President's Page ...Edmund L. Walton, Jr. 2

President’s Page ...... Edmund L. Walton, Jr. 2

The Witness-Advocate Rule ...... Thomas E. Spahn 5

The Dilemma of AIDS in the Workplace ...... Lynn F. Jacob 11

Implied Hearsay. ~:...... ii:i...... !i:~Ronald J. Bacigal 16

Virginia’s New Life-Care Laws...... Eric E. Adamson 19

Bar Association Proceedings ...... ::’ ...... 23 THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

’: President ~ ~’ Past President Edmuhd~ L. Walton, Jr. Evans B. Brasfield 1301 Vincent Place P.O. Box 1535 McLean, Virginia 221~01 . Richmond, Virginia 23212

President-Elect Secretary- Treasurer R. Gordon Smith James R. McKenry One James Center 1060 Laskin Road Suite 800 Suite 12-B Richmond, Virginia 23219 Virginia Beach, Virginia 23451

Chairman, Young Lawyers Section Chairman-Elect, Young Lawyers Section Charles M. Lollar Thomas F. Farrell, II 700 Newtown Road P.O. Box 1101 Norfolk, Virginia 23502 Alexandria, Virginia 22313

Executive Committee

John M. Ryan, Chairman J. Robert McAllister, III John E. Donaldson 500 World Trade Center P.O. Box 549 School of Law Norfolk, Virginia 23510 Arlington, Virginia 22216 College of William and Mary Williamsburg, Virginia 23185

Frank L. Summers, Jr. Andrew P. Miller F. Claiborne Johnston, Jr. P.O. Box 1287 2101 L Street, N.W. Eighth Floor P.O. Box 1122 Staunton, Virginia 24401 Washington, D.C. 20037 Richmond, Virginia 23208

Thomas T. Lawson Robert C. Wood, III P.O. Box 720 P.O. Box 958 Roanoke, Virginia 24004 Lynchburg, Virginia 24505

Executive Director Director, Committee Activities Joan S. Mahan Emerson G. Spies Suite 708, 7th & Franklin Building School of Law 701 E. Franklin Street University of Virginia Richmond, Virginia 23219 Charlottesville, Virginia 22901 Volume XII Spring 1986 Number 2

EDITORIAL BOARD CONTENTS President!s iPage ...... ° ...... Appointed Members Edmund!L. Walton, Jr. David W. Parrish, Jr. Chairman ’ The Wit.ness~Advocate Rule ...... 5 Charlottesville Thomas E. Spahn Vernon M. Geddy, Jr. Williamsburg The Dilemma ~f AIDS in the Workplace °...... 11 John L. Walker, Jr. Lynn F.~ Jacob Roanoke John F. Kay, Jr. Implied: Hearsay " Richmond 16 Ronald J. Bacigal ,.,~ Ex-Officio Members Edmund L. Walton, Jr. Virginia’s New Eife-Care Laws ...... ~ 19 President Eric E: Adamson McLean

R. Gordon Smith Bar Association Proceedings ...... 23 President-Elect The Winter Meeting ...... Richmond ~4

Joan S. Mahan Announcements ...... 27r Executive Director Resolution ...... 29 Richmond YLS Chairman s Report ...... 30 Charles M. Lollar Chairman, Young Newly Admitted Members ...... 37 Lawyers Section Committee[Reports ...... 38 Norfolk ° Memorials ...... 45

Editorial Staff

Charles E. Friend Editor The Virginia Bar Association Journal is published quarterly by The Virginia Bar Association as a service to the profession. Contributions are welcome, but the Bess Castle Wendell right is reserved to select material to be published. Publication of any article or Associate Editor statement is not to be deemed an endorsement of the views expressed therein by the Association. The office of publication is located at 3849 W. Weyburn Road, Rich- Theodore L. Chahdler, Jr. mond, Virginia 23235. Editor, Young Membership dues include the cost of one subscription to each member of the Lawyers Contributions Association. Subscription price to others, $10.00 per year; single copies $3.00. Second-class postage paid at Richmond, Virginia 23232.

As I enter into my year as President of the Associa- tion and put pen to paper for my first message to you in the Journal I have looked back over a number of President’s pages written by my able predecessors, Evans Brasfield, George Grattan, and Jay Walker. It has given me some comfort to know that regardless of the number of members reading the Page as it appears in the Journal, future Presidents will proba- Edmund L. Walton, Jr. is a principal in the bly review the Page as I have for inspiration and thus McLean, Virginia firm of Walton & Adams, EC. I am certain of several readers. I speak to these future He has been in the private practice of law in the Presidents as well as the current members of the Northern Virginia area since 1963, is a graduate Association as I address this message. of the College of William and Mary and received Each President has made an effort to review past his J.D. degree from the Marshall-Wythe School accomplishments and chart future directions for the of Law. Mr. Walton has been active in civic, political and bar-related activities. He has served Association in his first President’s Page. I am not as President of the McLean Bar Association, a creative enough to establish a new approach in this Director of the Fairfax County Bar Association, regard. In addition, I think a quick review of the a member of the Board of Governors of the Bus- direction of the Association over the past several iness Law section of the Virginia State Bar and years is most instructive. now is Vice-Chairman of that group, and for A major turning point in the Association’s recent three years sat as a member of the 10th District history was the presentation of the report by the Committee of The Virginia State Bar. Mr. Wal- ton was an Editor of the William and Mary Law future Planning Committee established by then-Pres- Review and recipient of a W.A.R. Goodwin schol- ident Hugh Patterson and chaired by Dean Bill arship at the College of William and Mary. Spong. This report suggested that if the Association was to pay anything more than lip service to its twin goals of public service and law reform, it would be necessary to manage the Association on a profes- Spong committee was being prepared, the Supreme sional basis. Following the receipt of the report by the Court of the State of Michigan was deciding the first Executive Committee of the Association, President in a series of cases which I believe have had, and will Jack Kay established a number of planning sessions in the future have, great impact upon our Association. with the purpose of implementing the recommenda- The case ofFalk v. State Bar, 411 Mich 63, 305 N.W.2d tions of the Spong report. I believe that the resulting 201(1981) placed a substantial shadow upon certain activities of the Association with the establishment of activities of mandatory bar associations. Subsequent our full-time staffed office in Richmond and our now cases decided in Puerto Rico, Montana, New Mexico well-implemented Legislative program have been and Wisconsin have now indicated that a mandatory noted by our membership and the Bar as a whole. We state bar may be severely constrained in the use of have made tremendous strides. members’ dues in legislative activities (law reform) At almost the same time that the report from the and perhaps also in projects for the general public

2 good (public service) which do not relate to the spe- which might be considered a substantial threat to cific purposes for which the bar was established. those with abuse problems. It has been suggested that Thus, the courts of several jurisdictions have placed actual operations of the substance abuse program be in question activities which, until five years ago, were overseen by the-A~sociation. While the special com- generally accepted as proper by a mandatory bar. mittee has not issued its final recommendations, I The concern raised by the Falk case and its prog- envision a cooperative effort which will allow a law- eny has justifiably caused substantial concern in the yer with a substance abuse problem to receive help leadership of the Virginia State Bar. As a by-product without the fear of disciplinary action hanging over of this concern, it has brought the mandatory and him as a result of his request for assistance. voluntary bars much closer together in recent years. A second concern in which this cooperation is Our Association has moved to the forefront in law reflected is in the area of alternative dispute resolu- reform and the State Bar has substantially reduced tion. A special joint committee in this area has been its role in the legislative arena. The State Bar has appointed by Bob Patterson of the State Bar and increased its activity in the areas of lawyer discipline myself. I believe that most attorneys who have taken and continuing legal education, but has stepped back the time to think about our existing system for dispute from some of the areas of public service and law resolution have become aware of the need for consid- reform which might cause questions to be raised eration of other, more efficient and less costly means under the Falk case rationale by some of its members of resolving disputes in cases which are not well- who are required to pay dues to the State Bar. The suited to our existing court system. Around the nation relationship between the State Bar and the Bar Asso- a number of programs have been instituted by the ciation is still in the process of evolution, but the organized Bar which have greatly relieved court working relationship has never been stronger or the dockets while allowing individuals to receive just communications between the leadership of each of resolution of conflicts at a cost within their means. the organizations better. It will be a major goal of my Any initiative in the Alternative Dispute area administration to continue this strong relationship would probably require the establishment of a pro- End to place our Association in the position of filling gram, legislation and cooperative efforts from all needs of the organized bar in our areas of expertise. In areas of the organized bar. Both Bars have an interest conjunction with this approach, I would hope that a and find it within their charter to participate in this broad appeal could be made to the bar as a whole to approach, but our unique ability to proceed in the encourage all practicing lawyers in Virginia to con- legislative arena, together with the Bar’s tremendous sider The Virginia Bar Association as their principal outreach to every lawyer licensed in Virginia, should vehicle for promotion of law reform and public service allow us to work together toward the design and from the profession. implementation of a program for Alternative Dispute The joint committee on Continuing Legal Educa- Resolution in Virginia. tion and the cooperative efforts in regard to the Vir- No initial President’s Page would be complete ginia Law Foundation are examples of the existing without a statement of goals for the coming year. joint efforts of the two bars. In addition, several Knowing that my successors can now begin to com- examples of more recent cooperative efforts of the pile my report card, I set forth my agenda with some State Bar and the Bar Association are now underway trepidation: and I believe point out clearly the strengths of each of 1. The development of a Legal Economics program our contributions to approaching the problems facing to provide assistance and guidance to the sole practi- lawyers and the legal system. The Joint Committee of tioner and small firm practitioners who do not have The Virginia Bar Association and Virginia State Bar the management resources of our large firms. I have on Substance Abuse has been meeting for the better asked Paul Fraim, a very able past chairman of our part of a year under the able leadership of Eugene Young LaWyers Section, as chairman Of this commit- Luther of Springfield. Staff support for the committee tee, to reyiew the programs in other parts of the coun- has been provided by both State Bar and the Bar try and put together recommendations for a Legal Association. The State Bar has a justifiable concern Economics program in Virginia. Hopefully this will from the standpoint of lawyer competence. The Asso- allow members of the Bar to practice more efficiently, ciation with its goal of service to the public and the thus serving their clients better and freeing their time profession has an equal interest. The State Bar is for other projects of the Association involving public faced with a problem by having a committee working service and law reform. with attorneys in the areas of substance abuse while 2. I hope to initiate a thorough restudy of our com- it operates at the same time a disciplinary procedure mittee system as it now exists. Our committee system

3 has functioned magnificently in the accomplishment Abuse are areas in which we will be focusing over the of our goals of law reform and public service. Current next year through the joint committees. I hope that committee membership includes the best and bright- within the next year, programs will evolve. est lawyers and the. legislative results, conferences 5. 1987 marks the Bicentennial of the Constitution. sponsored and other projects have brought our Asso- We already have a distinguished committee chaired ciation great honor and praise. We have not, however, by Bill Spong which will be making recommenda- been able to reach out and bring into our committee tions as to the observance of this event in the Com- structure great numbers of people who have substan- monwealth. I expect the organized bar to be in the tial interest, but no vehicle through which to express forefront of the public observance of the Bicentennial. it. In addition, our committees need more diversity In addition to those finite goals, several other chal- both in terms of membership and projects. I would lenges are facing the profession and may reach our hope that we will be ~ble to design a system which agenda soon. Among the most serious is the question will allow for broader participation in Association of Tort reform. Current legislation proposed both in activities and that we will be able to reach out to draw Virginia and nationwide by the Medical Profession is in many who have either not felt that there was a causing’us to take a long hard look at the tort system place for them within the framework of the Associa- in general. President Bill Falsgraf of the American tion or who had just not participated because they Bar Association has established a national commis- had never been asked. sion for the review of tort law. Suggestions have been 3. We must never lose sight of our goal to improve made that a similar study be made within the Com- the profession. A committee chaired by Hugh Patter- monwealth of Virginia. I think that we are fortunate son will soon report to the Executive Committee with in Virginia not to have the depth of problems that are a number of recommendations as to ways and means faced in a number of other states, but I do feel the of restoring, maintaining, and improving our ap- pressure for "tort reform" will continue to rise in Vir- proach to the practice of law which many among us ginia and it would be wise to be in a position to feel has suffered greatly over the past few years. The respond to those pressures at the appropriate time committee, established in response to Mr. Justice with knowledge as well as possible programs. Burger’s indictment of the legal profession a little I can assure you with an agenda such as that over a year ago, has issued a preliminary report above, it will be an exciting and busy year. I would which is most encouraging to me and leads me to hope that the general goals of broad involvement of believe that a substantial number of positive recom- the membership in the work of the Association and mendations will be forthcoming from the committee. I the increased awareness by the Bar as a whole of our hope that the Association, with guidance from this primary role in the areas of law reform and public committee will be able to take actions to improve the service will strengthen us and allow us to accomplish profession as a whole. much in the years to come. 4. Alternative Dispute Resolution and Substance

4 THOMAS E. SPAHN

The Witness-Advocate Rule

THE stakes involved in motions to disqualify oppos- The second set of contradictory principles involved ing counsel increased d~amatically on June 17, 1985. the jury’s perception. Some courts held that juries so On that day, the United States Supreme Court ruled mistrust lawyers that they would believe that a law- that orders disqualifying counsel are not immediately yer acting as a witness would lie for his client. With- appealable. Richardson-Merrell, Inc. v. Koller, __ drawal would not change this perception, since any U.S. __, 86 L.Ed.2d 340, 105 S,Ct. 2757 (1985).1 juror who believes that a lawyer would lie to help his Koller has justifiably heightened interest in the var- client would probably believe that a lawyer would lie ious ethical rules under which counsel may be dis- to help a former client. Other courts feared that the qualified. The most intriguing basis for disqualifica- jury might mistakenly believe that a witness-advocate tion is the witness-advocate rule, which precludes a was still under oath when arguing as counsel, thus lawyer from acting both as a witness and an advocate attributing extra credibility to the lawyer. This rule is in the same legal proceedings. the exact opposite of the principle mentioned above. Even if it is an accurate perception, the rule does not Rationale for the Witness-Advocate Rule appear to preclude the participation of the lawyer’s The witness-advocate rule is an oddity in the ethi- partners in the trial. cal code governing lawyers’ conduct. It has been em- Some of the confusion inherent in the traditional bedded in the law for some time, and has survived the justifications for the witness-advocate rule is appar- drafting of the new ABA Rules (see below). This lon- ent in the pertinent Virginia Ethical Consideration gevity is remarkable--for the rule has no clear intel- (EC 5-9).3 However, EC 5-9 also contains the following lectual underpinnings. Most ethical principles can be proposition: "the roles of an advocate and of a witness defended with carefully-reasoned and logical expla- are inconsistent." While the least articulated basis for nations. The witness-advocate rule, on the other the witness-advocate rule, this principle makes the hand, is a rule that makes more sense viscerally than most sense. Under this approach, the problem is a rationally. In fact, the traditional bases for the systemic one, not dealing with particular prejudice to witness-advocate rule consisted of two sets of contra- the clients or the lawyers. The rule apparently is dictory principles. based on the belief that the judicial process works The first set involved the impeachment of the best when everyone plays one and only one role.4 This witness-advocate. Some courts believed that a lawyer is the only maxim that justifies ignoring both the who was also a witness could be impeached because client’s waiver isee below) and the obvious inapplica- of his financial or other interest in the case.2 However, bility of the rule to judge trials.5 While perhaps not this problem logically should be only the client’s con- satisfying intellectually, this principle reflects an cern, since it is the client who would be prejudiced by instinctive emotional reaction that lawyers should such impeachment. Furthermore, withdrawal of the not also be witnesses. lawyer as an advocate would not necessarily cure the problem, since his earlier involvement in the case or General Approach to the Witness-Advocate Rule his law firm’s continuing representation of the client Perhaps the best evidence that the aversion to law- would still provide grounds for impeachment. Other yers being witnesses outweighs the lack of a rational courts have surmised that a lawyer who was also a basis is that the witness-advocate rule is used every- witness would be more difficult to impeach because of day to disqualify trial counsel. In fact, EC 5-10 man- the supposed fraternal feelings among the trial bar. dates that "doubts should be resolved in favor of the Of course, this purported principle flatly contradicts lawyer testifying and against his becoming or con- the rule mentioned above. Furthermore, withdrawal tinuing as an advocate.’’s would not relieve this problem, since the witness If anything, courts have applied the rule expan- would continue to be a lawyer and any brotherly sively. Although some courts complain that disquali- respect would continue to inhibit cross-examination. fication motions increasingly are becoming a tactical

.5 device,7 they have weakened two important means of disqualification if an attorney discovered that .he defeating such motions. First, laches is a surprisingly "must testify as to a material matter if he is to serve ineffective defense to disqualification motions. Some the best interests of his client." courts deny a laches defense altogether, finding that The second significant question under DR 5-102(A) disqualification is in the "public interest,’’8 Second, "is who decides whether the lawyer "ought" to be a many courts refuse to permit a client to waive any witness on behalf of his client. Some courts take the problems raised by his lawyer also being a witness common-sense approach that the client and the law- (see below). Nearly all of the purported horrors of the yer decide. While necessarily relying on the presump- lawyer acting in a dual capacity (see above) hurt his tion that the client has been fully informed and is client alone--yet some courts refuse to permit clients deciding rationally, this approach has the advan- to waive those problems. This fact seems illogical at tages of being simple and incapable of abuse for tacti- first blush, but reinforces the conclusion that the cal reasons.~3 Other courts--especially in the Second witness-advocate rule arises from a concern for the Circuit--apply an objective approach. system rather than any particular player in the sys- That the lawyer may not actually testify is tem. not controlling. What matters is that he The Witness-Advocate Rule Under the Virginia ought to testify.~4 Code of Professional Responsibility These courts obviously mistrust lawyers’ determination of the necessity of their testimony.~5 Finally, a The Virginia Code addresses the witness-advocate rule at two discrete times. First, the lawyer is directed number of courts have hinted at a more flexible standard, analyzing whether the litigation can be to face the problem when he decides whether to accept conducted in "fairness to all" if the lawyer is a wit- a representation. DR 5-101(B). Of course, this rule ness.16 While Virginia’s Legal Ethics Opinions do not necessarily requires self-policing. It is rarely, if ever, provide any clear guidelines, Opinion No. 557 man- the subject of court rulings, since disqualifichtion motions dates disqualification if "it is likely that the attorney are filed only if the representation is accepted.9 will be called as a witness." The language of this The Virginia Code also considers the applicability Opinion implies that the client will be given a large-- of the witness-advocate rule after a representation if not exclusive--role in determining if his lawyer will has been accepted. In this situation, withdrawal of counsel can occur in two circumstances, depending on also be a witness. The third issue worth addressing under DR 5- who~e behalf the advocate would testify. 101(A) is the "substantial hardship" exception. Inter- estingly, the hardship exception has been very nar- DR 5-102(A)--Testifying on Behalf of the Client rowly construed by both the profession and the Under DR 5-102(A), a lawyer and his firm must courts. ABA Formal Opinion 339 (Nov. 16, 1974) withdraw from a representation if the lawyer "learns states that the exception applies only in "exceptional or it is obvious that he or a lawyer in his firm ought to situations." The courts have been even more strin- be called as a witness on behalf of his client" (empha- gent. For instance, "hardship" generally means more sis supplied). There are only a few exceptions: if the than monetary cost or delay.~7 Otherwise, a lawyer testimony relates to (1) an uncontested matter, (2) a could attempt to conceal the grounds for his disquali- matter of formality, (3) the nature and value of legal fication until shortly before trial, when the delay services, (4) any matter--if the lawyer’s disqualifica- inherent in switching counsel might induce a court to tion would "work a substantial hardship on the permit his continued role.16 Similarly, "a long term client." involvement in a particular case" does not necessar- The first consideration under DR 5-102(A) is the ily support the hardship exception.19 Some courts nature of the testimony. The Third Circuit would dis- have shifted the analysis to inquire into a lawyer’s qualify a lawyer only if he is an "indispensible wit- "distinctive value." Such a value must "be apparent ness,"~0 while the Second Circuit insists on disqualifi- before the decision to accept or refuse employment is cation if the lawyer’s testimony would be "signifi- made,’’2° and must be based on "unique expertise," cantly useful to his client.’’1~ The Fifth Circuit takes such as that in a "highly technical case.’’~1 the middle ground, ordering disqualification if "in the Of course, this general judicial hostility to the hard- exercise of effective representation" a lawyer would ship exception is tempered in particular cases. For call himself or a lawyer from his firm as a witness on instance, the Eastern District of Virginia Bankruptcy behalf of his client.12 Virginia mig.ht_follow this com- Court recently held that a lawyer’s disqualification promise course. Legal Ethics Opinion No. 462 required after 1,000 hours of service would "represent an extreme hardship" on the client.22 Under the generally accepted formulation, such long service would provide no grounds for triggering the hardship exception. The bankruptcy court’s decision probably repre- sents an attempt to assure justice in a particular situation rather than a rejection of the general rule. Not only is the hardship exception difficult to establish, it sometimes backfires. In at least one situation, the hardship exception was cited as grounds for disqualifying counsel quickly rather than waiting for a later hearing.23 By interpreting the grounds for disqualification broadly and the exceptions narrowly, courts have transformed DR 5-102(A) into a powerful tool for seeking disqualification of opposing counsel. The one factor softening the effect of DR 5-102(A) is that disqualification as trial counsel generally does not bar a lawyer from continuing representation in pre-trial proceedings.24 However, some courts reject even this tempering of the rule.~5 For example, one recent and highly publicized decision disqualified the firm of Cravath, Swaine & Moore from any participation in an action involving one of the firm’s major clients because Cravath lawyers were "essential witnesses in Thomas E. Spahn is a partner in the Rich- the proceedings" and thus "too close to the case to mond office of McGuire, Woods & Battle. He exercise independent judgment in practicing it." received his B.A. degree from Yale University Howes v. Atkins, No. 83-279 (E.D. Ky. Jan. 29, 1986). and his J.D. degree from Yale Law School.

