Virginia LawyerVOL. 70/NO. 1 • June 2021 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar
The TRuSTS & Estates ISSue Featuring: Virginia Creditor Protections The Corporate Transparency Act An Epidemic of Elder Abuse Cryptocurrency and Estate Planning Meet Vera.
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alpsinsurance.com/vera Virginia Lawyer The Official Publication of the Virginia State Bar June 2021 Volume 70/Number 1
Features Noteworthy TRUSTS & ESTATES ISSUE VSB NEWS 13 The Trusts and Estates Issue 31 VLRS Increases Revenues for Lawyers While Helping Virginians 14 The Corporate Transparency Act: 32 Highlights of the April 21 VSB What Practitioners Need to Know Council Meeting by Brooke C. Tansill 32 Winners Announced in Bar Council Elections 17 Crypto is Coming to an Estate Plan Near You: How to Be Ready 33 In Memoriam by Alexander W. Mejias and 34 VSB Conferences and Seminars Jennifer Lee Schooley Carrying on Virtually
20 Creditor Protection for Parties to a 35 Dues Statements Mailed: Trust in Virginia Deadlines Back to Normal by Stephen M. Watson Departments 22 An Epidemic of Elder Abuse: June 15 is World Elder Abuse Awareness Day 6 Forum by Sheryl Herndon 6 Jest is for All 50 Professional Notices 52 Classified Ads WELLNESS 53 Advertiser’s Index 27 Mental Health Courts During the COVID-19 Pandemic by the Hon. Joseph A. Migliozzi Jr. and Casey A. Coleman Columns 8 President’s Message 10 Executive Director’s Message VIRGINIA LAWYER REGISTER 12 Bar Counsel’s Message 41 Disciplinary Summaries 36 Law Libraries 42 Disciplinary Proceedings 37 Technology and the Future Practice of Law 43 Notices to Lawyers: A roundup of news and rule amendments. 38 2019-20 Pro Bono Contributions 44 Clients’ Protection Fund authorizes $134,080.85 in reimbursements by Virginia Lawyers to clients. Correction. 39 Access to Legal Services 40 Risk Management 54 The Last Word
About the cover: The Brady Bunch inspired cover features the members of the Trusts and Estates Section Board of Governors pictured (top to bottom, left to right): Carter R. Brothers, chair, Spilman Thomas & Battle, PLLC; Vanessa A.M. Stillman, secretary, Midgett Preti Olansen, PC; Jennifer L. Schooley, immediate past chair, Schooley Law Firm; Tracy W. Banks, Virginia CLE Liaison, Seminar Attorney; Scott J. Golightly, Golightly Mulligan & Morgan, PLC; Cary Z. Cucinelli, Cucinelli Geiger, PC; Peter H. Davies, Davies & Davies; Mark V. Pascucci, Wolcott Rivers Gates; Brooke C. Tansill, assistant newsletter editor, Frederick J. Tansill & Associates, LLC; Richard H. Howard-Smith, Flora Pettit PC; Kevin L. Stemple, newsletter editor, Yates Campbell & Hoeg LLP; Rachel E. Radspinner, Trusted Legacy Counsel, P.C.; Trey T. Parker, vice chair, Carrell Blanton Ferris & Associates. Special thanks to Trusts and Estates Section VSB Liaison Dolly C. Shaffner (right) for assisting with the issue. Cover art by D. Kaylin Bowen. Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2020–21 OFFICERS 15th Circuit Brian L. Buniva, President Allen F. Bareford, Fredericksburg Jay B. Myerson, President-elect Marni E. Byrum, Immediate Past President 16th Circuit www.vsb.org Karen A. Gould, Executive Director and R. Lee Livingston, Charlottesville Chief Operating Officer Palma E. Pustilnik, Charlottesville Editor: EXECUTIVE COMMITTEE 17th Circuit Deirdre Norman Brian L. Buniva, President Adam D. Elfenbein, Arlington ([email protected]) Jay B. Myerson, President-elect Jennifer S. Golden, Arlington Marni E. Byrum, Immediate Past President Gregory T. Hunter, Arlington Creative Director: Eugene M. Elliott, Roanoke Joshua D. Katcher, Arlington Caryn B. Persinger Stephanie E. Grana, Richmond William H. Miller, Arlington ([email protected]) Chidi I. James, Fairfax 18th Circuit Eva N. Juncker, Falls Church Barbara S. Anderson, Alexandria Assistant Editor: William M. Moffet, Abingdon Stacey R. Harris, Alexandria Kaylin Bowen Eric M. Page, Richmond John K. Zwerling, Alexandria ([email protected]) CONFERENCE CHAIRS AND PRESIDENT 19th Circuit Conference of Local and Specialty Bar Advertising: Susan M. Butler, Fairfax Associations – Susan N. G. Rager, Coles Point Brian C. Drummond, Fairfax Deirdre Norman Diversity – Sheila M. Costin, Alexandria ([email protected]) David J. Gogal, Fairfax Senior Lawyers – Margaret A. Nelson, Sandra L. Havrilak, Fairfax Lynchburg Chidi I. James, Fairfax Young Lawyers – Melissa Y. York, Richmond Douglas R. Kay, Tysons Corner VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) COUNCIL Daniel B. Krisky, Vienna is published six times a year by the Virginia State Bar, Christie A. Leary, Fairfax 1st Circuit David L. Marks, Fairfax 1111 East Main Street, Suite 700, Richmond, Virginia Damian J. (D.J.) Hansen, Chesapeake Nathan J. Olson, Fairfax 23219-0026; Telephone: (804) 775-0500. Subscription 2nd Circuit Luis A. Perez, Falls Church Rates: $18.00 per year for non-members. This material Ryan G. Ferguson, Virginia Beach Susan M. Pesner, Tysons is presented with the understanding that the publisher Jeffrey B. Sodoma, Virginia Beach Wayne G. Travell, Tysons Michael M. York, Reston and the authors do not render any legal, accounting, Bretta Z. Lewis, Virginia Beach or other professional service. It is intended for use by 3rd Circuit 20th Circuit Meredith B. Travers, Portsmouth R. Penn Bain, Leesburg attorneys licensed to practice law in Virginia. Because of Susan F. Pierce, Warrenton the rapidly changing nature of the law, information 4th Circuit 21st Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Gary A. Bryant, Norfolk G. Andy Hall, Martinsville a result, an attorney using this material must always Neil S. Lowenstein, Norfolk research original sources of authority and update 22nd Circuit 5th Circuit Eric H. Ferguson, Rocky Mount information to ensure accuracy when dealing with Thomas G. Shaia, Suffolk a specific client’s legal matters. In no event will the 23rd Circuit 6th Circuit Eugene M. Elliott Jr., Roanoke authors, the reviewers, or the publisher be liable for Vacancy K. Brett Marston, Roanoke any direct, indirect, or consequential damages resulting 7th Circuit 24th Circuit from the use of this material. The views expressed herein Benjamin M. Mason, Newport News Eugene N. Butler, Lynchburg are not necessarily those of the Virginia State Bar. The 8th Circuit 25th Circuit inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton William T. Wilson, Covington an endorsement by the Virginia State Bar of the goods 9th Circuit or services of the advertiser, unless explicitly stated 26th Circuit Susan B. Tarley, Williamsburg Nancy M. Reed, Luray otherwise. Periodical postage paid at Richmond, 10th Circuit Virginia, and other offices. 27th Circuit E. M. 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Suyes, Richmond information is available online at Nicole E. Upshur, Virginia Beach www.vsb.org/site/about/bar-staff. Lisa A. Wilson, Arlington
4 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org VIRGINIA STATE BAR MEMBERS’ INSURANCE CENTER ONEDIGITAL an affiliate of OneDigital endorsed by the Virginia State Bar
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Corrections Due to an editing error in the April issue of Virginia Lawyer, the endnotes for David Hilton Wise and John Joseph Drudi’s article, “Defective Construction Causing Personal Injuries: The Supreme Court of Virginia Declines to Adopt the ‘Modern Letters View,’” were omitted. They have been added to the digital edition at https://bit.ly/0421p34 and may be found on page 45 of this issue. We regret the error. Send your letter to the editor to: We inadvertently misspelled the last name of Daniel R. Miktus of Akerman LLP in [email protected] or Washington, D.C. in our April issue. We apologize for the error. Virginia State Bar Virginia Lawyer Magazine 1111 E Main St., Suite 700 Richmond, VA 23219-0026
Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at www.vsb.org/site/publications/valawyer/.
Jest Is For All by Arnie Glick
6 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org We like word searches, but G C V H L B R N A L GAVEL searching for your current address isn’t a game we want to play. F N T I A U L L S A JUDGE I J E O W C I U B E LAW Please make sure you are getting our AD HOC monthly VSB News and annual compliance L N U K N A O T J P messages by adding [email protected], CASE [email protected], and [email protected] E W D D B O C U A P PRO BONO to your email contacts. E S A C G J B A R A APPEAL BAIL And as always: Keep all of your information G A V E L E D O H T current by logging on at www.vsb.org. B R I E F H J M R B BRIEF COURT U H T Z O B Y N H P FILE U B N C Q V J O I F LIEN President’s Message by Brian L. Buniva Accountability – Bar Year 2020-2021
AS MY TERM AS PRESIDENT “low bono” legal assistance. During relations with a client. Kudos to the comes to an end on June 18, 2021, my term I have attempted to sound Standing Committee on Legal Ethics, it seems appropriate to discuss the the alarm about the need to help our notably Dennis Quinn. concept of “Servant Leadership and fellow citizens by, among other things, One initiative that I hope will have Accountability.” This year we have all volunteering with the legal aid societ- a lasting impact, especially on VSB faced significant challenges caused by ies throughout our Commonwealth. members who are solo or small-firm the turbulence of the global pandem- During this year of challenge, it was practitioners, is the Task Force on ic and its negative impacts on our extremely difficult to harness the pow- Practice Management chaired by families, our clients, our practices, our er and energy of the 50,000 plus mem- David Neumeyer. An interim report economy, and society in general. Even bers of the Bar to have more impact was presented at the April meetings of in difficult times, however, we as law- on the overwhelming need to provide the Executive Committee and Council yers and community leaders remain access to justice for all. I do, however, with the final report and recommen- accountable to the people we serve. take comfort in the goodness of heart dations to be presented for consider- The concepts of servant leadership of my colleagues and recognize that ation at the June 18 Council meeting and accountability with respect to the this is not a one-year effort. I simply in Virginia Beach. The task force has Bar mean we must place service to the pray that my successors will keep up consulted with other mandatory and principles of the Bar and its members the fight and continue to advance the voluntary bars throughout the country above all else. We must hold ourselves righteous cause of providing access to to learn how a permanent VSB staff accountable and be willing to be held justice for all. person, if authorized, could assist typi- accountable by others for what we cally small practitioners with their law do and what we do not do. We must practice management issues. accept responsibility for our actions We must hold ourselves As I reflect on servant leadership and inactions and be willing to stand accountable and be willing and accountability, I want to recognize tall for our convictions. In the words Providence Napoleon, a young lawyer of the iconic civil rights leader, Martin to be held accountable by of 34, former chair of the Diversity Luther King Jr., “Not everybody can be Conference, and valued member of great because greatness is determined others for what we do and our Executive Committee, who passed by service.” away this April. She will be missed for On June 30, 2020, in the mag- what we do not do. her service, but most importantly for nificent courtroom of the Supreme her wit, her smile, and her commit- Court of Virginia, Justice William C. We were able to conduct Executive ment to service and justice. We would Mims was kind enough to administer Committee and Council Meetings do well to emulate her in our the oath of office to me as the 82nd throughout the year as scheduled, daily lives. president of the Virginia State Bar. albeit some of them virtual. Kudos In closing, I want to thank all of Present were 14 people, including my to Bar staff for making this possible. you for giving me the opportunity to wonderful wife, Barbara Cochrane, my Indeed, a special meeting was held in be of service. I have done my best, son and daughter-in-law, two of my April to consider amendments to the and if I have any legacy let it be the closest friends, my successor, several Rules of Court recognizing “elimina- furtherance of the concept of “servant past presidents, and senior staff of tion of bias” as an appropriate topic leadership” and “accountability” of the Bar. for MCLE ethics and professional- VSB leaders and staff. In my brief remarks, I shared my ism credit. Kudos to the Diversity Thank you and God bless all of you, belief that the pandemic was not the Conference, notably Chidi James and our clients, and preservation of the time for lawyers to be shy, but rather it Sheila Costin. Council also recom- Rule of Law. q was the time for lawyers to stand tall mended the adoption of amendments and redouble their efforts to pro- to the Rules of Professional Conduct. vide legal services to the expanding Notable among the changes is a prohi- populace in need of pro bono and bition against a lawyer having sexual
8 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org
Executive Director’s Message by Karen A. Gould The Coronavirus Pandemic and Its Impact on VSB Governance
IN DECEMBER 2020, GOVERNOR Court of Virginia on June 30, 2020, VFOIA. These emergency provisions Northam issued Executive Order 72 because, for the first time since World expire June 30, 2021. imposing restrictions to stem the War II in 1945, we did not hold an Because it was planned months surge of COVID-19 in Virginia. These Annual Meeting. We held our Council ago, the VSB June 2021 Annual orders changed the way all of us did meeting in person at the Homestead Meeting is to be held as a bifurcated business in the Commonwealth, in October 2020, following strict meeting. Virtual CLEs will be including the Virginia State Bar. social distancing measures and mask available on June 14 and 15, 2021. The Recently, on May 14, 2021, protocols. And this year, the Executive Executive Committee and Council Governor Northam, in Executive Committee and Council meetings will meet in-person on June 17 Order 79, announced the end of were held virtually on April 20 and and 18, respectively, at The Hilton indoor mask mandates, and the end of 21, 2021, respectively. Oceanfront in Virginia Beach. There, all distancing and capacity restrictions we will induct Jay B. Myerson as our by May 28, 2021. In over a year of ...it is my hope that new president, award the access to turmoil, tragedy, and enumerable justice awards to those who have made alterations to our daily lives, the all the VSB’s public body stellar contributions to pro bono and only constant with COVID has been legal aid in the Commonwealth, and change. And now it appears that, members get vaccinated so conduct the business of the Bar that at long last, we will be returning to you and your elected representatives normalcy in our daily lives. we may meet safely. deem crucial to the ongoing As I look back on the COVID improvement of our profession. pandemic, I am acutely aware of Meetings of Commonwealth of We can now see the light at the end the struggles lawyers and courts Virginia public bodies can be held of the tunnel. More than 60 percent of across the Commonwealth endured virtually, rather than in-person, as Virginia adults have received at least and overcame as we as a profession permitted by the General Assembly’s one dose of the vaccination, and it is adopted to the ever-changing “new emergency provisions and the my hope that all the VSB’s public body normal.” The Supreme Court of Governor’s executive order. The members get vaccinated so we may Virginia issued 21 emergency orders Virginia Freedom of Information meet safely. It is worth noting, that to keep pace with the COVID Act (VFOIA) requires that certain both Governor Northam and the CDC pandemic and the Virginia Court information be included in the guidelines lift mask requirements for of Appeals issued five. The legal minutes of a meeting held under vaccinated individuals specifically. profession adopted virtual CLEs, the emergency provisions: (1) the The VSB, like all businesses and depositions, and court proceedings as remote location from which each organizations, altered the way it a means of stopping the spread of the member participated; (2) the reason functioned during these COVID- disease. Many people worked from members participated through related mandates, but we managed to home almost exclusively, but we at the electronic communications means; get the work of the Bar done. Again, VSB did not. I want to especially thank (3) the nature of the emergency; thank you to all the lawyers and staff our staff who process compliance and and (4) what electronic means were who made this possible. Hopefully, regulatory matters for the Bar for their utilized to conduct the meeting, i.e., conditions will continue to improve efforts and willingness to come to an the telephone. As a Bar, we worked this summer, resulting in a safe return office when many people were not. to make the videos or audios of these to in-person VSB meetings and events. q Our 2020–21 president, Brian L. meetings available on our website Buniva, was sworn in at the Supreme for transparency and to comply with
10 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Staff Recognition
The Virginia State Bar would like to recognize our Deputy Executive Director, Cameron Rountree, who recently completed an overseas tour of duty as part of his service in the United States Navy Reserve. He is pictured here in Albania. Bar Counsel’s Message by Renu M. Brennan “Material Limitation” Conflicts of Interest — Revocation to Reprimand
Revocation 8.4(b) and (c) by having a sexual CONFLICTS OF INTEREST In the Matter of Benjamin Thomas relationship with a second criminal undermine public confidence in law- Bledsoe, VSB Docket No. 19-090- defense client, Bledsoe did not agree yers, and with good reason. In the fol- 115345 that the sexual relationships constitut- lowing four disciplinary cases, the law- By order entered November ed conflicts of interest and disputed yers’ own interests materially limited 25, 2020, the Virginia State Bar having violated Rule 1.7(a)(2), despite their ability to represent their clients. Disciplinary Board (“board”) unan- Client A’s vulnerability and her state- In two cases, resulting in a revocation imously revoked Benjamin Thomas ments. The board found otherwise: and a two-year suspension respective- Bledsoe’s license after a full hearing. “[Bledsoe] had physical contact of a ly, the conflict of interest arose from Bledsoe engaged in sexual relations sexual nature with his client at the the attorneys’ sexual relationships with two criminal defense clients. courthouse when [Bledsoe] appeared with their incarcerated clients. The Bledsoe was appointed defense there to represent the client in the other two cases involve an attorney counsel for Client A on a series matter before the court.”2 who served as executor of an estate of criminal charges for which she of which he was a beneficiary and to pled guilty and was sentenced to Two-Year Suspension with Terms/ which he was personally indebted, and an active jail sentence. Early in the Alternate Sanction of Revocation the manipulation of ongoing domestic representation, Bledsoe filed a motion In the Matter of Scott Allen Lehman, relations litigation to defend against a for evaluation of Client A’s sanity. VSB Docket Nos. 20-022-116682; Bar complaint. These conflicts result- Notwithstanding his concerns about 20-022-117305; 20-022-118271; and ed in a six-month suspension and a his client’s sanity and vulnerability, 20-022-118278 public reprimand respectively. While after Client A was sentenced, Bledsoe By order entered March 12, 2021, each disciplinary case is unique, the began a seven-month sexual relation- the board approved an agreed dispo- sanctions imposed reflect the damage ship with Client A. Bledsoe visited sition for a two-year suspension, with inflicted by personal interest conflicts. Client A in jail more than two dozen terms and an alternate sanction of times, and he engaged in sexual con- revocation, against Scott A. Lehman Sexual Relationships with Clients duct with her at the jail. Bledsoe also for misconduct in four cases. In the Legal Ethics Opinion 1853, Sexual had sex with Client A in the court- first of the four cases, for a two-month Relationship with a Client, outlines house at a hearing to stay and sus- period, Lehman represented two the numerous ethical issues that arise pend the imposition of her sentence. criminal defense clients, one of whom when a lawyer enters into a sexual Bledsoe was convicted for passing Lehman asserts he met on a personal relationship with a client during the contraband to Client A, in violation of dating site. Lehman engaged in sexual course of representation, including Virginia Code § 18.2-474. acts with one client and discussed the obvious interference with inde- In terms far more compelling than these acts with the other client, who pendent judgment, risk of exploita- any academic treatise, Client A ex- was incarcerated. Lehman sought to tion of the fiduciary relationship pressed her concern that she was just engage in a three-way relationship violating Rule 1.7, as well as commis- a “sexual object” to Bledsoe, thus crys- with both when the incarcerated client sion of “a deliberately wrongful act tallizing the very real danger posed by was released. Jail videos of Lehman that reflects adversely on the lawyer’s Bledsoe’s exploitation of the profes- revealed (1) Lehman making sexual honesty, trustworthiness, or fitness sional relationship: “I did not want comments and innuendo to Client A; to practice law” in violation of Rule to let the relationship with [Bledsoe] (2) Lehman directly referencing sexual 8.4(b). Criminal and domestic rela- go. Even though in my heart I knew I activity between Lehman and Client tions clients are particularly vulner- should. I was afraid of retribution, in a B; and (3) Lehman discussing his hope able. In these cases, the lawyer must way. Again, he is an attorney of sexual activity between Lehman take greater care not to exploit his/her with connections.”1 position of power. Stipulating that he violated Rules Bar Counsel continued on page 46
12 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org The Starring Brooke C. Tansill TRuSTS & Alexander W. Mejias Jennifer Lee Schooley Estates Stephen M. Watson and ISSue Sheryl Herndon
Featuring the Trusts and Estates Marketplace. Curated advertisements from Virginia T&E experts.
