPartProg/ discuss- Medicaid Guide, available through the R43357.pdf or https://perma.cc/Y5QE- es new developments. Virginia CLE’s CCH Internet Research Network or VDV7) summarizes eligibility require- Annual Advanced Elder Law Update as a print looseleaf set, offers detailed ments, financing, and payment provi- Seminar often has a section discussing descriptions, analysis of Medicare and sions for the program in a nutshell. The Medicaid. state-by-state Medicaid laws, and gets report also discusses how the Affordable updated with new cases and adminis- Care Act changed Medicaid (although Medicare and Medicaid continued on page 54

52 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Technology and the Practice of Law Virginia Code § 18.2-152.7:1: When “Facebook Beef” Becomes a Crime (and When It Doesn’t) by Erin W. Hapgood

The variety of comments and infor- with no chance of a conviction can leave Endnotes: mation people post about each other a person vulnerable to a civil claim. It is 1 The Code also criminalizes using a computer to “make any suggestion or on public forums such as Facebook is critical to understand that, although the proposal of an obscene nature” or (3) quite staggering. Personal information, language of the statute seems to crimi- “threaten any illegal or immoral act[,]” including mental or physical health, nalize “profane,” “vulgar,” and “indecent” but these disjunctive elements do not untrue gossip and comments about comments, Virginia courts have limited cause confusion like that associated one’s physical appearance or political its application so as to protect First with the first portion of statute and so are not discussed in detail here. views are all likely in what is commonly Amendment speech. 2 To be obscene, when “considered as a referred to as “Facebook beef.” The short The Virginia Court of Appeals ruled whole, [the statement] has as its domi- title for Virginia Code § 18.2-152.7:1, in 2004 that the definition of obscenity nant theme or purpose an appeal to the “harassment by computer,” sometimes found in Virginia Code § 18.2-372 ap- prurient interest in sex…and [2] which leads members of the public to assume plied to an alleged violation of Virginia goes substantially beyond the custom- it applies to someone who publicly airs ary limits of candor in description or Code § 18.2-427 (harassment by tele- representation of such matters and [3] one’s dirty laundry, or makes statements 2 phone or public airwaves). In order to which, taken as a whole, does not have that are critical, insulting, disgusting, be obscene, a comment must “appeal serious literary, artistic, political or sci- untrue, or even defamatory. The statute to the prurient interest in sex,” going entific value.” Virginia Code § 18.2-372, states that it is a Class 1 misdemeanor substantially beyond customary candor. quoted in Allman v. Commonwealth, 43 to use a computer to “communicate ob- Va. App. 104 (Va. App. 2004). The Court It is common, even indispensable, for scene, vulgar, profane, lewd, lascivious, of Appeals regularly applied this defi- Facebook beef to include the use of ex- nition until Barson v. Commonwealth, or indecent language[,]”1 a definition plicit words, but when the explicit words 58 Va. App. 451, 461–64 (2011), when that seems to cover the vast majority of are used to express anger or contempt the court overruled Allman and applied this type of content. However, a review rather than to appeal to the prurient a dictionary definition. The Virginia of the case law reveals that the statute Supreme Court reinstated use of the interest in sex, they are not “obscene” for is more limited than a plain reading statutory definition of obscenity in purposes of the crime.3 indicates. Barson v. Commonwealth, 284 Va. 67 A conviction for a violation of § 18.2- (2012). The problem is compounded 152.7:1 also requires the intent to coerce, 3 Barson, supra (citing Lofgren v. because people are able to obtain a war- Commonwealth, 55 Va. App. 116 (2009); intimidate, or harass, which is almost rant for violation of § 18.2-152.7:1 from Airhart v. Commonwealth, Record No. a magistrate; because those involved in universally present in these cases. But 1219–05–2 (Va. App. Jan. 16, 2007) Facebook beef rarely have clean hands, intent to harass and the resulting feeling (unpublished); Allman, supra. cross-warrants are not uncommon. The of harassment are simply insufficient to prosecution of these citizen complaints obtain a conviction for “harassment by for computer harassment presents diffi- computer.” People feel harassed by any culties for a commonwealth’s attorney. number of actions, many of which are If she decides not to participate in the morally wrong or may even give rise to case, the victim can feel angry and frus- civil liability. When a client comes to trated and the harasser feel empowered talk with you about her options to stop by vindication. or punish the harassment, remember It behooves attorneys in many areas that to be convicted of a crime, the per- of the law to be able to articulate the re- petrator must have used language that quirements of the crime when advising is threatening or “obscene” as defined in Erin W. Hapgood is the assistant com- a client dealing with an online nemesis, the Virginia Code. Otherwise, it is just monwealth’s attorney in Northumberland County, Virginia. The views and opinions especially as swearing out a warrant Facebook beef. expressed in this column are solely hers. www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 53 Medicare and Medicaid continued from page 52