DR 5-102(B)--Testifying Against the Client Another ground for disqualifying a lawyer exists if he would be called by his client’s adversary and his able for a lawyer to err on the side of zealous represen- testimony might be prejudicial to his client. DR 5- tation and seek to act as both an advocate and a wit- 102(B). Because it is inherently less likely that a law- ness on behalf of his client. On the other hand, a yer would be in a position to prejudice his own client, lawyer should never attempt to represent a client there are very few examples of disqualification based when possessing information adverse to that client. on prejudice. Thus, there are no exceptions (such as for "substan- Neither the Virginia Code nor the pertinent ABA tial hardship") under DR 5-102(B). Furthermore, the Formal Opinion (No. 339) shed any light on the term language of the Virginia Code supports an argument "prejudicial." Courts have been only slightly more that disqualification under (B) requires the lawyer to helpful. One useful test for determining the prejudice withdraw from all proceedings--even pre-trial mat- required for disqualification is to ask if "an independ- ters. DR 5-102(A) directs the lawyer to "withdraw ent lawyer might seek to cross-examine the witness from the conduct of the trial" if it appears that he and/or to question his or her credibility.’’26 Courts ought to be a witness on behalf of his client. DR 5- generally require the moving party "to make out 102(B) contains no such limiting language, instead potential prejudice that is specific and material rather specifying that a lawyer may continue his "represen- than vague and incidential.’’~7 Thus, it is not neces- tation" until he is disqualified. It could be argued that sary to show that prejudice will occur, but the risk of if that "representation" must cease, even pre-trial prejudice--established by reference to specific deposi- participation would be prohibited. tion testimony or other evidence--must be "substan- There is one anomaly in the Virginia Code worth tial."2s mentioning. DR 5-102(A) requires that both the Disqualification under DR 5-102(B) is a far more witness-advocate and his entire firm must be disqual- serious matter than that under subsection (A). This ified if the lawyer ought to testify on behalf of his difference in emphasis makes sense. It is understand- client. DR 5-102(B) does not require the disqualifica-

7 tion of the entire firm. The absence of this specific lawyer "is likely to be a necessary witness" except if language made no difference in the ABA Code of Pro- his testimony relates to an uncontested issue or the fessional Responsibility, because disqualification of a nature or value of legal services or if the lawyer’s dis- lawyerunder any of the disciplinary rules in the ABA qualification would work a "substantial hardship" on Code mandated the disqualification of his firm. the client. Rule 3.7. By using the term "likely" when Under the Virginia Code, however, such vicarious discussing the lawyer’s possible role as a witness, the disqualification extends only to conflicts of interests new Rules seem to favor the view that the client (and under DR 5-105. See DR 5-105(E). The witness- not the court) determines whether the lawyer will tes- advocate rule appears in another section of the tify. As mentioned above, Virginia Legal Ethics Opin- Code--DR 5-102. Thus, the literal language of the ion No. 557 uses the same "likely" language. Sim- Virginia Code permits the argument that only the ilarly, use of the term "necessary witness" seems to individual lawyer whose testimony might be prejudi- follow the view that a lawyer must be disqualified cial to his client must be disqualified under DR 5- only if his testimony is essential to his client’s case. 102(B). However, such a result would be unjustified. The most important change in the new Rules con- Because disqualification based on prejudice to the cerns disqualification of the witness-advocate’s law lawyer’s client is more serious than disqualification firm. The law firm need not be disqualified if one of its for favorable testimony, the scope of the disqualifica- lawyers is likely to be a witness unless there is a con- tion should be at least as broad as that under DR flict between the lawyer’s testimony and his client’s 5-102(A). interests (Rules 1.7 and 1.9). If a lawyer’s testimony would help his client, on the other hand, it is likely The Witness-Advocate Rule Under the that his disqualification will not extend to his entire ABA Rules of Professional Conduct firm. This change will undoubtedly dampen opposing parties’ desires to file disqualification motions. The new ABA Rules significantly change the witness-advocate rule. The alterations are interesting Conclusion both as an academic matter and because the ABA The witness-advocate rule continues as an impor- Rules apply to lawyers practicing in the Eastern Dis- tant part of our ethical principles despite having no trict of Virginia. See U.S. District Court (E.D. Va.) clear intellectual foundation. Now that orders dis- Local Rule of Practice 7(I). qualifying civil trial counsel are not immediately The new Rules reflect the continuing uncertainty appealable, it is worth remembering that courts apply over the witness-advocate rule’s intellectual heritage. the witness-advocate rule literally and strictly. While There is no reference to the systemic problem of dual the new ABA Rules reflect an attempt by lawyers to role-playing (see above). Comment to Rule 3.7. Instead, weaken what might be perceived as the harshness of the Rules warn of a possible conflict of interests the rule, Virginia has not adopted the Rules, and between a lawyer and his client. Yet the example there is no sign that it will do so in the near future. given by the Rules relates to a’conflict between a law- Therefore, we must all be alert to the danger of mix- yer and the opposing party. According to the Rules, ing the roles of advocate and witness. "[i]t may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof." Comment to Rule 3.7. As explained above, this explanation is not very satisfying. Even if there could be some confusion whether a lawyer were testifying factually or as a matter of opinion (which is difficult to imagine), cautionary FOOTNOTES instructions could probably cure any problems. De- 1. The Supreme Court had earlier ruled that a trial court’s spite the Rules’ failure to adequately describe the denial of a disqualification motion was not immediately bases for the witness-advocate rule, the fact that it appealable. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 has survived the redrafting of lawyers’ ethical rules (1981). 2. This appears to be the last lingering vestige of the old reflects a continuing reaction against lawyers play- common-law rule prohibiting an interested party from testifying more than one role., ing. In every other instance, it has been overridden by the cur- The ABA Rules eliminate the dichotomy between a rent trend to permit an interested party to take the stand while lawyer’s testimony on behalf of his client and that inviting the jury to discredit his testimony. 3. For instance, EC 5-9 predicts that a witness-advocate adverse to his client. Instead, a l_a_.w_yer is instructed could be "more easily impeachable for interest." However, the not to act as an advocate "at a trial" in which the EthiCal Consideration also states that opposing counsel "may

8 be handicapped in challenging the credibility of the lawyer motion rarely bothers to refer back to the lawyer’s decision to when the lawyer also appea~s as an advocate in the case." The accept the representation in the first place. two notions are separated by the term "conversely" in EC 5-9, Virginia Legal Ethics Opinion No. 457 discusses this matter, but there is no attempt to explain how two converse principles holding that an ~attorney should not have filed an action may coexist. because "it was reasonably likely" that a lawyer in his firm 4. The only exception is the long-standing principle that a "might be called to testify." Technically, it was the lawyer’s lawyer cannot be deprived of the right to defend himself. See decision to undertake the representation, not his filing of the Virginia Legal Ethics Opinion No. 311; Bottaro v. Hatton lawsuit, that would be improper. Assoc., 680 F.2d 895, 897 (2d Cir. 1982). 10. See J.D. Pflaumer, Inc. v. U.S. Dept. of Justice, 465 F. 5. A number of courts apply the witness-advocate rule to Supp. 746, 747 (E.D. Pa. 1979), citing Universal Athletic Sales judge trials, although it is clearly intended to cure problems Co. v. American Gym, Recreational & Athletic Equip. Corp., 546 associated with jury perceptions. See, e.g., U.S. ex rel. Sheldon F.2d 530, 539 n.21 (3d Cir. 1976), cert. denied, 430 U.S. 984 (1977). Elec. Co. v. Blackhawk Htg. & Plmg. Co., 423 F. Supp. 486, If other witnesses are available to testify, the advocate is not 489-90 (S.~D.N.Y. 1976). Other courts take a more realistic posi- indispensable. Davis v. Stamler, 494 F. Supp. 339, 342 (D.N.J. tion, recognizing that "a judge is unlikely to be confused by the 1980), all’d, 650 F.2d 477 (3d Cir. 1981). If a party can make out dual appearance as advocate and witness." United States v. his prima facie case without the advocate, the rule is inapplica- Morris, 714 F.2d 669, 672 (7th Cir. 1983). ble. J. D. Pflaumer, Inc. v. U.S. Dept. of Justicg, 465 F. Supp. 746 6. Some courts have taken this statement to heart. See (E.D. Pa. 1979). Comden v. Superior Court, 576 P.2d 971, 20 Cal. 3d 906, 145 Cal. 11. The test is whether the attorney’s testimony could be sig- Rptr. 9, 13, cert. denied, 439 U.S. 981 (1978). On the other hand, a nificantly useful to his client; if so, he ought to be called. recent Second Circuit case has noted that the Second Circuit MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 follows "a restrained approach" to disqualification motions. (S.D.N.Y. 1981). Some courts have applied this rule to rebuttal Bottaro v. Hatton Assoc., 680 F.2d 895, 896 (2d Cir. 1982). testimony in addition to testimony in the client’s case in chief. 7. For instance, Judge Gurfein, concurring in J. P. Foley & J. P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1359 (2d Cir. 1975). Co. v. Vanderbilt, 523 F.2d 1357, 1360 (2d Cir. 1975), noted that: 12. Cossette v. Country Style Donuts, Inc., 647 F.2d 526, 530- the attempt by an opposing party to disqualify the 31 (5th Cir. 1981). ~ other side’s lawyer must be viewed as part of tl~e tactics 13. These courts recognize that the client "is certainly in the of an adversary proceeding. As such it demands judi- best position to know" whether his lawyer’s testimony is neces- cial scrutiny to prevent literalism from possibly over- sary. Zions First Nat. Bank v. United Health Clubs, Inc., 505 F. coming substantial justice to the parties. Supp. 138, 141 (E.D. Pa. 1981). Accord Beaver Falls Thrift Corp. Accord Premium Prod. Sales Corp. v. Chipwich, Inc., 539 F. v. Commercial Credit Business Loans, Inc., 563 F. Supp. 68, 71 Supp. 427, 436 (S.D.N.Y. 1982); Rice v. Baron, 456 F. Supp. 1361, (W.D. Pa. 1983); J. D. Pflaumer, Inc. v. U.S. Dept. of Justice, 465 1368 (S.D.N.Y. 1978); Borman v. Borman, 378 Mass. 775, 393 F. Supp. 746, 748 (E.D. Pa. 1979); Ddvis v. Stamler, 494 F. Supp. N.E.2d 847, 855 (1979). 339, 342 (D.N.J. 1980), aff’d, 650 F.2d 477 (3d Cir. 1981). 8. In U.S. ex rel. Sheldon Elec. Co. v. Blackhawk Htg. & 14. MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 Plmg. Co., 423 F. Supp. 486, 490 (S.D.N.Y. 1976), for instance, (S.D.N.Y. 1981). See also Teleprompter, Inc. v. City of Erie, 573 F. defendant moved for disqualification on the day of trial. The Supp. 963, 965 (W.D. Pa. 1983); J. P. Foley & Co. v. Vanderbilt, court nevertheless ordered counsel disqualified, finding that 523 F.2d 1357, 1359 (2d Cir. 1975); Eurocom, S.A.v. Mahoney, since Cohen & Co., 522 F. Supp. 1179, 1181 (S.D.N.Y. 1981) ("The operative question is whether a member of the firm involved in disqualification is in the public interest, the court can- the trial ’ought’ to be called as a witness, not whether plaintiff not act contrary to that interest by permitting a party’s presently plans to do so..."); Supreme Beef Processors, Inc. v. delay in moving for disqualification to justify the con- American Consumer Indus., Inc., 441 F. Supp. 1064, 1068 (N.D. tinuance of a breach of the Code of Professional Tex. 1977) ("Although these disciplinary rules are for the protec- Responsibility. tion of clients they are also for the protection of the bar and the The Sheldon court quoted from a Second Circuit opinion in integrity of the court. I therefore hold that these disciplinary which conflict of interest was alleged. rules may not be waived by the client"); General Mill Supply Co. Conflict of interest problems are considered much more v. SCA Serv., Inc., 505 F. Supp. 1093, 1098 (E.D. Mich. 1981), serious than the witness-advocate principles, and it is unlikely all’d, 697 F.2d 704 (6th Cir. 1982). that the two would be governed by the same laches doctrine. 15. For instance, in U.S. ex rel. Sheldon Elec. Co. v. Black- Still, the strict rule in Sheldon was repeated a year~ later in a hawk Htg. & Plmg. Co., 423 F. Supp. 486, 489-90 n.5 (S.D.N.Y. New York State court. Grossman v. Commercial Capital Corp., 1976), the court noted "with dismay" that plaintiff stated that 59 A.D.2d 850, 399 N.Y.S.2d 16, 17 (1977) ("Plaintiffs’ claim of he would not call his lawyer as a witness if the lawyer could not laches cannot be recognized. Defendant’s motion is considered continue to represent him. The court found counsel’s attitude to have been brought in the public interest and therefore is not "cavalier" and would not let the client make that determination. subject to such claim"). See also Connell v. Clairol, Inc., 440 F. 16. For instance, the court in Field v. Freedman, 527 F. Supp. Supp. 17 (N.D. Ga. 1977) (the court refused to allow a laches 935, 942 (D. Kan. 1981), noted that: defense although conceded that the delay may have been for The critical question is not whether or not a lawyer will tactical reasons). Accord Teleprompter, Inc. v. City of Erie, 573 be called as a witness, but whether the litigation can be F. Supp. 963, 965 (W.D. Pa. 1983) ("The obligations of the Rule conducted in fairness to all if the attorney is a witness. ¯.. cannot be overcome by equitable defenses such as laches, waiver or estoppel"). See also Borman v. Borman, 378 Mass. 775, 393 N.E.2d 847, 856 9. Furthermore, the ethical considerations conclude that the (1979). This approach was praised in the recent Second Circuit "same basic considerations" apply to the lawyer’s decision case ofBottaro v. Hatton Assoc., 680 F.2d 895 (2d Cir. 1982). whether the issue arises before or after he accepts the represen- 17. In MacArthur v. Bank of New York, 524 F. Supp. 1205, tation. For this reason, a court considering a disqualification 1210 (S.D.N.Y. 1981), the court found that "[h]ardship alone,

9 however substantial, is insufficient to permit continued repre- E.D. Va. 1984). Accord Stanwood Corp. v. Barnum, 575 F. Supp. sentation." The court noted that the most hardship is likely to 1250 (W.D.N.C. 1983). occur in those very cases in which the lawyer’s intimate knowl- 23. Miller Elec. Const. Inc. v. Devine Lighting Co., 421 F. edge of the facts demands his disqualification. As for the sup- Supp. 1020, 1023 (W.D. Pa. 1976). posed hardship to the client: 24. In Norman Norell, Inc. v. Federated Dep’t Stores, Inc., 450 Withdrawal will be costly whenever it occurs (though F. Supp. 127, 131 (S.D~N.Y. 1978), for instance; the court ordered the expense can be minimized by invocation of the rule disqualification but permitted continued pre-trial assistance. at the earliest possible time). But if the expense and The concerns there expressed are for the public percep- delay routinely incident to disqualification satisfied the tion of justice done and probity preserved and for neu- substantial-hardship exception, that exception would tralization of any possible unfair advantage at trial. By soon swallow the rule. this standard there can be no cavil if Manning acts as See also Teleprompter, Inc. v. City of Erie, 573 F. Supp. 963, 966 counsel prior to trial but is barred from dual participa- (W.D. Pa. 1983) ("We do not think the possibility of delay falls tion at trial. within the ambit of the hardship anticipated by the Rule"). Sim- ilarly, a New York court found that "financial hardship is not Therefore it is ordered that the Manning firm be dis- synonymous with substantial hardship within the meaning of qualified from acting as trial counsel for plaintiffs but the exception." Grossman v. Commercial Capital Corp., 59 be pdrmitted to pursue pretrial activities. When the case A.D.2d 8,50, 399 N.Y.S.2d 16, 17 (1977). is ready for trial, the firm of Manning & Carey is 18. Greenebaum-Mountain Mortgage Co. v. Pioneer Nat. Title ordered to designate in the note of issue or pretrial Ins. Co., 421 F. Supp. 1348, 1352 (D. Colo. 1976). order, as the case may be, the individual or firm which 19. General Mill Supply Co. v. SCA Services, Inc., 505 F. will represent plaintiffs at trial and to take no active Supp. 1093, 1099 (E.D. Mich. 1981), all’d, 697 F.2d 704 (6th Cir. role in the courtroom conduct of the case. 1982). 20. Supreme Beef Processors, Inc. v. American Consumer (emphasis supplied). See also MacArthur v. Bank of New York, Indus., Inc., 441 F. Sup. 1064, 1069 (N.D. Tex. 1977). Therefore, it 524 F. Supp. 1205, 1211 n.3 (S.D.N.Y. 1981) ("The disqualified is apparent that a long-term involvement in a particular case firm may consult with defendant’s substitute counsel and assist does not normally engender a "distinctive value." In Comden v. in preparing for trial"); In re Proper Yacht Specialists, Inc., 38 Superior Court, 576 P.2d 971,975, 20 Cal.3d 906, 145 Cal.Rptr. 9, B.R. 304, 307 (Bankr. N.D. Ga. 1984). 13, cert. denied, 439 U.S. 981 (1978), the Supreme Court of Cali- 25. There is some authority for barring a lawyer from even fornia held that: filing an affidavit (Hardemon v. Fish, 325 So.2d 411, 412 (Fla. Dist. Ct. App, 1976) ) or engaging in administrative hearings. If we were to hold that interview, research, and prelim- Lavin v. Civil Serv. Comm’n, 18 Ill. App.3d 982, 310 N.E. 2d 858, inary discussion on trial strategy are sufficient to cloak 865 (1974). a firm with such ’distinctive value’ that a loss of its 26. Freeman v. Kulicke & Soffa Indus., Inc., 449 F. Supp. 974, service results in substantial hardship within the 977 (E.D. Pa. 1978), all’d, 591 F.2d 1334 (3d Cir. 1979): meaning of the rule, the latter will be consumed by 27. Id. at 978. Accord Rice v. Baron~ 456 F. Supp. 1361 exception. (S.D.N.Y. 1978). 21. Even this rule has been narrowly construed. For instance, 28. In Zions First Nat’l Bank v. United Health Clubs, Inc., in Draganescu v. First Nat’l Bank, 502 F.2d 550, 552 (5th Cir. 505 F. Supp. 138, 140 (E.D. Pa. 1981)~ for instance, the court 1974), cert. denied, 421 U.S. 929 (1975), a lawyer’s familiarity refused to disqualify counsel by noting that the moving party with Romanians and their language did not provide any dis- (1) had not specified "in what way United [the client] will be tinctive advantage to the client. prejudiced’: and (2) had not submitted any affidavits. 22. In re Chantilly Constr. Corp., 39 B.R. 466, 473 (Bankr.