Proudly brought to you by the Virginia State Bar Trusts and Estates Section The Corporate Transparency Act: 1979. New York, Photo compilation: O’Halloran, Thomas J, photographer. and Dziedzic, Michael, unsplash.com www.loc.gov/item/2021637558/. What Practitioners Need to Know by Brooke C. Tansill The Corporate Transparency Act, Title LXIV, mation, what information is required, penalties Pub. L. No. 116-283 (2021) (CTA), enacted by for non-compliance, who will have access to the Congress on January 1, 2021, established new information, and the timeline for implementa- beneficial ownership disclosure and report- tion. Finally, this article highlights issues that ing requirements for both newly formed and remain unresolved by Treasury Department existing companies. The legislation requires Regulations, and other important considerations that certain U.S. companies, referred to as for lawyers. reporting companies, submit a report to The CTA was the result of a years-long effort the Financial Crimes Enforcement Network by a coalition of Democrats, Republicans, na- (FinCEN) of the Treasury Department. The re- tional security experts, law enforcement officials, port must identify both the applicant forming anti-corruption groups, human rights advocates, the company and the beneficial owners of financial institutions, the banking industry, the company. The implications of the CTA are business groups, and NGOs that all supported far-reaching and unprecedented. This is the efforts to make it harder for criminals to use first time that the federal government has anonymous shell companies to launder money, inserted itself into the state entity formation evade taxes, and engage in criminal conduct. Its process. passage was also the result of serious interna- Historically, business formation and report- tional pressure on the U.S. by foreign countries ing has occurred at the state level. As a result and international organizations to comply with of the CTA, companies will now be required global standards for anti-money laundering to make both federal and state filings, and the and counter-terrorism financing. The U.S. had federal government will maintain information become a notoriously financially secretive in a federal database. While supporters of the jurisdiction, and the international community CTA have praised its enactment as an important had taken notice. Critics of the U.S. argued that and vital step by the U.S. in the battle against the lack of transparency and the tolerance of corruption, tax evasion, organized crime, money anonymous shell companies attracted crim- laundering, and terrorist financing, the CTA has inal behavior and allowed foreign bad actors also caused apprehension among lawyers, incor- to launder money through the U.S. financial porators, and advisors who are understandably system. The Financial Action Task Force (FATF), concerned about the legal, ethical, and adminis- a global intergovernmental organization that trative implications of its passage and implemen- seeks to combat criminal behavior that threatens tation. This article provides some background on the integrity of international financial systems, the passage and the policy basis for the CTA. It repeatedly evaluated the U.S. as having the low- summarizes which companies and intermediar- est grade possible in its compliance with FATF ies have to report beneficial ownership infor- recommendations. This low rating had become
14 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 | THE TRUSTS AND ESTATES ISSUE www.vsb.org a source of embarrassment to the U.S., specifically to Congress provide clarity. The CTA contains a number of exceptions from and the Treasury Department. the definition of a “reporting company.” Specifically excluded The lack of transparency regarding beneficial ownership are banks, publicly traded companies, insurance companies, information exposed a vulnerability in the U.S. legal and fi- tax-exempt organizations, certain registered investment com- nancial systems that legislators were eager to address. Between panies and investment advisors, any entity that employs more 2008 and 2019, Congress unsuccessfully introduced many than 20 people and has at least $5 million in annual revenue bills that aimed to resolve the perceived (and real) abuse of and a physical presence in the U.S., and certain registered corporations and LLCs. Even while these domestic legislative public accounting firms. Note that there is no exception for efforts to increase transparency failed, during this time the U.S. law firms. Essentially, the CTA targets smaller companies that took on a leadership role on the international stage in tackling might act as shell companies in illicit schemes. transparency issues. The Obama Administration encouraged the adoption of sweeping new disclosure requirements (for example, the Foreign Account Tax Compliance Act or FATCA) Information may only be disclosed to to be imposed on offshore banks with U.S. customers that conducted business in the U.S., requiring such banks to iden- federal and state law enforcement tify U.S. customers and the nature and extent of their offshore agencies under certain circumstances assets. Many foreign countries, including the G20, ultimately and enthusiastically joined in the effort to require increased for national security, intelligence, or law disclosure as a means to combat cross-border financial crimes enforcement purposes. and terrorist activity, and to encourage international coop- eration and the sharing of information. Meanwhile, on the domestic front, support for increased disclosure requirements The information that must be reported to FinCEN must grew. The banking industry in the U.S., having realized that identify each beneficial owner of the reporting company and domestic legislation would help banks identify the owners be- each applicant with respect to that reporting company. A hind business accounts, began to support domestic legislation “beneficial owner” is defined as an individual who, directly or aimed at increased transparency. Law enforcement officials indirectly, through any contract, arrangement, understanding, argued that gaining access to beneficial ownership information relationship, or otherwise exercises substantial control over an and the establishment of a federal database would help them entity or owns or controls at least 25 percent of the ownership combat criminal activity. And in 2016, regulatory pressure interests of an entity. Again, there is some uncertainty in these increased when the Treasury Department issued geographical definitions that will need to be clarified in the regulations. targeting orders requiring that title insurance companies in There are five exclusions from the definition of beneficial own- certain geographic areas collect and report information about ers, including: (i) a minor child (the information of a parent individuals involved in residential real estate transactions. or guardian must be reported instead); (ii) a person acting Finally, in late 2020, bipartisan efforts succeeded, and the CTA as a nominee, intermediary, custodian or agent on behalf of was included within the National Defense Authorization Act another individual; (iii) a person acting solely as an employee; (NDAA) for Fiscal Year 2021. Congress passed the NDAA in (iv) a person whose only interest in an entity is through a right December 2020; President Trump vetoed it on December 23, of inheritance; and (v) a creditor of a reporting company. An 2020; and Congress overrode the veto on January 1, 2021. “applicant” means an individual who files an application to So what does the CTA do? The CTA requires that “report- form a corporation, LLC or other similar entity, or registers ing companies” file with FinCEN personal identification infor- or files an application to register a corporation, LLC or other mation on their “beneficial owners” at the time of a company’s similar entity formed under the laws of a foreign country to do formation and requires that such information be updated business in the U.S. upon any change in beneficial ownership. Importantly for legal The information that must be reported includes the full practitioners, while the CTA was enacted in early 2021, it has legal name, date of birth, current residential or business street a prospective effective date. Companies are not required to address, and unique identifying number from an acceptable report the necessary information until Treasury promulgates document (such as a passport number or driver’s license) for its regulations, which it will do by January 1, 2022. each beneficial owner and/or an applicant. Importantly, no A “reporting company” is defined to include any corpo- financial information or details about business purposes or ration, limited liability company, or other similar entity that methods of operation are required. This reported information is created by the filing of a document with the secretary of will be maintained in a federal, private, secure database. The state or similar office or formed under the law of a foreign information will be confidential and will not be available to country and registered to do business in the U.S. by the filing the public. Information may only be disclosed to federal and of a document with the secretary of state or similar office. state law enforcement agencies under certain circumstances Of course, there is some uncertainty as to what qualifies as a for national security, intelligence, or law enforcement pur- “similar entity,” and the forthcoming regulations hopefully will poses. Foreign law enforcement may also request information www.vsb.org THE TRUSTS AND ESTATES ISSUE | VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 15 through the appropriate channels. Financial poses of the CTA, which would then create institutions, with the reporting company’s an obligation to file the report and report his consent, will be able to access the database for or her personal information? Hopefully the customer due diligence/know-your-customer forthcoming regulations will answer this im- requirements imposed by state and federal portant question. Lawyers advising clients on laws. The Treasury Department may obtain the creation of new entities certainly should access to beneficial ownership information for inform clients about the CTA’s new reporting tax administrative purposes. requirements. Another important question is whether lawyers who assisted clients with The CTA imposes both civil and criminal forming companies in the past have a present obligation to contact those old clients to penalties for compliance violations. inform them about the CTA’s requirements, or whether the lawyers themselves have an Newly formed entities must submit the obligation to file the reports for those exist- beneficial ownership disclosure at the time ing companies. Certainly, lawyers who draft of formation. Existing entities must file a Operating Agreements and Shareholders beneficial ownership disclosure within two Agreements should consider whether lan- years of the effective date of the adoption of guage should be added to those agreements the regulations. A reporting company must obligating members and shareholders to also provide updated information to FinCEN comply with the CTA, outlining who has the within one year upon a change in benefi- compliance obligation, and specifying the cial ownership. In addition, these reporting ramifications for failure to comply. Lawyers deadlines are subject to modification, and who advise clients on matters related to mon- the Treasury Department may change, by ey laundering, privacy issues, and responding regulation, the timing for reporting updates to investigations and subpoenas will need to no later than two years after the enactment of understand the CTA. Real estate lawyers and the CTA. practitioners advising foreign and domestic The CTA imposes both civil and criminal investors, landlords, tenants, and lenders must penalties for compliance violations. Any party consider how these new reporting obligations that fails to comply with reporting require- may impact real estate transactions and con- ments or willfully discloses false or fraudulent tracts. Understandably, the CTA has caused information will be liable for fines of not much anxiety for lawyers whose practices are more than $500 for each day that the viola- affected, and practitioners are eagerly awaiting tion continues, not to exceed $10,000, or two the forthcoming regulations which will hope- years of imprisonment, or both. Any party fully clear up the existing ambiguities. that unlawfully discloses beneficial ownership information or unlawfully uses such informa- CTA continued on page 47 tion will be liable for fines of not more than $500 for each day that the violation contin- ues, not to exceed $250,000, or five years of imprisonment, or both. There is a safe harbor for individuals who believe that a submitted report contains inaccurate information and voluntarily and promptly submit a corrected information report. Brooke C. Tansill of Frederick J. Tansill & Associates, So, what are the implications for lawyers? LLC, in McLean practices in the areas of estate planning and estate and trust administration. She The CTA has dramatic consequences for law- advises clients on estate, generation-skipping, and yers who assist clients with the formation of gift tax planning, including sophisticated tax-oriented entities. Nearly two million corporations and strategies, charitable planning, international estate planning and administration, and asset protection LLCs are created every year, and lawyers often strategies. She has a particular interest and expertise in act as incorporators for these entities with negotiating and drafting Premarital and Postmarital the state corporation commission. When a Agreements, and she also practices in the area of closely-held business law, establishing LLCs and lawyer assists a client with this administrative corporations for clients and preparing the necessary task, is the lawyer the “applicant” for pur- business-related documents.
16 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 | THE TRUSTS AND ESTATES ISSUE www.vsb.org Photo compilation: Highsmith, Carol M, photographer. Open Bank Vault. United States, Open Bank Vault. Photo compilation: Highsmith, Carol M, photographer. unsplash.com and Forgacs,Viktor, [Between 1980 and 2006]. www.loc.gov/item/2011635760/.. Crypto is Coming to an Estate Plan Near You: How to Be Ready
by Alexander W. Mejias and Jennifer Lee Schooley
Over the past ten years the cryptocurrency about $1 trillion and is held by an estimated space has grown from a tightly knit circle 71 million people worldwide2. Bitcoin can be of anonymous cypherpunks to a $2 trillion purchased 24/7 through online exchanges, at global marketplace. As the value and local ATMs, through mobile apps, and even popularity of cryptocurrency has grown, through legacy financial institutions such so has the availability and access to as Vanguard. cryptocurrency among a wide swath of would-be investors, from day traders to But what is a Bitcoin? institutions to retail investors. Obtaining First, it is important to understand that it cryptocurrency is now as easy as opening is not an actual coin. There are no physical the Cash App, Robinhood App, PayPal, bitcoins. Because bitcoin is a virtual currency or Venmo. As a result, more and more built on a suite of complex technologies, it is Americans are holding cryptoassets —an almost impossible to succinctly explain what entire class of assets from bitcoin to NFTs it is. For those who want to wade into those to utility token—as adoption continues deeper waters, you can start with the Bitcoin to grow. Whether you’re ready or not, whitepaper3 and begin a journey down the cryptoassets are coming to an estate plan rabbit hole. But for the rest of us, think of near you. bitcoin as digital cash that can be sent directly Because the value of cryptoassets, such from person to person without the need for a as bitcoin, has increased exponentially, these financial institution serving as an intermedi- assets cannot simply be ignored in an estate ary. Instead, bitcoin is transferred on a public plan or in an estate administration scenario. and decentralized network. It is public be- On April 13, 2021, the price of 1 Bitcoin cause anyone can use it and decentralized be- reached an all-time high of $63,729.501. It is cause there is no single entity or government not uncommon for early adopters of bitcoin, that controls it. Rather, participants on the for example, to hold anywhere from 10-100 network use software to come to a consensus bitcoins. Consequently, these assets can on who owns every single bitcoin (or fraction have major implications in an estate plan thereof). This consensus creates a record (i.e., regarding custody, taxation, and fiduciary a “block”) of who owns how much bitcoin at a responsibilities. given point in time, which is publicly available To understand how cryptoassets work, for anyone to view. These records are connect- the best place to start is with the first and ed (i.e., chained) to each other going back to largest cryptoasset, Bitcoin. As of this writ- the very first-time bitcoin was sent from one ing, Bitcoin has a market capitalization of person to another. This chain of records is
www.vsb.org THE TRUSTS AND ESTATES ISSUE | VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 17 known as the bitcoin blockchain. Other cryptoassets use block- a “hot wallet”)—which may be custodial or non-custodial, or chain technology as well, each its own network and native (4) on a local software wallet, typically a desktop application currency or digital token. that connects to the bitcoin network directly. The year 2021 has seen an explosion in the popularity In each of the storage scenarios described, access to the and value of digital collectibles (e.g., Non-Fungible Tokens cryptoassets is controlled by either a pin or password, or or “NFTs”), which have set record prices in online auctions. both. An online exchange works like online banking, though Unlike cryptocurrencies, which are designed to be used as some exchanges offer added security features such as 24 to 48 money, NFTs are limited run or sometimes even unique tokens hour waiting periods before cryptoassets can be transferred. that prove the ownership of a photo, video, or meme through A hardware wallet works with software when plugged into a unique serial number that is recorded on the blockchain. a computer, but the device itself will have a pin that must be These tokens are held like any other cryptoassets in a wallet manually entered to unlock the device. A mobile wallet has and carry certain rights vis-à-vis the digital collectibles they multiple layers of security, starting with a pin, fingerprint, or are linked to, such as the right to use, copy, and/or display the facial recognition to unlock the phone. Most mobile wallets digital artwork, video, or photo that is linked to the NFT for will require an additional pin or biometric ID to open the non-commercial purposes. However, for most NFTs, there are wallet application as well. Finally, a local software may require no copyrights in the piece of digital art that are transferred to a pin or password or both. the purchasers of the NFTs. So, the value of the NFT is most often linked to the market for the NFT itself and not to the Planning for a Fiduciary’s Custody of Cryptoassets copyrighted image, video, or artwork. As an estate planner, it is crucial to understand where cryp- toassets may be held and how to access them. This starts by incorporating questions about a client’s cryptoassets in your Fiduciaries of cryptoassets owe duties information gathering process. Questions should include both an inventory of cryptoassets, but also the date of acquisition, applicable to a fiduciary who manages tangible value, and current form of storage. Thereafter, estate plan re- personal property: the duty of care, the duty of views with clients should ensure this information is updated to reflect changes in holdings and the technology used to loyalty, and the duty of confidentiality. store cryptoassets. Within a will-based estate plan you should draft an accompanying memorandum or letter that specifically out- How are Cryptoassets Accessed? lines the type, location and means of access to the testator’s Cryptoassets are received and sent using public and private cryptoassets. Passwords and pin numbers should be stored keys respectively. A public key on the blockchain is an address separately, but the memorandum should reference where the to which one sends bitcoin, token, or other cryptoassets. The passwords/pin can be found. For more guidance on how to create this document see Pamela Morgan’s book, Cryptoasset private key is like a password or pin required to send a transac- Inheritance Planning. tion from a public key address. Consequently, cryptoassets are The named executor should be granted the specific power bearer assets, like cash, in that the holder of the private key is to access digital assets and online accounts (including crypto presumed to be the owner. exchanges) pursuant to the Virginia Fiduciary Access to Digital Cryptoassets are usually held in a “wallet,” which really Assets Act (“VFADAA”). The will should contain an explicit should be called a keychain because it is just a piece of soft- grant of permission to access the testator’s crypto exchange ware that stores private keys. In the early days of bitcoin, some account(s), including the content of electronic communica- would simply print out their public and private keys on a piece tions, to and from the exchange that are not otherwise acces- of paper (known as a “paper wallet”). As you can imagine, sible without the specific grant of authority. Certain crypto paper wallets were quite problematic, so people moved on to exchange accounts may also allow an account holder to name more resilient and secure options. But don’t be too surprised if a beneficiary, though most do not have such a mechanism. you encounter public and private keys stored on paper. Be sure As with other types of assets, use of a beneficiary designation to engage an experienced subject matter expert before attempt- would control access to the asset versus the terms of the will. ing to move cryptoassets from a paper wallet because one With few options for naming a beneficiary, most cryptoassets could easily lose some or all of the cryptoasset if the process is are subject to probate unless a trust-based plan is used. done incorrectly. Today, cryptoassets are primarily stored in In a trust-based plan, transferring cryptoassets into a one of four ways: (1) on an online exchange, sometimes known Revocable Living Trust (RLT) involves some complication as a custodial wallet, because the custodian takes possession of depending on how the cryptoassets are stored. Most crypto cryptoassets and holds them on the owner’s behalf in its own exchanges will allow a trust to create an institutional account, wallets, (2) on a hardware wallet (sometimes called a “cold which can essentially function as a bank or brokerage account wallet”), which is usually a USB drive with software that is for all of the trust’s cryptoassets. While this seems straight-for- password/pin protected, (3) a mobile wallet (sometimes called ward, it is not without risk because it relies on the exchange to