Endnotes: Downloads/MDCR_ENROLL_ 1 U.S. Centers for Medicare & Medicaid AB/2015_CPS_MDCR_ENROLL_ Services, MDCR ENROLL AB 2 — AB_2.pdf [https://perma.cc/ Total Medicare Enrollment: Total, M8PE-G359] (last visited Aug. Original Medicare, and Medicare 1, 2017); Virginia Department of Advantage and Other Health Plan Medical Assistance Services, 2017 Enrollment and Resident Population, Medicaid at a Glance, http://www. Frederick W. Dingledy is a senior reference by Area of Residence, Calendar Year dmas.virginia.gov/Content_atchs/ librarian at Wolf Law Library at William & 2015, https://www.cms.gov/Research atchs/MAG%20FINAL_1_13_17_.pdf Mary Law School. He is a former president -Statistics-Data-and-Systems/ [https://perma.cc/9PS8-YWPU] (last of the Virginia Association of Law Libraries. Statistics-Trends-and-Reports/ visited Aug. 1, 2017). CMSProgramStatistics/2015/

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

FORTY-EIGHTH ANNUAL Criminal2018 Law Seminar

February 2, 2018 February 9, 2018 DoubleTree by Hilton, Charlottesville DoubleTree by Hilton, Williamsburg

Video Replays in Several Locations in March and April

VIRGINIA STATE BAR AND VIRGINIA CLE®

54 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org CLE Calendar

Sentencing Guidelines Knowledge & judges, commonwealth’s attorneys, form and submit to the commission. Skills Evaluation (Including Ethics P&P, public defenders and staff. Limited Cost $125 (Paralegals $62.50). Purchase Issues) scholarships are available for attorneys.) manual separately. (Fee waived for Five hours — Approved for 5 CLE Details: www.vcsc.virginia.gov/training. judges, commonwealth’s attorneys, (1 Ethics) October 19, Williamsburg, html public defenders, P&P and staff. Limited National Center for State Courts, 300 scholarships are available for attorneys.) Newport Avenue. The evaluation course Introduction to Sentencing Guidelines Details: www.vcsc.virginia.gov/training is designed for the experienced user Six hours — Approved for 6 CLE .html of Virginia’s Sentencing Guidelines. December 5, Portsmouth, Department Attendees will complete a knowledge of Social Services, 1701 High Street; Virginia Lawyer publishes at no charge and skills exercise that will determine December 7, Roanoke Higher Education notices of continuing legal education the topics covered in this seminar. Center, 108 N. Jefferson Street; programs sponsored by nonprofit bar as- Attendees will participate in a discus- December 12, Henrico Police & Fire sociations and government agencies. The sion-oriented workshop addressing Training Center, 7701 E. Parham Street. next issue will cover December 16, 2017, common errors and complex scoring The introduction seminar is designed through February 16, 2018. Send infor- issues. Ethics Counsel with the Virginia for the attorney or criminal justice mation by October 30 to [email protected]. State Bar will lead the discussion and professional who is new to Virginia’s For other CLE opportunities, see Virginia answer questions related to ethical re- Sentencing Guidelines. The seminar will CLE calendar and “Current Virginia sponsibilities relating to the Sentencing begin with general background infor- Approved Courses” at www.vsb.org/site/ Guidelines. Register by completing the mation and progress to detailed infor- members/mcle-courses/ or the websites of form and submit to the Commission. mation on scoring each of the guidelines commercial providers. Cost $100 (Paralegals $50), Purchase factors to include changes beginning manual separately. (Fee waived for July 1, 2017. Register by completing the