10 LYNN F. JACOB

The Dilemma of AIDS in the Workplace

A l-kiDS has become one of the most sensitive employ- asymptomatic virus infection.4 Some of these asymp- ment problems of the 1980’s. Not only are employers tomatic individuals are contagious, and others are faced with the high cost of health care and death not; some will eventually have symptoms and others benefits for employees with AIDS,1 they are also will probably never have them. The Centers for Dis- faced with thorny legal and ethical issues such as an ease Control have ~stimated that perhaps 500,000 to employer’s responsibility to provide a safe workplace 1,000,000 people in the United States are infected to and potential tort and job discrimination liability. As date.5 Although information about infection with a general rule in most states, an employer is not pre- HTLV-III/LAV is incomplete, preliminary informa- cluded from screening its applicants and employees tion suggests that the infection will be chronic or perfor infectious diseases, including the AIDS virus. sistent, and that an infected person may be able to However, the manner in which the tests are con- transmit the virus to others for years or perhaps the ducted, the results disseminated and the action taken rest of his life. by the employer as a result of such tests will be the subject of frequent litigation in the next few years. How AIDS Is Transmitted AIDS is believed to be caused by a human retrovi- Communicability is said to occur through blood rus called variously human T-lymphotropic virus type and blood products that are untreated; anal receptive III (HTLV-III) or lymphadenopathy-associated virus intercourse, presumably secondary to the presence of (LAV).2 It acts on the body’s immunity system caus- the virus in semen and blood; heterosexual transmis- ing a breakdown in white blood cells called T- sion from men (usually bisexual or hemophiliacs) to lymphocytes. These lymphocytes normally attack women; and perinatal transmission from mother to viruses, fungi, parasitic infections and cancer, and neonate. HTLV-III/LAV has been isolated from without their effective functioning, AIDS victims blood, semen, saliva, tears, breast milk and urine, but become susceptible to illnesses their bodies could epidemiologic evidence has implicated only blood and normally overcome. This virus may also directly semen in transmission.6 The Centers for Disease Con- infect cells in the central and peripheral nervous sys- trol report that studies of nonsexual household con- tems and appears to lead directly to neurologic injury. tacts of AIDS patients indicate that casual contact As of September 30, 1985, physicians in public with saliva and tears does not result in transmission health departments have reported over 13,000 patients of infection. Further, it has taken the position that who meet the surveillance definition for AIDS. Almost "[t]he kind of nonsexual person-to-person contact that one-third of all cases have been reporte~ during the generally occurs among workers and clients or con- first nine months of 1985; based on current trends, the sumers in the work place does not pose a risk for number of cases can be expected to double over the transmission of HTLV-III/LAV".7 next twelve months. Cases have been reported from Characteristics of People with AIDS 46 states, the District of Columbia and three U.S. ter- ritories. Almost 7,000 patients are known to have died Among the adult patients with AIDS, 90% are (51% of adults and 63% of children); 75% of patients between 20 and 49 years old. Sixty percent are white; diagnosed before 1983 are known dead.3 25% black; and 14% Hispanic. Ninety-four percent are The disease takes a multiplicity of forms, some dis- men.s abling and some not, varying not only from individ- Most reported AIDS cases have one or more well ual to individual but also from one phase to another defined risk factors that suggest the probable means within the same person. For every person who has of infection. For adults, approximately 73% of cases AIDS, perhaps 5 to 10 times as many have a milder have occurred in homosexual or bisexual men; 17% in form of the disease, called AIDS Related Complex drug users who have not had homosexual contact; 2% (ARC), and perhaps 50 to 100 times as many have an are people who have had blood transfusions; 1% each

11 in people who have had a coagulation disorder (such This means, in essence, that employers who are gov- as hemophilia) that requires clotting factor therapy or erned by.these laws may not discharge, refuse to hire, who are heterosexual and have been sexual partners or otherwise discriminate against an employee be- of people at risk of being infectious.9 Although the cause he has traces of the HTLV-III/LAV virus if, total number of cases in each patient group has after reasonable accommodation is made for the increased substantially, the relative proportion of employee’s condition, the employee is physically and cases within each group has remained remarkably mentally able to perform the job. constant over time. Section 503 of the Rehabilitation Act of 1973 makes it unlawful for government contractors to discrimi- AIDS Testing nate against a handicapped individual and obligates There are no tests for the HTLV-III/LAV virus them to take affirmative action to employ and itself. However, two procedures are used to test for the advance in employment "qualified handicapped indi- antibodies which are developed in some people after viduals".12 This obligation extends to all employment they have been exposed to the virus (HTLV-III anti- practices including hiring and rates of pay or other bodies). The ELISA test was developed to screen forms of compensation.13 The Rehabilitation Act donated blood and plasma. This test is relatively de.fines a handicapped individual as a person who "(i) inexpensive and easy to conduct. It is not fool-proof, has a physical or mental impairment which substan- however, and often produces a false-positive result. tially limits one or more of such person’s major life A positive reaction to the ELISA test can,mean one activities, (ii) has a record of such impairment, or (iii) of four things. First, it can mean there has been a is regarded as having such an impairment".14 The mistake, a false positive, because of technical error or regulations interpreting the Rehabilitation Act pro- because the test has reacted to something else in the vide that a "handicapped individual" is "substan- blood. False positives occur more often in women and tially limited" if he or she is likely to experience diffi- may be related to previous pregnancy. Second, a posi- culty in securing, retaining or advancing in employ- tive test could mean the body has encountered the ment because of a handicap.15 It is thus necessary to AIDS virus and successfully fought it off--but the make a case by case determination of whether the antibodies from the struggle remain in the blood and impairment constitutes for that individual a substan- are detected by the test. Third, a positive test may tial handicap in employment in his chosen field. An mean the person has antibodies and the live AIDS impairment is substantially limiting if a job seeker is virus in his blood but is not sick and may never disqualified from the same or similar jobs offered by become sick. Fourth, a positive test may mean the employers in the area on the basis of the same job person has both the virus and antibodies and ’will requirements.16 For example, a food service applicant develop AIDS.1° In addition, a person with AIDS may afflicted .with AIDS may be considered disabled if all have such a severe case that all HTLV-III antibodies employers, in the area refuse to hire AIDS victims for are destroyed. Testing this person’s blood will result food service positions. There is no doubt that the in a negative reading. applicant’s marketability would be substantially im- Because of the high rate of false positive results paired. 17 from the less expensive ELISA test, blood testing pos- Whether an employer is justified under the Rehabil- itive must then be tested by a more expensive immuno- itation Act to refuse employment to an AIDS victim blot test. This test is more reliable but is also not 100 because of the risk of harm to others depends on the percent accurate. present state of medical information on whether the The Medical College of Virginia is one of five refer- AIDS victim presents an immediate risk to the health ence cites in Virginia which have state grants to con- and safety of others. Persons who, with reasonable duct AIDS screening. The hospital will conduct both precautions, cannot function in a position without screening tests at no charge for any person who endangering the health and safety of others are not requests the test.ll considered "qualified handicapped ’individuals" and are thus not protected,is HTLV-III/LAV has now Legal Implications of an AIDS been isolated in blood, saliva and tears. Science may Screening Policy soon show that AIDS can be transmitted by a food 1. The Rehabilitation Act. worker cutting onions who tears, sneezes or cuts his Although there is currently no federal or Virginia finger on a knife. In this situation an employer could published case law, the courts will probably soon find argue substantial risk of harm for which no reasona- that AIDS is a protected "handicap" under various ble accommodation can be made. According to the federal and state employment discrimination laws. conclusions reached by the Centers for Disease Con-

12 trol, however, an employer would not be justified in refusing to employ an asymptomatic AIDS victim for the food service position.19 The Rehabilitation Act will also protect those who do not have AIDS, but who are viewed as possible or likely victims, e.g., gay men and those with positive results to the HTLV-III antibody test, because the definition of handicapped includes "perceived" han- dicaps. For this reason federal contractors may not refuse to hire a homosexual applicant because of the increased risk that he has been in contact with the AIDS virus. An employer may wish to reject an applicant with AIDS who is presently capable of performing the essential functions of the job because of the risk that the employee’s conditions will deteriorate to the point that he is frequently absent, may injure himself on the job or may adversely affect the employer’s health insurance rating. However, the determination of whether an applicant is qualified must be based on present abilities. The amount of discretion allowed the employer in applying job qualificati~ons which relate to uncertain future risks is proportionate to the safety considerations present.20 Although an employer Mrs. Jacob practices with Williams, Mullen & can consider disqualifying a person because his han- Christian in Richmond, Virginia, and special- dicap creates a substantial risk of imminent injury, izes in labor and employment law and employee disqualification based on speculation about the risk benefits. She received her B.S. from the Univer- of injury or speculation about inability to work at sity of Virginia and her J.D. from The T. C. Wil- some imprecise time in the future is not permissible.2I liams School of Law. Moreover, courts addressing the issue have uniformly held that an employer may not justify its practice of screening out such individuals based solely on increased financial risks.22 capped for purposes of the Virginia antidiscrimina- tion act does not include those individuals who are 2. The Virginians With Disabilities Act. merely perceived as having a disability. An argument The Virginians With Disabilities Act ("VDA"), can therefore be made that homosexuals who are effective July 1, 1985, covers all private employers not merely perceived as having AIDS are not protected by subject to the Rehabilitation Act.’~:~ VDA prohibits the Act. As under the federal statute, employers are employers from discriminating in employment or not prohibited from refusing to hire or promote or promotion practices against an otherwise qualified from discharging an applicant or employee who, person with a disability solely because of such dis- because of his disability, is unable to perform his ability.24 Persons with disabilities under this statute duties in a manner which would not endanger his are persons who have a physical or mental impair- health or safety or the health or safety of others.~7 ment which substantially limits one or more of the person’s major life activities or who have a record of 3. Other Local Ordinances and State Statutes. such impairment. This includes physical conditions Depending on the location of the facility, an caused by illness?5 Although there have been no Vir- employer may violate state laws or local ordinances if ginia Court decisions concerning whether AIDS is a it screens or discriminates against employees with handicap for purposes of the VDA, AIDS has been the HTLV-III/LAV virus. The states of California alleged to constitute a covered handicap in a suit and Wisconsin have recently enacted statutes barring recently filed in state court in Alexandria, Virginia.~6 employers from using the HTLV antibody test. Sev- An employer’s limitations under the VDA are sim- eral localities have passed anti-discrimination against ilar to those under the Rehabilitation Act although, AIDS ordinances. For example, as of August 19, 1985, unlike the federal statute, the definition of handi- the Los Angeles City Council now prohibits discrimi-

13 nation based on a person suffering from the medical employer can show business necessity, the applicant condition of AIDS or any medical signs or symptoms may be able to show that precautions, such as a mask related thereto or any perception that a person is suf- and rubber gloves, can accomplish the goal of not fering from the medical condition. Screening co- infecting others in the work place. workers on the basis of other factors such as seeking to identify all gay men may violate some state stat- 6. Wrongful Discharge Claims. utes which prohibit discrimination in employment Normally nonunion employees are employed at will based on sexual orientation or marital status. Virgin- and can be terminated for any legal cause, However, ia does not have these types of statutes. termination of at-will employees who are victims of AIDS .may constitute a violation of public policy and 4. Tort Claims. may be actionable in some states. If the employer relies upon the ELISA test to iden- Virginia has recently recognized a cause of action tify employees with AIDS, he faces the substantial for termination of employment in violation of public possibility that the test results are incorrect. Should policy where the public policy is statutory,a° A Virgin- they be incorrect, and should the test results be pub- ia court n~ight well find that terminating an employee lished, the employer faces possible defamation and who has no symptoms of AIDS because of a positive infliction of emotional distress liability. Damages HTLV test may constitute a violation of public policy could be excessive as an accusation of AIDS will even where the employee is not protected by the Vir- obviously be a seriously damaging statement. Ac- ginia Disabilities Act. cordingly, if screening is conducted, an employee’s test results must be kept as confidential as possible. 7. OSHA and Common Law Tort Liability. This information should be disseminated only on a Employers in Virginia have a common law and need-to-know basis. statutory duty to provide a safe work place for its Moreover, in some states an employer may be sub- employees,al The employer must balance "the privacy ject to claims of invasion of privacy. Virginia has not rights of persons with AIDS against employee con- recognized such a fight in employees. Nonetheless, cern about a safe and healthy environment. Its duty any testing should be conducted with the employee’s to isolate AIDS victims or inform co-workers of the wfitten consent and with all possible privacy and fact that an employee has AIDS will depend on the confidentiality. risk of contagion. Under present scientific theories concerning the transmission of AIDS, an employer is 5. Title VII Claims. probably justified in not isolating AIDS victims or The argument can be made that an employer’s pol- informing co-workers of the disease because the medi- icy of rejecting an applicant with HTLV-III/LAV cal profes.sion reports that the disease is not transmit- antibodies has an adverse impact on Hispa.nics, in ted by casual contact. violation of Title VII of the Civil Rights Act of 1964. Proof of discrimination under the adverse impact the- Conclusions and Recommendations ory focuses upon the effects of the alleged discrimina- tory practice. The consequences of employment poli- Employers risk liability for refusing to hire or ter- cies rather than the employer’s motivation or intent is minating employees because of positive HTLV- of paramount concern. In these cases the employee or III/LAV blood screening results. As the medical pro- job applicant must show that a policy or practice, fession uniformly takes the position that the disease such as refusing to hire applicants with AIDS, has a is not transmitted by casual contact, employers substantial adverse impact on a protected group, should refrain from conducting either pre-employment notwithstanding its equal application to all individu- or post-employment screening at this time. als. The burden then shifts to the employer to demon- As a practical matter, not enough research has strate a business necessity for the practice. If this is been conducted to be certain that the HTLV-III/LAV established the burden shifts back to the employee or virus cannot be transmitted by casual contact. If an applicant to demonstrate that there are other devices employer decides to screen for certain higher risk which would accomplish the same goal with a lesser positions, such as food service workers, then the impact on the protected group.2a employer should obtain written employee consent As current scientific evidence reflects that AIDS is and maintain the utmost confidentiality. If positive not transmitted by casual contact2a an employer may results are obtained, each employment situation should not be able to prove an adequate-business necessity be viewed individually to determine what accommo- for refusing to hire AIDS victims. Even if the dations, if any, can be made. Counseling should be

14 provided to the applicant/employee. 10. Tanne, The Last Word on Avoiding AIDS, New York Some employers have not allowed the employee to Magazine 28, 33 (October 7, 1985). 11. Dr. Lisa Kaplowitz, Director of Medical College of Virgin- work but have provided full disability benefits or full ia AIDS Alternate Test Site. pay. This is probably based on the assumptions that 12. 29 U.S.C. §’7~. For purposes of the Act, government con- the AIDS victim will not live long and payment may tractors are employers holding a contract with the federal discourage the employee from asserting a claim government in excess of $2,500.00 and subcontractors with a contract in excess of $2,500.00 which is necessary to the perfor- against the employer, thus limiting potential dam- mance of a prime government contract. 29 U.S.C. § 793(a). ages. 13. 41 CFR § 60-741.6(a). Employers may also wish to consider implementing 14. 29 U.S.C. § 707(7). Recent decisions indicate that contagious diseases are encompassed within the definition of handi- an education program on AI’DS. AIDS has been capped. See Arline v. School Board of Nassau County, 772 F.2d receiving an enormous amount of media coverage, 759 (llth Cir. 1985). and employees may well be concerned for their safety. 15. 41 CFR § 706(7). An education program which highlights the ways in 16. E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088; (D. Haw. which AIDS is transmitted is a public service and has 1980); O.F.C.C.P. v. Southern Pac. Transp. Co., Case No. 79- OFCCP-19 (Nov. 9, 1982); O.F.C.C.P.v. Texas Indus., Inc., Case the effect of alleviating employees’ fears concerning No. 80-O.F.C.C.P.-28 (June 10, 1981). risk of contagion and might well limit behaviors 17. See, People of New York v. 49 West 12th Street Tenants’ which increase the risk of contracting the disease. Co-op, No. 43604/83 (N.Y. Sup. Ct., Dec. 20, 1983) (AIDS found to be a disability.under New York’s human rights law in prelim- Educational materials from, many agencies ave avail- inary injunction hearing on behalf of tenant/doctor threatened able for the .asking.32 with eviction by co-op board because he treated AIDS patients); see also, Chrysler Outboard Corp. v. DILHR, 14 FEP Cases 344 (Wisc. Cir. Ct. Dane Co. 1976) (acute lymphatic leukemia is a disability within the meaning of Wisconsin’s statute). 18. 29 CFR § 1613.702(f). 19. See note 7, supra. FOOTNOTES 20. O.F.C.C.P. v. Southern Pac. Trans. Co., Case No. 79- 1. The Centers for Disease Control analyzed the economic OFCCP-19 (Nov. 9, 1982). impact of the first 10,000 reported AIDS cases and estimated 21. Id. health care at $147,000 per patient. 22. See, Sterling Transit Co., v. Fair Employ. Commis., 121 2. C.D.C., Revision of the Case Definition of Acquired Cal. App. 3d 791, 175 Cal. Rpt. 548, 28 FEP Cases 1351 (1981); Immuno-deficiency Syndrome for National Reporting--United Chrysler Outboard Corp. v. Department of Indus., Labor and States, 34 MORBIDITY AND MORTALITY WEEKLY RE- Human Relat., 14 FEP Cases 344 (Wisc. Cir. Ct., Dane Co. 19). PORT (hereafter MMWR) 375 (1985). 23. Va. Code § 51.01-1 et seq. (1985). 3. C.D.C., Update: Acquired Immunodeficiency Syndrome-- 24. Va. Code § 51.01-41 (1985). United States, 34 MMWR 245-8 (1985). 25. Va. Code § 51.01-3 (1985). 4. AIDS: Legal Aspects of a Medical Crisis p. 18 (Ed. Law 26. Goodfellow v. Quinn Patent Drawing Service, Inc., Chan- Journal Seminars--Press 1985) (hereafter "Legal Aspects"). cery No. (cir. ct. City of Alexandria). 5. Id. at 17. 27. Va. Code § 51.01-41(D) (1985). 6. C.D.C., Summary: Recommendations for Preventing Trans- 28. Griggs v. Duke Power Co., 401 U.S. 424, 429~30 (1971). mission of Infection with Human T-Lymphotropic Virus Type 29. See note 7, supra. III/Lymphadenopathy Associated Virus in the Workplace, 34 30. Bowman v. State Bank of Keysville, 229 Va. __, 1 VLR MMWR p. 682 (Nov. 15, 1985). 1435, 331 $.E.2d 797 (1985). 7. Id. at 681,682, 694. 31. Va. Code § 40.1-51.1(a). 8. C.D.C., Update: Acquired Immunodeficiency Syndrome-- 32. Information can be obtained in Richmond, Virginia from United States, 34 MMWR 245-246 (1985). both the Virginia Department of Health Hotline (800-533-4148) 9. Legal Aspects, supra note 4 at 18. and the Richmond AIDS Information Network (800-358-6343).