18 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 | THE TRUSTS AND ESTATES ISSUE www.vsb.org hold the cryptoassets in the exchange’s wal- fiduciary may be exposed to liability if the lets. Because exchanges hold large amounts cryptoassets make up a concentrated block of cryptoassets in their wallets, they are of assets in an investment portfolio.6 The constantly targeted by hackers, and many of Prudent Investor Act contains a duty to the smaller exchanges have been successful- diversify. If cryptoassets are part of a diversi- ly hacked. When selecting an exchange to fied portfolio, the fiduciary is afforded some custody cryptoassets for a trust, look for a protection through state law. If cryptoassets U.S.-based exchange that is well insured and make up a large part of the value of a total that has the highest security standards, such investment portfolio (either initially or as Gemini, Coinbase, or Kraken. Physical through a steep rise in value) either express transfer of the cold storage, mobile, or desk- permission to retain these assets should be top, along with the password, would fund granted to the fiduciary, or caution would the trust. However, given the impracticality dictate selling and diversifying. Specialized of doing so if grantor and trustee are not one knowledge may be needed to assess the risk and the same, and the risk of sharing the of holding the asset and accessing it password, a general assignment instrument without being locked out by incorrect transferring the digital assets to trust should password attempts. suffice to avoid probate. A typical estate plan also incorporates a Taxation of Cryptoassets durable general power of attorney to grant In 2014, the IRS issued guidance7 about the another individual or corporate fiduciary the taxation of what it called “virtual currency” power to handle assets during a principal’s and later supplemented this guidance in lifetime. These instruments also require a 2019 in relation to so-called “hard-forks” of specific grant of authority, as in wills and existing cryptocurrencies.8 For federal tax- trusts, to give the agent full access to com- ation purposes, cryptoassets are treated as munications relevant to the cryptoassets the property (versus currency) and are subject Alex Mejias is the founder and agent may need to sell or convey. to short and long-term capital gains tax. managing attorney of James River Law (jamesriverlaw.com), a As such, any sale, trade, or even spending Richmond-based law firm focused on Fiduciary Duties and Cryptoassets of a cryptoasset creates a taxable event for business law, family law, and estate Individuals who own cryptoassets must the holder of the cryptoasset which raises planning. In addition to managing James River Law, Mejias focuses his carefully consider who to name as an agent the challenge of tracking basis valuation, a practice on matters involving Bitcoin under a power of attorney, as executor, and subject that has received limited guidance and other cryptoassets, as well as as trustee. While subject to the laws govern- from the IRS. other digital assets and intellectual property. Serving clients throughout ing fiduciaries, there is little or no oversight In its 2014 guidance, Notice 2014-21, the Virginia, Mejias provides guidance when gaining access as there is with utilizing IRS provided the following for determining and representation on a range of bank and investment accounts. In addition, the fair market value of a cryptoasset at the legal issues including custodying, transferring, and regulation fiduciaries that have been replaced may still time of acquisition and/or sale: of cryptoassets. have the ability to access the cryptoassets through the passwords shared with them. If a virtual currency is listed on an ex- (Cold storage, where the password is embed- change and the exchange rate is estab- ded in the device, may protect against this lished by market supply and demand, the problem.) fair market value of the virtual currency Fiduciaries of cryptoassets owe duties is determined by converting the virtual applicable to a fiduciary who manages tan- currency into U.S. dollars . . . at the ex- gible personal property: the duty of care, the change rate, in a reasonable manner that duty of loyalty, and the duty of confidential- is consistently applied. ity.4 In addition, cryptocurrency and many Unlike publicly traded stocks, the top Jennifer Lee Schooley, of Schooley Law Firm, P.C., is the immediate past NFTs are investment assets that would fall cryptoassets, such as bitcoin, ethereum, and chair of the board of governors for under the purview of the Virginia Uniform litecoin, are listed on dozens of exchanges the Trusts and Estates Section of the Prudent Investor Act.5 Without an explicit that operate 24 hours a day, seven days a Virginia State Bar, a Fellow of the American College of Trust and Estate waiver in the power of attorney, will or trust week. Consequently, the USD exchange rate Council (ACTEC), and a member instrument expressly manifesting the intent of these assets varies across these exchanges of the Richmond Estate Planning to waive the “prudent man” or “prudent based on the volume of activity. Imagine the Council, the Trust Administrator’s Council, the Virginia Bar Association, investor” rule, or by expressly permitting and the Trusts and Estates and Family acquisition or retention of cryptoassets, the Cryptocurrency continued on page 47 Law Sections of the Virginia State Bar. www.vsb.org THE TRUSTS AND ESTATES ISSUE | VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 19 Creditor Protection for Parties to a Trust in Virginia unsplash.com Photo compilation: Evans, Tim, by Stephen M. Watson
“To be a Virginian either by Birth, Marriage, Beneficiary. Adoption, or even on one’s Mother’s side, is Each of these three parties has a unique an Introduction to any State in the Union, relationship to the assets in the trust, and the a Passport to any Foreign Country, and a question is: to what extent does each party’s Benediction from Above.”—Anonymous relationship expose the assets to the claims of each party’s creditors? There are many reasons that it is great to be a Let’s take the Settlor first. Virginian—our shimmering mountains, our For the Settlor, there is a distinction glimmering waterways, and the Qualified between property held in a revocable trust, Self-settled Spendthrift Trust. and property held in an irrevocable trust. Since July of 2012, Virginians have been Generally, a revocable trust is one that the blessed with sections 64.2-745.1 and Settlor can change, amend, or restate. An 64.2-745.2 of our Uniform Trust Code. These irrevocable trust is much harder to change are the sections that place Virginia among an after it is established, and to the extent it can elite number of states that allow the creation be changed, it generally takes all three parties of a Virginia Qualified Self-settled Spendthrift to agree (or the parties can enlist the help of Trust (QSSST)—the ability to shield one’s the courts). own property from the clutches of creditors’ The distinction between revocable and claims. irrevocable trusts is important because only Starting with the basics, let’s explore how irrevocable trusts can have creditor protec- claims from creditors may affect trust prop- tion, but as we’ll see, just because a trust is erty through the three parties to the trust: the irrevocable doesn’t mean that it will necessari- Settlor, the Trustee, and the Beneficiary. ly enjoy creditor protection. The first party, the Settlor (also known as For revocable trusts, even after the changes the Trustmaker or Grantor), establishes, or in 2012, “the property of a revocable trust is creates the trust, usually by putting an asset subject to claims of the settlor’s creditors.”1 (real estate, brokerage account, bank ac- What about trust property exposure to counts, etc.) in the trust. claims of the creditors of the Trustee Once the trust has assets, the assets within and Beneficiary? that trust must be managed (the real estate For the Trustee, the answer is found in must be maintained, and the investments Virginia Code § 64.2-749: “Trust property must be monitored, bought, and sold). The is not subject to personal obligations of the person or entity that manages the assets with- trustee, even if the trustee becomes insolvent in the trust is called the Trustee. or bankrupt.”2 If the Trustee causes a car The Settlor puts the assets in trust for, accident and is sued for $1 million, the trust and the Trustee manages the assets for, the assets within the trust that Trustee manages
20 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 | THE TRUSTS AND ESTATES ISSUE www.vsb.org are safe from claims. This is very reassuring. claims of creditor of the Beneficiary, we need And the Beneficiary? to include a Spendthrift provision. In Virginia Code § 64.2-742 we learn: “To the extent a beneficiary’s interest is not sub- ject to a spendthrift provision, the court may And with the ability of the independent authorize a creditor or assignee of the ben- eficiary to reach the beneficiary’s interest by qualified trustee to distribute funds or assets attachment of present or future distributions back to the Settlor if needed, the QSSST can be to or for the benefit of the beneficiary….”3 It is plain that if we want the trust to seen as a no-lose proposition. provide creditor protection from the claims of the beneficiary’s creditors, we’d better have a spendthrift provision in that trust. What if we want to have a trust that offers creditor protection to the Settlor? Can a What is a Spendthrift Provision? Settlor take the Settlor’s own property, place it Here, again, the Uniform Trust Code pro- in a trust, and gain creditor protection for his vides the answer. Virginia Code § 64.2-743, or her own property? conveniently headed “Spendthrift Provision,” To the blessed citizens of Virginia, the gives us this guidance: answer, since 2012, is yes. A. The spendthrift provision must restrain Code of Virginia § 64.2-747(A)(2) tells us both voluntary and involuntary transfers that even as to an irrevocable trust, a creditor of the beneficiary’s interest; may reach the maximum amount that can be B. Including terms in the trust stating that distributed to or for the Settlor’s benefit— the beneficiary’s interest is held subject “except to the extent otherwise provided in to a “spendthrift trust” is sufficient to §§ 64.2-745.1 and 64.2-745.2”.6 restrain both the voluntary and involun- Sections 64.2-745.1 and 64.2-745.2 provide tary transfer of the beneficiary’s interest; the framework for the QSSST. These Code and sections say that as long as the Settlor’s inter- C. With a valid Spendthrift trust provision, est in the trust assets is a “qualified interest,” a creditor of the beneficiary may not and the trust itself is a “qualified self-settled reach the beneficiary’s interest before the spendthrift trust,” then the creditor’s ability beneficiary receives it.4 to reach the maximum amount that can be Here is a good example of how a Spendthrift distributed to or for the settlor’s benefit (as Trust provision can read: provided in § 64.2-747) shall not apply.7 What To the extent permitted by law, the bene- a wonderful gift! Virginia’s trust law, unlike ficiaries under this Agreement have no right the laws of most other states,8 allows protec- to anticipate, to pledge or in any manner to tion of one’s own property from the clutches alienate their interests in either the income of one’s own creditors (to a vast extent, as we arising from or the principal of any trust will see). created under this Agreement, and their A trust is a qualified self-settled spend- interests shall not be liable for their debts, thrift trust if: contracts or engagements or be subject to a. The trust is irrevocable; execution, attachment, garnishment, seques- b. The trust is created during the settlor’s tration or other legal process. This paragraph lifetime; Stephen M. Watson is an attorney with over 35 years of experience. shall restrain both voluntary and involuntary c. There is, at all times when distributions He is owner and founder of transfers of a beneficiary’s interest in any could be made to the settlor pursuant to Watson Wills & Trusts, PLC. trust created under this Agreement. I intend the settlor’s qualified interest, at least one Watson is an active member of the Virginia State Bar. He has by this paragraph to make every trust created beneficiary other than the settlor (i) to served as Chairman of the Real under this Agreement a spendthrift trust.5 whom income may be distributed, if the Estate Section of the Richmond To recap, to achieve creditor protection settlor’s qualified interest relates to trust Bar Association, Chairman of the Society of Financial Service against the claims of creditors through income, (ii) to whom principal may be Professionals, and has been the Trustee, we do not have to do much of distributed, if the settlor’s qualified in- published in the Trusts and Estates anything. Virginia Code § 64.2-749 wards off terest relates to trust principal, or (iii) to Newsletter of the Virginia State Bar. Washington & Lee School of the creditor’s claims to the trust property. If Law ’86; University of Virginia ’82; we wish to have creditor protection from the Creditor Protection continued on page 48 Woodberry Forest School ’78. www.vsb.org THE TRUSTS AND ESTATES ISSUE | VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 21 An Epidemic of Elder Abuse: Photo compilation: Bienville Park, Mobile, Ala., ca. 1906. and Martins, Bruno, unsplash.com www.loc.gov/item/95504636/. June 15 is World Elder Abuse Awareness Day1 by Sheryl Herndon
Growing old is something that happens to social, economic, and health consequences, all of us—if we are lucky. “Normal” aging there is no generally accepted definition of often includes the gradual decline of phys- “elder abuse.” Elder abuse is recognized as ical and mental health, an increase in care including physical, emotional, psychological, needs, and the loss of family and friends. and sexual abuse; confinement and restraint; Though difficult, these are aspects of grow- deprivation; caregiver neglect and abandon- ing old that people expect and plan for. ment; and financial fraud, scams and exploita- What most older adults don’t anticipate tion. Some definitions also include the failure and therefore, don’t plan for, is the likelihood to satisfy an elder’s basic needs or to protect that they will become the victim of abuse, them from harm and some include self-ne- neglect, or financial exploitation. glect which occurs when an elderly person One in six people age 60 years and older can no longer meet his or her own basic daily experience some form of abuse in commu- needs.7 Often, older adults experience multi- nity settings.2 As many as 62 percent of older ple types of abuse simultaneously. adults living with dementia experience psy- Who are the elderly? Terms such as chological abuse, and one-fourth of all people “elderly,” “old,” and “senior” have different living with Alzheimer’s have been physically meanings depending on who is using them abused.3 In terms of financial exploitation and and for what purpose. Elderly often means fraud, older adults lose a total of people 60 years and older, but reports of elder $36.5 billion annually.4 abuse can include victims as young as 50 years Pulitzer Prize-winning author, Robert of age. Neil Butler, who coined the term “ageism,” Who are the offenders? Abusers may have wrote, “For many elderly Americans old age a relationship with the elderly victim, such as is a tragedy, a period of quiet despair, depri- a spouse, adult child or other relative, friend, vation, desolation and muted rage.”5 This may neighbor, formal or volunteer caregiver, or certainly ring true for the five million older they may be a stranger, such a telemarketer or adults who suffer from abuse each year and salesperson. Abusers and fraudsters initially the 320 million elders who are predicted to may appear trustworthy, sympathetic, and suffer from abuse by the year 2050.6 helpful or they may be threatening and intimidating. What Is Elder Abuse? Types of Abuse. Physical abuse of an older Although a prevalent problem with serious adult may include violence (such as hitting,
22 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 | THE TRUSTS AND ESTATES ISSUE www.vsb.org pushing, kicking) and restraint, (such as locking one in a room by the individual, APS may provide health, housing, social and or tying them to furniture).8 Psychological and emotional legal services to stop mistreatment or prevent further mistreat- abuse may include yelling, threatening, blaming, scapegoating, ment.20 demeaning, humiliating, ridiculing, and intimidating an older Virginia laws that apply to the prevention and prosecution adult. Abuse can also include repeatedly ignoring an older of elder abuse are intended to protect adults 60 years and older adult or keeping them secluded from friends and relatives.9 (and incapacitated individuals 18 years and older): Va. Code Neglect occurs when a caregiver does not respond to the older §63.2-100 and §63.2-1603 (Civil Financial Exploitation), Va. adult’s physical, emotional, and social needs or withholds food, Code §§63.2-1603 – 1610 (Civil Elder Abuse), Va. Code §18.2- medications, or access to health care.10 178.1 (Criminal Financial Exploitation), Va. Code §18.2-57.2, Financial elder abuse involves taking advantage of an older §18.2-178.1, and §18.2-369 (Criminal Elder Abuse), and Va. person for financial gain.11 Financial fraud is the fastest-grow- Code §15.2-1627.5 (Establishment of multidisciplinary teams ing form of elder abuse.12 Financial abuse includes stealing to review elder abuse cases at all stages of investigation and money or property, forging checks, or using or accessing credit prosecution). cards and bank accounts without permission and may also In December 2020, the bipartisan “Promoting Alzheimer’s include changing beneficiaries on accounts or procuring a new Awareness to Prevent Elder Abuse Act” was signed into law. will.13 Fraud schemes against the elderly may be conducted This new law requires the Department of Justice to develop over the telephone, door-to-door, or through advertisements. materials designed to assist law enforcement officers, prose- The elderly are often easy targets to schemes involving cred- cutors, judges, medical personnel, victims’ services personnel, it cards, lotteries or sweepstakes, charities, health products, and others who encounter and support individuals living with home improvements, investments, banking or wire transfers, Alzheimer’s and other dementia.21 and insurance.14 The COVID-19 pandemic has given rise to new scams targeting older American’s concerns about health What Makes Older Adults Vulnerable to Abuse? and finances. Some scammers have called or texted messages Elder abuse generally arises from a combination of factors. to older adults offering illegitimate “coronavirus testing kits,” Since the existence of any one factor generally exacerbates HHS grants, and Medicare prescription cards, in exchange for other factors, aging adults often find themselves in a perfect personal details such as Medicare, credit card and bank in- storm of abuse. Some of the major factors that increase the risk formation.15 Other COVID imposter scams have been related of abuse and exploitation of older adults include: to stimulus checks, overdue payments, tax-related topics, and • Poor physical health (and functional impairment); investment opportunities.16 There have also been pandemic • Poor mental health (and decreased mental acuity or versions of the “grandparent scam,” where a scammer posing dementia); as a grandchild in a desperate situation and in urgent need of • Isolation (and lack of social support systems); and money requests the grandparent to wire money or buy a gift • Dependency (and reliance on others). card and call back the sender with the gift card number.17 Signs of Abuse. Some of signs of elder abuse, such as Declining Health. Adverse health conditions such as com- broken bones, bruises, welts, cuts, sores or burns, are obvi- promised vision and hearing, limited mobility, fatigue, pain, ous. Others are less so: torn, stained or bloody underclothing; forgetfulness, confusion, depression, dementia, delirium, unexplained sexually transmitted diseases; poor personal frailty, urinary incontinence, and a propensity for falls, are all hygiene, such as unwashed and dirty clothes and hair; weight common to aging. Not only do these conditions increase an loss and poor nutrition and hydration; poor living conditions; older adult’s risk of abuse, they also make it difficult for the vic- unusual changes in behavior or sleep; fear or anxiety; isolation; tim to comprehend, identify and report the abuse. depression; lack medical aids such as glasses, walker, dentures, hearing aid, medications; unusual changes in bank accounts or Isolation. Older adults are at increased risk for loneliness and money management; unusual or sudden changes in legal or fi- social isolation because they are more likely to live alone and to have lost family or friends. Nearly one-fourth of adults aged nancial documents; and unpaid bills or eviction notices despite 22 adequate financial resources.18 65 and older are considered to be socially isolated. What is the Law? The federal government, all 50 states, Dependency. Older adults with poor health and limited sup- the District of Columbia, and some territories recognize some port often find themselves dependent on others. Dependency form of elder abuse as a crime and have statutes to protect increases their risk of abuse.23 An elder who is dependent on against it. his or her abuser for food, housing, clothing, and health care Every state has an Adult Protective Services (APS) agency may believe they have no option other than to tolerate the that provides protective services to elderly adults (typically abuse; and they may fear that reporting the abuse will only 19 those age 60 or 65 and older). The Virginia APS receives and result in worse abuse from their caregivers. investigates reports of abuse, neglect, and exploitation of adults 60 years of age and older and incapacitated adults 18 years of Combination. The risk factors are inextricably intwined and age and older. If protective services are needed and accepted create a vicious cycle of continuing and increasing risk of www.vsb.org THE TRUSTS AND ESTATES ISSUE | VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 23 abuse. Poor health, isolation and dependency Conclusion feed on each other and the existence of one Elder abuse is a global public health and hu- factor increases the likelihood that another man rights issue that threatens older people’s will develop. health and safety. As life expectancy increases and the number of aging adults facing social isolation, mental impairment, and physical What most older adults don’t anticipate and limitations increases, incidents of elder abuse will continue to rise. therefore, don’t plan for, is the likelihood that Nations, states, localities, professional they will become the victim of abuse, neglect, organizations, agencies and local groups continue to propose legislation and develop or financial exploitation. prevention programs and initiatives to pre- vent abuse of older adults. The treatment and prevention programs and services to victims What Local Experts Have to Say and offenders often are similar to those aimed Dr. Andrew Heck, of GeroPartners, provides at eliminating child abuse, domestic violence, clinical and care management services related and violence against women. Although a to the mental health of older adults. Heck discussion of the efficacy of these efforts is explained that one of the normal phenomena beyond the scope of this article, it is clear that of aging is that our world tends to shrink, breaking the cycle of poor health, isolation, even beyond the limitations created by the and dependency that contributes to elder physical and mental decline that is natural to abuse is a monumental task that must begin aging. Heck said that aging adults favor closer with awareness and education. relationships with fewer individuals and limit Public and private agencies and organiza- the scope of their involvement and the causes tions must provide education to two distinct to which they are willing to give their time groups: professionals who interact with aging and energy. adults and the general community. Both Heck said when seniors are faced with groups must recognize the signs of abuse and limitations, including self-imposed limita- be willing to get involved and protect those tions, but especially those imposed by others, who are vulnerable. such as government, facilities, or family, they A myriad of professionals interact with can feel like their independence is slipping older adults: social services providers, health away and that can cause them to lose self-effi- care professionals, attorneys, faith leaders, cacy. Once a person’s belief in his or her own police and court officials, adult protective abilities, capabilities and strengths suffers, the service workers, aging service providers, and perception becomes a reality and the individ- victim advocates. It is important to educate ual is more vulnerable to abuse as he or she these groups about the signs of elder abuse, looks for opportunities to reassert control.24 the symptoms of Alzheimer’s disease and Keith Breault, Vice President of Business other related dementias, and appropriate in- Development of Commonwise Home Care, tervention techniques. It is critical that these said when seniors don’t have other people professionals have knowledge of available re- around them to help them cope with loss and Elder Abuse continued on page 49 other difficult experiences, they can suffer severe depression and become fatalistic and nihilistic, and as a result, they can become recalcitrant or almost catatonic. Breault said this behavior can result in a misdiagnosis of dementia resulting in admission to a memo- ry care unit where social interaction is even further limited, leading to a spiraling decline in health and hastening of death. Sheryl Herndon is the owner and founder of Herndon Breault said that aging can be viewed as Law, P.C. located in Glen Allen. Herndon advises clients in the areas of estate planning, elder law, the normal setting of the sun, and it can be long-term care and special needs planning, estate a beautiful and good experience if enjoyed administration, guardianships and conservatorships with a community; but to watch the setting of for incapacitated adults, and veterans’ pension and service-connected disability benefits. Herndon Law, the sun, alone and isolated, is just a sad and P.C. reflects Herndon’s commitment to building depressing experience.25 relationships with clients.