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

October 16 October 18 October 19 Tom Spahn on Confidentiality: Non- Writing to Win Depositions Done Right AND Attacking clients’ Misconduct Live — Fairfax 9 am–4:15 pm the Liar’s “I Don’t Remember” Webcast/Telephone Noon–2 pm Video — Alexandria, Charlottesville, October 18 Norfolk, Richmond, Tysons October 16 18th Annual Virginia Information 8:30 am–3:45 pm (Richmond video Cyber Insurance: What You Need to Technology Legal Institute 2017 begins at 9 am) Know to Advise Your Clients Video — Tysons 8 am–4:20 pm Live — Charlottesville/Webcast/ October 20 Telephone 3–5 pm October 18 Limited Liability Companies in Virginia 43rd Annual Recent Developments in Webcast/Telephone 9–11 am October 17 the Law: News from the Courts and Writing to Win General Assembly October 20 Video — Alexandria, Charlottesville, Live — Richmond 9 am–4:15 pm Improving Your Results in Bodily Injury Norfolk, Richmond, Roanoke Claims Handling 9 am–4:25 pm October 17 Live — Charlottesville/Webcast/ Ethics Update for Virginia Lawyers 2017 Telephone Noon–2 pm October 19 Webcast/Telephone 3–5 pm 36th Annual Trusts and Estates Seminar October 20 2017 Depositions Done Right AND Attacking October 17 Live — Roanoke 9 am–4:15 pm 18th Annual Virginia Information the Liar’s “I Don’t Remember” Technology Legal Institute 2017 Video — Harrisonburg, Roanoke October 19 8:30 am–3:45 pm Video — Alexandria, Charlottesville, What’s New at the Virginia Supreme Richmond, Roanoke, Virginia Beach Court? An Overview of Recent Civil 8 am–4:20 pm (Richmond video begins Decisions 2017 at 9 am) Webcast/Telephone 5–6:30 pm www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 55 CLE Calendar

October 23 October 25 October 30 36th Annual Trusts and Estates Attorneys and Technology: Surviving Trials of the Century III Seminar 2017 the Legal Ethics Jungle Live — Fairfax 8:25 am–3:45 pm Live — Fairfax 9 am–4:15 pm Video — Williamsburg 9 am–12:15 pm October 30 October 23 October 25 Essentials of Bankruptcy Law in Education Law 101: A Survey of the 36th Annual Family Law Seminar 2017 Virginia Issues in Education Law That All Video — Abingdon, Alexandria, Webcast/Telephone 9–11 am Attorneys Need to Know Charlottesville, Norfolk, Richmond, Webcast/Telephone 10 am–1:10 pm Roanoke 9 am–4:30 pm October 30 Improving Your Results in Bodily October 23 October 26 Injury Claims Handling Mastering Crucial Moments in How to Say “No” and Preserve the Webcast/Telephone Noon–2 pm Separation and Divorce Relationship Live — Charlottesville/Webcast Live — Richmond 9 am–4:15 pm October 30 2–5:15 pm Cybersecurity Highlights: Secure October 26 Computing on the Road, and October 24 Tom Spahn on Confidentiality: Encryption Made Simple The Survivor’s Guide to Expert Non-clients’ Misconduct Webcast/Telephone 3–5 pm Witnesses: From Selection Through Webcast/Telephone Noon–2 pm Trial October 30 Live — Fairfax 9 am–1:15 pm October 26 Defending Serious Traffic Cases: 36th Annual Family Law Seminar 2017 Strategies and Tactics in Representing October 24 Video — Fredericksburg, Harrisonburg, Clients Renewable Energy in Virginia Tysons 9 am–4:30 pm Video — Abingdon, Alexandria, Webcast/Telephone 9–11 am Charlottesville, Danville, Fredericksburg, October 26 Norfolk, Richmond, Roanoke Attorneys and Technology: Surviving October 24 8:25 am–3:50 pm (Richmond video the Legal Ethics Jungle 26th Annual Employment Law Update begins at 9 am) Video — Alexandria, Charlottesville, Seminar Hampton, Richmond, Roanoke Video — Abingdon, Alexandria, October 31 9 am–12:15 pm Charlottesville, Norfolk, Richmond Trials of the Century III 8 am–4:45 pm (Richmond video begins Live — Richmond 8:25 am–3:45 pm October 27 at 9 am) How to Say “No” and Preserve the October 31 Relationship October 24 36th Annual Trusts and Estates Live — Fairfax 9 am–4:15 pm 43rd Annual Recent Developments in Seminar 2017 the Law: News from the Courts and October 27 Live — Williamsburg 9 am–4:15 pm General Assembly 35 Questions About Employment Law Video — Tysons 9 am–4:25 pm Every Practitioner Should Know October 31 Webcast/Telephone 9 am–12:15 pm The Most Common Legal Malpractice October 25 Errors, and How to Avoid Them Civility in the Practice of Law October 27 Telephone 10 am–Noon Live — Richmond 10 am–Noon Government Affairs Compliance in a Busy Political Time October 31 October 25 Live — Charlottesville/Webcast/ Defending Serious Traffic Cases: Ethics Update for Virginia Lawyers 2017 Telephone 2–4 pm Strategies and Tactics in Representing Webcast/Telephone Noon–2 pm Clients October 27 Video — Hampton, Tysons, Warrenton, October 25 Attorneys and Technology: Surviving Winchester 8:25 am–3:50 pm 26th Annual Employment Law Update the Legal Ethics Jungle Seminar Video — Norfolk, Tysons, Warrenton Video — Tysons 8 am–4:45 pm 9 am–12:15 pm