15 RONALD J. BACIGAL

Implied Hearsay

T ! ~AWYERS sometimes exagerate the significance of say rule to assertions implied within the literal con- a single sentence or footnote in a court opinion.~ At tents of a statement. other times a single phrase may turn out to be a time Implied assertions focus, not on the literal contents bomb which subsequently explodes with far reaching of a statement, but upon the message impliedly con- results. Court watchers thus spend considerable time tained within such statements. Certain implied asser- trying to discern what is implied within the literal tions are so obvious that common sense dictates that language of a court’s opinion. It is no small irony that they be recognized as hearsay. For example: A poten- one of the latest implications in a Virginia Supreme tial buyer asks: "Is this pure heroin?" To which the Court decision relates to the implications contained declarant responds: "Do cops wear blue?" Counsel within an out-of-court statement that cannot be liter- offering this statement may contend that it is not ally defined as hearsay. A modification of the hearsay hearsay because it is not offered for the truth of the rule, or at least the hearsay rule applicable to child literal statement that police wear blue. The mere molestation cases, may be contained within a single uttering of such words is seen as an objective fact paragraph of the Virginia Supreme Court’s opinion in from which the jury may or may not infer something Church v. Commonwealth.2 other than the truth of the matter asserted. E.g. infer In Church the defendant was charged with sexual that the heroin is pure. Although the inference is offenses against a seven year old girl. The victim did rather obvious, this does not convert the inference not appear at trial, but the victim’s mother testified into an assertion by the declarant. Under this analy- that the child became preoccupied with sex and told sis, if the jury is not asked to accept the literal truth of her mother that sex was "dirty, nasty, and it’ hurt." the matter asserted, then the statement cannot be Defense counsel’s hearsay objection to this statement classified as hearsay. was overruled. In its review of the case, the Virginia Such superficial analysis is not convincing because Supreme Court applied the classic definitions of hear- counsel, judge, and jury will recognize the clear mess- say and non-hearsay. age contained between the lines of the declarant’s HEARSAY--extra-judicial statements "of- colorful l~inguage. Common sense dictates treating fered for a special purpose, namely, as asser- such statements as hearsay. Unfortunately, implied tions to evidence the truth of the matter assertions also come in much subtler forms than the asserted. -3 above hypothetical. In many situations it is difficult NON-HEARSAY--out-of-court statements not to determine when it is appropriate to take the declar- offered to show their truth are not subject to ant literally, and when it is necessary to "read the rule against hearsay, and are thus admis- between the lines" in order to decipher what the sible if relevant.4 declarant "really" meant. The Court noted that the Commonwealth did not Consider the following hypothetical:7 The defense offer the child’s statement to prove the literal contents offers the statement of the alleged homicide victim of the assertion that sex is "dirty, nasty, and it hurt." who hugged the defendant and said: "I love you." Rather the statement showed the child’s attitude Defense counsel may argue that such a statement is toward sex, "an attitude likely to have been created not hearsay because it is not offered for the truth of by a traumatic experience .... Thus, the child’s out-of- the literal contents of the statement. (Love be.ing court statement was not hearsay, but was admissible irrelevant to a homicide prosecution) Counsel will as circumstantial evidence tending to establish the maintain that the mere uttering of the words (and the probability of a fact in issue.’’5 I.e. the corpus delicti of hug)8 is an objective fact and is thus circumstantial a sexual offense.6 The Court’s brief analysis correctly evidence from which the jury may or may not draw applied the literal definition of hearsay to the literal inferences. E.g., if a victim would not love her assail- contents of the statement, but the. Court did not ant, then it can be inferred that the defendant is not address the more subtle aspects of applying the hear- the assailant. Defense counsel will point out that the prosecution is free to argue possible counter inferences. E.g., the expression of love may have been an act of forgiveness and thus does not disprove the attack. Under the defense analysis the jury is not considering hearsay, but is discharging its traditional function when considering circumstantial evidence. I.e., the jury must choose between competing rational inferences. The prosecution, however, may not accept a characterization of the "I love you" statement as non- hearsay. The prosecution may argue that the inference to be drawn by the jury is the very message contained between the lines of the declarant’s literal statement. Thus the defense is seen to introduce an out-of-court statement that the defendant is not the assailant, offered to prove that the defendant is not the assailant. The difficult question for the judge is whether the assertion implied within the statement is hearsay, or whether the implication is merely a permissible inference to be accepted or rejected by the jury. Applying the above considerations to the Church case, the Virginia Supreme Court did not address the assertion impliedly contained within the child’s state- Ronald J. Bacigal received his J.D. from ment that sex was "dirty, nasty, and it hurt." What Washington & Lee University. He was a Ful- was the child trying to communicate to the Mother? If bright Scholar studying at the University of the child was "really" saying I think sex is nasty Amsterdam from 1967 to 1968. Mr. Bacigal because I have had a traumatic sexual experience, served on the Drafting Committee for the pro- then this is the very purpose for which the statement posed Virginia Rules of Evidence, with primary was admitted. The jury was asked to accept the truth responsibility for the Hearsay Rules. He is the author of two books on Virginia law--Virginia of the child’s out-of-court statement that she had had Criminal Procedure, and Virginia Criminal Pro- a traumatic sexual experience. When the statement is cedure Forms (The Harrison Company, 1983). offered for the truth of the implied assertion the statement must be classified as hearsay. If the child’s statement is not offered for the truth of the implied assertion, then the mere uttering of the statement must somehow be probative of an operative as hearsay, the statement would not be admitted in issue. From the uttering of the statement the court the absence of cross-examination to test the child’s inferred the child’s "attitude toward sex,’’9 and from sincerity, memory, narration, and perception of the the existence of that attitude the court inferred the alleged sexual act. existence of a factual basis for the attitude (i.e., the The failure to permit cross-examination of the occurance of the sexual act).1° Stringing these infer- declarant lies at the heart of the hearsay rule, but the ences together is a round-about way of reaching the dangers of denying cross-examination are also pres- same point reached by the concept of implied asser- ent in Church’s characterization of the statement as tions. Under either analysis the child’s statement is non-hearsay. If the child were on the witness stand relevant only if the statement is accepted as evidence the child could be asked: Why do you think sex is that a sexual act occurred. Hearsay analysis would nasty? The possible answers include: (1) because such regard the statement as direct evidence of the act, and such (the traumatic sexual experience) occurred; while non-hearsay analysis would regard the state- (2) because one of my friends said so; or (3) because I ment as circumstantial evidence of the act. This peeked in the bedroom and saw Mommy and Daddy somewhat artifical distinction between direct and cir- doing nasty things to each other. These quite different cumstantial evidence should not determine the evi- answers demonstrate that it is not the child’s attitude dence’s admissibility. Yet that is precisely the result toward sex that is relevant. Rather, it is the factual reached in Church. Had the statement been classified basis of that attitude which may or may not be rele-

17 vant. The factual basis of that attitude cannot be bal conduct is a statement for purposes of hearsay only when developed when cross-examination is denied. Cross- the person intends the conduct as an assertion. Fed. R. Evidence 801 (a). examination is needed to test the child’s sincerity, 9. If the statement merely establishes the child’s state of memory, narration, and perception of the factual mind, it is academic whether the statement is classified as non- situation which allegedly caused the child’s attitude hearsay or falls within the State of Mind exception to the hear- toward sex. The child’s statement should be classifed say rule. See United States v. Southland Corp., 760 F.2d 1366 (2nd Cir. 1985). (An outright assertion of one’s existing state of as hearsay in order to protect the fundamental right mind is a hearsay exception. A statement which provides the of cross-examination. basis for drawing a circumstantial inference as to the declar- If a superficial formulation of the hearsay rule is ant’s state of mind is non-hearsay.) Whether the child’s state- mechanically applied, the rule may lead to the result ment is labelled non-hearsay state of mind or the state of mind exception to the hearsay rule, the inferences to be drawn from in the Church case. If, however, the purpose of the that state of mind remain the same. See footnote 10. hearsay rule (protection of the right of cross-exami- 10. The inferences to be drawn from the child’s statement nation) is given proper consideration, then the result would not have changed if the Court had invoked the state of in Church is difficult to defend in terms of Evidence mind exception to the hearsay rule. State of mind is admissible direct evidence whenever the declarant’s state of mind is an Law. There are of course many legitimate interests in operative issue of the case. This is not applicable in Church seeking to protect a victimized child from enduring because mental distress is not an element of the offense the additional trauma of vigorous cross-examination.ll charged. State of mind is also admissible as circumstantial evi- Such policy considerations may justify the result dence when the state of mind supports inferences which are probative of an operative issue. The child’s state of mind reached in Church. But the decision in Church is not (whether it be labelled non-hearsay or a hearsay exception) is openly based on a legitimate concern for the child. probative ofthe corpus delicti only if the court accepts the The decision is phrased wholly in terms of a general underlying premise that every state of mind inherently has an application of the hearsay rule. accurate basis in fact. With no independent evidence of the factual f6undation, can the mere existence of a state of mind sup- It is unfortunate that the Court did not utilize the port the inference that there is a factual basis for that state of Church case to clarify the Virginia position on mind? The answer must be no, because an affirmative answer implied assertions. The policy considerations in produces ludicrous results. I.e., an in-court expression of state of Church make it difficult to ascertain whether the mind must be based on an adequate foundation and must be subject to cross-examination, while an out-of-court expression of decision was merely a hard case which led the Court state of mind would not have to meet these requirements. The to modify the hearsay rule in order to protect a young Court would thus reach the anomalous result that the require- child, or whether the analysis in Church forbodes a ments for admitting out-of-court statements are less stringent relaxation in the general prohibition against the than the requirements for in-court testimony. 11. See generally, Note, A Comprehensive Approach to Child admission of hearsay evidence.12 Hearsay Statements in Sex Abuse Cases, 83 Columbia L. Rev. 1745 (1983).

FOOTNOTES 12. Would the Court apply the Church analysis to hearsay questions’not involving a young victim of a sexual offense? For 1. The famous footnote 4 of United States v. Caroline Prod- example: The declarant made an out-of-court statement that ucts Co., 304 U.S. 144 (1938) has produced volumes of analysis. "the traffic light was green." The statement is not offered to 2. V.L.R. (1985). prove the literal truth that the light was green. Rather, the 3. Church at (original emphasis). statement is offered to establish the declarant’s "attitude" (state 4. Church at. of mind) regarding the light. It can then be inferred that this 5. Church at. attitude must have been based on some experience, i.e., viewing 6.. The corpus delicti relates to the body of the crime regard- the traffic light. Therefore, the statement is admissible to estab- less of the identity of the perpetrator. Thus the child’s statement lish the "probability" that there was an operating light at the is evidence that the crime occurred, but the statement itself does intersection. If the operation of the light is a material issue not link the defendant to the crime. because of a party’s contention that the light was .inoperative, 7. This hypothetical is suggested in Broun and Meisen- then the declarant’s statement is circumstantial evidence that holder, Problems in Evidence 97 (West 2nd ed.). The Virginia the light was in working order. This hypothetical use of "non- Supreme Court is not alone in classifying such situations as hearsay" presents the same dangers inherent in the denial of non-hearsay. See, e.g., Bridges v. State, 247 Wis. 350, 19 N.W.2d cross-examination. E.g., if the declarant were on the witness 529 (1945). stand and asked why he though the light was green, his answer 8. Assertions may be contained within conduct as well as might be: (1) because I saw it; (2) because someone told me; or (3) within words. The hug may simply be another way of saying "I because green is my favorite color. love you." The Federal Rules of Evidence provide that nonver-

18 ERIC E. ADAMSON

Virginia’s New Life-Chre Laws

I~ESIDENTIAL Housing for the Elderly, including ness of mind, short of insanity, immaturity of reason Nursing Homes, congregate housing and "Life-Care" in one who attained full age, or mere absence of skill facilities, is one of the fastest growing new housing or experience.., cannot afford, per se, a ground for markets in the United States. This is due in large part relief at law or in equity.’’5 Other common law to the fact that the elderly population is the fastest grounds of undue influence, lack of mutuality, fraud, growing segment of our population and is projected to and lack of consideration are also little help to an continue to be so until the year 2030.1 elderly person who has made a risky or unsound deci- In response to this growth, both proprietary and sion to contract for extended care or care for life with- non-profit projects have mushroomed to meet the out access to many facts or a thorough knowledge of demand. Much of the early development has been in the risks. the sun-belt States of Florida, California and Arizona In response to growing legislative activity else- where there were great numbers of retirees. New where6 and one near-problem in Virginia, the Virgin- development of housing for the elderly is now occur- ia legislature, joining 10 other states, enacted its first ring in all 50 states.2 consumer oriented Life-Care legislation during the 1985 legislative session. The Act is, in summary, a I. What is Life-Care? registration and disclosure requirement of all Life- There are several terms, all roughly analogous, Care providers. which are used to describe Life-Care, continuing care, The 1985 Act states that no provider of continuing congregate care, long-term care, and CCRC’s (Con- care may provide or offer to provide continuing care tinuing Care Retirement Communities.)3 unless the provider has registered with the "Commis- The Code of Va. Section 38.1-955 defines "Continu- sion." The Commission is the State Corporation ing Care" as follows: Commission, and regulatory supervision has been "Continuing Care" means providing or com- delegated by the Commission to the Bureau of Insur- mitting to provide board, lodging and nurs- ance. The Commission has also been delegated regu- ing services to an individual, other than an latory authority under the Act to prescribe the forms individual related by blood or marriage, (i) to be filed and any information required for enforce- pursuant to an agreement effective for the ment of the Act. life of the individual or for a period in excess A registration statement, which must be filed by of one year, including mutually terminable every prospective provider, is one page in length, and contracts, and (ii) in consideration of the payment of an entrance fee or periodic requests the name, address, telephone number and charges. contact person of the provider. It goes on to ask if all Retirement housing complexes, which do not offer Certificates of Need, licenses, State, Federal and local have been obtained or complied with, and if not, how nursing services (on or off site) do not fall within the that affects the facility’s ability to service its current scope of the Va. Act,4 nor do those with nursing servi- and future residents. It also asks whether the provider ces, provided their agreement with residents are for is bankrupt, insolvent, or under re-organization. This one year or less in duration. question was undoubtedly included because one cur- II. Virginia’s Initial Statutory Response rent Va. provider falls or fell in this category. In the absence of legislation, attorneys have only several ways to assist an injured elderly consumer A. Disclosure Statement from a contract for life for housing, nursing or Life- A disclosure statement, required by the 1985 Act,7 Care. The common law in Virginia provides that the must be filed and approved with the Commission and agreement may be voidable if one of the parties is not a copy given to each prospective resident three (3) competent. This, however, requires the person alleg- days prior to execution of any care contracts or prior ing incompetence to bear the burden of proof. "Weak- to any transfer of money to the provider. Thereafter,

19 annual disclosures must be updated and filed.8 is unclear whether after 10 or 15 years a resident The information required in the disclosure state- could terminate the contract and receive interest and ment is set forth in detail in the Act. It is almost damages for the entire period, as the Act sets forth no verbatim, the information required by the American limitation. Interestingly, the AAHA Model Act pro- Association of Homes for the Aging’s "Model Contin- vides a two (2) year limitation from the time of the uing Care Provider Registration and Disclosure Act.’’9 contract within which a resident must file on account The required information in the disclosure state- of a material misstatement. ment is as follows: a) the legal entity of the provider, names, B. Contractual Limitations addresses of officers, directors, manager, or The 1985 Act also contains provisions which re- anyone having a ten percent (10%) or greater strict a provider’s ability to contract~3 with prospective beneficial interest and whether any such residents. The contract must describe the value of all persons have been convicted of a felony or property or money transferred by the resident. It must crimes of moral turpitude; also state all services or goods to be provided, for b) the religious affiliation or tax status of any provider; what period they are provided, and the cost thereafter. c) a description of all real property and The physical and mental health required to move res- facilities existing or proposed, estimated idents to another level of care within the facility or completion dates and services to be provided, even to be "removed" from the facility must be stated including medical care; in the contract. Most current contracts state that the d) a description of all fees and charges resident may be "removed" and the contract termi- and uses thereof, including future potential nated when his or her mental/physical state, as adjustments or increases; determined by the provider in conjunction with the e) "Certified" financial statements including balance sheet for two (2) current years resident’s physician, is potentially injurious to the and income statements for two (2) years, a resident or other residents of the facility. pro-forma statement for the current year; The 1985 Act states contracts may only be can- f) (if not yet operational) projected costs of celled under certain circumstances. They are as fol- acquisition, construction, equipment, legal lows: costs, develoment costs, mortgage costs,’per- centage of entrance fees pledged, start-up a) non-payment of periodic fees;~4 losses, a description of all assumptions cal- b) a resident’s persistent refusal to comply culating occupancy rate, effects of govern- with reasonable rules and regulations; ment subsidy or health care, projections of c) conduct which is injurious to the resi- operating expenses and repairs; and, dents themselves or to other residents.~5 g) all admisson policies for residents and It seems imminent that we will see litigation to non-residents.10 define what are "reasonable" rules and regulations: The penalty for misstatement or omission of a mate- Those m~st complained of recurrent violation by pro- rial fact from the disclosure is severe. A provider must viders are overnight guests between single residents, refund all fees paid plus court costs, attorney’s fees contraband pets, and excessive alcohol consumption. and interest at judgement rate, less the reasonable The exclusion of pets is clearly justifiable from a value of care and lodging. As entrance fees are often health and sanitary viewpoint, and excessive alcohol $100,000 or more, an inadvertent failure to disclose a may also be reasonably prohibited, though what con- material fact could, after five (5) years, result in stitutes "excessive" may be disputed. Also, in view of $60,000 of interest due. In addition, the resident may the 4th Circuit Court of Appeals reversal of Judge terminate the contract. The Act also states that Merhige’s recent decision on co-habitation, over-night knowledge of the omission is not necessary to estab- guests of the opposite sex seemingly may be enjoined. lish liability.1~ For the attorney who is preparing the There is also a seven (7) day rescission period dur- disclosure statement for clients, reckless assistance to ing which a resident may cancel any contract without a provider in failing to disclose renders the attorney any costs. In the event of death before occupancy, all liable for the damages set forth above.~2 Some of the fees must be refunded other than a small processing disclosure statements filed with the Commission with fee. 16 attachments have been 75-90 pages long. There is no specified limitation in the Act for resi- C. Commission Intervention dents rights to maintain such actions for damages The 1985 Act’s greatest affirmative step into regu- and refunds. As these contracts axe_for life, an action lating the market place is in the area of financial could be initiated at any time for material omission. It instability. If the Commission determines that a

20 prospective provider or an existing provider is "insolvent" or in "imminent danger of insolvency,’’17 it may issue cease and desist orders and prohibit the entity from continuing to offer to provide or to provide services.~8 Neither the Act nor the regulations give any guidelines as to what is considered "imminent insolvency." In the case of an existing facility, action by the Commission could clearly make an "imminent insolvency" a real one. For those not yet operational, it would also be the kiss of death economically, as it would end sales and perhaps jeopardize the entity’s financing. This potentially hurts those residents who have previously contracted, or "bought." 1986 Amend- ments should solve the problems of prior purchases by residents through the new escrow requirements. Questions arise as to what effect these provisions would have if a facility threatened to be closed by the Commission were to seek protection from the Bank- ruptcy Trustee. These intervention provisions for Bankruptcy or insolvency are Virginia created, as they are not contained with the AAHA Model Act. They are the result of the Chapter 11 filing of a facility in Northern Vir- ginia, the residents of which were the moving force Eric E. Adamson is a principal in the law firm of Adamson, Crump & Sharp, P.C. of Front behind the 1985 legislation. Royal, Virginia. He received his B.A. and J.D. degrees from the University of Virginia and a III. 1986 Amendments L.L.M. degree from George Washington Univer- The 1985 Virginia legislature, by Senate Joint sity. He is a member of the Task Force for the Resolution 114 requested the Joint Subcommittee Virginia Legislative Joint Subcommittee Moni- Monitoring Long-Term Care to study the feasibility toring Long-Term Care and of the Virginia Bar and implemention of a requirement of reserve funds Association’s Committee of Legal Problems of the Elderly. for Life-Care facilities. A Task-Force was then selected by the Subcommittee to study and consider the Senate’s request.~9 Following approximately six (6) months of periodic meetings during 1985, mild con- a) All lare-paid entrance fees over $1,000 troversy and some study and drafting, the Task Force per person (or any fees over $5,000) be held in determined: escrow in a Bank or Trust Company; a) Mandatory escrow of entrance fees are b) such funds are the property of the resi- necessary in Virginia; and dent until released from escrow; b) reserve funds are not recommended c) escrowed funds may only be released to until the effectiveness of the 1985 Act is seen the provider from escrow when a unit is and studied and also not until reserve funds, occupied or ready for occupancy; their problems, need and success are moni- d) escrowed funds will be released to the tored from other jurisdictions. resident; (1) if not released within 3 years Acting upon this recommendation, the Virginia after deposit or after construction has com- menced, whichever is later; Legislature has passed amendments and additions to e) escrowed funds may only be invested in Title 38.1 of the Code of Virginia. By and large, the assets permitted for investment of public new provisions relate to the escrow of entrance fees as funds; follows. f) all units "under construction" on June Escrow of Entrance Fees: Though there are several 30, 1986 are exempted from the escrow other small amendments, the significant additions to requirements of the Act for initial occu- the 1985 Act come in additional requirements sur- pancy. rounding entrance fees."~° The new amendments re- The 1986 Amendments would appear to do more for quire: the integrity of a prospective resident’s investment in

21 a developing facility than the 1985 Act’s provisions. 5. Chesapeake and O.R. Co. v. Mosby, 93 Va. 93, 24 S.E. 916 Though certainly the disclosure required by the 1985 (1896). 6. Currently the jurisdictions having various forms of legis- Act is helpful to provide information regarding the lation regulating Life-Care are: Arizona, Ariz. Rev. Star. Ann. financial condition and experience of providers, many Section 1801 et seq (1985); Colorado, Colo. Rev. Star. Section residents probably won’t read a 90 page disclosure. 12-13-104 et seq (1985); California, Cal. (Health & Safety) Code On the other hand, the financial institutions who are Section 1775 et seq (West 1986); Florida, Fla. Star. Ann. Section 651.011 et seq; Indiana, Ind. Code Section 23-2-4-10 et seq (Burns financing the project will. 1985); Maryland, Ann Code of MD., Art 70 at Section 7, et seq With the escrowing of entrance fees, however, resi- (1982); Michigan, Mich. Comp. Laws Ann. Section 554.801 et dents no longer can be the financers of these projects, seq (West 1985); Minnesota, Minn. Stat. Ann. Section 8aD. 01 et as their fees must be in escrow and much potential seq (1985); Missouri, Mo. Ann. Star. Section 376.900 et seq (Ver- non, 1986); Pennsylvania, 40 Pa. Cons. Stat. Ann. Section 32 et abuse is thereby eliminated. seq; Virginia, Code of Va. of 1950, Section 38.1-955 et seq. 7. Code of Va. of 1950, Section 38.1-957 (1985 Cum. Supp.). IV. Conclusion 8. Code of Va. of 1950, Section 38.1-958 (1985 Cum. Supp.). For the practitioner representing a developer enter- 9. American Association of Homes for the Aging (hereinaf- ter referred to as AAHA) Model Continuing Care Provider Reg- ing the Life-Care market in Virginia, there are istration and Disclosure Act, adopted by House of Delegates of numerous regulatory hoops to jump through. Failure AAHA on April 23, 1980. to successfully do so may result in severe penalties, 10. Code of Va. of 1950, Section 38.1-957 (1985 Cum. Supp.). both to the developer and the attorney. For those 11. Code of Va. of 1950, Section 38.1-966(A) (1985 Cum. Supp.). representing residents of such facilities, there are 12. Code of Va. of 1950, Section 38.1-966(B) (1985 Cum. Supp.). substantive provisions in the 1985 Act and the 1986 13. Code of Va. of 1950, Section 38.1-960 (1985 Cum. Supp.). Amendments which are of great assistance in the 14. The provider must give reasonable notice and an oppor- protection of unwary consumers. tunity to cure and comply with the "Virginia Residential Land- lord and Tenant Act," (Code of Va. of 1950 Section 55-248.2 et seq.). 15. There is a new amendment in 1986 which will add as a grounds for termination, misrepresentation by the resident of their health or economic well being. 1986 Va. Senate Bill #65. 16. Code of Va. of 1950, Section 38.1-960 (1985 Cum. Supp.). FOOTNOTES 17. Code of Va. of 1950, Section 38.1-962 (1985 Cum. Supp.). 1. Laventhol and Horwath, Lifecare Retirement Center 18. Code of Va. of 1950, Section 38.1-970 (1985 Cum. Supp.). Industry Report, 1985, 1845 Walnut Street, Philadelphia, Pa. 19. The Task-Force was composed of representatives of the !Nov. 1985). Bureau of Insurance, the State Health Dept, the State Depart- 2. There are currently 15 operating facilities in Va. offering ment for the Aging, the Health Systems Agency of Northern Life-Care and four projects in various stages of development Va., the Va. Health Care Association, the American Health known to the author. Care Association, citizen lay members, several attorneys who 3. Of the 11 states who have enacted legislation in this field, are members of The Va. Bar Association Committee on Legal roughly one-half refer to these services as ~’Life-Care" and the Problems for the Elderly and several existing and proposed con- others as "Continuing-Care." tinuing card providers. 4. Code of Va. of 1950, Section 38.1-955 (1985 Cure. Supp.) et 20. Va. Legislature 1986, Senate Bill No. 65, Richmond, Vir- seq. ginia.