24 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 | THE TRUSTS AND ESTATES ISSUE www.vsb.org
Wellness Mental Health Courts During the COVID-19 Pandemic by the Hon. Joseph A. Migliozzi Jr. and Casey A. Coleman Photo compilation: Vasile, Theodor, unsplash.com and Riva, Elisa, pixabay.com Theodor, Photo compilation: Vasile,
ental Health Courts are designed to There are differences among the therapeutic M accommodate non-violent habitual dockets based on the unique needs offenders that have a mental health diagnosis and operational environments of local and have been important in the Common- jurisdictions.4 In the Norfolk Circuit Court, wealth of Virginia since their inception. They for example, the therapeutic dockets look have been a successful alternative to tradi- for non-violent offenders with no prior or tional criminal justice adjudication for these current violent and/or sex offenses, no record offenders because of the multidisciplinary of gang activity, nor any pending charges treatment that characterize these dockets.1 in other jurisdictions.5 Drug Court focuses During the pandemic, Mental Health Courts on offenders whose involvement with the have become essential for participants. When criminal justice system has been driven by the global COVID pandemic disrupted daily drug addiction.6 The veteran’s track within life, these dockets provided participants with Drug Court focuses on non-violent offenders a routine, services, and a sense of community with a drug addiction who served in the U.S. necessary for their recovery. Military.7 Reentry Court is for offenders who would like to gain the knowledge and skills Therapeutic Dockets in Virginia necessary to prevent re-offending.8 Mental The Supreme Court of Virginia has authorized Health Court addresses the unique needs of the creation of 72 therapeutic dockets across non-violent offenders with mental illness and/ the Commonwealth.2 Within these dockets or co-occurring disorders.9 there are four types of therapeutic dockets: To be eligible for Norfolk Circuit’s Mental Drug Court, within which there is a special Health Court, participants must be a track for veterans, i.e., Veterans Court; non-violent perpetual offender with a Reentry Court; and Mental Health Court.3 pre-diagnosed serious mental illness. Upon Each court was created to address the entry into the program, the participant pleads needs of perpetual non-violent offenders. guilty to their pending charge and begins www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 27 Wellness
an intense 18-month program—assuming there are social distancing measures, and mask mandates were no sanctions while in the program. Program par- imposed to stop the spread of COVID-19. Unemploy- ticipation consists of judicial oversight, treatment, ment in Virginia rose to 11 percent in April 2020 and and probation. Participants are required to appear many Virginians wondered if they could pay their regularly before the presiding judge who imposes bills, stay in their home, and afford food. 14 immediate sanctions for any violations. Treatment Uncertainty and isolation have led to a rise in includes substance abuse education, group therapy, reported mental health issues among all U.S. adults. and peer support. Probation ensures the participants In a study published in the U.S. Center for Disease remain in compliance with the program’s conditions, Control and Prevention’s Morbidity and Mortality like not testing positive for illicit drugs or alcohol. Weekly Report, 40 percent of U.S. adults reported Court appearances and oversight wain as the partic- struggling with mental health or substance use from ipant moves through the five phases of the program. April to June of 2020.15 There was an increase in anx- Upon completion of the program, the participant is iety, depression, and symptoms of trauma and stress sentenced with all-time suspended. related disorders.16 In particular, “[t]he prevalence of symptoms of anxiety disorder was approximately three times those reported in the second quarter of The predictions in this report would 2019 (25.5 percent versus 8.1 percent).”17 Thirteen percent of U.S. adults studied had started or increased make 2020 the worst year on record for substance abuse to cope with stress and emotions during the pandemic.18 fatal overdoses in Virginia. Social distancing and quarantining meant participants were not able to have the face-to-face interactions with support groups or therapists. The In addition to having a mental illness, many men- increased isolation made those that already feel tal health participants are also addicted to illicit drugs alone, retreat further into themselves.19 Clients faced and/or alcohol. This is because many self-medicate in- difficulty continuing their treatment via technology. stead of seeking clinical care. The challenge for many Individuals had difficultly logging onto Zoom and of these participants is to not only learn to deal with with connectivity in general. Not everyone has access their mental illness but also overcome their addiction. to stable internet connection. Some had to use their phone’s data. If individuals did not have unlimited Mental Illness in Virginia’s Criminal Justice System data plans, the cost of keeping up with their treatment A 2018 report on Mental Illness in Virginia’s Jails rose dramatically. highlighted the prevalence of mental illness in The introduction of these additional stressors incarcerated individuals. Of the general population has made it difficult for individuals to focus on their 19.84 percent, or 7,852 individuals, were known or recovery—leading to relapse and in some cases death. suspected to be mentally ill.10 The report also revealed If individuals started using again, the social distanc- that incarcerated women were more likely than men ing and quarantining measures also meant that a once to have a mental illness with 34.38 percent of females communal activity, consuming illicit drugs or alcohol, reported as having a mental illness compared to 16.74 became a solitary endeavor. As a result, no one was percent of males.11 there to call for help or administer lifesaving care Individuals with mental illness comprise nearly 20 when someone overdosed. percent of Virginia’s incarcerated population. Cur- Individuals with mental illnesses are often dealing rently, there are only 11 authorized Mental Health with this stressful time by consuming illicit and often Courts in the Commonwealth of Virginia that deal dangerous drugs, such as fentanyl, alone, sometimes with these unique offenders.12 Most of Virginia’ s 73 unaware of what exactly they are consuming. Once specialty dockets are Drug Courts, specifically 53. the mentally ill self-medicate, they often lose sight Seven of Virginia’s Drug Courts have a veteran’s spe- of who is helping and who is hurting them. So it is cific track embedded within them.13 heartbreaking, but not at all surprising, that overdos- es in the Commonwealth increased 39 percent from Compounding Effects of COVID-19 on January through June 2020 as compared to 2019.20 Mental Health Kathrin Hobron, Virginia Department of Health’s In March 2020, Virginians saw a dramatic change statewide forensic epidemiologist, predicted that fatal in the way they live their lives. Stay-at-home orders, drug overdoses may be 2,053 by the end of 2020.21
28 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Wellness
This would be a 26 percent increase from 2019 when the number climbed to 1,626—the highest it had been in recorded history.22 For comparison, in 2019 fatal overdoses increased by 9.4 percent compared to 2018.23 According to Hobron’s report, roughly seven Virginians died each day from drug overdose during the second quarter of 2020.24 The predictions in this report would make 2020 the worst year on record for fatal overdoses in Virginia.25 Recently, the Virginia General Assembly has addressed mental health in Virginia’s criminal justice system. House Bill 5043 became law in December 2020. This law will establish a mental health awareness response and communi- ty understanding service or Marcus Alert System.26 These response teams will be made up of mental health service providers and recovery specialists. This The Hon. Joseph A. Migliozzi is a frequent paves the way for responses that do not end in tragedy. Because of their training, contributor to Virginia Lawyer magazine, response teams will be better suited to respond to people having a mental health working with interns and clerks on a variety crisis than traditional law enforcement.27 of topical articles. He was appointed to the Norfolk Circuit Court bench in 2014 after The Virginia Senate also considered legislation that would allow the defen- serving as a judge in the Norfolk General dant to offer evidence concerning the defendant’s mental condition at the time District Court and as the southeastern district’s of an alleged offense.28 This bill had passed the Senate and has been referred to capital defender in death penalty-eligible cases. the House Committee for Courts of Justice and will be considered in the next Special Session.29
Conclusion Based on the current reports and data, the number of individuals with mental health issues is increasing in the general population. To deal with these health challenges more people are beginning or increasing their substance use. There- fore, the number of overdose deaths are increasing rapidly. On the other side of this pandemic, there will likely be more individuals deal- Casey A. Coleman is a Judicial Law Clerk ing with mental health issues and fighting addictions. As a result, there will be to the Hon. John R. Doyle III and Joseph A. Migliozzi Jr. She received her B.A. from The more interaction between the criminal justice system and offenders with mental Pennsylvania State University and her J.D. health issues such as anxiety and depression. When those individuals commit from the College of William & Mary. Coleman crimes, the bar and the bench must be prepared to recognize these offenders as would like to thank Joseph F. LaFratta; Brandon C. Plunkett; the staff of the Norfolk candidates for specialty dockets and facilitate their integration into these critical Mental Health Court, particularly, Alexandria programs. It is here that they can get access to the treatment, resources, and Roberson. Finally, she would like to thank the programs they need thus, reducing recidivism, facilitating these individuals tran- current 2021 Norfolk MHC clients. All of you have shown a resilience and commitment to sition to becoming productive citizens within their communities, and decreasing your health that is inspiring in a normal year prison sentencing. q and truly extraordinary during this pandemic.
Endnotes 7 Id. 1 The Honorable David W. Lannetti & Kristin M. Godsey, Esquire, An 8 Letter from Hon. Michelle J. Atkins, Judge Norfolk Circuit Court, to Overview of Norfolk’s Specialized Docket Programs, March/April 2019 Hon. Donald W. Lemons, Chief Justice of the Supreme Court of Virginia Norfolk Portsmouth Bar Association, https://perma.cc/KKU8-ZFEG (Jan. 12, 2017) (on file with author) (Application for Authorization to 2 Letter from Karl R. Hade, Executive Secretary of the Supreme Court of Continue the Norfolk Circuit court Reentry Docket as a Specialty Docket Virginia, to The General Assembly of Virginia (Nov. 6, 2019), Pursuant to Rule 1:25). https://perma.cc/P2H5-QP76 (evaluating the effectiveness and efficiency 9 The Honorable David W. Lannetti & Kristin M. Godsey, Esquire, An of all local specialty dockets in the Commonwealth of Virginia). Overview of Norfolk’s Specialized Docket Programs, March/April 2019 3 Id. Norfolk Portsmouth Bar Association, https://perma.cc/46PU-KEMZ. 4 Va. Dep’t of Behavioral Health & Developmental Services, 10 Virginia Department of Behavioral Health & Developmental The Essential Elements of Mental Health Dockets in Virginia Services, History and Status of Minimum Mental health (December 2016). Standards for Virginia’s Local and Regional Jails (2019) 5 Letter from Hon. Michelle J. Atkins, Judge Norfolk Circuit Court, to https://perma.cc/L8LU-Q5FD. Hon. Donald W. Lemons, Chief Justice of the Supreme Court of Virginia 11 Id. (Jan. 12, 2017) (on file with author) (Application for Authorization to 12 Id. Continue the Norfolk Circuit court Reentry Docket as a Specialty Docket 13 Letter from Karl R. Hade, Executive Secretary of the Supreme Court of Pursuant to Rule 1:25). Virginia, to The General Assembly of Virginia (Nov. 6, 2019), 6 The Honorable David W. Lannetti & Kristin M. Godsey, Esquire, An https://perma.cc/8V66-UDJH (evaluating the effectiveness and efficiency Overview of Norfolk’s Specialized Docket Programs, March/April 2019 of all local specialty dockets in the Commonwealth of Virginia). Norfolk Portsmouth Bar Association, https://perma.cc/KYS4-XVLQ. 14 Jeff South, Pandemic triggers ‘enormous’ spike in drug overdose deaths,
www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 29 Wellness
Virginia Mercury (Nov. 18, 2020), https://perma.cc/U85B-WNQ2. 15 Czeisler MÉ et al., Mental Health, Substance Use, and Suicidal Ideation During the COVID-19 Pandemic — United States, June 24–30, 2020, Morbidity and Mortality Weekly Report, (Aug. 14, 2020), https://perma.cc/PGX6-XZL6. 16 Id. 17 Id. 18 Id. 19 Dave Ress, ‘I realized I wasn’t alone:’ Seeking help for mental illness in Hampton Roads, The Virginian- Pilot, (Feb. 14, 2021, 8:31 p.m.), https://perma.cc/F5G3-3UFC. 20 Id. 21 Kathrin “Rosie” Hobron, Virginia Department of Health, Office of the Chief Medical Examiner, Fatal Drug Overdose Quarterly Report 2nd Quarter 2020, 3 (Oct. 2020), https://perma.cc/TN8M-VDR6. 22 Pandemic Triggers ‘enormous’ spike in drug overdose deaths, Jeff South, November 18, 2020, Virginia Mercury, https://perma.cc/54EL-MMRW. 23 Kathrin “Rosie” Hobron, Virginia Department of Health, Office of the Chief Medical Examiner, Fatal Drug Overdose Quarterly Report 2nd Quarter 2020, 3 (Oct. 2020), https://perma.cc/BK7Q-WN36. 24 Kathrin “Rosie” Hobron, Virginia Department of Health, Office of the Chief Medical Examiner, Fatal Drug Overdose Quarterly Report 2nd Quarter 2020, 3 (Oct. 2020), https://perma.cc/5K8L- AG3K; See also, Jeff South, Pandemic triggers ‘enormous’ spike in drug overdose deaths, Virginia Mercury (Nov. 18, 2020), https://perma.cc/LFQ3-B6LZ. 25 Kathrin “Rosie” Hobron, Virginia Department of Health, Office of the Chief Medical Examiner, Fatal Drug Overdose Quarterly Report 2nd Quarter 2020, 3 (Oct. 2020), https://perma.cc/4QTY-96FL. 26 H.B. 5043, Gen. Assemb., Special Sess. I (Va. 2020), https://perma.cc/QCV8-EDMD (summarizing the law as passed). 27 Id. 28 Id. 29 S.B. 1315, Gen. Assemb., Special Sess. I (Va. 2021), https://perma.cc/7E8W-YEMA (summarizing the law as passed).
30 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 VSB NEWS < Noteworthy Virginia Lawyer Referral Increases Revenues for Lawyers While Helping Virginians
With a staff of just three, the Virginia 205 panel members across the Virginians who are not comfortable Lawyer Referral Service (VLRS) Commonwealth. Beginning on July 1, trying to contact a lawyer are helped answered over 8,700 calls and online 2020, panel members were required by the VLRS, and lawyers who work requests for legal services in the last six to remit 15 percent of any fees they with the VLRS can build their prac- months of 2020. Of these, the staff col- were paid over $500 back to the VSB tices while also giving back to some lected 2,281 paid referrals, while refer- as a means of defraying the costs of clients who may be referred to as low ring other callers to alternative options maintaining the service, which assists bono—financially beyond the pro bono for their potential legal problems. people with finding a lawyer and up to requirements, but not adept at finding But the big story is this: lawyers a 30-minute consultation for a $35 fee. and hiring a lawyer without assistance who belong to the referral service The VLRS keeps the $35 fee and refers from the Bar. (called panel members once they join vetted clients to panel members in the If you are interested in learning more the VLRS) paid back almost $20,000 appropriate region and practice area. about being a part of the VLRS, please to the VSB in remittance fees in that In March of this year, the VLRS rev- contact Toni Dunson at dunson@vsb. period, meaning that they earned over enue was up $18,000 over last year, and org, or visit the VLRS lawyer webpage: $130,000 in six months simply by being the service, which was founded in 1978, http://bit.ly/vlrslawyer. members of the VLRS. continues to be a win-win for Virginians Currently, the VLRS has only and Virginia lawyers.
www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 31 Noteworthy > VSB NEWS Highlights of the April 21 VSB Council Meeting
At its April 21, 2021, virtual meeting bias as an approved CLE topic, eligible broader standard of “information the Virginia State Bar Council heard the for specialized ethics/professionalism relating to representation of a client,” following significant reports and took credit. The proposed changes will be and adds proposed new Comment [2] to the following actions: presented to the Supreme Court of explain the purpose and application of Virginia for approval. Rule 1.8(b). The proposed changes will Reauthorize Clients’ Protection Fund be presented to the Supreme Court of Assessment beyond July 1, 2023 Amendments to Rules of Professional Virginia for approval. The Council approved, with 62 yea Conduct: and 0 nay votes, a proposal to petition Amendments to Rule 1.8 to add Rule 1.10 and Rule 1.15 the Virginia General Assembly to section (k) prohibiting a lawyer from The Council approved by unanimous reauthorize the Clients’ Protection having sexual relations with a client vote, proposed revisions to Rule Fund assessment beyond July 1, 2023, (and associated re-enumeration of 1.10 Comment [1] and to Rule 1.15 and remove the associated “sunset” Rule 1.10) Comment [1] to replace uses of “should” provision. The proposed changes will The Council approved, with 55 yea and with “must” where the comments be presented to the Supreme Court of 2 nay votes, an addition to Rule 1.8 and describe mandatory duties. The Virginia for approval before the Bar revisions to Rule 1.10. The proposed amendments also define what makes a petitions the General Assembly. changes will be presented to the group of lawyers a “firm.” The proposed Supreme Court of Virginia for approval. changes will be presented to the Amendment to Paragraph 17 (C) Supreme Court of Virginia for approval. to include an option of Elimination Amendments to Rule 1.8(b) and new of Bias MCLE within Ethics and Comment [2] Rule 3.3 Professionalism The Council approved by unanimous The Council voted, with 47 yea, 4 The Council approved, with 63 yea vote, proposed revisions to the rule to nay votes, and 1 abstention, to table and 2 nay votes, proposed revisions to mirror the standard for confidentiality discussion of proposed amendments to Paragraph 17 (C) to add elimination of set out in Rule 1.6(a), rather than the Rule 3.3 until the June Council meeting.
Winners Announced in Bar Council Elections Circuits 18, 23, and 28 went to representative for Circuit 28, which the virtual polls and elected their includes the Abingdon region. representatives to Virginia State Bar Council consists of 81 people: 65 Council with voting ending on April 29 lawyers elected from the 31 circuits at midnight. throughout the Commonwealth, Frankl Pilot Todd A. Pilot was elected to his first as well as nine at-large members term and John K. Zwerling was elected appointed by the Supreme Court of to his second term to represent Circuit Virginia, four conference chairs, and 18, which is based in Alexandria. three officers. Daniel P. Frankl won the election Each elected representative will for Circuit 23, located in Roanoke. serve a three-year term, with the And Bruce H. Russell II will be a option to run again for a second term.
Zwerling Russell II
32 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org VSB NEWS < Noteworthy In Memoriam
Dennis Eugene Ahearn James A. Cales Christopher Stephen Monek Fredericksburg Portsmouth Arlington September 1947 – February 2021 February 1942 – April 2021 May 1948 – March 2021
Marc Richmond Amos Joseph Benjamin Dailey Providence Ebubechi Napoleon Goochland Fairfax Washington, D.C. December 1969 – April 2021 September 1976 – March 2021 May 1986 – April 2021
Charles Slade Andrews James Monroe Donley Earl John Oberbauer Jr. Reston Macon, GA Manassas July 1939 – December 2020 November 1962 – January 2021 June 1947 – January 2021
Kerriél Bailey Thomas Francis Farrell II William B. O’Connell Jr. Virginia Beach Richmond Arlington April 1967 – January 2021 December 1954 – April 2021 August 1932 – November 2020
Michael Joseph Barta James Brenton Fleming Robert Duval Shrader Jr. Franklin, NC Wise Richmond March 1963 – March 2021 May 1969 – March 2021 April 1943 – March 2021
J. Dale Bimson Malcolm Pitt Friddell C.A. Spanoulis Virginia Beach Richmond Virginia Beach July 1935 – March 2021 October 1952 – March 2021 October 1938 – February 2021
Kathleen Anne Brown Johnson Kanady III Thomas Wesley Wright Fairfax Deltaville Richmond October 1942 – March 2021 March 1947 – February 2021 March 1941 – March 2021
Robert G. Butcher Jr. John Patrick McNeill Midlothian Cary, NC September 1934 – April 2021 October 1955 – February 2021
In Memoriam If you have a family member, colleague, or friend who was a VSB member and has passed away, please email [email protected] so that we may update their records and include them in In Memoriam.
Your law degree doesn’t have to retire with you. Transition into emeritus status and practice only pro bono. To start the application process toward emeritus status, call (804) 775-0530.
www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 33 Noteworthy > VSB NEWS VSB Conferences and Seminars Carry on Virtually Bar Leaders Institute After narrowly missing the closures an esteemed panel consisting of Judge ship. To read an in-depth account of the imposed by COVID-19 last year, the Jerrauld Jones and Judge David Lannetti BLI benefits, visit the CLSBA spon- annual Bar Leaders Institute (BLI) was from the Norfolk Circuit Court, John sored December 2020 issue of Virginia one of the fortunate few conferences not Sawyer, the Norfolk and Portsmouth Lawyer. The digital edition is available at to be canceled at the beginning of the Bar Association president-elect, and https://perma.cc/5MEF-2HB5. pandemic in 2020. Eric Demetriades, the Loudoun County The annual event is sponsored by the This year, 50 current and future Bar Association,s Circuit Court Bench Conference of Local and Specialty Bar bar leaders met virtually for the BLI Bar Committee chair. Associations at no cost to attendees, and on March 24 to take part in discus- The BLI provided resources for current bar leaders as well as all who are sions including “Dialogues Between Bar Leaders and encouraged pandemic considering leadership roles in any bar Bar Leaders and The Bench,” led by participation through virtual member- are encouraged to attend.