56 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org CLE Calendar

November 2 November 16 December 12 Professional Advocacy in General Government Affairs Compliance in a Trials of the Century III District Court Busy Political Time Video — Alexandria, Charlottesville, Webcast/Telephone 10–11:30 am Live — Charlottesville/Webcast/ Danville, Norfolk, Richmond Telephone 11 am–1 pm 8:25 am–3:45 pm (Richmond video November 3–4 begins at 9 am) 38th Annual Construction and Public November 16 Contracts Law Seminar 36th Annual Trusts and Estates December 13 Live — Charlottesville Seminar 2017 Trials of the Century III Friday: 8:15 am–5:25 pm; Video — Warrenton, Winchester Video — Dulles 8:25 am–3:45 pm Saturday: 8 am–12:20 pm 9 am –4:15 pm December 13 November 3–10 November 29 43rd Annual Recent Developments in International Destination CLE: Florence Government Contract Claims — the Law: News from the Courts and Live — Florence, Italy Preserving the Value of Your Client’s General Assembly Federal Contracts Video — Charlottesville, Tysons November 7 Live — Charlottesville/Webcast/ 9 am–4:25 pm Debt Collection: Starting a Collection Telephone Noon–1 pm Practice, or Refining Your Existing One December 14 Webcast/Telephone 10 am–1:15 pm December 4 Trials of the Century III Assisted Reproductive Technology Law: Video — Tysons 8:25 am–3:45 pm November 8 The New World of Family Formation How to Close, Sell, or Buy a Law Practice Webcast/Telephone 1–3 pm Live — Charlottesville/Webcast/ Telephone 10 am–1:15 pm December 5 How to Close, Sell, or Buy a Law Practice November 9 Webcast/Telephone 10 am–1:15 pm Assisted Reproductive Technology Law: The New World of Family Formation December 6 Live — Charlottesville/Webcast/ Trying Cases in the Western District of Telephone 11 am–1 pm Virginia Live — Roanoke/Telephone November 13 8:55 am–1:25 pm Reading and Understanding a Driving Virginia State Bar Record and Compliance Summary December 6 Live — Charlottesville/Webcast/ Tom Spahn on Confidentiality: Non- Harry L. Carrico Telephone Noon–1:30 pm clients’ Misconduct Professionalism Course Webcast/Telephone Noon–2 pm November 14 Mastering Crucial Moments in December 7 December 7, 2017, Richmond Separation and Divorce Trying Cases in the Western District of Webcast 10 am –1:15 pm Virginia January 10, 2018, Alexandria Live — Staunton/Telephone November 15 8:55 am–1:25 pm March 8, 2018, Alexandria Cyber Insurance: What You Need to Know to Advise Your Clients December 7 April 18, 2018, Charlottesville Webcast/Telephone Noon–2 pm Ethics Update for Virginia Lawyers 2017 Webcast/Telephone Noon–2 pm November 15 See the most current dates and 36th Annual Trusts and Estates December 8 registration information at Seminar 2017 Reading and Understanding a Driving www.vsb.org/site/members/new. Video — Alexandria, Charlottesville, Record and Compliance Summary Fredericksburg, Leesburg, Norfolk, Webcast/Telephone Noon–1:30 pm Richmond, Roanoke 9 am –4:15 pm www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 57 Virginia Lawyer Register