22 ~Bar~lssociatio~0 ~Proceedings

The Winter Meeting ...... 24

Announcements ...... 27

Resolution ...... 29

YLS Chairman’s Report ...... 30

Newly Admitted Members ...... 37

Committee Reports ...... 38

Memorials ...... 45 The Winter Meeting

Alternatives to litigation and the question, "Has Allen W. Kimbrough of Dallas, Texas, a member of the time come for a single six-year term for the Presi- the American Bar Association Board of Governors, dent of the United States," were the topics presented presented two Awards of Achievement to the Associa- to the members attending the 96th Annual Meeting of tion’s Young Lawyers Section. William G. Hancock, The Virginia Bar Association in Colonial Williams- Chairman, accepted a First Place Award in the Com- burg on January 10 and 11, 1986. prehensive category for the section’s overall achieve- Meetings of the Association’s committees and the ment in the areas of service to the public and the Young Lawyers Section committees were held Friday profession. The Young Lawyers Section was also morning followed by the Young Lawyers Section’s awarded a second place prize for the special project, election of officers and Executive Committee. Chair- "The Law Everyone Sould Know." man William G. Hancock turned the gavel over to The speaker for the evening, The Honorable Robert Charles M. Lollar of Norfolk. Thomas F. Farrell, II of H. Bork, was exuberantly introduced by Andrew P. Alexandria was elected Chairman-elect and Peggy Y. Miller, former Attorney General of Virginia and a O’Neal of Bristol was elected Secretary-Treasurer. member of the Association’s Executive Committee. In the afternoon, a panel moderated by Professor Judge Bork is on the United States Court of Appeals Daniel J. Meador alternately discussed the merits and for the District of Columbia Circuit. He has been demerits of a single six-year term for the president. Solicitor General and Acting Attorney General of the On the panel were Charles L. Bartlett, a well known United States. His witty and humorous presentation journalist, president of The Jefferson Foundation, of a serious perspective of the judicial system was Washington, D.C., and a director of the committee to warmly applauded by a receptive audience. establish a single six-year term; Mortimer M. Caplin, Saturday’s program featured an interesting discus- Esquire, former law professor at the University of sion on the subject, "There Really Are Alternatives to Virginia and former Commissioner of Internal Rev- Litigation!" Jonathan B. Marks, Esquire, President of enue, now practicing law in Washington; Mathew EnDispute, Inc., who conducted the program, stated, Holden, Jr., professor of government and foreign "There are really two branches of Alternative Dispute affairs at the University of Virginia and a former Resolution. One is a binding process such as arbitra- commissioner of the Federal Energy Regulatory Com- tion. Th~ other is a non-binding process such as mission; and Edwin M. Yoder, Jr., a nationally syndi- mediatior~, use of neutral experts and mini-trials." cated columnist and a longtime observer of the Using examples of real cases, a tort matter and a Washington political scene. The discussion was inter- commercial matter, the panel members, The Honora- esting, informative and entertainingly presented. ble Robert R. Merhige, Jr., Judge of the United States President Evans B. Brasfield presided at the ban- District Court for the Eastern District of Virginia; quet Friday evening. An excellent portrait of The Thomas V. Monahan, Esquire, of Winchester; Robert Honorable John Charles Thomas, Justice of the H. Patterson, Jr., Esquire, of Richmond; and Donald Supreme Court of Virginia, was presented by The T. Cowles, Esquire, Corporate Secretary and Assist- Virginia Bar Association to Justice Thomas and the ant General Counsel, Reynolds Metals Company, Court. During the ceremony, Mr. Brasfield reminded provided creative insight and resolutions to the prob- the guests that, at the time he assumed the bench, lem of how the cost of handling disputes can be cut Justice Thomas was the youngest person ever to serve without materially affecting their outcomes. in that position. Mr. Brasfield continued, "This pre- The annual business meeting of the Association sentation has a very special meaning to me person- was held Saturday afternoon. Retiring President ally because when John Thomas joined, what I Evans B. Brasfield was presented a silver gavel by referred to earlier as an obscure Richmond law firm, our new President, Edmund L. Walton, Jr., following he came to work as my new associate... This may be the unanimous selection of R. Gordon Smith of Rich- the first time in the history of the Association that the mond as president-elect. Mr. Smith will take office in presentation of a Supreme Cou~ Justice’s portrait January 1987. has been made by the Justice’s first boss!" (continued on page 27)

The Winter Meeting to the ABA House of Delegates. (continued from page 24) Following the adjournment of the Annual Meeting, the Executive Committee elected James R. McKenry of Virginia Beach, a member of the Executive Com- Three new members were elected to the Executive mittee, to the office of Secretary-Treasurer of the Committee: John E. Donaldson, of Williamsburg; F. Association. Claiborne Johnston, Jr., of Richmond; and Robert C. The weekend activities concluded with a dance Wood, III, of Lynchburg. Hugh L. Patterson, of Nor- Saturday night featuring The Fabulous Waller Fam- folk, was elected to serve as the Association’s member ily.

iknnounc ments

¯ Symposium on Mental Health and the Law Future Association Meeting Dates The Ninth Annual Symposium on Mental Health and the Law, sponsored by the University of Virginia 1986 Institute of Law, Psychiatry and Public Policy, the Division of Continuing Education and the Office of July 17-20 Summer Meeting ...... The Homestead Continuing Medical Education, and the Virginia Department of Mental Health and Mental Retarda- tion will be held at Colonial Williamsburg on May 1987 29-30, 1986. 8.5 hours in Category I and 1.2 CEU cred- January 9-11 its have been applied for. For further information con- 97th Annual Meeting .... Williamsburg tact Lynn Daidone, Administrator, Institute of Law, Psychiatry and Public Policy, Box 100, Blue Ridge July 9-12 Hospital, Charlottesville, Virginia 22901; telephone Summer Meeting ...... The Greenbrier (804) 924-5435.

27 The Virginia Bar/lssociation

Organized 1888 EXECU FIVE DIRECTOR Chartered 1890 Joan S. Mallan

PRESIDENT Edmund L. Walton. Jr. 1301 Wncent Place McLean. Va. 22101 (703) 790.8000

PRESIDENT.ELECT R. Gordon Smith One James Center Suite 800 Richmond. Va, 23219 (804) 644.413 l IMMEDIA TE PAST PRESIDENT TO: All Members of The Virginia Bar Association P. O. Box 1535 (804) 788.8322 RE: A New Look

1060 Laskm Road Suite 12.B

(804) 425.6484 Those of you who receive letters from officers and committee chairpersons of The Association will YOUNG LAWYERS SECTION note a new look in the stationery - especially the V.B.A. logo. (804) 461.2500

YOUNG LAWYERS SECTION This change was accomplished by the recently formed Publications Committee, which has been (703) 549.5900 given the responsibility of overseeing and EXECU FIVE COMMI T TEE coordinating the growing number of publications Jonn M. Ryan. CHAIRMAN 500 World Trade Center produced by various committees of The Association. NortoIk. Va. 23510 (804) 622.4381 The primary aim of the Publications Committee THE OFFICERS and

Frank L. Summers. Jr. is to ensure that publications are of high quality, P. O. Box 1287 Slaonton. Va. 24401 serve a useful purpose, and further the constitu- (703) 885.0346 tional goals of The Association. (See statement Thomas T. Lawson P. O. Box 720 at bottom of stationery.) A secondary aim of the Roanoke, Va. 24004 (703) 982.425 l Committee is to improve the fqrmat of the publica- J. Rooeft McAIhster, III tions and give them a distinct Association image. P. O. Box 549 Afhngton, Va. 22216 In the future the V.B.A. will hppear on the covers (703) 525.7100 of all Association publications. Andrew P. Millet

Wast~inglon. D. C. 20037 (202) 785.9700 It is hoped that anyone planning a new publica-

Jot~n E. Donaldson tion, or revising an existing one, will contact a Sctlool of Law College ol William & Mary member of the Publications Committee. Williamsourg, Va. 23185 (804) 253.4542

F, ClatOome Jonnslon, Jr, P. O. Box t 122 R~cnmond. Va. 23208 (804) 644.601 l

P. 0 Box 958 LyncnOurg. Va. 24505 Charles E. Friend, Williamsburg (804) 846.9000 Michael L. Goodman, Richmond

DIRECTOR Joseph A Massie, Jr., Winchester COMMITTEE ACTIVITIES Emerson G. Spies William W. Nexsen, Norfolk SchoOl ol Law University o! Virginia Peter C. Manson, Charlottesville CnaHotteswlle. Va. 22901 (804) 293.6618

.,I ~,/unZa,3, o,~aplization established in 1888. fl,," the pu,pdSe q]" imp,~’in~ the/a~’ and the admi~tistration q/’.justhe. and uphoMing the standard q/" honor and integHO, in the lega/

7TH & FRANKLIN BUILDING 701 E. FRANKLIN STREET 28 SUITE 708 RICHMOND. VIRGINIA 23219 (804)644-0041 ~]~ereas, in 1985 the Virginia Bar suffered the loss of two of its outstanding practicing lawyers, T. Munford Boyd of Charlottesville, and Edward S. Graves of Lynchburg; and

~]~erea~, Munny Boyd, who received his undergraduate and law degrees from the University of Virginia, and Edward Graves, who received his undergraduate degree from Washington & Lee University and his law degree from Harvard University, were outstanding law teachers, Munny at the University of Virginia and Edward at Washington & Lee; Munny’s and Edward’s contributions to their students being attested by calls for advice and counsel long after their students were graduated; and

~]~ereas, both Munny and Edward contributed to their beloved Common- wealth of Virginia, serving as consultants to a number of legislative committees, and in particular, the Code Commission of Virginia with which they served as consultants for the 1977 revision of Virginia’s system of civil procedure; and

~erens, their wide circle of friends and professional colleagues benefited from their leadership, their enthusiasm and their pride as "Virginia lawyers"; and

~][~erens, loss of these outstanding men should be recognized by their clos- est peers who participated with them in the work of the Tides Inn Conference for the improvement of the system of civil procedure;

~ofi~, ~erefore, ~e ~Ji ~e+~lUeh, by the members of the Tides Inn Confer- ence that in honor of Munny and Edward we hereby declare that henceforth our work shall be continued under the name of"The Boyd-Graves Conference" which is hereby adopted unanimously by the members in attendance in Charlottesville, on Saturday, November 16, 1985: and

~e~vlVeb ~J~urt~er, that to further denote our respect and admiration, a copy of this resolution be sent to the families of T. Munford Boyd and Edward S. Graves and to their respective law schools and Bar Associations.

29 CHARLES M. LOLLAR

ON January 10, 1986, I had the honor of being in- stalled as the 29th Chairman of the Young Lawyers Section at our Annual Meeting in Williamsburg, Vir- ginia. I also had the pleasure of presiding at the election of the following Officers and Executive Commit- tee Members for 1986: Chairman-Elect, Thomas F. Farrell, II, Boothe, Prichard & Dudley, Post Office Box 1101, Alexandria, Virginia 22313 (703) 549-5900. Charles M. Lollar is a partner in the Norfolk Secretary-Treasurer, Peggy Y. O’Neal, Penn, Stuart, Esk- law firm of Heilig, McKenry, Fraim and Lollar, ridge & Jones, 207 Piedmont Avenue, Post Office Box 2009, P.C. He received his B.A. Degree in 1972 from Bristol, Virginia 24203 (703) 466-4800. the University of North Carolina at Chapel Hill, and J.D. in 1977 from Washington & Lee Executive Committee: University School of Law. He was Chairman of Blue Ridge Division, Carol B. Hurt, McGuire, Woods & the Young Lawyers Section of the Norfolk and Battle, Post Office Box 1288, Charlottesville, Virginia 22902 Portsmouth Bar Association in 1985. Mr. Lollar (804) 977-2500. is also a member of the North Carolina Bar Capitol Division, Robert M. Rolfe, Hunton & Williams, Association, and is active in the Corporation, Post Office Box 1535, Richmond, Virginia 23212 (804) 788- Banking and Business Law Section of the 8466. American Bar Association. Potomac Division, E. Tazewell Ellett, Chief Counsel for the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, D.C. 20591 (202) 426-3773. Southside Division, Killis T. Howard, Post Office Box 99, Lynchburg, Virginia 24505 (804) 528-1067. Southwest Division, James P. Barry, United Coal Com- Overview of Young Lawyers Section pany, Post Office Box 1280, Bristol, Virginia 24203 (703) From its first organizational meeting on August 9, 466-3322. Tidewater Division, John R. Fletcher, Tavss, Fletcher & 1957, at the Greenbrier in White Sulphur Springs, Earley, P.C., Post Office Box 3747, Norfolk, Virginia 23514 West Virginia, the Section has grown from a small (804) 625-1214. group of young lawyers with two active committees to Valley Division, Thomas G. Bell, Jr., Timberlake, Smith, a membership in excess of one thousand three Thomas & Moses, Post Office Box 2566, Staunton, Virginia 24401 (703) 885-1517. hundred, comprising more than one-third of the entire At Large, Stephen D. Busch, McGuire, Woods & Battle, active membership of the Association, with thirty-one Suite 600, One James Center, Richmond, Virginia 23219 current active committees. One of the original pur- (804) 644-4131. poses of the Section was to involve as many of the At Large, Grady K. Carlson, Hunton & Williams, 3050 Chain Bridge Road, Fairfax, Virginia 22030 (703) 352-2200. younger lawyers who were members of the Associa- At Large, John D. Epps, Browder, Russell, Morris and tion in the activities of the organized Bar. As the Butcher, One James Center, Suite 1100, Richmond, Virginia activities of the Section grew, so did the Section’s par- 23219 (804) 771-9413. ticipation and influence in the affairs of the Associa- At Large, David G. Shuford, Mays, Valentine, Davenport & Moore, Post Office Box 1122, Richmond, Virginia 23208 tion. Since inception, the work of the Section has been (804) 644-6011. varied and in many cases timely. The Section has

3O been fortunate on numerous occasions to receive son’s leadership as chairman for the past two years is recognition from the Young Lawyers Division of the to be commended. Jeff Allen is planning to increase American Bar Association, for its submissions in the the geographical coverage of the program to possibly Award of Achievement Competition. This past year, include PetersbuT~7 Fredericksburg, and other areas under Billy Hancock’s leadership, the Section was a of the state, and hopes to add Social Security as an unanimous choice for first place in the comprehensive additional subject to be covered, bringing the total category, defeating all other states of similar size, and subjects to twenty-three. Jeff has also been chosen by in addition, received a second place award in the sin- the American Bar Association Young Lawyers Divi- gle project category for the "Law Everyone Should sion to speak at its Af~liate Outreach Project in Charles- Know" lecture series program. As we enter our thir- ton, South Carolina on May 9 and 10, 1986. He will be tieth year, the Section has dropped some committees, making a "how to" presentation to chairpersons and added new ones, streamlined its handling of publica- chairpersons-elect of state and local bar associations tions, and expanded its overall involvement in service throughout the country, who are looking for ideas on to the profession and the public at large. innovative public service projects. The Model Judiciary Program, chaired this year by Commitment to Public Service Jack Coffey of Alexandria, organizes and produces amt Professionalism mock trials by high school students in public and pri- During a presentation to the National Conference vate schools throughout the state. Last year more of Bar Presidents at its 1985 Mid-Year Meeting in than 1,000 students acted as attorneys, witnesses and Detroit, Simon H. Rifkind, a lawyer practicing in New jurors in these trials, and their work culminated in the York City, and former federal District Court judge, Model Supreme Court which was held on January 16 observed that those who speak in favor of profession- and 17, 1986 in the chambers of the Vi.rginia Supreme alism in the law may reflect a pathetic nostalgia in Court of Appeals. Governor Gerald L. Baliles, founder the face of commercialism which has resulted from of the Model Judiciary Program, was present to the marketing of legal services. Mr. Rifkind noted address the students. After the arguments, Attorney that the basic attribute of a profession is that its General Mary Sue Terry also provided them with a members make a commitment to a cause transcend- description of her office’s role in the appellate process. ing self-interest. In response to an apparent belief Last year’s program, chaired by Peggy O’Neal, will that the level of legal professonalism has declined in be a hard act to follow, but Jack has great ambitions, recent years, the Young Lawyers Section has con- and his committee is already considering the possible tinued to devote a majority of its time and effort to introduction into the program of arguments before public service projects that should enhance the image the new Intermediate Court of Appeals as well as the of the profession. fiddition of another region to the program in Arling- The Legal Services to the Public Committee, chaired ton. Jack has already developed a tentative schedule this year by Jeff Allen of Charlottesville, plans to and has targeted October of this year for trials in each continue the many activities that were recognized by of the regions, with possible hearings in the Interme- the ABA/YLD Award of Achievement last year. diate Court of Appeals in November, and the grand Since its inception, The Law. Everyone Should Know finale at the Supreme Court of Appeals in April of lectures have been attended by several thousand 1987. He has also assigned the following regional laymen each year, and during 1985, involved the coordinators: volunteer effort of more than 200 attorneys. The Susan M. Cardenas, Thomas & Fiske, P.C., 510 King committee has written and continually revises stand- Street, Suite 200, Alexandria, Virginia 22313 (703) 836-8400. ard outlines to assist the volunteers in presenting R. Craig Wood, McGuire, Woods & Battle, P.O. Box 1219, their lectures. It also utilizes the valuable resources of Charlottesville, Virginia 22902 (804) 977-2500. second year law students, known as John Marshall Robert McL. Smith, III, Commonwealth Attorney’s Office, Fellows, in performing research necessary to develop 800 E. City Hall Avenue, Suite 600, Norfolk, Virginia 23510 new outlines. The lectures are given throughout the (804) 625-2406. state in the fall of each year, and were expanded last John C. Ivins, Jr., Hirschler, Fleischer, Weinberg, Cox & year to include the Leesburg, Manassas, Woodbridge, Allen, 629 East Main Street, P.O. Box 1Q, Richmond, Virgin- ia 23208 (804) 771-9587. Arlington and Alexandria areas. The committee also John T. Jessee, Woods, Rogers & Hazlegrove, 105 Frank- produced two cable television programs that were lin Road, S.W., P.O. Box 720, Roanoke, Virginia 24004-0720 cablecast in Northern Virginia by Warner-Amex Stu- (703) 982-4266. dios, involving a panel discussion by three Section Elaine C. Bredehoft, Walton & Adams, P.C., 1301 Vincent members on selected areas of the law. Grady Carl- Place, McLean, Virginia 22101-3693 (703) 790-8000.