17th Indigent Criminal Defense Seminar
The Leroy R. Hassell Sr. Indigent to question how they can Criminal Defense Seminar drew a re- better serve their clients, cord-setting 1,130 lawyers from around and moreover how they can the Commonwealth. The seminar was help instill trust and faith held virtually for the second year in a row in the quality of indigent and included a panel of speakers from defense. Virginia and across the United States. The attendees then This free advanced skills seminar is heard an engaging pan- presented to the indigent defense bar and el cover the new laws in held at the behest of the Chief Justice and Virginia featuring The Hon. Justices of the Supreme Court of Virginia Don L. Scott Jr., from the From top left clockwise: Bonnie Hoffman, IDT Planning Commmittee Chair, The Hon. Don Scott, Ashley Shapiro, and Bryan Kennedy to inform the defense attorneys of the Virginia House of Delegates; latest and best methods of defending Bryan T.D. Kennedy and information from across the U.S. and in their clients. Ashley R. Shapiro, from the Justice an eclectic range of specialties. Attendees On May 7, attendees began the day Forward VA and the Office of the Public received 6 hours of MCLE credit, with with an opening speech from The Hon. Defender in Fairfax, and Richmond, one in ethics, and 6 hours of felony/mis- Teresa M. Chafin, of the Supreme Court respectively. demeanor recertification credits with the of Virginia, who entreated the attendees The speakers brought a wealth of VIDC and 1 hour juvenile credit.
37th Advanced Family Law Seminar The 37th annual Family Law Section and with out-of-state parties. Bretta Z. Lewis, Live-Interactive MCLE credits including Virginia CLE brought together its largest pulled on her over 20 years of litigation one Ethics credit. group of lawyers and members of the ju- experience in family law to discuss how Other topics included taxes, divorce, diciary—totaling 477—on April 15, held to best advise clients regarding editing, legislative updates from the general as- virtually for the second year in a row. deleting, or otherwise altering social me- sembly, and case law updates on Virginia Adam M. Carroll and Sonya dia posts so that they do not inadvertent- Family Law. Looking ahead, the 38th L. Powell, covered how to handle ly prejudice themselves in the litigation. Annual Advanced Family Law Seminar “Relocation and Litigating Over State The seminar increased its GAL will take place on Tuesday, April 12, Lines” including gathering evidence, offering to attendees, offering three full 2022. witnesses, and documents when dealing credits. Additionally, attendees earned six
34 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org VSB NEWS < Noteworthy 2021 Techshow: Forecasting the Future of Law
The 2021 Virginia State Bar Techshow was held on April 26 with almost 400 participants in attendance. The event returned this year in a virtual format after being canceled in 2020 due to COVID-19 in-person restrictions. The pandemic informed many of the topic choices for speakers, who addressed the continuing growth of technologies required to accommodate many professionals’ preferences for at home work, even after the pandemic crisis draws to an end. Panel top to bottom: Sharon Nelson, Debbie Foster, Tom Mighell, Jim Calloway The introductory message was de- livered by the Honorable Cleo E. Powell including 3 hours of ethics, depend- viewing until April 24, 2022. of the Supreme Court of Virginia who ing on which sessions they attended. If you weren’t available for the entreated her fellow lawyers to follow Additionally, this year’s participants will Techshow, it’s not too late to register at the familiar Star Trek Vulcan ideology: receive a link to watch any sessions they bit.ly/odtechshow and receive the links “Live long and prosper.” missed for on-demand credit. The link to recorded sessions for On-Demand All who attended had the oppor- will be active for credit until October CLE credit at the low cost of $50. tunity to earn 7 hours live CLE credit, 31, 2021, but will remain available for
Dues Statements Mailed: Deadlines Back to Normal
Virginia lawyers’ annual renewal state- accepted from the following services: ments for the 2021–22 year are mailed USPS, UPS, Fed Ex, DHL, and Richmond in mid-June to each lawyer’s address of Express. All renewal requirements must record. be received by 4:45 pm on July 31, 2021. The annual license renewal deadline Voluntary Pro Bono reporting: has returned to the standard Supreme All active and associate members are Court of Virginia Rule mandated date of encouraged to report their pro bono July 31, 2021. contributions this year, which will be re- The amount assessed to each active corded anonymously unless an attorney lawyer for the Clients’ Protection Fund chooses to provide a name and/or Bar ID. has been reduced from $10 per year to $5 Amendments to Paragraph 22 Voluntary per year. Pro Bono Publico Legal Services report- Delinquency and reinstatement fees, ing became effective May 15, 2020. which are assessed on each of the four Emeritus status: If you’re considering rules of court not met by the deadline(s), retirement, the Court made changes to were reduced by half. the requirements for Emeritus status in As a public health precaution, the December 2017 making it easier to tran- VSB offices remain closed to the public. sition to pro-bono-only work. Please consider using the VSB member Please contact the VSB Regulatory portal or a trackable express delivery Compliance Department at (804) 775- method if sending close to the July 31 0530, or email [email protected] if deadline. Please be advised if you intend you have questions about your renewal to mail or deliver renewals/payments to statement. the Virginia State Bar, deliveries are only www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 35 Law Libraries Where There’s a Will: Researching Wills, Trust and Estate Issues by Joyce Manna Janto
When the American Association of a four-volume loose-leaf service that of Richmond Law Review publishes Law Libraries conducted a survey of covers every aspect of this practice area an “Annual Review of Virginia Law.” lawyers’ research habits it revealed from basic drafting conventions to the One area of law covered almost every that the longer a lawyer was in administration of estates. The effect of year is Wills, Trusts, and Estates. The practice, the more likely they were to state and federal taxes is explored and articles, written by leading Virginia begin research in a secondary source.1 there is a chapter on living wills and practitioners, go well beyond listing the This result wasn’t a surprise. Lawyers powers of attorney. changes in the law. They discuss new have long complained that new associ- Many of the students found the legislation and cases in detail, providing ates immediately jump into case law or Thomson Reuters’ Virginia Practice needed context to the new law by outlin- statutory databases at the beginning of a Series title Probate Handbook by Frank ing what the law had been. project, running up high online search Brown to be an informative tool. The My students were shocked at how bills. These novice researchers have yet author is not only an alumnus of the easy this assignment was. By consulting to discover what any experienced lawyer University of Richmond School of only one or two of the above secondary could tell them: secondary sources can law, but also a Fellow of the American sources they were able to determine not save time and money. College of Trust and Estate Counsel. only was the will valid but also that the I decided to demonstrate the worth This work covers appraisals, the brother did not have grounds to contest of secondary sources to the students in valuation of an estate, tax implications, it. The sources also provided them with my Virginia Legal Research class. Their the duties of a fiduciary, and preparing citations to statutory and case law sup- assignment: A client has questions about a final accounting of the estate. Students porting those conclusions. By the time her father’s will. The will is hand-written grasped the benefit of consulting the they finished they had a new respect for and, over the years, her father made many helpful forms included in secondary sources. They discovered — additions and deletions. Is the will valid? this resource. as any seasoned practitioner could have Furthermore, her father left nothing to The students loved the Virginia CLE told them — these materials can easily her brother. Can he successfully contest Foundation publications. They found and quickly provide the answer to many the will? I told them they could only Estate Planning in Virginia a useful, a legal problem. q consult secondary sources to answer the step-by-step guide to the drafting of client’s questions. both wills and trusts. They particularly Endnotes Virginia has excellent secondary were impressed, not only with the sam- 1. See A Study of Attorneys’ Legal Research Practices and Opinions of New Associates’ resources dealing with wills and ple documents, but how the complex Research Skills, trust law. The first, most basic tool is tax issues raised by this area of law were https://perma.cc/BN2W-T3AU LexisNexis’ Michie’s Jurisprudence of clearly and concisely explained. Even Virginia and West Virginia. While a legal those who had not yet taken a tax class encyclopedia is considered low author- found this section easy to follow. ity, lawyers ignore it at their peril. The The publication that truly won concise, well-written articles provide a their hearts was Virginia CLE’s The clear overview of the law. The sections Virginia Lawyer: A Deskbook for on wills, trusts, and probate are exten- Practitioners. The book takes a lawyer sive and cover all of the basic issues. step-by-step through a representation Harrison on Wills and Administration in fourteen different areas of law. It con- for Virginia and West Virginia, published tains sample documents, forms, practice Joyce Manna Janto is the Director of Public & Instructional Services at the University of by LexisNexis., could rightly be called tips, and citations to cases and statutes. Richmond William Taylor Muse Law Library. the “bible” for wills and trust attorneys. It even has chapters on how to set up She teaches Legal Research I and II, Virginia First published in 1927, it is now in its your law office and meet your ethical Legal Research, Advanced Legal Research and Professional Responsibility. Janto holds a BS fifth edition. The publication is edit- responsibilities. This is one resource that from Clarion State University of Pennsylvania, ed by James Cox III, a lawyer with an should be on the desk of any lawyer in a an MLS from the University of Pittsburgh, and extensive practice in the area of wills small or solo practice. a JD from the University of Richmond. She has and trusts. In addition, Cox is a mem- Finally, two of my students who were served as president of the Virginia Association of Law Libraries, the Southeastern Chapter of ber of the Trust and Estates Section on the staff of the Law Review refer- the American Association of Law Libraries, and of the Virginia State Bar. Harrison is enced that publication. The University the American Association of Law Libraries.
36 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Technology and the Future Practice of Law Why Paying a Ransom Has Powerful Unseen Costs by Darius K. Davenport
A few years ago, a potential client took often used to fund activities adverse Treasury’s Office of Cybersecurity me on a tour of his beautiful offices over- to the national security and foreign and Critical Infrastructure if the looking the Virginia Beach waterfront. policy objectives of the United States. client is a financial institution. We made our way from the board room, They also embolden hackers to commit • Finally, OFAC recommends that with its panoramic views, and down the future attacks because the victims you engage law enforcement. OFAC spiral glass staircase to the back offic- keep paying. considers a self-initiated, timely, and es, which contained various computer This is relevant to cybersecurity, complete report of a ransomware workstations and servers. Once there, I ransomware, and lawyers because many incident to law enforcement to be a inquired about what kind of cybersecu- ransomware developers are on OFAC’s significant mitigating factor if it is rity policies were in place to govern how list of Specially Designated Nationals later determined that a ransomware the employees were interacting with the and Blocked Persons under its cyber-re- payment was made to a blocked company network. There were none. lated sanctions program. Ransomware person, country, or regime subject to Then I asked the potential client if programs like CryptoLocker (approx- embargos under IEEPA or TWEA. he was aware of the threats associated imately 234,000 reported U.S. cases), If you contact law enforcement, it is with ransomware. He smiled and said, “I SamSam (which took down government recommended that you know about that stuff. It happens all the institutions such as the City of Atlanta), cooperate with them fully and in a time, and when it does, I tell my employ- WannaCry 2.0 (approximately 300,000 timely manner. ees to just whip out their credit cards and reported cases in 150 countries), and Additional information, regarding pay it so we can get back to business.” Dridex (responsible for more than $100 OFAC Advisory Opinions and the OFAC Needless to say, the potential client’s mm in theft from banks in 40 coun- Sanctions List can be found at the U.S. answer is troubling for several rea- tries) are all associated with Specially Department of the Treasury’s Office sons. And in October of 2020, the U.S. Designated Nationals and Blocked of Foreign Assets Control-Sanctions Department of the Treasury’s Office of Persons or originate in countries or Program and Information website).2 Foreign Assets Control (OFAC) gave us regions covered by comprehensive coun- A ransomware attack is almost another reason to be concerned about try or region embargos. Much of the always painful, but prevention and miti- paying ransom to hackers. sophisticated ransomware in circulation gation far outweigh the consequences of The International Emergency can be tied back to organized crime or making a quick decision in the name of Economic Powers Act, 50 U.S.C. § 1701 cyber-intelligence organizations from quickly getting back to business. q et seq., (IEEPA) and the Trading with countries like Russia, North Korea, or the Enemy Act, 50 U.S.C. § 4301 et seq., Iran. Therefore, if you “whip out” your Endnotes (TWEA) prevent U.S. citizens from credit card or bitcoin wallet to pay a 1. https://perma.cc/75P5-BUSB, U.S. Dept. of the Treasury, Advisory on Potential Sanctions engaging in transactions, directly or ransom to get back to business, you may Risks for Facilitating Ransomware Payments indirectly, with individuals on OFAC’s be subject to civil penalties for violating (Oct. 1, 2020) Specially Designated Nationals and OFAC sanctions even if you did not 2. Office of Foreign Assets Control, Sanctions Blocked Persons List and those covered know you are participating in a Programs and Information, U.S. Department by comprehensive country or region prohibited transaction. of the Treasury, https://perma.cc/HE8Q-6P2E embargos (e.g., Cuba, Ukraine, Iran, With all that said, here are three North Korea, and Syria). Transactions important recommendations if you or a by non-U.S. persons that cause a U.S. client experience a ransomware attack: person to violate IEEPA or TWEA are • First, engage an attorney that has also prohibited. experience dealing with data inci- OFAC provides that violators are dents. Experienced data security subject to “civil penalties for sanctions attorneys work with reputable data violations based on strict liability, forensics firms that can identify the meaning that a person subject to U.S. ransomware variant. Once identified, Darius Davenport is a partner and chair of the jurisdiction may be held civilly liable a sound legal determination can Cybersecurity and Data Privacy practice group of Crenshaw, Ware & Martin. His practice focuses even if [he or she] did not know or have be made regarding the potential of on data privacy laws, the mitigation of cyber risk, reason to know [he or she] was engaging an OFAC violation when making a and cyber incident response. Davenport’s prac- in a transaction with a person that was ransom payment. tice also includes complex litigation in state and prohibited under sanctions laws and • Second, if a determination is made federal courts with an emphasis on public sector regulations administered by OFAC.”1 that a ransomware payment may have law, employment law, and insurance defense. He These transactions are prohibited represents political subdivisions and businesses a connection to a sanctioned party, across the region. He is a member of the Special because the billions of dollars raised it is recommended that you contact Committee on Technology and the Future annually through cybercrimes are OFAC, or the U.S. Department of the Practice of Law. www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 37 Pro Bono Contributions by Virginia Lawyers in 2019-20
The numbers are in for the second year of voluntary pro bono reporting for the 2019–20 fiscal year, and Virginia lawyers have been busy. 403,969 PRO BONO HOURS REPORTED Thank you to everyone who took the time to by 6,009 members reporting hours greater than zero report their hours and financial contributions. The numbers provide a valuable baseline for programming and education in years to come. $1,585,492 Members can report contributions made in the 2020–2021 bar year as part of the upcoming dues FINANCIAL CONTRIBUTIONS REPORTED by 1,812 members reporting financial contributions renewal process, which opens on June 16, 2021. greater than zero
These numbers include 45,477 associate and active member dues renewals recieved as of April 9, 2021.
not responsive: 17,710 (38.9%)*
member selected ‘decline to report’ on form: 19,837 (43.6%)
only reported hours: 4,841 (10.6%)**
reported 0.00 hours: 185
only reported financial contribtions: 670 (1.4%)**
reported 0.00 for financial contributions: 12
reported hours and financial contributions: 2,419 (5.3%)**
reported 0.00 for hours and financial contributions: 937
*This number includes empty forms returned by mail; members who renewed online but skipped the reporting section altogether; members who returned and filled out some information on the form, but did not fill out the formal reporting section; and presumptive forms not returned with paper renewals. **This number includes members who reported zero (dark shaded area indicated 0.00 reporting) for this category. Access to Legal Services Operation Healing Forces: Pro Bono Program Serving Special Operations Service Members by James M. Giudice
Over the past two decades, no military Resources (SOAR) Program continues members and their families in tough community has borne a greater burden to build the trust of the community situations that result in a variety of legal fighting our nation’s battles than Special with an abundance of programs and issues. Effectively dealing with legal Operations Forces (SOF). Operating resources. The SOAR Program pro- matters requires trusted, knowledgeable in over 76 countries on any given day, vides immediate, direct crisis support counsel that can help navigate uncertain SOF are tasked with carrying out the to Special Operators and their families. waters. Because SOF members relocate military’s most secretive, specialized, This immediate needs program covers so frequently, never really putting down and dangerous missions. In recent years, travel and expenses related to medical roots, they often lack the network and as conventional forces have withdrawn emergencies, medical and adaptive relationships to find competent legal from former areas of operation like Iraq equipment not covered by government counsel. OHF intends to help bridge and Afghanistan, SOF have been relied means, family travel, relief or respite this gap by connecting its members with upon even more heavily. Operation care for full-time caregivers, one-time volunteer attorneys interested in serving Healing Forces (OHF) is a nonprofit financial assistance related to transition those who have served. organization whose core mission is to or employment opportunities, and other The practice areas of focus for support active duty and recently sepa- as needed crisis support for families, the program are real estate/landlord rated SOF service members, including including emergency financial support. tenant, general business, employee and wounded, ill, and injured SOF indi- OHF also offers support with financial independent contractor, income tax viduals and their families. OHF aids planning, Veterans Affairs disability controversy, estate planning, probate these service members and helps guide benefits, employment resources, and a administration, guardianships, immi- them on their journey towards mental, training/job placement program with gration, and general litigation. OHF and physical, and emotional healing. OHF’s Richmond-based insurance company the Carrico Center will work together resources focus on helping SOF mem- Markel Corporation. to ensure these service members are bers to return to the fight, rekindle rela- Assistance with legal matters was a connected with knowledgeable counsel tionships, and/or successfully transition previously unserved area. In partnership based on their specific needs. into civilian life. with the Carrico Center for Pro Bono We ask and encourage you to follow Virginia has one of the largest & Public Service (a volunteer corps of the links below to learn more about the SOF populations of any state in the Virginia lawyers and student volun- program and join the corps country, and it is home to approxi- teers from the University of Richmond of volunteers. q mately 10,000 active duty and veteran School of Law), OHF developed a pro SOF members. Since its inception in bono legal program to assist current and Operation Healing Forces: Serving 2011, OHF has fulfilled its mission to former SOF members and their spouses. Those Who Have Served Our Country – support SOF members through a variety The goal is to help these veterans and Law Over Lunch CLE: of services. Initially OHF’s founder, their families receive legal assistance https://perma.cc/F8BL-S456 and Richmond native, Gary Markel, with issues that have been exacerbated established the nonprofit to provide from the demands of military life. To Volunteer Signup: https://bit.ly/3vcvtCa SOF service members, veterans, and properly serve this special group of their spouses with one retreat per year veterans who have sacrificed so much in aboard a luxury yacht. This was known the service of our nation, it is important as Operation Cruise. Since 2011, the to understand the hardships faced by volume and scope of assistance provided SOF members and their families. by OHF has grown exponentially. The SOF operates under a shroud of once-modest organization now offers secrecy to protect national security and more than 50 couples’ retreats per year international interests. They typically in nearly two dozen locations across the deploy multiple times per year, to high- Jim Giudice is a Richmond corporate attorney United States and the Caribbean. These risk remote areas, and often on very at Williams Mullen who represents public and retreats focus on creating a space where short notice. In addition to the rigorous private companies in general corporate matters, SOF members and their spouses can operational tempo of SOF units, when including mergers and acquisitions, joint ven- rekindle bonds and repair relationships not deployed these service members tures, entity formation, corporate governance that have been strained from decades train constantly and are frequently and other commercial transactions. Prior to attending law school, he served as a Marine at war. relocated across the United States and Recon platoon commander, and currently In addition to these retreats, around the world. These challenges serves as a Major in the United States Marine OHF’s Special Operations Additional can compound over time and put SOF Corps (reserve). www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 39 Risk Management My Former Client Posted What? by Mark Bassingthwaighte
No one enjoys hearing feedback about For example, don’t take the bait on might have with the service I provide. themselves that is critical in nature. But a fight you won’t win. Participating in It is with pride that I share that I have sometimes we need to hear that we’re name calling, a war of words, or worse, handled over 500 matters of this type not meeting the expectations of others. can too easily be viewed as you being during my 21 years of practice, and I Critical feedback shared respectfully can someone who can’t handle a little criti- have yet to have anyone directly ex- be a wonderful opportunity for person- cism; and truth be told, the consuming press any concerns with the represen- al and professional growth. That said, public isn’t interested in trying to figure tation they received. when a former client posts a review, on out who’s right and who’s wrong in their I know that the desire to standup something like an attorney rating site, respective opinions. Making matters and defend oneself can be strong, par- which is full of vitriol and outright lies, worse, the very fact that you are fighting ticularly when your professional skills well that’s something else entirely. Now with a former client in an online forum and reputation are called into question. the temptation to fight back and defend would suggest to any viewer that they Should you ever find yourself staring one’s reputation is in play. The interest- risk being treated similarly were they at a negative review that starts to make ing ethical question is this. Can you? were ever to voice dissatisfaction with your blood boil, just stop, and take a The answer isn’t as simple as you your services. few breaths. Remember what Rule 1.6 might think. Yes, there is an exception The better choice is to view the neg- says, think about what it means to be a in our confidentiality rule (Rule 1.6) that ative review for what it is, a marketing professional, and take the high road by permits an attorney to reveal informa- opportunity. Josh King, former General drafting a response along the lines of tion relating to the representation of a Counsel for Avvo, has shared the fol- what I’ve suggested. As I see it, there’s client to the extent the attorney rea- lowing advice to lawyers fearful of the no better ethically permissible way to sonably believes necessary to establish fallout of a negative online review, and I try and shut the criticism down and a claim or defense in a controversy agree with him wholeheartedly: why not take advantage of Josh’s “golden between the attorney and the client. This Negative commentary can be a golden marketing opportunity” at the same is often referred to as the self-defense marketing opportunity. By posting a time. q exception. Unfortunately, every author- professional, meaningful response to ity who has considered the question negative commentary, an attorney Endnotes has held that an attorney facing this sends a powerful message to any 1. Josh King, Your Business: Someone Online situation cannot disclose confidential readers of that review. Done correct- Hates You, THE RECORDER (Aug. 16, 2013, 4:40 PM) https://perma.cc/9VK8-YKFA. information to rebut a former client’s ly, such a message communicates allegations about the attorney’s repre- responsiveness, attention to feedback Disclaimer: sentation of that person. Why? Because and strength of character. The trick ALPS presents this publication or document as general The ex- information only. While ALPS strives to provide accurate there is no legal controversy. is to not get defensive, petty, or feel information, ALPS expressly disclaims any guarantee or ception really doesn’t come into play the need to directly refute what you assurance that this publication or document is complete or unless and until you are having to perceive is wrong with the review…. accurate deal with the likes of a bar complaint, [A] poorly-handled response to a legal malpractice claim, or fee dispute. negative review is much worse than A negative online review simply doesn’t no response at all. It makes you look get you there. thin-skinned and defensive. Worse yet, Although you can’t disclose cli- if you argue and reveal client con- ent confidences to defend yourself, fidences (or even potential harmful there is no ethical prohibition against non-confidences), you may be subject disagreeing with this client’s publicly to discipline.1 voiced criticisms of you in more generic What might such a response look terms. As a risk guy, however, I need to like? While the specifics of the negative suggest that doing so may not be the review matter, here’s just one idea: Since 1998, Mark Bassingthwaighte, has been a risk manager with ALPS, an attorney’s best idea depending upon how you end As a lawyer I am ethically prohibited professional liability insurance carrier. In his up handling the exchange. Think about from revealing information relating tenure with the company, Bassingthwaighte has how others, some of whom might be to my representation of any client in a conducted over 1200 law firm risk management assessment visits, presented over 400 continuing potential new clients or even current public forum; however, I always wel- legal education seminars throughout the United clients, might respond to the debate you come the opportunity to discuss the States, and written extensively on risk manage- are about to enter into. concerns any client, former or current, ment, ethics, and technology.