DISCIPLINARY SUMMARIES NOTICES TO MEMBERS

The following are summaries of disciplinary actions for vio- VSB’S STANDING COMMITTEE ON LEGAL ETHICS lations of the Virginia Rules of Professional Conduct (RPC) SEEKING PUBLIC COMMENT ON LEOS (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, The Virginia State Bar’s Standing Committee on Legal Ethics 2000) or another of the Supreme Court Rules. is seeking public comment on proposed advisory Legal Ethics Copies of disciplinary orders are available at the Web link Opinion 1888: Prosecutor’s duty to disclose evidence that tends provided with each summary or by contacting the Virginia to negate the guilt of the accused; and on revisions to LEO 1750: State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB Advertising Issues. Comment deadline: November 3, 2017. docket numbers are provided. www.vsb.org/site/news/item/public_comment_leos_1888_1750

CLIENTS’ PROTECTION FUND DISCIPLINARY BOARD The Virginia State Bar Clients’ Protection Fund Board is seek- Wayne Richard Hartke ing comments on proposed changes to the sunset provision Reston, Virginia of Va. Code Section 54.1-3913.1, Clients’ Protection Fund. 17-051-107328 Specifically, the proposal is to extend the sunset provision from On August 25, 2017, the Virginia State Bar Disciplinary Board July 1, 2020, to July 1, 2023. The CPF Board intends to seek suspended Wayne Richard Hartke’s license to practice law for approval from Council and the Supreme Court of Virginia to five years effective October 27, 2019, for violating professional ask the General Assembly of Virginia to adopt this proposed rules that govern candor toward the tribunal. The suspen- change at its 2018 session. Comment deadline is October 15. sion will be consecutive to a three-year suspension issued on www.vsb.org/site/news/item/comments_sought_on_ proposed_changes_to_the_CPF_sunset_provision October 27, 2016. RPC 3.3 (a) (1) www.vsb.org/docs/Hartke-091917.pdf PRO BONO CONFERENCE Christopher DeCoy Parrott Save the date: the Special Committee on Access to Legal Manassas, Virginia Services will hold its annual Pro Bono Conference and 17-000-108869 Celebration on Wednesday, October 18, at the Double Tree by Effective August 22, 2018, the Virginia State Bar Disciplinary Hilton Hotel in Charlottesville. www.vsb.org/site/pro_bono/ Board suspended Christopher DeCoy Parrott’s license to prac- pro_bono-calendar/pro_bono_conference_2017 tice law for an additional six months for failing to comply with the terms on a twenty-one month suspension issued November PROFESSIONAL DEVELOPMENT CONFERENCE 21, 2016. Rules Part Six, § IV, ¶ 13-29 Registration is open for the YLC Professional Development www.vsb.org/docs/Parrott-061917.pdf Conference CLE “Foundations for Your Future” on October 20 in Roanoke. www.vsb.org/site/conferences/ylc

MCLE DISCONTINUES MAILING INTERIM REPORT DISTRICT COMMITTEES In the interest of cost savings, the MCLE Department will dis- Karl Leonard Larson continue mailing the MCLE Interim Report. Now is the time Arlington, Texas to check your online record and plan your MCLE compliance. 17-090-107631 Apply now for any non-approved course that you have On September 1, 2017, the Ninth District Subcommittee of the attended. The MCLE compliance deadline is October 31, 2017. Virginia State Bar issued a public reprimand to Karl Leonard Larson for violating professional rules that govern safekeeping CRIMINAL LAW SEMINAR property. This was an agreed disposition of misconduct Save the date for the 48th Annual Criminal Law Seminar, charges. RPC 8.5 USPTO RPC 37 C.F.R. Section 11.115 sponsored by the VSB Criminal Law Section and Virginia CLE, www.vsb.org/docs/Larsen-091917.pdf February 2 in Charlottesville and February 9 in Williamsburg. www.vsb.org/site/sections/criminal/annual-seminar

DISCIPLINARY PROCEEDINGS

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Sonya Borgaonkar Costanzo Fredericksburg, VA September 1, 2017 Jean Jerome Dandy Ngando Ekwalla Woodbridge, VA August 30, 2017 William Peter Wittig Arlington, VA August 8, 2017 Stephen John Weisbrod Yorktown, VA September 1, 2017 September 7, 2017