31 Since this committee requires the greatest number of Studies based at Virginia Commonwealth University, members in the Section, anyone interested in partici- which is led by Executive Director Joe O’Brien. This pating should immediately contact the regional coor- program has been recognized nationally for its excel- dinator in his or her locality. lent work, and it will no doubt take a leadership role The Community Law Week and Law Day Commit- in the national coordination of the Constitutional tee, chaired this year by Karen McCutcheon of Roa- Bicentennial. noke, plans to sponsor a statewide essay competition The Law and The Disabled Committee, chaired by among senior high school students. The committee is Darrell Smelcer of Richmondl has produced a video- also considering other activities that will educate the tape addressing the legal rights of the disabled, which public with regard to our system of justice, and hopes was on display at our Winter Meeting in Williams- to continue with a fourth annual "Ask a Lawyer" burg last month. A lot of time and effort went into its program to be televised statewide on WCVE-TV production, and Darrell and his committee are to be (Channel 23). Last year, during the show’s third pro- commended for their effort. In addition, the commit- duction, over 125 questions were called in to a panel of tee intends to finalize and publish a brochure advis- four young lawyers who came to Richmond from dif- ing the handicapped of their rights under state and ferent parts of the state. This committee provides the federal law. During 1986, the committee plans to dis- Association with a considerable amount of positive tribute the videotape and brochure throughout the exposure, while at the same time developing public state, so that it may help educate the general public in pride and appreciation for our legal system and the this area. legal profession. The Disaster Legal Assistance Committee will be After a very successful program at the Winter Meet- chaired again this year by John Anderson of Alexan- ing of the Association in Williamsburg on January dria. This past year the committee was called into 11, 1986, featuring U.S. District Court Judge Merhige, action to provide emergency legal advice to disaster Jonathan Marks, President of EnDispute, Inc., and victims after floods ravaged the low lying areas of other members of the Association, Dave Shuford’s western Virginia. John’s committee will continue to Alternative Dispute Resolution Committee is off to a respond to such emergencies in 1986, and has attor- grand start. The legal profession has been sharply neys available in all fourteen disaster relief centers criticized due to the delays and cost of litigation, and established by the federal government. it is hoped that this committee will be able to imple- The Pre-Law Counseling Committee was formed in ment in Virginia a practical and well utilized alterna- 1985 for the purpose of providing interested high tive system of dispute resolution. Dave, who practices school and middle school students with an opportun- in Richmond, is also to be congratulated for his recent ity to learn about the law school process and the every- appointment by President Walton to the Joint Alter- day prac.tice of law, as well as various career aspects native Dispute Resolution Committee of the Associa- of the legal profession. Under the leadership of Hobie tion and the Virginia State Bar. Claiborn~, of Richmond, the committee is currently in The Criminal Law and Corrections Committee the process of establishing pilot programs in various recently published a brochure providing information high schools in the Tidewater and Richmond areas, to crime victims and witnesses, which the committee, and hopes to later establish similar programs in the chaired this year by Mark Earley of Norfolk, plans to Roanoke and Northern Virginia areas. The commit- distribute to the general public. The committee is also tee strives to have a positive effect upon any negative considering implementing a victim/witness assist- perceptions of the legal profession by young people ance program to provide information and assistance who would be willing to talk with a lawyer concern- services to persons involved in the criminal justice ing their perceptions. system, so that it will be better understood and more Last year, the Speakers Bureau Committee was readily accessible to persons who have been victims formed to provide speakers on a wide range of topics or witnesses of crimes. to civic organizations, corporations, and other groups. The Committee on Law and Citizenship Studies, Joe Rapisarda, of Richmond, who will chair the under the leadership of Bill Nexsen of Norfolk, plans committee again this year, is hoping to increase the to produce materials for use by students in historical number of speaking engagements. reinactments of constitutional events, as part of the The Town-Hall Meeting Committee, co-chaired this nationwide bicentennial celebration of the U.S. Con- year by Pat Gottschalk of Richmond and Rich Max- stitution. The committee will continue to work closely well of Roanoke, this past fall conducted a public with the Virginia Institute for Law--and Citizenship forum on a very timely public interest topic, "Victims

32 of Crime," which was held at the Hyatt House in this spring, and also hopes to organize a round table Richmond. In addition, Rich Maxwell arranged for a discussion between placement directors at the Virgin- debate between the two Virginia gubernatorial can- ia Law Schools and hiring partners of private firms didates, which was also held in October in Roanoke, within the Comm’on~vealth. This committee continues and was covered by live television. Pat and Rich’s to be a very important link between law students and committee is already hard at work planning equally the practicing profession. interesting and informative programs for 1986. The National Moot Court Committee, which is A new committee entitled Lawyers and the Arts being co-chaired this year by Bruce Thomas and Liz will be co-chaired this year by Jim Ballowe, who prac- Edwards, both of Richmond, will again organize and tices in northern Virginia and Washington, D.C., and conduct the 1986 Regional IV Moot Court Competi- George Wickham, of Richmond. The committee in- tion, to be held at William and Mary. Under the lead- tends to develop a list of attorneys throughout the ership of Bruce and Dave Simonsen, last year’s com- state who have an interest in legal counseling in the petition at the University of Virginia witnessed areas of law where artists most often need assistance. twenty-seven teams from fourteen law schools com- In addition, the committee hopes to implement a pro- peting before a prestigious list of judges that included gram for pro bono legal services to some budding the Chief Justice Carrico of the Supreme Court of artists who would otherwise be unable to obtain legal Virginia, Justice Wilkinson of the Fourth Circuit advice, and also organize and sponsor a program in Court of Appeals, several U.S. District Court judges, one or more areas of the state relating to the areas of and an associate justice of the Supreme Court of Ken- law that concern artists. It also intends to work very tucky. This committee has traditionally required a closely with the Virginia Commission for the Arts, considerable amount of planning on the part of its chaired by Doris Miller. .’ members, and the cost of last year’s competition was Such public service projects by the Association’s paid for by generous contributions from the law firms young lawyers are certainly a step in the right direc- throughout the state. The competition is indeed a very tion as we strive for more professionalism, and a important service to the law schools in this region, worthy response to Mr. Rifkind’s conviction, which and a tribute to the effort and energy of the young we share, that the law is a high calling whose lawyer members of this committee. members owe a duty not only to their clients, but to Another important service to Association members the profession and society as a whole. and the profession generally is the work of the Virgin- ia Lawyer Committee, which is responsible for up- Membership Benefits dating the Virginia Lawyer. John Walk of Richmond The Section has a number of committees which will again chair the committee, which plans to revise provide direct benefits to those members of the pro- fourteen additional chapters in this comprehensive fession that actively participate. The Bridge-The-Gap publication, so that the oldest material in the updated Committee, chaired this year by Nan Coleman of edition will have been revised as recent as 1983. Roanoke, will continue the practical skills seminars John’s committee also hopes to implement a rotating given throughout the state by experienced lawyers three-year revision cycle so that the material remains and judges. These programs provide valuable tips to as current as possible. new practitioners about numerous substantive areas The Virginia Tax Manual, which was first pub- of law and legal procedures that are essential to prac- lished in 1984 under the leadership of Ted Chandler of tice, and generally help to improve the level of compe- Richmond, will be reviewed and possibly updated by tence in our profession. the Virginia Tax Manual Committee, chaired this The Family Law Committee will be chaired this year by Michael J. deLeeuw of Norfolk. The manual year by Killis Howard of Lynchburg. Killis’ commit- contains a digest of Virginia sales and use tax cases, tee plans to disseminate recent decisions and inter- which is a valuable resource for practitioners in this pretations regarding equitable distribution in domes- area of tax law. tic relations cases in Virginia to interested attorneys. Lex Eley of Richmond will again chair the Meet- Killis also hopes to develop a network of attorneys ings Committee, and is to be commended for the throughout the state for the exchange of information planning and organization that went into the very relating to Family Law. successful panel programs recently conducted at the The Law School Liaison Committee, chaired this Winter Meeting in Williamsburg. In addition to the year by Molly p.riddy of Richmond, plans to present program on Alternative Dispute Resolution, the com- career seminars at each of the Virginia law schools mittee put together a very interesting program on the

33 proposed six year presidential term. Also to be com- Publications mended are Sam Brown of Norfolk and Hobie Clai- The Section is proud of the fact that it has devel- borne of Richmond for the excellent entertainment oped and published an impressive membership bro- they arranged for last year’s meetings. Sam and chure that will provide valuable information to pro- Hobie have agreed to again head up the Entertain- spective members. The final product is indeed a first ment Committee, and are already making plans to class job, and Jay Lassiter’s committee certainly book a band to play at the Homestead meeting of the deserves special recognition for this achievement. Association this summer. The victim/witness brochure previously mentioned The Courthouses of Virginia Committee, chaired by has also been published, and the brochure on the Jack Molenkamp of Richmond, is excited about the rights of the disabled should be off the press soon. plans it has for publishing a hardbound book depict- John Epps of Richmond has done an excellent job ing the beauty and history of the courthouses in the over the past year in obtaining interesting articles for Commonwealth. Jack’s committee hopes to organize the Newsletter, and John has graciously agreed to an Advisory Committee consisting of representatives again chair this important committee, which publi- from the legal and business communities, and a Steer- cizes so well the many activities of the Section. ing Committee consisting of architects, historians Ted Chandler of Richmond has agreed to chair the and artists, so that the publication has the input of VBA Journal Committee this year, with the assist- people with varied backgrounds. Although the pro- ance of Vice-Chairman David Otey of Williamsburg. duction portion of this unique project may not be Ted and David will edit the contributions of the Sec- completed this year, the committee hopes to have a tion to the Journal. Anyone interested in preparing photographer in the field and a historian commenc- articles for publication should contact Ted or David at ing work on the text by this fall. their addresses listed below. It is hoped that improved The Local Bar Liaison Committee will be chaired communications provided by the Journal and the this year by Kevin Huennekens of Richmond. This Newsletter will help our membership understand and committee was originally formed two years ago with appreciate the benefits of the Association. the goal of improving relations and communications Other valuable functions are performed by the with many young lawyer affiliate groups throughout Directory Committee, which readies for publication the state. Kevin’s committee will look into the possi- the very well received Directory of the Association. bility of joint projects between the Section and local Gary Piacentini of Richmond will chair this commit- bar associations. In addition to improving lawyer tee this year, following in the footsteps of Whit Whit- participation, it is hoped that such projects will ham. We very much appreciate the contribution which increase the membership of the Association. the Richmond law firm of Browder, Russell, Morris French Slaughter of Charlottesville and Alison and Butcher, and in particular, Anne Carlton, have McKee of Norfolk have agreed to co-chair the Sec- made ove.r the past several years in editing and pub- tion’s Membership Committee, which is instrumental lishing the Directory. in providing the availability of volunteer members The 1984 long range planning report spurred the who donate their time and energy for the many development of a Publications Committee for the worthwhile projects of the Section and the Associa- general purpose of overseeing and coordinating the tion. French and Alison hope to appoint members growing number of publications produced by the from every geographical area in the state, and they Association. This Senior Section Committee will are already working hard to develop new ideas to establish policies to insure that all publications are of increase the overall proportion of members of the a high quality and will further the objectives and Association to the practicing bar. This is one of the purposes of the Association. most important committees in the Section, since it would be impossible to implement our Section’s broad plan of activities without members who are willing to 1986 Meetings give their valuable time. A lawyer can certainly The recent Winter Meeting was indeed a huge suc- benefit from working with other lawyers throughout cess, and the Section and Association were honored the Commonwealth, and the effort that goes into this with the attendance of Allen Kimbrough, the ABA work benefits both the profession and the public Board of Governors Young Lawyers Division repre- which it serves. French and Alison would like to sentative, who presented us with two ABA Awards of involve each and every member of the Association in Achievement for our 1985 program. Carol Hurt of their committee’s recruitment effort,.- Charlottesville is again to be congratulated for her

34 committee’s hard work in preparing last year’s sub- district to the Young Lawyers Division General mission for the Award of Achievement Competition, Assembly in New York. and congratulations are also in order to all of last year’s chairpersons who made the awards possible. Carol and Kurt Krueger, also of Charlottesville, will 1986 Goals co-chair the ABA Award of Achievement Committee My primary goal this year is to increase the mem- this year. Another important event that occurred at bership and improve the overall identity of the Asso- our Winter Meeting was the designation of Bob Rolfe ciation, by involving more members in committee of Richmond and T. Bell of Staunton as Fellows of the work and increasing the number of lawyers and non- Young Lawyers Section. Fellows have only been lawyers that the Association affects. The work of this awarded twice before by the Section, and it is truly a Association should not go unrecognized, and this tribute to the loyal support and contributions to the year’s Public Relations Committee, chaired by Ver- Association that Bob and T. have made over the the non Geddy of Richmond, will be working hard to last six years. obtain favorable publicity for the many activities and The organizational meetings of the committees worthy projects that the Young Lawyers Section were also held at the Winter Meeting, and the Execu- plans to undertake. Committee members should try to tive Council (all committee chairs, officers and mem- communicate regularly with Vernon, so that this may bers of the Executive Committee) recently met at Win- be accomplished. Also, your Chairman hopes to tergreen on March 1, 1986. After exercising a great increase the responsibility of the Section’s Executive deal .of self-restraint while numerous important com- Committee, so that they will work more closely with mittee reports consumed several hours of the morn- the various committees to which they are assigned, ing, members of Council then broke for much needed and hopefully increase the overall activity level of outdoor exercise. The ski weekend was a tremendous Section members, if that is possible. success, notwithstanding many bruises and sore Our Young Lawyers Section has a well established muscles. I would like to extend my personal thanks to tradition of excellence in its service to the profession Bill Van Buren of Norfolk, who has again agreed to and the public. This is a direct result of the hard work chair the Executive Council Meetings Committee, and countless hours devoted by the many members of which was instrumental in making our recent meet- the Section, its officers and committee chairpersons ing such a success. over the past twenty-nine years. During the year of Bill has already begun plans for the Spring Meet- our Thirtieth Anniversary I feel that I have inherited ing of the Executive Council, which will be combined the leadership of an organization that is already on with a general meeting of the Section, and is pres- track toward another award winning year. Billy Han- ently scheduled for the weekend of May 17, 1986, at cock and the other former chairmen of the Section Virginia Beach. We would like to extend an invitation have certainly contributed k) the steady and forceful to all members of the Section to attend this at-large direction that we continue to take. I look forward to meeting, and I would ask that anyone interested con- working with Chairman-Elect Farrell, Secretary-Trea- tact Bill Van Buren at the address listed below for the surer O’Neal, the new members of the Executive details with regard to meeting times and hotel reser- Committee and all committee chairpersons in 1986. vations. The number and variety of projects this Section is On May 10, the weekend prior to the Spring Meet- planning for 1986 will no doubt require a great ing, the Section hopes to be well represented in amount of talent, enthusiasm, initiative and com- Charleston, South Carolina at the ABA/YLD Affil- mitment, but those that are active know that the more iate Outreach Project. John Beardsworth of Rich- you give of yourself, the more you get in return. As a mond is the Section’s 1986 ABA/YLD liaison, and result, ours is not only a noble, but a hard working will be working hard to increase the involvement of profession. Section members in activities of the ABA. The 1986 The Young Lawyers Section will always be looking Annual Meeting of the ABA is scheduled from August for new attorneys who are willing to make this com- 7 through August 14, 1986 in New York City, and mitment and volunteer their time for worthwhile proj- there will be a contested election of the Young Law- ects. Anyone having suggestings or ideas for new projects yers Division representative to the ABA Board of should write me at 700 Newtown Road, Norfolk, Vir- Governors. Both John Beardsworth and Janie Whitt, ginia, 23502 or call me at (804) 461-2500, and let me the ABA/YLD representative for our district, will be know of your interests. Listed below are the commit- coordinating the appointment of delegates from the tees of the Section and the names, addresses and

35 phone numbers of their chairs. You may also want to Law School Liaison, Mary M. H. Priddy, McGuire, Woods contact them directly. & Battle, Suite 500, One James Center, Richmond, Virginia 23219. (804) 644-4131. o Legal Services to the Public, Jeffrey R. Allen, Michie, Hamlett, Donato & Lowry, Post Office Box 298, Charlottes- ville, Virginia 22902. (804) 977-3390. 1986 VBA/YLS Committee Chairpersons Local Bar Liaison, Kevin R. Huennekens, Maloney, Yeatts & Barr, 600 Ross Building, 801 East Main Street, Richmond, ABA Award of Achievement, Carol B. Hurt, and Kurt J. Virginia 23219. (804) 644-0313. Krueger, McGuire, Woods & Battle, Post Office Box 1288, Charlottesville, Virginia 22902. (804) 977-2500. Meetings, Claud (Lex) V. S. Eley, McGuire, Woods & Battle, 7th Floor, One James Center, Richmond, Virginia 23219. ABA Young Lawyers Division Liaison, John J. Beards- (804) 644-4131. worth, Jr., Hunton & Williams, Post Office Box 1535, Rich- mond, Virginia 23212. (804) 788-8637. Membership, D. French Slaughter, III, McGuire, Woods & Battle, Post Office Box 1288, Charlottesville, Virginia 22902. Alternative Dispute Resolution, David G. Shuford, Mays, (804) 977-2500; and Alison M. McKee, Hunton & Williams, Valentine, Davenport & Moore, Post Office Box 1122, Rich- Suite 1301, First Virginia Bank Tower, 101 St. Paul’s Boule- mond, Virginia 23208. (804) 644-6011. vard, No~folk, Virginia 23510. (804) 625-5501. Bridge-The-Gap, Nan L. Coleman, Woods, Rogers & Model Judiciary Program, John E. Coffey, Thomas & Hazlegrove, Post Office Box 720, Roanoke, Virginia 24004. Fiske, 510 King Street, Suite 200, Alexandria, Virginia (703) 982-4200. 22313. (703) 836-8400. Community Law Week & Law Day, Karen Webb McCut- National Moot Court, Bruce V. Thomas, Mays, Valentine, cheon, Gentry, Locke, Rakes & Moore, Post Office Box 1018, Davenport & Moore, Post Office Box 1122, Richmond, Vir- Roanoke, Virginia 24005. (703) 982-8000. ginia 23208. (804) 644-6011; and Elizabeth F. Edwards, Courthouses of Virginia, Jack A. Molenkamp, Hunton & McGuire, Woods & Battle, Suite 600, One James Center, Williams, Post Off~ce Box 1535, Richmond, Virginia 23212. Richmond, Virginia, 23219. (804) 644-4131. (804) 788-8655. Newsletter, John D. Epps, Browder, Russell, Morris & Criminal Law and Corrections, Mark L. Earley, Tavss, Butcher, Suite 1100, One James Center, Richmond, Virginia Fletcher & Earley, P.C., Post Office Box 3747, Norfolk, Vir- 23219. (804) 771-9413. ginia 23514. (804) 625-1214. Pre-Law Counseling, Herbert A. Claiborne, III, McGuire, Directory, Gary T. Piacentini, Browder, Russell, Morris & ’Woods & Battle, Suite 800, One James Center, Richmond, Butcher, Suite 1100, One James Center, Richmond, Virginia Virginia 23219. (804) 644-4131. 23219. (804) 771-9338. Public Relations, Vernon M. Geddy, III, McGuire, Woods Disaster Legal Assistance, John F. Anderson, Boothe, & Battle, Suite 800, One James Center, Richmond, Virginia Prichard & Dudley, 3950 Chain Bridge Road, Fairfax, Vir- 23219. (804) 644-4131. ginia 22030. (703) 359-1000. Speakers Bureau, Joseph P. Rapisarda, Jr., Henrico Entertainment, Samuel H. Brown, II, Heilig, McKenry, County Attorney, Post Office Box 27032, Richmond, Virgin- Fraim & Lollar, P.C., 1060 Laskin Road, Virginia Beach, ia 23272. (804) 747-4342. Virginia 23451. (804) 425-5484; and Herbert A. Claiborne, Special Projects, Stephen D, Busch, McGuire, Woods & III~ McGuire, Woods & Battle, Suite 800, One James Center, Battle, Suite 600, One James Center, Richmond, Virginia Richmond, Virginia 23219. (804) 644-4131. 23219. (8045 644-4131. Executive Council Meetings, William R. VanBuren, III, Town Hall Meeting, Patrick O. Gottschalk, Mays, Valen- Kaufman & Canoles, Post Office Box 3037, Norfolk, Virgin- tine, Davenport & Moore, Post Office Box 1122, Richmond, ia 23514-3037. (804) 624-3234. Virginia 23208. (804) 644-6011; and Richard C. Maxwell, Family Law, Killis T. Howard, Post Office Box 99, Lynch- Woods, Rogers & Hazlegrove, Post Office Box 720, Roanoke, burg, Virginia 24505. (804) 528-1067. Virginia 24004. (703) 982-4200. Lawyers and the Arts, James E. Ballowe, Jr., Boothe, Pri- VBA Journal, Theodore L. Chandler, Jr., Williams, Mullen chard & Dudley, 2000 Pennsylvania Avenue, N.W., Suite & Christian, Post Office Box 1320, Richmond, Virginia 8350 Washington, DC 20006. (202) 293-6900; and George B. 23210. (804) 643-1991; Vice-Chair, David W. Otey, Jr., Otey & Wickham, Mays, Valentine, Davenport & Moore, Post Office Powell, Post Office Box 192, Williamsburg, Virginia 23187. Box 1122, Richmond, Virginia 23208. (804) 644-6011. (804) 229-6141. Law & Citizenship Studies, William W. Nexsen, Stack- The Virginia Lawyer, John R. Walk, Hirschler, Fleischer, house, Rowe & Smith, Post Office Box 3570, Norfolk, Virgin- Weinberg, Cox & Allen, 629 East Main Street, Post Office ia 23514. (804) 623-3555. Box l-Q, Richmond, Virginia 23202. (804) 771-9500. Law and the Disabled, Darrell B. Smelcer, Hunton & Wil- Virginia Tax Manual, Michael J. deLeeuw, Hofheimer, liams, Post Office Box 1535, Richmond, Virginia 23212. Nusbaum, McPhaul & Brenner, P.O. Box 3508, Norfolk, Vir- (804) 788-8608. ginia 23514. (804) 622-3366.