40 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Virginia Lawyer Register
DISCIPLINARY SUMMARIES The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) Richard Scott Gordon Newport News, VA 23607 or another of the Supreme Court Rules. VSB Docket No. 20-010-117385 Copies of disciplinary orders are available at the link On March 26, 2021, the Virginia State Bar Disciplinary Board provided with each summary or by contacting the Virginia suspended Richard Scott Gordon’s license to practice law in the State Bar Clerk’s Office at (804) 775-0539 or [email protected]. Commonwealth of Virginia for 90 days. Mr. Gordon stipulated to the VSB docket numbers are provided. violation of rules that govern declining or terminating representation and bar admissions and disciplinary matters. http://www.vsb.org/docs/Gordon-040821.pdf
CIRCUIT COURT Carl Christen La Mondue Carl Christen La Mondue La Mondue Law Firm, PLC La Mondue Law Firm, PLC Norfolk, VA 23510 Norfolk, VA 23510 VSB Docket Nos. 20-021-116407 and 20-021-117750 VSB Docket No. 20-021-118949 Effective February 26, 2021, the Virginia State Bar Disciplinary Board Circuit Court Case No. CL21-3249 suspended Carl Christen La Mondue’s license to practice law in the On April 9, 2021, a three-judge panel in the Circuit Court for the City Commonwealth of Virginia for four years for violating professional of Norfolk accepted Carl Christen La Mondue’s affidavit consenting rules that govern fees, safekeeping property, bar admission and to revocation and ordered his license to practice law revoked. By disciplinary matters, and misconduct. tendering his consent to revocation at a time when allegations of http://www.vsb.org/docs/LaMondue-031721.pdf misconduct are pending, La Mondue acknowledges that the material facts upon which the allegations of misconduct are predicated are true. Scott Allen Lehman https://www.vsb.org/docs/LaMondue-041421.pdf Lehman Law Virginia Beach, VA 23322-2345 John B. Russell Jr. VSB Docket Nos.: 20-022-116682, 20-022-117305, 20-022-118271, Bon Air, VA 23235 20-022-118278 VSB Docket No. 20-032-116198 Effective March 12, 2021, the Virginia State Bar Disciplinary Board Circuit Court Case No. CL20-1275 suspended with terms Scott Allen Lehman’s license to practice Effective October 23, 2020, the Circuit Court of the County of law in the Commonwealth for a period of two years for violating Chesterfield revoked John B. Russell Jr.’s license to practice law in professional rules that concern fees, conflict of interest (general rule), the Commonwealth for violating professional rules that govern conflict of interest (prohibited transactions), safekeeping property, competence, diligence, and communication. unauthorized practice of law, and misconduct. This was an agreed http://www.vsb.org/docs/Russell-032621.pdf disposition of misconduct charges. http://www.vsb.org/docs/Lehman-031721.pdf DISCIPLINARY BOARD Sandy Yeh Chang Chung Suk Oh Gaithersburg, MD 20878 Shin Law Group VSB Docket No. 21-000-121736 Falls Church, VA 22043 By order entered and effective on March 25, 2021, the Virginia State VSB Docket No. 21-052-121267 Bar Disciplinary Board indefinitely suspended Sandy Yeh Chang’s Effective March 26, 2021, the Virginia State Bar Disciplinary license to practice law in the Commonwealth of Virginia. This was an Board revoked Chung Suk Oh’s license to practice law based on his agreed reciprocal disposition based on her January 19, 2021, indefinite affidavit consenting to the revocation. By tendering his consent to suspension from the practice of law by the Court of Appeals of revocation at a time when allegations of misconduct are pending, Oh Maryland. acknowledges that the material facts upon which the allegations of http://www.vsb.org/docs/Chang-032621.pdf misconduct are predicated are true. http://www.vsb.org/docs/Oh-032921.pdf Marc Ericson Darnell Newport News, VA 23601 Alicia Ellen Rowedder VSB Docket No. 20-010-117018 Henrico, VA 23228 Effective September 19, 2022, the Virginia State Bar Disciplinary VSB Docket No. 20-033-119016 Board suspended, with terms, Marc Ericson Darnell’s license to Effective March 29, 2021, the Virginia State Bar Disciplinary Board practice law in the Commonwealth of Virginia for nine months issued a public reprimand to Alicia Ellen Rowedder for violating for violating professional rules that govern competence, diligence, professional rules that govern the unauthorized practice of law; communication, fees, bar admission and disciplinary matters, and multijurisdictional law. This was an agreed disposition of misconduct misconduct. This was an agreed disposition of misconduct charges. charges. http://www.vsb.org/docs/Darnell-031921.pdf http://www.vsb.org/docs/Rowedder-033021.pdf www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 41 Virginia Lawyer Register
Joseph William Wright III Kevin Darryl Purnell Dygert, Wright, Hobbs & Henandez, PLC Richmond, VA 23221 Charlottesville, VA 22902 VSB Docket No. 21-033-119413 VSB Docket No. 20-070-119105 Effective March 29, 2021, the Third District, Section III Effective May 3, 2021, the Virginia State Bar Disciplinary Board Subcommittee of the Virginia State Bar issued a public reprimand issued a public reprimand with terms to Joseph William Wright III with terms to Kevin Darryl Purnell for violating professional rules for violating professional rules that govern safekeeping property and that govern competence, diligence, and communication. This was an responsibilities regarding nonlawyer assistants. This was an agreed agreed disposition of misconduct charges. disposition of misconduct charges. http://www.vsb.org/docs/Purnell-032921.pdf http://www.vsb.org/docs/Wright-050421.pdf Christopher Paul Reagan DISTRICT COMMITTEES Christopher P. Reagan, P.C Newport News, VA 23601 Kevette Beard Elliott VSB Docket No. 20-010-119132 Elliott Law Office Effective May 6, 2021, the First District Subcommittee of the Virginia Richmond, VA 23294 VSB Docket No. 20-032-117584 State Bar issued a public reprimand with terms to Christopher Effective March 25, 2021, the Third District, Section II Subcommittee Paul Reagan for violating professional rules that govern scope of of the Virginia State Bar issued a public reprimand with terms to representation and communication. This was an agreed disposition of Kevette Beard Elliott for violating professional rules that concern misconduct charges. safekeeping property. This was an agreed disposition of misconduct http://www.vsb.org/docs/Reagan-050621.pdf charges. http://www.vsb.org/docs/Elliott-032521.pdf
DISCIPLINARY PROCEEDINGS
Respondent’s Name Address of Record Action Effective Date
Circuit Court Carl Christen La Mondue Norfolk, VA Revocation April 9, 2021 John B. Russell Jr. Bon Air, VA Revocation October 23, 2020
Disciplinary Board Sandy Yeh Chang Gaithersburg, MD Indefinite Suspension March 25, 2021 Marc Ericson Darnell Newport News, VA 9-Month Suspension With Terms September 19, 2022 Richard Scott Gordon Newport News, VA 90-Day Suspension March 26, 2021 Carl Christen La Mondue Norfolk, VA 4-Year Suspension February 26, 2021 Scott Allen Lehman Virginia Beach, VA 2-Year Suspension With Terms March 12, 2021 Chung Suk Oh Falls Church, VA Revocation March 26, 2021 Alicia Ellen Rowedder Henrico, VA Public Reprimand March 29, 2021 Joseph William Wright III Charlottesville, VA Public Reprimand With Terms May 3, 2021
District Committees Kevette Beard Elliott Richmond, VA Public Reprimand With Terms March 25, 2021 Kevin Darryl Purnell Richmond, VA Public Reprimand With Terms March 29, 2021 Christopher Paul Reagan Newport News, VA Public Reprimand With Terms May 6, 2021
Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Sandy Yeh Chang Gaithersburg, MD April 29, 2021 James Stephen Del Sordo Manassas, VA April 30, 2021 Scott Allen Lehman Chesapeake, VA April 23, 2021 Chung Suk Oh Falls Church, VA May 3, 2021
Private Sanctions Effective Date Lifted 6 Private Admonitions 6 Private Reprimands
42 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Virginia Lawyer Register
NOTICES TO LAWYERS
Supreme Court of Virginia Amends Rules Affecting Bar Officers and Trial Procedures On May 5, 2021, the Supreme Court of Virginia amended Section IV, Paragraph 4 of the Rules for Integration of the Virginia State Bar, Part Six of the Rules of Court, effective July 5, 2021. The Court also issued a second Order amending Rules 1:19, 3:8, and 4:5, effective July 5, 2021. Section IV, Paragraph 4 of the Rules for Integration of the Virginia State Bar delineate the rules and processes for selecting and electing the officers of the Bar as prescribed by the Bylaws of the Council. http://www.courts.state.va.us/courts/scv/amendments/part_ six_sect_iv_par_4.pdf
Supreme Court of Virginia Amends Rules of Court Effective Immediately On April 28, 2021, the Supreme Court of Virginia amended Part 6, Section IV, of the Rules of the Supreme Court to be effective immediately. The amendments affect Paragraph 13.1, Suspension for Failure to Complete Professionalism Course; Paragraph 16, Clients’ Protection Fund; and Paragraph 19, Procedure for the Administrative Suspension of a Member. www.vsb.org/site/news/item/scv_amends_rules_of_court1
Supreme Court of Virginia Amends Parts Five and Five A of the Rules of the Court On April 1, 2021, The Supreme Court of Virginia amended the Rules of the Court of Virginia Parts Five and Five A to be effective June 1, 2021. www.vsb.org/site/news/item/scova_amends_parts_five_fivea
Supreme Court of Virginia Approves LEO 1878 and Amends Paragraph 13 On May 17, 2021, the Supreme Court of Virginia approved Legal Ethics Opinion 1878 to be effective immediately and amended Paragraph 13 of the Rules of Court to be effective July 16, 2021. https://www.vsb.org/site/news/item/scv_leo_1878_and_ paragraph_13
Supreme Court of Virginia Amends COVID Order On May 17, 2021, the Supreme Court of Virginia amended its May 3 Twenty-First Judicial Emergency Order regarding COVID-19 in light of new guidance from the Center for Disease Control and Governor Northam's executive order regarding face masks. www.vsb.org/site/news/item/SCV_amends_covid_order
www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 43 Virginia Lawyer Register
CLIENTS’ PROTECTION FUND burse half of what the petitioner requested. Baggs’ license was revoked3 by consent on March 17, 2020 for neglect of multiple cases in his immigration practice. The Virginia State Bar Clients’ Protection Fund Board autho- Two former clients of Randall Sousa of Fairfax were awarded rized payments totaling $134,080.85 in reimbursement on seven $2,500 and $312, respectively, by the board. In the larger of the petitions at its January 29, 2021 meeting. two reimbursements, the client paid Sousa $5,300 to handle her In the largest award of the meeting, the board approved divorce. $300 was for the initial consultation, and the remaining three separate payments, of $50,000, $28,047.50, and fee would be earned as work was performed. The board found $29,060.85, to the new trustee of multiple trusts based on that Sousa did enough work on the case to justify reimbursing evidence of Phillip R. Farthing’s breach of fiduciary duty and one-half of the requested amount. In the second case, Sousa excessive fees that Farthing charged when he was trustee for the failed to do any work to protect the client’s interest after the client hired Sousa for a civil matter that the client had filed pro trusts over the course of several years. The board considered 4 each of the trusts a distinct petitioner under the rules capping se. A three-year suspension was issued on January 27, 2020 for the amount a single petitioner can receive. The losses occurred Sousa. He appealed the suspension, but the appeal was subse- when the per-petitioner cap was $50,000. Farthings’ license was quently dismissed by the Supreme Court of Virginia. revoked1 in January 2020 by consent for misconduct related to A petitioner recovered $1,000, representing fees paid to this claim. Jahangir Ghobadi of Sterling for a retainer to file an application The board approved the payment of $12,500 to a petitioner for a license to authorize the client to transfer money to a U.S. bank account from another country. Ghobadi failed to do the regarding Robert Lyman I. Shearer, Jr. of Springfield for failing 5 to perform all the work required to finalize a divorce and prop- work to obtain the license. Ghobadi’s license was revoked in erty settlement case. The board found that Shearer performed June 2019 for a similar misconduct case. more than insignificant legal services, but not all the work for A chart of the amounts paid as a result of this meeting which he received $25,000, prompting the board to reimburse follows. The board delays the release of the final chart, as the half of what the petitioner requested. Shearer’s license was sus- awards given to petitioners are subject to a 30-day pended2 for three years beginning June 22, 2018. appeal period. A married couple received $5,660.50 as reimbursement for The Clients’ Protection Fund was created by the Supreme fees they paid John B. Russell Jr. and/or companies with which Court of Virginia in 1976 to reimburse persons who suffer Russell was affiliated for legal representation in a mortgage a quantifiable financial loss because of dishonest conduct by modification case, finding that neither Russell nor the affiliated a Virginia lawyer whose law license has been suspended or companies performed sufficient legal services to earn the fee the revoked for disciplinary reasons, or who has died and did not petitioners paid. properly maintain client funds. The fund is not taxpayer funded The board approved a $5,000 payment as reimbursement for but is supported by Virginia lawyers who pay an annual fee of unearned attorney’s fees in an immigration matter. The board up to $10. Payments from the Clients’ Protection Fund are dis- found that the attorney, Charles Ellis Baggs, performed more cretionary and are not a matter of right. than insignificant legal services, but not all the services, that the If you have any questions, you may contact Vivian R. Byrd, $10,000 fee should have covered, prompting the board to reim- administrator to Clients’ Protection Fund by email at [email protected] or (804) 775-0572.