58 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Virginia Lawyer Register

VSB DISCIPLINARY BOARD TO HEAR ANNE MARSTON thus barring the client from recovery. Ms. Lynch Wilber repaid the LYNCH WILBER’S REINSTATEMENT PETITION ON church after her theft was discovered by a subsequent treasurer. DECEMBER 8, 2017 Ms. Lynch Wilber entered into a plea agreement on the em- bezzlement charges, which required her to consent to a revocation Deadline for comment: November 27, 2017 of her law license. On December 3, 2009, the Virginia State Bar Disciplinary Board accepted her Affidavit Consenting to Revo- On February 9, 2017, Anne Marston Lynch Wilber petitioned cation and entered an order revoking her law license effective the Supreme Court of Virginia for reinstatement of her license to December 4, 2009. On December 2, 2009, pursuant to the plea practice law pursuant to Part 6, § IV, ¶ 13-25.E of the Rules of the agreement, Ms. Lynch Wilber was found guilty of embezzlement Supreme Court of Virginia. On February 17, 2017, the Clerk of the of an amount less than $200, a lessor included misdemeanor. The court took the matter under advisement for three years and Virginia State Bar Disciplinary Board certified that the require- ordered that Ms. Lynch Wilber maintain good behavior and be ments of Part 6, § IV, ¶ 13-25.F were met. Accordingly, the Virginia placed on supervised probation. Ms. Lynch Wilber completed State Bar Disciplinary Board will hear the Petition for Reinstate- supervised probation without incident. On December 4, 2012, ment on December 8, 2017, at 9:00 a.m. at the Workers Compen- the court sentenced Ms. Lynch Wilber to twelve months in jail, all sation Commission, 1000 DMV Drive, Richmond, Virginia 23220. suspended on the condition of continued good behavior. After hearing evidence and oral argument, the Disciplinary Board In her Petition for Reinstatement, Ms. Lynch Wilber acknowl- will make factual findings and recommend to the Supreme Court edges that it is her burden to establish to the Virginia State Bar whether the petition should be granted or denied. Disciplinary Board that she is a person of honest demeanor and The Disciplinary Board seeks information about Ms. Lynch good moral character. Ms. Lynch Wilber states that her miscon- Wilber’s fitness to practice law. Written comments or requests to duct resulted from an element of impairment that affected her testify at the hearing should be submitted to DaVida M. Davis, coping skills and judgment and that she has been under the care Clerk of the Disciplinary System, 1111 East Main Street, 7th Floor, of a forensic psychologist since February 2009. Ms. Lynch Wilber Richmond, Virginia, 23219 or by e-mail to [email protected], no submits that she has kept current with the law, has completed at later than November 27, 2017. Comments will become a matter least seventy credit hours of continuing legal education, including of public record. Copies of the May 2009 Order of Suspension, eighteen hours in ethics, all of which have been approved by the the December 2009 Order of Revocation, and the Petition for Virginia State Bar. She further provided proof that she took the Reinstatement are available to the public by contacting Ms. Davis Multistate Professional Responsibility Examination on November at [email protected] or by calling the clerk’s office at (804) 775-0539. 7, 2015, and received a scaled score of ninety-six. The Virginia Ms. Lynch Wilber was licensed to practice law in Virginia on State Bar’s Client Protection Fund has not paid out any money October 6, 2000. On May 15, 2009, the Virginia State Bar Disci- due to Ms. Lynch Wilber’s misconduct. plinary Board entered an order suspending Ms. Lynch Wilber’s Ms. Lynch Wilber’s law license was placed under a Cost Sus- license to practice law for one year based on misconduct in five pension on September 16, 2009, for failure to pay costs associated with the five misconduct cases that resulted in a year suspension. cases involving lack of diligence, failure to communicate, and On March 18, 2016, Ms. Lynch Wilber paid all outstanding costs failure to respond to a lawful demand for information by a disci- and the Cost Suspension was lifted. Presently, Ms. Lynch Wilber plinary authority. does not owe the Virginia State Bar any costs or fees associated On August 26, 2009, Ms. Lynch Wilber was indicted in the from any complaints against her. Circuit Court for the City of Suffolk for felony embezzlement in From 2009 to the present, Ms. Lynch Wilber has worked as violation of Virginia Code Sections 18.2-111 and 18.2-95. On or a paralegal for her father, Virginia lawyer Benjamin P. Lynch. Ms. about October 13, 2006, Ms. Lynch Wilber embezzled $40,000 Lynch Wilber has also been active in community service projects from a church where she served as treasurer. Ms. Lynch Wilber through the Portsmouth Service League and has been a volunteer at gave the embezzled funds to a client and falsely represented that Bishop Sullivan Catholic High School. In 2015, Ms. Lynch Wilber the funds were the client’s settlement proceeds from a personal in- completed the Vann H. Lefcoe Leadership Development Course. jury suit. In fact, Ms. Lynch Wilber had nonsuited the client’s case In 2016, Ms. Lynch Wilber was a member of the Campaign Steer- and had failed to refile the case within the statutory time period, ing Committee for the John Rowe for Mayor Campaign.