36 Newly Admitted Members October 1, 1985-February 10, 1986 - "-

Name City Name City Acors, Karen Lindemann ...... Norfolk *King, Ruth Ann Simpson ...... Catharpin *Albert, Burton L...... Roanoke Klein, John H ...... Norfolk Anderson, Phillip Verne ...... Roanoke *Kondracki, Edward J ...... Arlington Anthony, Thomas J., Jr...... Richmond Koorse, Steven J ...... Richmond *Ballou-Coniglio, Deanna Kay ...... Fairfax Kraus, Peter Andrew ...... Alexandria *Bell, Edward James, III ...... Williamsburg Krebs-Markrich, Julia ...... Richmond Black, Paul Markham ...... Richmond Larsen, Kim D ...... Richmond Blanchard, Charles A ...... Richmond Lee, Donald R...... Richmond Blanchard, Louise Browner ...... : .... Richmond Leonard, Elizabeth A ...... Roanoke Brennan, Paul Mark ...... Richmond Leugers, Mary Jo ...... Richmond Britton, Douglas Andrew ...... Norfolk Lisk, Thomas A ...... Richmond Broughton, Matthew Wayne ...... Roanoke Lovisi, Arthur A ...... Norfolk Brown, philip R...... Richmond Markley, Theresa Lynn ...... Richmond Buckley, Kevin Joseph ...... Richmond Marshall, Lawrence Eugen. e, III ...... Richmond *Burgeson, Bruce A ...... Richmond Matchett, Scott D ...... Richmond *Burns, Catherine Ann ...... Annandale McClanahan, Elizabeth Ann ...... Abingdon Clemo, George J. A ...... Richmond McCulla, Paul S ...... Warrenton Cole, Michael H ...... Richmond McDaniel, Dana D ...... Richmond Currin, Catherine Nicols ...... Richmond McFarland, Robert W...... Norfolk Davis, Mary Jean ...... Richmond McGrath, Richard Tyler ...... Norfolk Delpierre, David M ...... Norfolk *McGuirk, John J ...... Fairfax Dewing, Douglass W...... Norfolk McLaughlin, Roderick R...... Fairfax Dillard, Eva L ...... Richmond McMenamin, Joseph Patrick ...... Richmond Doloboff, Joseph M ...... Richmond McPhillips, Charles Vincent ...... Norfolk Doppelt, Ira ...... Charlottesville Methfessel, Harley A. J ...... Richmond Earls, Richard B ...... Richmond Miller, David Aaron ...... Fairfax Edge, Kathleen Marie ...... Front Royal Miller, Thomas H ...... Roanoke Finto, Kevin John ...... Richmond Moore, Becky Jo ...... Alexandria Fitzgerald, Renee Wenger ...... Roanoke Moore, Suzan E ...... Abingdon Fletcher, Jane Allen ...... Abingdon Morgan, Barbara Gayle ...... Richmond Fletcher, Paul E., III ...... Bristol Moses, Anne Bonwill Shockley ...... McLean Friedman, Frank K ...... Roanoke *Moshos, Arthur I~...... Fairfax Gamble, Elizabeth W...... Richmond Moylan, Deborah Murray ...... Charlottesville Glaser, Jeffrey ...... Vienna Murphy, Brian D ...... : ...... Richmond Granger, Douglas S ...... Richmond Myers, Eric Tipton ...... Newl~ort News *Gravis, Diane C ...... Reston Newell, Joseph Ross, HI ...... Richmond Grey, Robert J., Jr...... Richmond Noona, Stephen Edward ...... Norfolk Griffith, Donna K ...... Norfolk Nunley, Lonnie Dayton, III ...... Richmond Griggs, Malcolm D ...... Norfolk O’Grady, Clive R. G ...... Washington, DC Gustin, Thomas Avery ...... Norfolk O’Grady, John B ...... Richmond Hardt, Kenneth Francis ...... Richmond *O’Neil, Robert M ...... Charlottesville Hart, J. Philip ...... Richmond Pace, David Chandler ...... Richmond Henry, Bruce Wayne ...... Alexandria Payne, Phillip D., IV ...... Roanoke Hensley, Maria C ...... Richmond Persian, Eric Montaigne ...... Fairfax Hicks, Harry J., III ...... Richmond Pierce, Constance H ...... Richmond Hillsman, William Mark ...... Richmond *Pitts, Andrea H ...... Richmond Hirsch, Brian M ...... Reston Pitts, George Richard ...... Richmond Horvath, Stephen John, III ...... Richmond Powell, James S ...... Manassas Huddle, John Michael ...... Roanoke Pugh, David Wayne ...... Richmond Hurd, David Lamon ...... Charlottesville *Purcell, John B ...... Richmond Itkin, Judith H ...... Richmond Quinn, Julene M ...... Vienna Johnston, M. Kelley ...... Richmond Richard, Anne M ...... Alexandria *Jordan, A. Gayle ...... Norfolk Robinson, Charles Arthur, II ...... Norfolk Kabler, Philip N ...... Norfolk Rogers, Nancy Newton ...... Richmond Kelin, Howard L...... Richmond Rosemond, Roxie A. O ...... Chesapeake Kelly, Michael Joseph ...... Richmond Rosenthal, Jane S ...... Richmond

37 Name City Name City

Rotz, Linda Sickman ...... Richmond Terry, Mary Sue ...... Stuart *Ruark, Robert W...... Poquoson Thomason, Linda Jenkins ...... Richmond Rublee, Laura Chandler ...... Norfolk *Tredway, James W., III ...... Richmond Ryan, Sheila D ...... Norfolk Tucker, Carter Harrison ...... Richmond Sammons, Isabella A ...... Arlington Turbitt, John R ...... Fairfax Sammons, Lloyd Foster ...... Arlington Vaughan, Patricia P...... Norfolk Schneebeck, Douglas Gene ...... Harrisonburg *Wagaman, Mary D ...... Vienna Schuman, Carole Miner ...... Richmond *Walsh, Robert E ...... Norfolk Scott, Daryl F ...... Richmond Ware, Michael Bruce ...... Newport News Scott, Kathleen N ...... Richmond Weaver, John M ...... Alexandria Scruggs, George Lee, Jr...... Richmond *Wilcox, Bruce A ...... Norfolk Servis, John Perry ...... Takoma Park, MD Wilder, Lee E ...... Norfolk *Shepherd, Robert E., Jr...... Richmond Williams, Laurel C ...... Richmond Sivils, Kimberly Kay ...... Richmond Wilson, Michael Stephen ...... Richmond Smith, David Shane ...... Richmond Windsor, James L ...... Norfolk Smith, Gary Hayne ...... Arlington Wood, Michele A ...... Richmond Snowden, Bradley C ...... Winchester Zemanian, Peter G ...... Norfolk Sterling, Michael L ...... Norfolk Ziogas, Robert A ...... Roanoke *Stewart, Charles V...... Richmond *Zirkle, Michael N ...... Arlington Stone, Jacquelyn E ...... Richmond Stowe, Anna Carolyn ...... Roanoke *Denotes Regular Section member (all others are YLS) *Sturges, David W...... New Ulm, MN

Committee: Reports

Report of the Committee on Law Handbook which is to be published David E. Evans Administrative Law soon under the auspices of the Virginia Law John A. Gibney, Jr. Foundation. Timothy G. Hayes To The Virginia Bar Association: The Committee has also assisted in the Harold G. Hernly, Jr. The Committee on Administrative Law promotion of an important Continuing Legal John P. Jones continues to participate actively in provid- Education Seminar on the subject of admin- Michael W. Maupin ing comment and assistance to the Gover- istrative law to be held in Richmond on Kathy E. B. McCleskey nor’s Regulatory Reform Advisory Board, December 12, 1985. Two members of the Patrick M. McSweeney chaired by Delegate Ralph "Bill" L. Axselle, Committee, Attorney General William G. Charles F. Midkiff Jr., as that Advisory Board continues to con- Broaddus and Professor J. P. Jones, will be Edward C. Minor sider revisions to Virginia’s statutes relating participating in the seminar as panelists. James E. Ryan, Jr. to practice before administrative agencies. At its January 11, 1985, meeting in Willi- Stephen H. Watts, III This year the Advisory Board focused its amsburg, the committee determined that its David F. Peters, Chairman work specifically on the statutory procedures membership needed to be expanded to include for judicial review of rulemakings and ad- representation beyond the private Bar. As a ministrative case decisions and on the crite- result, Professor J. P. Jones of the T. C. Willi- ria for administrative hearing officers. At ams Law School and Mr. Russell W. Cun- the specific request of Delegate Axselle, ningham, Senior Hearing Examiner of the members of the Committee on Administra- Virginia State Corporation Commission, were tive Law reviewed drafts of legislation pro- invited to join the Committee, and they have posed for discussion by the Advisory Board been active members. The Committee looks Report of the Committee on and provided that Board written and oral forward to an active 1986 and would wel- Business Law comments. The final report of the Advisory come to its membership any Virginia attor- To The Virginia Bar Association: Board to the Governor and the General ney whose practice includes administrative Assembly issued October 21, 1985, made law. The Business Law Committee operates, specific reference to the assistance provided for the most part, through six subcommit- Respectfully submitted, by the Committee on Administrative Law of tees: Partnership, Securities, Financial Insti- The Virginia Bar Association. William G. Broaddus tutions, Commercial, Bankruptcy and Credi- Committee members also assisted during Brian L. Buniva tors Rights, and Corporate Laws. the course of the year in an editorial revie-~ James N. Christman In its 1984 Report to the Association, the of a revision to the Virginia Administrative Russell W. Cunningham Business Law Committee stated that it ex-

38 pected its principal efforts in 1985 would be Joseph R. Mayes The work of the Conference continues directed at legislative passage of a proposed William G. McClure, IlI throughout the year. Study subcommittees revision of both the Virginia Stock Corpora- Karen Webb McCutcheon prepare reports to be discussed at the subse- tion Act and the Revised Uniform Limited Richard A. Minardi, Jr .... quent Conference; and others work to bring Partnership Act. The Committee’s involve- Jack A. Molenkamp Conference proposals to fruition. Among the ment in the development of both proposals Thurston R. Moore many issues discussed during the Confer- was detailed in the 1984 Report. David L. Norton ence were: The Committee is pleased to report that Fred W. Palmore, III (I) Whether venue for writs of quo war- both legislative proposals were adopted by David A. Pankey ranto, suspension or disbarment of attor- the 1985 General Assembly. The new Stock Christopher T. Picot neys, injunctions, under the Tort Claims Act, Corporation Act and a new Non-Stock Cor- Robert H. Powell, III and an appeal from the Virginia Employ- poration Act are both to become effective J. Waverly Pulley, III ment Commission should be controlled by January 1, 1986, though one portion of the Ross C. Reeves Code §8.01-261. The Conference was in favor. Stock Act became effective July 1, 1985. The Louis F. Ryan (2) The problems caused by Judge War- new Limited Partnership Act is presently William H. Schwarzschild, III riner’s ruling in Luke v. Dalow Industries, scheduled to become effective on January 1, Donald E. Showalter Inc., 566 F.Supp. 1470 (1983). It was held in 1987. William C. Stott, Jr. this case that an affidavit was defective The Committee is especially pleased to Raymond E. Vickery, Jr. because it was executed by the plaintifi~s report that in the fall of 1985, the Michie George P. Whitley attorney rather than by the plaintiff. The Company published a separate soft-cover F. Claiborne Johnston, Jr., long-standing practice is that an affidavit of volume containing not only the new Stock Chairman a party may be executed by his attorney. It and Non-Stock Acts, but also all other provi- should be noted that Va. Code §49-7, which sions of Title 13.1, as well as the official Vir- was not cited in the case, may negate its ginia Code Commission comments to the effect. Stock Act and explanatory comments to that (3) The continued refusal of the Supreme Act developed by the Joint Bar Association/- Court to repeal Rule 5:35(d). Counsel arguing State Bar Title 13.1 Study Group. This Study before the Court are urged to state ritualisti- Group and its work were described in the cally at the opening of argument: "I rely on Committee’s 1984 Report. The Committee my brief for all matters not specifically believes this volume will be a convenient ref- Report of the Committee on addressed." erence source for Bench and Bar alike, and Civil Litigation (4) Whether Rule 1:12 should be amended that the Code Commission and Bar Study To The Virginia Bar Association: to require that notice of all subpoenas be Group commentaries (which are not pub- sent to opposing counsel. The Conference lished in the Code Volumes themselves) will The principal work of the Civil Litigation supported this. be extremely helpful reference sources on the Committee once again centered on the Tides (5) Whether Virginia should adopt a ver- new Stock Act. Inn Conference, which henceforth shall be sion of FRCP 11 to deter litigation brought As 1985 draws to a close, the chairman known as the Boyd-Graves Conference in in bad faith and to compensate the opposite wishes to express to all members of the honor of our former colleagues. Sixty-four side. The opinion of the Conference was that Committee, and especially those who devoted members of the Conference attended the this would be an unhealthy development. so many hours to the Joint Bar Study Group, working sessions at the Radisson hotel in (6) Language was suggested and supported his appreciation for their interest and hard Charlottesville on Friday, November 15, 1985 to assist in rectifying the problem caused work. and Saturday, November 16. Those attending included representatives of all parts of under Code §38.1-381 (al) when an insurer is Respectfully submitted, unable to find the insured after a motion for the Commonwealth, as well as Judge Wil- judgment has been filed. Benjamin C. Ackerly lard Walker, Delegate Frank Hall, Attorney (7) Whether §8.01-118, which requires Newell Blair General Broaddus, and Rob Baldwin and bonds in General District Court detinue Thomas C. Brown, Jr. Ken Montero, Executive Secretary and Di- Robert L. Burrus, Jr. rector of Legal Research respectively of the cases be filed in Circuit Courts, should be repealed. The Conference was in favor of Richard H. Catlett, Jr. Supreme Court. such an amendment to the Code. W. Edward Clingman, Jr. On Friday evening, Conference members (8) Whether the judicial retirement system Page D. Cranford were joined for a cocktail party and banquet should remain intact. The Conference was James S. Cremins by Judge J. H. Michael of the United States strongly supportive of the status quo. Clifford A. Cutchin, IV District Court for the Western District, Judge (9) Support for the provision of law clerk Robert L. Dolbeare J. H. Wilkinson III of the United States assistance to circuit courts in greater number E. Tazewell Ellett Court of Appeals of the Fourt Circuit, Judge than presently proposed by the General G. F. Flippin H. A. Pickford of the Circuit Court of the Assembly, with funding if necsssary from Allen C. Goolsby, Ill City of Charlottesville, Judge S. H. Helvin of increased court costs or a statute to permit Alexander C. Graham, Jr. the General District Court of the City of courts to mandate the funds from the locali- Leslie A. Grandis Charlottesville, and Professor John McCoid ties. David I. Greenberg of the University of Virginia Law School (10) Support for the Uniform Foreign John P. Grove The featured speaker was the Honorable Money Judgments Recognition Act. Virginia H. Hackney Harry Lee Carrico, Chief Justice of the Ray W. King Supreme Court of Virginia. Chief Justice (11) Amend Code §8.01-378 to reflect the resolution passed at the 1984 Conference Dennis O. Laing Carrico, after relating some of the humorous rather than the amendment actually adopted Stephen R. Larson incidents of his recent career, urged the legal during 1985. Laura R. Lucas profession to play an active role in educating Issues assigned to study subcommittees Charles H. Maiors the public about the judicial system.

39 include whether all aspects of service and Timothy G. Hayes William B. Broaddus notice in divorce actions should be trans- Thomas T. Lawson Dennis P. Brumberg ferred to Title 20, whether a Malpractice Patrick M. McSweeney Stuart B. Campbell, Jr. Review Panel Chairman should be able to William L. Resbe W. Randolph Carter rule on affirmative defenses, and whether R. Leonard Vance Howard Feller Virginia should adopt the Uniform Arbitra- Jeter M. Watson Reno S. Harp, III tion Act. George B. Wickham Edward L. Hogshire The Boyd-Graves Conference has once James E. Ryan, Jr., Chairman Louis R.~Lerner again proved its value, and it will continue F. Nelson Light to be the major activity of the Civil Litiga- Robert Terrence Ney tion Committee. Robert C. Nusbaum Respectfully submitted, Michael L. O’Reilly John R. Porter, III Leigh B. Middleditch, Jr., Report of the Committee on Virginia W. Powell Chairman Honoring Members and Judges Joseph P. Rapisarda, Jr. To The Virginia Bar Association: Conway H. Shield, III Julious P. Smith The Committee on Honoring Members Greg N. Stillman and Judges reports that Chief Justice Car- Thomas R. Watkins rico has donated a portrait which he had Edward R. Slaughter, Jr., commissioned to replace the portrait pre- Report of the Committee on Chairman Environmental Law viously given by The Virginia Bar Associa- tion. The Committee is grateful to the Chief To The Virginia Bar Association: Justice for this gesture. During the past year, the Environmental We hope to be able to arrange the presen- Law Committee focused on completion of tation of the portrait of Mr. Justice John projects which were initiated in 1984-1985. Charles Thomas in 1986. Report of the Committee on Those projects included the environmental Respectfully submitted, Labor Relations and Employment Law case index and updated chapters of The Vir- ginia Administrative Law & Practice Hand- Marshall T. Bohannon, Jr. To The Virginia Bar Association: book. The Committee continued to meet Joseph C. Carter, Jr. The Committee on Labor Relations and jointly with the Board of Governors of the Donald C: Crounse Employment Law met on three occasions in Environmental Law Section of the Virginia Arthur B. Davies, III 1985. The initial meeting was held in con- State Bar. Gordon Lewis junction with the Association’s mid-winter A considerable effort was invested in David A. Melesco meeting in Williamsburg. At that meeting, a exploring the utility of a program for the Edward L. Oast, Jr. report on current developments in the labor membership of the Association on land use Thomas B. Van Poole, Jr. law area was presented by the Chairman. problems. The Committee and Board of Mark C. Willis Subcommittee assignments were reviewed Governors held a forum which evolved into a Stuart B. Campbell, Jr., and plans were announced for the Commit- debate between development representatives Chairman tee’s fifteenth annual conference to be held and academics advocating controls on devel- in Charlottesville on September 30. opment. The Committee also solicited inter- A second meeting of the Committee was est in such a program from the Local held in Richmond on May 10, 1985. At this Government Attorneys, as well as the Com- meeting, speakers and topics for the annual mittee on Real Estate Law and the Commit- conference were tentatively selected. tee on Local Government Law. After receiv- Report of the Committee on The third and final meeting of the Com- ing those views, the Committee determined the Judiciary for 1985 mittee was held in Charlottesville at the that a program for the membership of The To The Virginia Bar Association: Boar’s Head Inn on September 29, 1985, in Virginia Bar Association would not be espe- conjunction with the Committee’s annual cially useful. Instead, the Committee deter- The members of the Committee on the conference. The conference featured a mock mined that it would explore the feasibility of Judiciary report that they have had, while arbitration trial involving the issue of AIDS producing a videotape on the land use regu- not intended, something of a sabbatical in the workplace and a mock wrongful dis- latory process at the local government level year. The Executive Committee assigned charge proceeding. Conference registrants for use by civic groups. Work on this project this Committee a project in conjunction with also heard lectures on age discrimination, is underway, and it is hoped that this effort another committee of the association. For covenants not to compete, recent NLRB will bear fruit in the coming year. reasons too numerous (or too few) to detail, decisions, employment claims arising out of the tandem effort did not work out. As a Respectfully submitted, the sale and acquisition of plants, and effec- result, the Executive Committee, at its Oc- tive techniques used by employers in union Brian L. Buniva tober meeting, directed the President of the John R. Butcher Association to request this Committee to go organizational campaigns. Approximately 100 registrants attended this year’s confer- John F. Cahill forward with both projects. The Committee Michael Campilongo is now in the process of doing so. ence. S. Miles Dumville Respectfully submitted, Respectfully submitted, David E. Evans Hill B. Wellford, Jr., Chairman Renee R. Falzone Leo R. Andrews, Jr. Lane Gabeler Robert F. Boyd Manning Gasch, Jr. Thomas W. Blue