Endnotes 3 https://www.vsb.org/docs/Baggs-031720.pdf 1 https://www.vsb.org/docs/Farthing-012420.pdf 4 https://www.vsb.org/docs/Sousa-022520.pdf 2 https://www.vsb.org/docs/Shearer-070318.pdf 5 https://www.vsb.org/docs/Ghobadi-071919.pdf
Docket Number Lawyer’s Name City of Record Amount Paid Type of Case 20-555-003268 Philip R. Farthing Norfolk, VA $50,000.00 Breach of Fiduciary Duty, Unearned fees/ $28,047.50 Estate Planning Administration and Trusts $29,060.85 20-555-003295 Randall Sousa Fairfax, VA $312.00 Unearned fees/Civil Law 20-555-003287 Randall Sousa Fairfax, VA $2,500.00 Unearned fees/Family Law 20-555-003288 Ellis Charles Baggs Richmond VA $5,000.00 Unearned fees/Immigration 20-555-003256 Jahangir Ghobadi Sterling, VA $1,000.00 Unearned fees/Banking 20-555-003252 John B. Russell, Jr. Bon Air, VA $5,660.50 Unearned fees/Banking 20-555-003271 Robert Lyman I. Shearer, Jr. Springfield, VA $12,500.00 Unearned fees/Family Law
44 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 Endnotes Defective Construction Causing Personal Injuries: The Supreme Court of Virginia Declines To Adopt The “Modern View” by David Hilton Wise and John Joseph Drudi
Due to an editing error in the April issue of Virginia Lawyer, the endnotes for David Hilton Wise and John Joseph Drudi’s article Defective Construction Causing Personal Injuries: The Supreme Court of Virginia Declines to Adopt the “Modern View” were omitted. The original article ran on page 34. They have been added to the digital edition at bit.ly/0421p34
1. An excellent compilation and discussion of case law regarding the recover was not founded upon the breach of a contract, but upon the “modern view” is contained in Emmanuel S. Tipon, Annotation, neglect of a common-law duty”). See also Dunn Const. Co. v. Cloney, Modern Status of Rules Regarding Tort Liability of Building or 278 Va. 260, 266, 682 S.E.2d 943, 946 (2009) (“To avoid turning every Construction Contractor for Injury or Damage to Third Person breach of contract into a tort, however, we have consistently adhered Occurring After Completion and Acceptance of Work; “Foreseeability” to the rule that, in order to recover in tort, the duty tortiously or or “Modern” Rule, 75 A.L.R.5th 413, § 2[a], at 437 (2000)—This article negligently breached must be a common law duty, not one existing is cited by the Tingler Court. Tingler v. Graystone Homes, Inc., 834 between the parties solely by virtue of the contract”). S.E.2d 244, 259 (Va. 2019). 6. Tingler, 834 S.E.2d at 254. 2. Glisson v. Loxley, 235 Va. 62, 67, 366 S.E.2d 68, 71 (1988). 7. Sensenbrenner v. Rust, Orling & Neale, 236 Va. 419, 421, 374 S.E.2d 3. Id. 55, 56 (1988), and its progeny. 4. Tingler, 834 S.E.2d at 254. 8. Tingler, 834 S.E.2d at 258. 5. Id., citing the following supporting authority: MCR Fed., LLC v. 9. Id. JB&A, Inc., 294 Va. 446, 457, 808 S.E.2d 186, 192 (2017) (“In deter- 10. Id., citing City of Richmond v. Branch, 205 Va. 424, 429, 137 S.E.2d mining whether a cause of action sounds in tort, contract, or both, 882, 885–86 (1964) (“There were no peculiar circumstances here ‘the source of the duty violated must be ascertained’”); Richmond showing that there was anything inherently or imminently dangerous Metro. Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553, 558, 507 S.E.2d in constructing the sewer line”). 344, 347 (1998) (“If the cause of complaint be for an act of omission 11. Tingler., 834 S.E.2d at 262 (personal injuries arising out of post-de- or non-feasance which, without proof of a contract to do what was livery conduct are actionable as a separate tort “to the extent that the left undone, would not give rise to any cause of action (because no complaints allege that the failed repairs made the original condition duty apart from contract to do what is complained of exists) then worse and, by doing so, caused new personal injuries or aggravated the action is founded upon contract, and not upon tort”); Atl. & P. preexisting injuries”); See also Kaltman v. All American Pest Control, Ry. Co. v. Laird, 164 U.S. 393, 399, 17 S. Ct. 120, 122, 41 L. Ed. 485 Inc., 281 Va. 483, 492-93 (2011) (duties of pest control contractor to (1896), citing Kelly v. Railway Co. [1895] 1 Q. B. 944 ( “in the case at exercise skill and diligence to prevent injury and harm to clients arose bar, there was a duty shown, independently of contract; and the trial independent of contract). court, looking at the allegations of a complaint which had not been 12. Id. demurred to, solely for the purpose of determining the propriety of 13. Tingler, 834 S.E.2d at 265 (emphasis in the original). an amendment, was manifestly justified in holding that the right to 14. Tingler v. Graystone Homes, Inc., 834 S.E.2d 244, 260 (Va. 2019). Bar Counsel continued from page 12 debt to allow him to continue to serve By order entered October 5, 2020, as executor. While Strickler initially a three-judge panel of Virginia Beach and both Clients A and B. Lehman recognized his conflict of interest in si- Circuit Court approved an agreed dis- stated that he loved Client A on video multaneously serving as executor while position for a public reprimand against numerous times. The relationship only contesting his obligation to the estate, Commander for her violation of Rules stopped when the incarcerated client he conditioned his stepping down on a 1.7(a)(2) arising from her use of her reported the relationship to officers, waiver or reduction of his obligations client’s litigation to defend her own Bar saying, “she did not want to be repre- to repay the note. Strickler opposed the complaint. sented by [Lehman] any longer because petition to remove him as executor and Commander initially represented she felt like he was lying to her and filed exceptions to the Commissioner father in a visitation matter. Father was she almost felt like he did not want her of Accounts’ report finding Strickler served with a protective order prevent- to get a bond.”3 The court appointed remained liable to the estate. Strickler ing him from contacting the mother new counsel, and the Commonwealth’s also disbursed estate funds to himself and subsequently charged with felony Attorney reported Lehman to the VSB. for his attorneys’ fees and expenses in violations and violations of the protec- Lehman violated Rules 1.7(a)(2) and opposing the petition to remove him tive order. The mother was a witness 8.4(b). Lehman’s two-year suspension as executor. The residuary beneficiary in the felony case against the father. included a three-year probation period incurred over $100,000 in attorney’s Commander filed a custody and visita- following his suspension with an alter- fees trying to get Strickler removed as tion petition on behalf of the paternal nate sanction of revocation. executor and defending the validity of grandmother in Juvenile and Domestic the promissory note. Relations District Court. Commander Executor’s Conflict as Debtor of Estate The three-judge court found that conveyed, but subsequently withdrew, Strickler violated Rule 1.7(a)(2) twice, an offer from the paternal grandmother Six-Month Suspension with Terms/ acting both times for his own personal to the mother to provide moving Alternate Sanction of Revocation benefit to the detriment of the estate expenses and open college accounts for Virginia State Bar ex rel. Second District, and its primary beneficiary: (1) by the children if the mother agreed not to Section II Subcommittee v. Stephen A. serving as executor of the estate while pursue the protective order violations Strickler, Case No. CL20-324 simultaneously contesting his obliga- or testify in the criminal proceedings. Following a two-day hearing tion to repay a note to the estate and (2) Commander stipulated that her offer October 20 and 21, 2020, effective by using his position as executor of the violated Rules 3.4(c) prohibiting a November 27, 2020, a three-judge panel estate to negotiate a waiver or compro- lawyer from offering an inducement to of Virginia Beach Circuit Court found mise of his obligation to repay the note. a witness that is prohibited by law and Stephen A. Strickler committed two The three-judge court suspended 8.4(b). Mother filed a Bar complaint violations of Rule 1.7(a) and suspended Strickler’s license for six months, with against Commander prior to the con- his license for six months with terms. terms, requiring Strickler to: clusion of the Juvenile and Domestic For over four years, Strickler obsti- • resign as executor; Relations District Court case. nately refused to step down as executor • repay the estate the attorneys’ fees Mother’s attorney filed a divorce of an estate of which he was a benefi- charged to oppose the petition to case in Circuit Court, and Commander ciary and to which he was personally remove him as executor; initially represented father in the indebted, all the while trying to secure • pay the note in full in timely divorce proceedings before withdraw- advantage for himself to the detriment monthly payments of at least ing from the case. Commander, on of the estate. $1,000; and behalf of the paternal grandmother, Strickler and his wife were neigh- • waive any remaining fees he would subsequently filed a motion to inter- bors and friends of decedent and his have earned as executor and fur- vene in the divorce to seek custody of wife. Strickler and his wife borrowed ther costs reimbursements from the parties’ minor child. She then used a total of $175,000 from decedent and the estate. the litigation in which she intervened executed a promissory note. At the time The alternative sanction for failure on the paternal grandmother’s behalf decedent passed away, Strickler owed to comply with any of the following to depose witnesses, issue subpoenas, decedent in excess of $130,000. While terms is revocation of Strickler’s license. and file documents in defense of the Strickler asserted that decedent verbally Strickler has been in practice for almost Bar complaint until the court disqual- forgave the loan before he died, the note 50 years. ified Commander from representing — later found by decedent’s family — any party or intervenor. Commander bore no indicia of having been forgiven. Public Reprimand argued that she did not violate Rule Strickler qualified as executor of Virginia State Bar ex rel. Second District, 1.7 by intervening in the divorce case decedent’s estate and then insisted that Section II Subcommittee v. Mary G. because she had no duty to the mother/ the residuary beneficiary waive his Commander, Case No. CL20-5291 complainant to maintain the integrity of
46 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org CTA continued from page 16 the Bar complaint and process. She ultimately expressed remorse, and acknowledged that she Undoubtedly the CTA’s attempt to crack down on the use of anonymous erred when she agreed to represent the paternal shell corporations will have many positive repercussions. These new grandmother after receiving the Bar complaint disclosure requirements discourage money laundering, terrorist financial against her. Commander also acknowledged transfers, criminal activity, and tax evasion. Cooperation and coordi- that should not have extended the offer regard- nated efforts between the federal government, state governments, and ing the pending criminal actions. Commander foreign governments to accomplish these shared goals is commendable. has been in practice for almost 40 years. And from an international perspective, the passage of the CTA helps to restore confidence in the integrity of the U.S. legal and financial systems Conclusion which have suffered in recent years. With the CTA’s passage comes much The license to practice is a privilege. uncertainty, administrative hassle, and cost of compliance. Lawyers who Manipulating clients’ trust and using the rela- assist clients with the creation of corporations and LLCs and who advise tionship for the attorney’s benefit can and must clients on related corporate matters must understand the new disclosure have serious consequences in a self-regulating requirements imposed by the CTA. - 4 profession. q
Endnotes 1. In the Matter of Benjamin Thomas Bledsoe, VSB Docket No. 19-090-11534, Exh. 27, Stipulation paragraph 16. 2. Id. at ftnt. 4, at p. 3. 3. Virginia State Bar v. Scott Allen Lehman, VSB Docket Nos. 20-022-116682, 20-022-117305, 20-022-118271, and 20-022-118278. Got an Ethics Question? 4. At is April meeting, Council passed a proposal to add The VSB Ethics Hotline is a confidential consultation service for a Virginia Rule of Professional Conduct 1.8(k) prohib- iting sexual relations between an attorney and client Virginia lawyers. Questions can be submitted to the hotline by unless a consensual sexual relationship existed be- calling (804) 775-0564 or by clicking on the “Email Your Ethics tween the attorney and client when the attorney-client relationship commenced. The proposed rule requires Question” link on the Ethics Questions and Opinions web page at approval by the Supreme Court of Virginia. www.vsb.org/site/regulation/ethics/.
Cryptocurrency continued from page 19 MISC or 1099-K. Cryptoassets present numerous challenges to the estate challenge for an executor of an estate needing to file a form planner and for the liability-wary fiduciary but will inevi- 706 estate tax return, or planning to liquidate the holdings tably become commonplace as adoption continues to grow and needing to file form 1041 when there is no opening or and as the first generation of crypto holders begins to age. closing of markets. Complicating things further, it is not Yet this blooming asset class also presents the opportunity uncommon for 5-25 percent swings in prices of cryptoassets for creativity, ingenuity, and innovation in the world of estate to occur in the span of a day or even a few hours. Until fur- planning. Consideration of appropriate and willing fidu- ther guidance is provided, it is up to the estate and its lawyer ciaries, legal documents that support their access to infor- or accountant to determine a reasonable and consistent mation and the assets, consideration of advisable waivers approach to the valuation of cryptoassets. of fiduciary duties, and good record-keeping for tax and Such a determination can be particularly challenging custody purposes—all being a part of the good planner’s when the date of acquisition (which is necessary to deter- repertoire—are vital when planning for cryptoassets. - mine the cost basis) is unknown. However, if the public address associated with a cryptoasset is known, it is possible Endnotes to find the transactional history on the relevant blockchain 1. Browne, Ryan. “Bitcoin hits new all-time high above $63,000 ahead of itself. Regarding bitcoin, for example, this can be accom- Coinbase debut.” CNBC. https://perma.cc/9252-KWZ3 2. Huillet, Marie. “Total estimated crypto users worldwide tops 100 mil- plished by using a tool called a “block explorer,” or with lion, survey finds.” Cointelegraph. https://perma.cc/N4N6-TY85 software that is connected directly to the Bitcoin network. 3. Nakamoto, Satoshi. “Bitcoin: A Peer-to-Peer Electronic Cash System.” Those who have purchased, held, and/or sold their https://perma.cc/NZV3-BB6R cryptoassets entirely on exchanges (as opposed to hardware, 4. Va. Code section 64.2-129(A) 5. Va. Code section 64.2-780 et seq. mobile and software wallets) do not face such hurdles, as all 6. See Va. Code section 64.2-781 thru 783 major exchanges allow account holders to export a record 7. IRS Notice 2014-21 of transactions. The major U.S. exchanges may also provide 8. Revenue Ruling 2019-24 certain tax forms to account holders such as Form 1099- www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 47 Creditor Protection continued from page 21 addition to the Settlor can be an effec- Virginia progressively changed the tive tool in planning for estates that estate planning landscape by allowing whom both income and principal wish to reduce the gross taxable estate. the Settlor of a trust to place assets in may be distributed, if the settlor’s In times like this, where the estate tax a QSSST and gain creditor protection qualified interest relates to both exemption is high ($11.7 million for against creditors with a present claim trust income and principal; 2021), and scheduled to reduce to $5 (with a five-year statute of limitations) d. The trust has at all times at least million (indexed for inflation) at the and complete protection as to future one qualified trustee, who may be, beginning of 2026 (if not lowered by creditors with no claim as of the date but need not be, an independent Congress before then), it may make of the transfer to the QSSST. And qualified trustee; sense to gift a large asset to the QSSST with the ability of the independent e. The trust instrument express- now. If structured correctly, the asset qualified trustee to distribute funds ly incorporates the laws of the transferred to the QSSST will not be in or assets back to the Settlor if needed, Commonwealth to govern the the Settlor’s estate at death, and if the the QSSST can be seen as a no-lose validity, construction, and admin- Settlor were to need the funds during proposition. - istration of the trust; the Settlor’s lifetime, the Trustee of the f. The trust instrument includes a QSSST would have the power to dis- Endnotes spendthrift provision, as defined tribute back to the Settlor as needed.11 1. Virginia Code § 64.2-747(A)(1) in Code § 64.2-743, that restrains 2. Virginia Code § 64.2-749 both voluntary and involuntary One drawback of the Virginia 3. Virginia Code § 64.2-742 transfer of the settlor’s qualified QSSST is that unlike QSSST’s in other 4. Virginia Code § 64.2-743 interest; and jurisdictions, Virginia provides a five- 5. Molly McEvoy, Asset Protection g. The settlor does not have the right year statute of limitations for credi- Strategies for the Estate Planner © 2019 tors to avoid a transfer to a QSSST.12 6. Virginia Code § 64.2-747(A)(2) to disapprove distributions from 7. Virginia Code § 64.2-745.1(A) the trust. Most states have a shorter limitation 8. “In addition to Nevada and Alaska, the 13 For the Settlor’s interest in the trust period. following states have DAPT statutes: property to be a “qualified interest,” On the plus side, Virginia Code Delaware, Hawaii, Michigan, Mississippi, the trust itself must be a qualified § 64.2-747(A)(2) provides that as to Missouri, New Hampshire, Ohio, QSSST’s, “new” creditors may not Oklahoma, Rhode Island, South Dakota, self-settled spendthrift trust (meet the Tennessee, Utah, Virginia, West Virginia, requirements listed above), and the reach the maximum amount that can and Wyoming. If your state is not on Settlor’s entitlement to distributions of be distributed to or for the settlor’s this list, then you cannot set up this type income, principal, or both, must be in benefit. A creditor with a “ripe” claim of trust as an attempt to protect your the sole discretion of an “independent has a five-year period from the date of assets.” Which States Allow Self-Settled qualified trustee.” the settlor’s transfer to the QSSST to Spendthrift Trusts? – LegalMatch, June 16, 2020; https://perma.cc/NSJ7-LU8K For the trustee to be an “indepen- reach the trust’s assets, but property 9. Virginia Code § 64.2-745.2(A) dent qualified trustee,” the trustee placed in a QSSST prior to an action 10. Virginia Code § 64.2-745.2(A)(1-11) must be (i) a “qualified trustee”—a causing a creditor’s claim is not subject 11. [Williams Mullen: Gift and Creditor Virginia resident or Virginia legal to those “future” claims.14 Protection Planning with Virginia’s New entity that administers the trust in Still, the attorney should be wary of Self-Settled Spendthrift Trust Statute, by 9 Farhad Aghdami & Jeffrey D. Chadwick, Virginia; and (ii) a trustee whose claims made through bankruptcy (fed- available at actions are not subject to direction by eral law has a look-back period of ten https://perma.cc/JRA5-VQSG] the Settlor, a member of the Settlor’s years, not five)15, and claims for child 12. Virginia Code § 64.2-745.1(D) family, or a business associate over support, taxes and reimbursement for 13. “The Virginia legislation is generally whom the Settlor maintains some level public assistance. And while Virginia more conservative than the legislation 10 in other domestic asset protection trust of control or influence. Code § 64.2-745.1(C) states that even states. First, there is a five-year period Note that there must be at least though the creation of a QSSST cannot in which creditors at the time of the cre- one beneficiary other than the Settlor. be deemed to have been made with ation of the trust may bring a claim. This The Code is silent on guidance about intent to delay, hinder, or defraud is longer than the period in other domes- who, or what, the other beneficiary can creditors, the creditor may still have a tic asset protection trust states.” Virginia Enacts Domestic Asset Protection Trust be, but most Settlors choose a family claim if the transfer renders the Settlor 16 Legislation; April 9, 2012; member (spouse, children, siblings, insolvent. To this end, it is suggested https://perma.cc/ED54-V5YJ etc.) to be the other beneficiary. These that attorneys obtain a signed and no- 14. Virginia Code § 64.2-747(A)(2) family members are generally the tarized sworn financial statement from 15. 11 U.S. Code § 548(e) ones to whom the Settlor would wish the settlor showing that the transfer of 16. Virginia Code § 64.2-745.1(C) 17. [Roger McClure, Planning under the the assets to flow to anyway after the the settlor of the assets to the QSSST 17 New Asset Protection Law of Virginia, Settlor’s death. will not render the settlor insolvent. available at One treatise on the subject opined With the addition of Code sections https://perma.cc/MSE8-JCKE] that having at least one beneficiary in 64.2-745.1 and 64.2-745.2 in 2012,
48 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Elder Abuse continued from page 24 5. Krystal, Arthur, Why We Can’t Tell the Truth About Aging,” The New Yorker, October 28, 2019, https://perma.cc/Z73J-BWMN sources and a method for sharing such resources with those 6. National Council on Aging (NCOA), Issues for Advocates, Get the Facts on Elder Abuse, February 23, 2021, who are at risk for elder abuse. https://perma.cc/7WHJ-QV3S Similarly, older adults, their families and caregivers, and 7. FindLaw, Elder Self-Neglect, last updated March 10, 2021, the public must be aware of the prevalence of elder abuse. https://perma.cc/V4QM-J3A2 Any campaign to promote awareness of elder abuse must in- 8. Nursing Home Abuse Center, Physical Elder Abuse, last updated Jan. 8, 2020, https://perma.cc/7G5V-RV3A clude information about Alzheimer’s and related dementias, 9. Nursing Home Abuse Center, Emotional Abuse, last updated Nov. 21, the risk factors and signs of abuse, reporting methods, re- 2019, https://perma.cc/6UC3-A5VL sources, and focused messages that elder abuse is illegal and 10. National Institue on Aging, Elder Abuse, last updated July 29, 2020, unacceptable. There must be publicity of available services so https://perma.cc/4NEV-AVVY 11. Medicare Advantage.com, A Complete Guide to Elder Financial victims know where to turn for help. Abuse, https://perma.cc/RAZ2-2BSS Finally, we must empower individuals to take personal 12. NOLO, Elder Abuse: Financial Scams Against Seniors, updated by responsibility, and where possible, be proactive in the aging Valerie Keene, https://perma.cc/DXV6-3955 journey—and we must start with our own personal jour- 13. National Institue on Aging, Elder Abuse, last updated July 29, 2020, https://perma.cc/4NEV-AVVY ney. It is critical to have a plan to maintain good health and 14. Association of Certified Fraud Examiners, The Fraud Examiner, well-being and as a part of that plan we must monitor our Elderly Fraud Scams: How They’re Being Targeted and How to Prevent cognitive and physical wellness; seek help for mental and It, https://perma.cc/4U2D-JSVY physical health when needed; strive to maintain financial 15. HHS-OIG, Fraud Alert: COVID-19 Scams, last updated March 25, 2021, https://perma.cc/AN68-D5PK stability; limit addictive substances; develop a sense of 16. Federal Communications Commission, Coronavirus Scams Targeting meaningfulness and purpose in all aspects of life; develop Older Americans, https://perma.cc/6QJG-D2SP connections, a sense of belonging, and a reliable support net- 17. Id. work; contribute to groups and communities; stay active and 18. U.S. Department of Health & Human Services, National Institute on Aging, Elder Abuse, https://perma.cc/C3AU-WWUE, involved with people; and maintain connections with friends https://perma.cc/4KWY-N74J and family.26 19. FindLaw, Adult Protective Services: What you need to know, last As it turns out, when it comes to minimizing the likeli- updated March 4, 2021, https://perma.cc/B4EQ-Q8J6. hood of elder abuse, it’s not how old we are, but how we are 20. Virginia DARS Adult Protective Services, https://perma.cc/XMD2-9LZK 27 old. - 21. Alzheimer’s Impact Movement, New Measures to Protect Nation’s Most Vulnerable Becomes Law, Promoting Alzheimer’s Awareness to Endnotes Prevent Elder Abuse Act Signed into Law, December 23, 2021, 1. “World Elder Abuse Awareness Day (WEAAD) was launched on June https://perma.cc/LK2L-HBRM 15, 2006 by the International Network for the Prevention of Elder 22. National Academies of Sciences, Engineering, and Medicine. 2020. Abuse and the World Health Organization at the United Nations. The Social Isolation and Loneliness in Older Adults: Opportunities for the purpose of WEAAD is to provide an opportunity for communities Health Care System. Washington, DC: The National Academies Press. around the world to promote a better understanding of abuse and ne- https://perma.cc/T7E9-RN7F glect of older persons by raising awareness of the cultural, social eco- 23. Orfila, Francesc, et al., BMC Public Health, Family Caregiver nomic and demographic processes affecting elder abuse and neglect.” Mistreatment of the Elderly: Prevalence of Risk and Associated The Center for Elder Abuse (NCEA), World Elder Abuse Awareness Factors, published January 22, 2018, https://perma.cc/46AS-KLNC Day: Building Strong Support for Elders, ncea.acl.gov/WEAAD.aspx 24. Comments from Dr. Andrew Heck pursuant to telephone interview in 2. World Health Organization, Elder Abuse Fact Sheet, June 15 2020, March 2021. https://perma.cc/8ZZ2-KCDU. 25. Comments from Keith Breault pursuant to telephone interview in 3. Alzheimer’s Impact Movement, New Measures to Protect Nation’s March 2021. Most Vulnerable Becomes Law, December 23, 2020, 26. Interestingly, the recommendations for successful aging align with https://perma.cc/Y463-Q9B2 those the Virginia State Bar promotes for a successful lawyering career 4. National Council on Aging (NCOA), Issues for Advocates, Get the at https://perma.cc/E4AZ-3VHH Facts on Elder Abuse, February 23, 2021, 27. “It is not how old you are but how you are old,” Jules Renard (February https://perma.cc/V2KD-NUHV. 22, 1864 – May 22, 1910)