DISCIPLINARY PROCEEDINGS

Suspension – Failure to Comply with Subpoena Effective Date Lifted Robert Lyman Isaac Shearer, Jr. Fairfax, VA September 14, 2017 Impairment Shelly Renee Collette Winchester, VA September 14, 2017 Reinstatement Petition of License to Practice Law Anne Marston Lynch Wilbur Portsmouth, VA February 9, 2017 (formerly Anne Marston Lynch) www.vsb.org Vol. 66 | October 2017 | VIRGINIA LAWYER 59 Professional Notices

Rich Gross, formerly of FH+H PLLC in McLean, has joined Janus Global Operations LLC as its general counsel. Letters Professional Robert P. Hodous, of Payne & Hodous Send your letter to the editor to: Notices [email protected] or LLP, has graduated from Piedmont Virginia State Bar, Virginia Community College with a E-mail your news and high-resolution Virginia Lawyer Magazine, career studies certificate in cybersecu- 1111 E Main Ste 700, rity. He has also received the CompTIA professional portrait to hickey@vsb Richmond VA 23219-0026 Security+ professional certification. .org for publication in Virginia Lawyer. With this background, he will work with Letters published in Virginia Lawyer may Professional notices are free to VSB businesses and professionals regarding be edited for length and clarity and are various aspects of law and related cyber members and may be edited for length subject to guidelines available at security matters. and clarity. http://www.vsb.org/site/publications/ valawyer/. C. Scott Meyers has joined the business law firm Connors Morgan, PLLC, in Greensboro, NC, as Of Counsel. Meyers brings in- Meyers depth experience in bank- ruptcy cases as well as supe- You Don’t Always Get What You Pay For: rior litigation skills developed during his Sometimes You Get Something For Free. tenure at some of the area’s largest law firms, where he led teams representing Your VSB membership gives you access to free legal advice both local and national clients through on issues ranging from starting a law practice to closing a complex business litigation issues. law practice to anything and everything that may trigger a malpractice claim. Henry C. Su, formerly a senior trial Call (703) 659-6567 for a confidential, free, risk management lawyer with the US Federal Trade consultation with John J. Brandt, JD, LL.M. all at no cost to VSB Commission and a senior competition members. Powered by ALPS. advisor to two commissioners, has joined Constantine Cannon LLP as a partner in its Washington, DC, and San Francisco offices. Su is a member of the firm’s antitrust litigation and counseling practice, and he focuses on representing clients in the healthcare, pharmaceuti- You’re going places. cal, retail, and technology sectors in the courts and before government agencies, legislators, and other policymakers.

Sandra M. Workman, Take us with you. former deputy common- wealth attorney for Salem, Check your contact information of record, has joined Poarch Law, certify courses, and access Fastcase from where she will assist in Workman anywhere, using the same login and managing the firm’s cases password you now use on your computer. involving removal, criminal consequences of immigration, and other litigation practice areas. Get it for free in the iTunes store.

60 VIRGINIA LAWYER | October 2017 | Vol. 66 www.vsb.org Classified Ads

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There are twenty sections of the Virginia State Bar. Each is a separate group devoted to improving the practice of law in a particular substantive area or specialty practice. The sections operate under bylaws and policies approved by the Virginia State Bar Council. They elect their own officers and choose their own activities within the limits established by the Council. Section member- ship is open to all members in good standing of the Virginia State Bar. Many sections also have law student and associate memberships.

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