4O Report of the Committee on Legal Report of the Committee of Legal The Honorable Bernard G. Education and Admission to the Bar Problems of the Elderly, Barrow To The Virginia Bar Association: To The Virginia Bar Association: Susan L. Canby, Esq. Frank M. Feibelman, Esq. The Committee’s activities during 1985 The involvement of the Committee on William S. Francis, Jr., Esq. have included meetings in January and Legal Problems of the Elderly with legisla- Matthew D. Jenkins, Esq. AuguSt, and one on one conferences and sub- tion affecting "life care" facilities has con- Charles S. McNulty, III committee functions in the interim. The cur- tinued throughout 1985. The Committee par- John Oliver, Esq. rent status of committee work may be sum- ticipated in the drafting and passage of Karl Schmeidler, Esq. . marized as follows: Senate Bill 410, which added Chapter 31 to R. Gordon Smith 1. We have reviewed and approved as pre- Title 38.1 of the Code of Virginia, the Con- Willis J. Spaulding viously stated the functions of the Commit- tinuing Care Provider Registration and Dis- The Honorable Warren G. tee contained in the Appendix to the By- closure Act. This act became effective on Stambaugh Laws of the Association. July 1, 1985. The Committee’s Chairman is The Honorable Philip Trompeter 2. We are in the mid-draft stages of devel- currently serving on a citizens task force Richard J. Bonnie, Chairman opment of a policy statement by the Associa- appointed by the Virginia General Assem- tion concerning recruitment and placement bly to consider further additions to the regu- of law students. When completed and recom- latory scheme. This task force is now review- mended by the Committee, it will be submit- ing additional draft legislation and it is ted to the Executive Committee for adoption expected that members of the Committee and distribution. will comment on these proposed additions 3. We are in the early stages of developing and once again participate in their legisla- Report of the Committee on a pilot program with the William and Mary tive consideration. Prisons and Corrections Law School in which members of the Asso- Other projects of the Committee include a ciation can share with students practical new project regarding the law of powers of To The Virginia Bar Association: matters not well covered by the traditional attorney as it affects the elderly and the The work of the Prisons and Corrections law school curriculum. We are working with completion of the Committee’s handbook for Committee this year has been largely con- the Young Lawyers and Dean Sullivan on lawyers on dealing with legal problems of centrated on a single project, a major study this project. When developed, it will be pre- the elderly. of the adult prison system in the state. This sented to the Executive Committee. study, which will be based upon actual on- 4. We have considered the impact of the Respectfully submitted, ~ site inspections of at least 11 prisons and an U.S. Supreme Court’s decisions on the lack Whittington W. Clement analysis of other data supplied by the De- of need for residency before being allowed to partment of Corrections, was begun during James E. Cornwell, Jr. stand the bar exam. Section 54-60 of the Va. 1984 and should be completed by the end of Thomas C. Fox Code is being challenged and needs rewriting January 1986. John A. C. Keith or repeal. Repeal appears the only legally This study is designed to provide a unique David W. Patton acceptable approach. Judge John Wingo Knowles overview of the adult prisons system in Vir- 5. We have had placed before us by some ginia, as seen by attorneys who have prac- John E. Vihstadt members the issue of bar exams as being no ticed criminal law in Virginia. It will con- B. Darrell Smelcer longer necessary. We have not gone into this sider all aspects of the system, including William G. McClure, III yet. costs, staffing, security, rehabilitation, and Eric E. Adamson Respectfully submitted, R. Hart Lee medical care. While not an exhaustive or comprehensive audit of the entire prison sys- Bruce T. Bishop Donald Ubben Robert Dean Pope, Chairman tem, it should provide this Committee and Daniel A. Carrell The Virginia Bar Association with some John V. Cogbill, III useful information in guiding our recom- David S. Cohn mendations for administrative and legisla- Francis N. Crenshaw tive improvements in the state’s correctional John E. Donaldson system. Dean Thomas A. Edmunds The second major project this year has John B. Gaidies Report of the Committee on been to develop a continuing legal education Allen C. Goolsby, III the Mentally Disabled workshop on prison-related issues. We have Edward O. Henneman been given Executive Committee approval M. Langhorne Keith To The Virginia Bar Association: for the VBA to co-sponsor this seminar, to be Robert B. Machen The Committee reviewed and commented entitled "Advanced Criminal Law Seminar: Sandra J. McNinch on legislative proposals concerning psychi- How to Assist Your Client After Sentencing," Dean Richard A. Merrill atric hospitalization of minors and substi- with the Virginia Law Foundation. It is ten- W. Brown Morton, Jr. tute decision making for medical treatment tatively scheduled for Saturday, May 17, Daniel T. Murphy of persons unable to give informed consent. 1986, at the University of Virginia Law Dean Ralph Norvell In addition, the Committee chair worked School. Most of the speakers have already Robert M. Rolfe with the Criminal Law Committee to develop been lined up, and other arrangements are W. Scott Street, III a legislative proposal revising procedures for proceeding smoothly. Archibald Wallace, III, mental evaluations in criminal cases in light Our third major project is the compilation Chairman of the United States Supreme Court’s deci- and publication of a survey being conducted sion in AkJ v. Oklahoma. of all attorneys serving as court-appointed Respectfully submitted, attorneys in Virginia’s prison system, We have received responses from 80% of these

41 attorneys and hope to publish the results reform including the review, consideration aimed at improving the format of publica- within the next several months. and, where deemed appropriate, sponsorhip tions and the stationery of the Association. of legislation affecting the needs of children Respectfully submitted, Respectfully submitted, in accordance with the Association’s established law reform procedures. Charles E. Friend Nate J. Adams, III 4. Establish a close working relationship Michael L. Goodman Thomas B. Baird, Jr. with the National Legal Center for Child Joseph A. Massie, Jr. A. Hugo Blankin~gship, Jr. Advocacy and Protection, an ABA-affiliated William W. Nexsen Glen E. Conrad organization which has a wealth of knowl- Peter C. Manson, Chairman Kevin P. Donovan edge and experience in the field. Lloyd Snook The Executive Committee approved the James M. Pates, Chairman recommendations of the Public Service Com- mittee. Professor Robert E. Shepherd, Jr. of the University of Richmond School of Law has Report of the Real Estate Committee agreed to serve as the Commission’s first Chairman. Professor Shepherd is well known To The Virginia Bar Association: and highly regarded :among persons and Report of the Public Service Committee Recent developments as to environmental organizations interested in-legislation af- laws governing the disposition and clean-up To The Virginia Bar Association: fecting the interests of children. of toxic wastes have had profound implica- As of the date this report is being submit- Prompted initially by correspondence the tions for real estate transactions. The Real ted, Professor Shepherd and the President of President of the Bar Association received Estate Committee has responded by initiat- the Bar Association are working on the early in 1985 from Judge Hugh’ S. Glickstein, ing a long-range project to inform real estate initial appointments to the Commission. Chairman, American Bar Association Fam- lawyers about these developments and to The Commission plans to commence its ily Law Section’s Task Force on the Needs of advise them how to protect the interests of work in January of 1986. Children, the Public Service Committee stud- their clients. Initially, the Committee hopes ied the desirability of establishing an inter- Respectfully submitted, to work with the Environmental Law Sec- disciplinary group to address the needs of tion of the Virginia State Bar to have ’infor- J. Edward Betts children in Virginia. mation about these developments compiled Clifford A. Cutchins, Jr. After the Committee agreed in a meeting and disseminated. This effort is to include James A. L. Daniel held on March 7 to actively pursue the mat- coordination with the Virginia Law Founda- Barbara Tessin Derry ter, the Chairman met with Robert M. Horo- tion to have a portion of the next Annual Thomas F~ Farrell, II witz, Associate Director of the National Real Estate Practice Seminar address these Marcia Gelman Legal Resource Center for Child Advocacy developments. Hugh L. Patterson and Protection to ascertain how similar pro- George H. Roberts, Jr. Second, the Committee has been concerned grams had been developed in other states. about the quality of residential real estate Thomas C. Brown, Jr., Subsequently, the Committee met in Rich- purchase agreements and leases that have Chairman mond on May 14, 1985 with representatives been used in Virginia by realtors, title com- of various interested organizations and gov- panies, consumers and other lay persons. ernment agencies to discuss the concept Consequently, the Committee has assisted further. The idea of an interdisciplinary the Real Estate Section of the Virginia State group under Bar leadership received an Bar in its drafting a form of residential real enthusiastic response. estate purchase agreement that can be made In July, the Public Service Committee available for such use. The Committee ex- recommended to the Executive Committee Report of the Publications Committee pects to assist the Real Estate Section in its that The Virginia Bar Association do the fol- To The Virginia Bar Association: drafting a form of residential lease that sim- lowing: ilarly can be made available. 1. Establish an interdisciplinary group to The Publications Committee was appointed Third, the Committee expects to support be known as The Virginia Bar Association in June, 1985 for the general purpose of two amendments to the Code of Virginia, Commission on the Needs of Children. The overseeing and coordinating the growing 1950, as amended. The first was proposed by use of the word "Commission" was chosen number of publications produced by various Lawyers Title Insurance Corporation and because that is the expression the ABA uses committees of the Association. The Commit- will provide for the Unified Federal Tax Lien to refer to such interdisciplinary groups. tee was directed to establish a publications Registration Act (Section 55-142.1) to require 2. Appoint persons with different back- policy to ensure that publications are of high the filing of certain certificates of redemp- grounds and interests regarding the needs of quality and further the constitutional pur- tion about the preparer of certain instru- children as the initial members of the Com- poses of the Association. ments to appear at the conclusion of those mission with subsequent appointments and The committee is collecting information instruments. reappointments to be made on an annual concerning current publications of the Asso- Finally, the Committee has studied a pro- basis by the President of The Virginia Bar ciation, such as cost, distribution, storage, posal for the establishment of a State Coordi- Association. The Commission would be com- editorial responsibility, etc. The committee nator for Mapping and Surveying and Land prised of approximately fifteen persons, seven has alerted the Young Lawyers Section and Information Systems. of whom would be lawyer representatives of committees of the Association of the exist- Respectfully submitted, the Bar Association. ence of the Publications Committee and 3. Charge the Commission generally with requested that it be advised as to any plans David S. Cohn, Chairman devoting its efforts to (i) education of law- for future publications. yers, judges, physicians and the general The Committee has, also, made recom- public on the needs of children and to (ii) law mendations to the Executive Committee

42 Report of the Special Committee on fragmented the Bar into many special inter- ject essentially consisted of informal moni- Lawyer Professionalism est groups who find it hard to take a stand toring of the situation by members of the on many issues. The warmth and close rela- subcommittee and resulted in no project or To The Virginia Bar Association: tionship that once existed between lawyers proposal to The Virginia Bar Association. It The Special Committee on Lawyer Profes- in smaller firms and smaller bar asso~ia-- "is anticipated that this particular subcom- sionalism was formed this year by Evans tions in various areas has for the most part mittee’s work will not continue into the 1986 Brasfield as President of the Association to disappeared. Trust and civility in lawyer Bar year. consider the state of lawyer professionalism relations has dramatically declined and been The issue of religion in the schools was in this country and how it might be improved. replaced by increasingly antagonistic be- considered very carefully by the subcommit- More specifically, the Committee was asked havior. tee and resulted in some work by the Mar- what the Association, alone or in conjuction While we can’t turn back the clock to earl- shall Fellows toward a document which has with the Virginia State Bar, might do to ier times and practices, lawyers don’t have been prepared by the Center for Constitu- make things better in Virginia. to let themselves drift completely into the tional Studies outlining the current status of The Committee first met in Richmond, business culture with a primary and overrid- the law as it has been applied to identify Virginia, on March 7, 1985, and met again ing emphasis on billing hours and making permitted and proscribed activities in the on April 1, May 30 and September 24, 1985. money. Lawyers must be encouraged to use school systems. It is anticipated that this It reviewed, among other subjects, the role of their new business machinery and law office project will carry over into 1986. codes of ethics and similar professional management techniques in a positive way to The merit selection of judges project was a standards in controlling the legal profes- run law firms more efficiently and thereby carry-over project from 1984 and was merged sion, both historically and today, and the reduce legal costs and at the same time, into a public education project. It was antici- part played by the organized Bar in the self- maintain their major commitment to client pated to be jointly pursued with the Judi- regulation of the profession; the adversary and public service. The leadership for setting ciary Committee of the Association in order system in effect today and the proper role of this type of professional standard should be to promote proper consideration of a merit the judiciary and the lawyer in that system; a top priority of the organized Bar, and par- selection bill for the Intermediate Appellate the methods of charging for legal services ticularly, of a voluntary association like The Court of Virginia. and the recent commercialization of law Virginia Bar Association whose members The Committee looks forward to the 1986 practice; lawyer advertising and solicitation; have joined together expressly for the pur- Bar year for the completion of continuing and alternatives to the use of lawyers under pose of’promoting the administration of jus- projects and for the consideration of new present unauthorized practice rules. It has tice in the State of Virginia and upholding projects. also studied the demographics of law prac- and elevating the standards of honor, integ- Respectfully submitted, tice in Virginia and the United States to bet- rity and courtesy in the legal profession. ter understand the competition for business C. Torrence Armstrong, Esquire Respectfully submitted, faced today by the legal profession. The James Ashby, III, Esquire Committee is still working on a final report The Honorable Thomas C. Margaret I. Bacigal, Esquire which will include some general and specific Gordon Ms. Susan C. Bolton recommendations for improvement in the The Honorable William B. Herbert A. Claiborne, III, profession which it hopes to submit to the Spong, Jr. Esquire Executive Committee of the Association Waller H. Horsley The Reverend George E. within the next several months. Phil Sadler Conway Several facts seem clear to the Committee Patricia M. Schwarzschild The Honorable B. Waugh Crigler at this time. It is clear that the legal profes- Roderick B. Mathews Patricia K. Epps, Esquire sion is now regulated like other businesses; Joseph E. Spruill Lawrence H. Framme, III, many lawyers bid on legal work with large A. Hugo Blankingship, Jr. Esquire clients on a per-task or per-hour basis and Hugh L. Patterson, Chairman Ms. Gail A. Galloway the legal profession has been placed, like it The Honorable Elizabeth B. or not, into the marketplace. The result is Lacy that competition in the legal world is ram- Dr. James McClellan pant with heightened concerns about acquir- Thurston R. Moore, Esquire ing and keeping business, the profitability of Mr. Richard D. Robertson that business and the profitability of each Jay T. Swett, Esquire lawyer’s work. There is much more lawyer Report of the Committee on Mark L. Tysinger, Esquire advertising by solo practitioners and small Special Issues of Stephen H. Watts, II, Esquire firms and in the large firms, the rush and Stat~ and National Importance John W. Zunka, Esquire hustle for business is more sophisticated but Daniel J. Meador, Esquire To The Virginia Bar Association: increasingly prevalent. Lawyers are think- Ms. Cynthia Eppes ing and acting like businessmen. The Special Issues Committee is composed (John Marshall Fellow) It is also clear that there are too many of members of the Virginia Bar and persons Ms. Janice McPherson lawyers. Many of these lawyers are young who are not members of the Virginia Bar. (John Marshall Fellow) and have had to survive or are trying to sur- The Committee divided itself into subcom- Ms. Kathryn Williams vive on their own energy with no training or mittees and was assisted in its efforts by (John Marshall Fellow) mentor support from older and more expe- John Marshall Fellows from William & David Craig Landin, Chairman rienced lawyers. The economic pressure is Mary Law School. intense. The larger law firms with mentor The Committee’s emphasis in 1985 was on capability are also exploding with new young the areas of lawyer solicitation and advertis- lawyers and these lawyers likewise feel the ing, religious issues in the schools and merit pressures of increased competition and es- selection of judges. calating operating costs. Specialization has The lawyer solicitation/advertising pro-

43 Report of the Committee on Taxation Report of the Committee on Wills, Douglas Conner and his Continuing Edu- Trusts and Estates cation subcommittee produced their sixth To The Virginia Bar Association: Annual Advanced Estate Planning and Ad- To The Virginia Bar Association: The activities of the Committee on Taxa- ministration Seminar at The Tides Inn in tion during 1985 continued to focus primar- The Committee on Wills, Trusts and late April. The Seminar was oversubscribed ily on taxation at the state and local levels. Estates met in January, 1985, during the for the second consecutive year--a fitting Our committee continues to enjoy a close Association’s annual meeting in Williams- testimony to the high quality of this pro- working relationship with the Section on burg. A special meeting was held in Rich- gram. The 1986 seminar will be held at the Taxation of the Virginia State Bar and mond on October 18. Tides Inn April 27 through 29. undertakes many projects on a joint basis The Committee’s efforts over the past sev- Finally, two subcommittees continue work with that group. eral years contributed to the General As- on the review of Virginia probate, trusts and The Joint Legislative Review Subcommit- sembly’s enactment in 1985 of a number of estates law as contrasted with relevant pro- tee reviewed each tax bill introduced at "~he legislative proposals in the wills area, These visions of the Uniform Probate Code. This 1985 session of the General Assembly, focus- changes originally were recommended by a continuing study of the Uniform Probate ing primarily on drafting and other non- sub-committee under the leadership of John Code already has led to numerous changes substantive issues. In-depth comments were Donaldson of the Marshall-Wythe School of in Virginia probate and related laws. submitted to the patrons of a number of dif- Law and ultimately were endorsed by the Respectfully submitted, ferent pieces of legislation. Every member of Association’s Executive Committee. The Com- the Committee on Taxation participated in mittee’s study and the resulting legislation David D. Addison this effort. constituted the first thorough review of Vir- Neill H. Alford The Joint Regulatory Review Subcommit- ginia wills law in well over 100 years. Credit Dennis I. Belcher tee, chaired by Sally Warthen, reviewed for this successful effort goes to Professor Stephen L. Best numerous sets of proposed regulations and Donaldson and his subcommittee and to Stuart E. Brown, Jr. submitted detailed comments on most of the Senator Thomas J. Michie of Charlottesville, Whittington W. Clement significant ones. Once again, almost every who acted as patron of the legislation and Douglas W. Conner member of the Committee on Taxation par- devoted considerable time and effort to the C. L. Dimos ticipated in this effort. Thanks to Sally’s project. John E. Donaldson advance work, the Department of Taxation Further on the legislative front, a sub- Malcolm Pitt Friddell was able to incorporate many of our commit- committee consisting of Rodney Johnson Edward O. Henneman tee’s comments into the proposed regula- and Daniel Stevens of Richmond, working Peter M. Huber tions before they were issued for public with J. W. Gray, Jr., of the Virginia State Bar J. Rodney Johnson comment. Trusts and Estates Section, continued the Joseph C. Knakal, Jr. Three meetings were held during 1985 committee’s efforts to develop workable im- J. Lee E. Osborne with public tax officials. In June, members provements in the protection currently pro- Vincent L. Parker of the Committee on Taxation participated vided a surviving spouse against disinherit- Robert H. Powell, III with the Virginia Society of Certified Public ance by the deceased spouse. The matter was Linda F. Rigsby Accountants in meetings in Richmond with discussed at length by the Committee at its Dexter C. Rumsey, III representatives of both the Virginia Depart- October meeting and was submitted to the Stanley L. Samuels ment of Taxation and the Internal Revenue Executive Committee for approval. The Ex- Robert M. Saunders Service. In October, Bob Lee represented the ecutive Committee concluded that the Com- Jane L. Schwarzschild Bar Association in Philadelphia at a meet- mittee’s suggestion provided insufficient pro- Fred W. Shields, Jr. ing of the Regional Liaison Committee for tection against disinheritance through Derek L. Smith the Mid-Atlantic Region of the Internal lifetime transfer and referred the.matter C. Daniel Stevens Revenue Service. Also in October, the Chair- back to the Committee. Work will continue in J. Hume Taylor man of the Committee attended the annual 1986. Charles C. Webb conference of the NTA-NIA in Denver, Colo- A subcommittee headed by David Addison Howard M. and Martha A. rado, which program included presentations of Richmond has begun a review of the Zaritsky by Virginia’s Commissioner of Taxation and recently-promulgated Uniform Transfers to Harry J. Warthen, III, Secretary of Finance. Minors Act. The Act, which already has Chairman Our efforts have continued to strengthen been enacted in 16 jurisdictions, would The Virginia Tax Reporter, published jointly expand considerably present Virginia law. with the Section on Taxation. The Reporter The Committee expects to report on this includes copies of all significant tax mate- study in 1986. rials published by the Department of Taxa- It has been suggested to the Committee tion and the Attorney General’s office. Emeric that there may be a need in Virginia for a Fisher continues as Editor-In-Chief of the handbook for fiduciaries. Similar publica- Reporter. He will be assisted by an editorial tions are available in other states, but no board made up of members of the Committee published information for the assistance of on Taxation and the VSB Tax Section. the individual fiduciary is currently available in Virginia beyond the information sheet Respectfully submitted, distributed by the circuit clerk at the time of Bruce C. Stockburger, qualification. A subcommittee headed by Chairman Robert Powell of Norfolk has undertaken to establish whether a need for such a publication exists and, if so, to prepare a proposed _. _handbook.

44 The Association notes with deepest regrets the passing of the following members:

Richard McDearmon " 1910-1986 (Life Member)

Robert F. McMurran ...... 1903-1985 (Judicial Member)

Linwood E. Toombs ...... 1928-1986

Ellsworth E. Van Meter ...... 1910-1985

D. Dortch Warriner ...... 1929-1986 (Judicial Member)