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www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 49 Professional Notices
The Hon. John W. ethical legal advocates. Su has taught Eastern District of Tennessee. Steffen Brown was named Chief over 70 programs since 2010, receiving received her B.B.A. in Accounting from Judge of the Chesapeake high evaluation scores from program East Tennessee State University cum Circuit Court on participants each time. laude and her J.D. from Appalachian January 1, 2021, a court Chesapeake School of Law. During law school, on which he has served Circuit Court Jonathan Fahey has Steffen served as law clerk to the Hon. since 2008. Judge Brown joined Tate Bywater as John S. McLellan III, Circuit Court obtained his BA In 1971 from Methodist a partner after spending Judge for Sullivan County, Tennessee. University, his J.D. degree from Wake nearly two decades as a Forest University School of Law, and his prosecutor. Fahey served Fahey Katherine Morley has joined Masters in Law and Taxation from the as Assistant U.S. Attorney the law firm of Moran College of William & Mary. He and his (AUSA) and Special Assistant U.S. Reeves Conn as part of family reside in Chesapeake. Attorney in the Eastern District of its litigation team, where Virginia for 17 years. Prior to that, she focuses on medical Morley Lawrence Roberts is now he was an Assistant Commonwealth’s malpractice and other serving as director of the Attorney. Fahey has also held several litigation matters. Morley received Sorensen Institute for high-level leadership positions within her J.D. from the University of Political Leadership at the executive branch. Fahey began his Richmond School of Law, where she the University of Virginia. Roberts career as a law clerk with the Arlington was articles editor for the Law Review Sorensen’s mission through Circuit Court and has been an adjunct and vice president of the Student Bar its five different programs is to promote professor at American University, Association. effective leadership through mutual Washington College of Law, and George respect, building trust, civil discourse, Washington University. Ra Hee Jeon has joined and ethics. Roberts previously served Pender & Coward as an as counselor to Governor Tim Kaine, Rebecca J. Ketchie and attorney focusing on family partner at Venable in its Tysons office, Katherine S. Steffen have law and immigration and Chief of Staff to Lt. Governor Justin been elected shareholders of matters. Jeon represents Jeon Fairfax. Wilson Worley PC. Wilson clients in complex contested Worley is a full-service civil Ketchie divorce, uncontested divorce, and Craig B. Davis was litigation and transactional child custody/visitation/support issues. inducted as the president of law firm serving northeast She also represents foreign-born and the Virginia Trial Lawyers Tennessee and southwest U.S. citizen clients in a variety of Association on March Virginia. immigration matters and helps them 27, 2021. In 2020, he was Davis Ketchie focuses her navigate the complex U.S. immigration re-elected to a second term practice on civil litigation, Steffen law process. Born and raised in South as a 14th Circuit representative to the primarily in the areas Korea, Jeon is bilingual in Korean and Virginia State Bar’s Council. Davis is of land use, family law, medical English and skillful in Spanish. She a partner in the firm of Reinhardt | malpractice defense, and business received her undergraduate degree from Harper | Davis, PLC. litigation. She is licensed to practice in The George Washington University state courts of Tennessee and Virginia, and her J.D. and LL.M from Regent Henry Su of Constantine and is admitted to the Eastern District University School of Law. | Cannon LLP in of Tennessee, Western District of Washington, D.C. Virginia, and Fourth and Sixth federal Craig Thomas Merritt received the 2020 Hon. Circuit Courts. Ketchie holds a degree has formed Merritt Law, Robert E. Keeton Su in Political Science from Bob Jones PLLC, in Richmond. An Award for Outstanding University and earned her law degree experienced Virginia Service as a faculty member from the from the University of Notre Dame Law trial lawyer, Merritt and Merritt National Institute for Trial Advocacy School. the new firm will serve (NITA). Each year, NITA presents Steffen concentrates her practice in individual and business clients in high- awards to some of its outstanding estate planning, estate administration, risk, high-value cases. The practice will program faculty and authors to and conservatorship proceedings. She concentrate on trials and appeals in acknowledge and celebrate their is admitted to practice law in Tennessee federal and state courts, with a focus dedication to furthering its mission and Virginia state courts, as well as the on complex business disputes and First of training and developing skilled and United States District Court for the Amendment litigation. Merritt is a
50 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Professional Notices
Fellow of the American College of Trial Nathan C. Mortier has topics for growing businesses. Kaplan’s Lawyers and a Fellow of the American joined Sands Anderson 49-year career in law and business Bar Foundation. PC’s healthcare practice includes practicing commercial and He has appeared in a wide range of group as counsel. A full- securities law, as well as acting as complex litigation matters, including service healthcare lawyer, Mortier bond counsel in municipal finance class actions, with subject matter that Mortier collaborates transactions. includes antitrust, intellectual property, with healthcare providers to develop business torts, lawyers’ professional new services, navigate ever-changing John Danyluk has joined liability, and defamation law. He has laws and regulations, and respond Gentry Locke’s Richmond served as a private mediator and to regulatory investigations and office. Danyluk will work arbitrator, as well as a court-appointed government enforcement actions. in the firm’s criminal and Special Master in the federal courts. He will be based in Sands Anderson’s government investigations Danyluk Williamsburg and Richmond offices. practice. With experience Thomas F. Urban II has Mortier has more than 10 years of in criminal defense, investigations, been elected a member of experience in healthcare law, focussing financial liability determinations, and telecommunications, media, on guiding hospitals and health issues related to misconduct, Danyluk and technology law firm systems, physician groups, long-term assists clients facing increasing legal Fletcher, Heald & Hildreth, Urban care providers, and other healthcare and government scrutiny. As a Special PLC. An experienced class organizations through the legal Assistant U.S. Attorney in the Western action litigator, as well as a veteran trial questions and challenges that impact District of Texas, he litigated more lawyer in both federal and Virginia their healthcare mission and business. than 1,000 federal cases, including state courts, with particular knowledge six jury trials, 14 bench trials, and in serving as local counsel in the U.S. The Virginia Indigent 70 revocation hearings. He has also District Court for the Eastern District of Defense Commission has worked closely with FBI and Army CID Virginia, Urban has engaged in high- named Vikram Kapil as the agents on investigatory matters to aid stakes litigation across the United States. new Chief Public Defender in case development. Prior to joining His practice includes a wide variety of for the Halifax Office of the Kapil the firm, Danyluk served for more civil litigation, previously including Public Defender. Prior to than four years in the U.S. Army Judge matters involving class actions, RICO this position, Kapil served as the Deputy Advocate General’s Corps in Texas cases, complex civil fraud lawsuits, Public Defender in Martinsville. Kapil and Germany. He has been recognized trade secret litigation, and computer earned his undergraduate degree from with the Army Commendation Medal, crime proceedings, as well as complex the University of Virginia and his law Army Achievement Medal, and the 2018 commercial and product liability cases. degree at the University of the District Client Services Award for Excellence of Columbia David A. Clarke School of (estate planning, income tax, and Alexandra J. Sipes has Law. Since 1995, he has been a member consumer finance). joined Harman Claytor and board member of the Virginia Corrigan & Wellman’s Association of Criminal Defense John Adam Wasowicz Alexandria office as an Attorneys, serving as president of the has published Roaches associate. Sipes focuses Sipes organization in 2017. Run, book four in her practice on the defense his mystery series featuring of claims related to general liability, Robert Kaplan, former Mo Katz as the fictional U.S. automobile liability, premises liability partner and senior counsel Attorney for the Eastern and personal injury. in the law firm of Kaplan District of Virginia. In the Voekler Cunningham & book, Katz assists Alexandria Detective Angela R. MacFarlane has Frank, has launched Kaplan Sherry Stone in investigating an Kaplan joined the Harman Claytor Advisors to leverage his explosion. Wasowicz began the Corrigan & Wellman’s variegated experience to serve as a legal series in 2017 with the publication of Richmond office as an advisor with particular emphasis on Daingerfield Island. The books are set associate. MacFarlane MacFarlane business finance, as well as mergers and in Old Town Alexandria. Wasowicz will focus her practice on acquisitions, mediation of commercial works as a federal attorney in Northern representing established businesses disputes, including “business divorces,” Virginia. and individuals in all aspects of civil and consult on business structuring, litigation throughout Virginia. financing, strategic planning, development, management and similar www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 51 Classified Ads
Positions Available administrative agencies. The join the Tax, Revenue, Last Word continued from page 54 position is in Martinsburg, Claims Commission, and FAMILY LAW ASSOCIATE WV with a significant Transportation Division. them to think, (RESTON) amount of travel in the Ideal candidates will have research, and write Family Law Associate: Odin, Eastern panhandle and been practicing law 8 to like lawyers—not Feldman & Pittleman is north central West Virginia 10 years. Experience with students. I have high seeking an associate attorney is required. Candidates tax law is preferred as well expectations for your with 1-3 years of experience must also have an active as litigation experience, work this summer. But practicing family law who WV license or be eligible for excellent academic and I know you can do it; will manage their own admission. professional credentials; that’s why we invited caseload and assist in all Please send your superior oral and you here. And my aspects of trial preparation. resume, a writing sample written communication colleagues and I are Virginia Bar required. and preferred salary range skills; outstanding legal all here to help make Contact [email protected]. to [email protected] with research, analytical, and sure that you succeed. Please visit “DHHR Attorney” in the legal reasoning skills; We’re excited to work www.ofplaw.com for more subject line. and the ability to function with you and help you details. We are an Equal with minimal guidance learn and grow as a Opportunity Employer. ASSISTANT ATTORNEY in a demanding legal new lawyer.” GENERAL—HOMELAND environment. LITIGATION ATTORNEY SECURITY (WEST VIRGINIA) Candidates must also Endnotes 1. Virignia Lawyer, June 2020, (WASHINGTON, D.C.) The Office of the West have an active WV law pg. 62 The Cullen Law Firm, PLLC, Virginia Attorney General license or be eligible for https://perma.cc/SGT2-QAYX 2. See Kaci Bishop, Framing located in Georgetown, is seeking a full-time admission. Please send your Failure in the Legal Classroom: has an immediate opening attorney to represent the resume, a writing sample Techniques for Encouraging Growth and Resilience, 70 ARK. for an attorney with Department of Homeland and preferred salary range L. REV. 959, 976-77 (2018); 2+ years of litigation Security as part of the to [email protected] with Sarah J. Adams-Schoen, Of Old Dogs and New Tricks: Can experience and regulatory, Office’s Arts, Education, “Revenue Attorney” in the Law Schools Really Fix Students’ administrative, or appellate Commissions and Boards subject line. Fixed Mindsets?, 19 LEGAL WRITING 3, 10-11 (2014). law. Experience briefing Division. Ideal candidates 3. Edward A. Adams, Scalia: Legal complex administrative law will have a minimum of ASSOCIATE ATTORNEY Writing Doesn’t Exist, ABA JOURNAL (Aug. 9, 2008), issues before U.S. Courts five (5) years of litigation (FAIRFAX) https://perma.cc/VN7S-74QV. of Appeals is considered a experience. Candidates will Glasser and Glasser, 4. RACHEL D. GODSIL, ET AL., THE SCIENCE OF plus. Candidate must have have superior written and P.L.C. is seeking an associate EQUALITY IN EDUCATION: strong academic credentials oral communication skills. attorney to join our THE IMPACT OF IMPLICIT BIAS, RACIAL ANXIETY, and writing skills. D.C. Bar Successful candidates will be Creditors’ Rights Practice AND STEREOTYPE THREAT admission required. Success aggressive and focused with based in Fairfax. The ON STUDENT OUTCOMES 17 (2017), in generating business is the ability to produce a high- preferred candidate https://perma.cc/UG3Y-568K. welcome. quality legal product under will have experience in Submit resume strict deadlines. Candidates Virginia civil litigation and and writing sample must have an active WV law be licensed and in good to recruitment@cullenlaw. license and successfully pass standing to practice law in Professional com. a background check. VA, Maryland, Washington, Notices Please send your resume D.C. and or North Carolina ASSISTANT ATTORNEY and preferred salary range licensure are desirable. The Email your news and GENERAL—DHHR (WEST to [email protected] with position involves office professional portrait to VIRGINIA) “Assistant Attorney General” and staff oversight [email protected] for The West Virginia Attorney in the subject line. responsibilities and frequent publication in Virginia General’s Office seeks a full- district court appearances. Lawyer. Professional notices time attorney to represent ASSISTANT ATTORNEY The individual must be are free to Virginia lawyers the WV Department GENERAL—REVENUE (WEST self-motivated with strong and may be edited for length of Health and Human VIRGINIA) interpersonal, problem and clarity. Resources in litigation The West Virginia solving, organizational and and appeals before state Attorney General’s Office communication skills. The and federal courts and seeks an attorney to firm offers a rewarding and
52 VIRGINIA LAWYER | JUNE 2021 | VOL. 70 www.vsb.org Classified Ads positive work environment, Responsibilities include drafting letters to clients competitive compensation working with the Attorney and others and benefits and exceptional General and Solicitor • handling post-closing Website growth opportunities. General to develop strategy matters including Advertisements & Interested applicants should for high-profile litigation document recording please send a confidential involving the State of West • interacting directly with Classified Ads cover letter and resume Virginia and state officers clients on behalf of the to Human Resources and agencies; editing and firm. at [email protected]. some primary drafting Please send resumes Virginia Lawyer is for major appellate briefs, to [email protected]. Equal distributed to Virginia ASSOCIATE ATTORNEY administrative comments, Opportunity Employer lawyers, judges, law (EMPORIA) and dispositive motions; libraries, other state bar The Law Office of W. coordinating multi-state William Robinson III in litigation and amicus briefs Services associations, the media, Emporia is seeking an with other States; and and general subscribers. associate attorney. One-year researching and providing CARDIOLOGY & Total circulation is over of practice experience and strategic advice on other PULMONARY CRITICAL CARE 50,000. membership in the Virginia important issues for the EXPERT WITNESSES State Bar is required. This State. Military physicians in Active The VSB website has position allows for Applicants should submit Clinical Practice. Experts almost 34 million hits per significant autonomy and their resume, a writing in modern standard of care year and almost 12 million the attorney will appear in sample, and a cover letter for Cardiology, Critical (page views) impressions. court regularly. Please visit to [email protected], or Care, Internal Medicine, Please contact Dee Norman www.wrobinsonlaw.com for may reach out to Solicitor and Pulmonology. The more information. To apply, General Lindsay For more knowledge you and your at (804) 775-0594 or email a resume and cover information email clients deserve. Learn more: [email protected] if you letter to [email protected]. CLWadeEnterprises.com. are interested in advertising [email protected]. Please contact Leah Wade in Virginia Lawyer or at REAL ESTATE PARALEGAL of CL Wade Enterprises, VSB.org. PRINCIPAL DEPUTY (HARRISONBURG) LLC at (201) 321-5113 or SOLICITOR GENERAL (WEST Flora Pettit, PC, an CLWadeEnterprises@gmail. VIRGINIA) established Shenandoah com. The West Virginia Attorney Valley and Central Virginia General’s Office is accepting law firm, seeks a full- applications for a senior- time, highly motivated ADVERTISER’S INDEX level attorney to be employee with a positive considered for the position attitude, strong work ALPS Corporation ...... inside front cover of Principal Deputy Solicitor ethic, and experience in CooperHurley...... 7 General. Excellent real estate documentation Deborah A. Armstrong, J.D., M.D...... 9 writing and editing skills and closings for its Herndon Law ...... 25 and appellate and/or Harrisonburg office. Primary L. Steven Emmert ...... 9 administrative law litigation responsibilities include Law Pay ...... inside back cover experience required; U.S. assisting the firm’s attorneys Supreme Court or another and other real estate team Main Street Travel ...... 7 appellate clerkship strongly members by: National Legal Research Group ...... 6 preferred. Must be eligible • answering phone calls and Norman Thomas, PLLC ...... 9 to waive into the WV Bar or handling client inquiries Steven A. Witmer ...... 25 willing to pursue state bar • preparing settlement Oast & Taylor ...... 25 membership. This position statements and other Tidewater Trusts & Estates ...... 13 is based out of Charleston, closing-related documents WV, with potential • ordering title VA State Bar Members’ Insurance Center...... 5 geographic flexibility within • drafting deeds and other Wade, Grimes, Friedman, Meinken and Leischner PLLC ...... 26 the state on a case-by-case agreements along with Walsh, Colucci, Lubeley & Walsh, PC ...... 11 basis. www.vsb.org VOL. 70 | JUNE 2021 | VIRGINIA LAWYER 53 The Last Word Giving Good Feedback: Cultivating a Growth Mindset by Joe Fore
It’s summer—that time of year when natural ability. But all of us have grown thousands of law students flood from our experiences—our successes law firms, nonprofits, government and, just as importantly, our failures. offices, and judicial chambers to take So tell them about how you started— up summer-associate positions and times you struggled in law school or internships. In last June’s column1, I early in your career. Share your mistakes shared some ideas for giving feedback and how you learned from them. Share to new legal writers. But teaching is your writing shortcomings and how you about more than just passing on specific improved them. It will help your new knowledge; it’s also about inspiring colleagues see that their own difficulties and motivating the student to keep aren’t unique; they’re normal, and improving. So this year, I want to share they’re opportunities to learn and grow. role—and that you’re willing to help. an educational concept that will help One strategy for doing this is “wise your interns and summer associates Tip #2: Show your work. feedback,” which involves conveying develop as writers and lawyers: the Another important lesson law students two things early on: 1) that you (as the growth mindset. need to learn about writing is that it’s teacher/mentor) have high standards, always hard—even for the best and and 2) that you’re confident in the Growth vs. Fixed Mindsets most seasoned lawyers. Many students novice’s ability to meet those standards.4 A “growth mindset” is the belief that our probably assume that experienced Also, tell your new colleagues that you abilities are malleable—that we can gain attorneys just sit down and effortlessly want to see them succeed and that you’ll knowledge and improve our skills over crank out letters, emails, motions, and help them get there. time with work and determination. The contracts. But we all know that’s not These messages will help your opposite is a “fixed mindset”—the belief the case. Sure, writing gets easier with interns understand that the feedback that our abilities are largely innate and experience. But writing well is never you’re giving them is rooted in your can’t be changed much, no matter how easy. (The late Justice Antonin Scalia— belief that they have potential and a hard we try. Individuals with a growth who sometimes taught legal writing genuine desire to see them improve. As mindset are better able to persevere in his early years as a law professor at a result, they’ll be less likely to take your through setbacks and more willing UVA—said that he wanted his students critiques personally and more likely to to take on new challenges, since they to learn “that there is an immense apply your feedback going forward. believe that they can eventually succeed difference between writing and good Putting it all together, here’s a through hard work.2 writing” and “that it takes time and possible script you could use on Day In the legal writing context, law sweat to convert the former into 1 to set a positive tone for the whole students with a growth mindset the later.”3) summer: believe they can improve their writing Let your interns see how your own with purposeful effort and practice. work evolves and improves through “In this office, we have high standards They’re less likely to give up and more the editing process. Show them your for our summer interns. We expect motivated to take on unfamiliar tasks. marked-up drafts, your crossed-out and Last Word continued on page 52 In short, just the kind of new lawyer tossed-out sentences, paragraphs, and you’d want in your office. sections. Show that it takes time and So how can you help your interns, effort for everyone to write well—and clerks, or summer associates develop a that that effort eventually pays off. That growth mindset this summer? Here are will help them stick with it when they’re a few ideas: struggling through their own writing projects. Tip #1: Share your own growth story. One way to convince new lawyers that Tip #3: Frame your feedback. Joe Fore is an Associate Professor of Law, writing can be improved through work You can also help your new colleagues General Faculty and Co-Director of the Legal Research & Writing Program at the University and dedication is to show them how you adopt a growth mindset by assuring of Virginia School of Law. Have a comment, a did it. None of us started out as fantastic them that you believe in their ability question, or an idea for a future column? Email writers. Sure, some of us have more to learn, grow, and thrive in their new him at [email protected] or connect with him on Twitter (@Joe_Fore).
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She hired a lawyer because she needed help. The lawyer wrongfully took her money, and stole her hope. The misconduct of one lawyer can do so much damage.
The Clients’ Protection Fund restored her faith in the system, and refunded her money. The CPF is made possible by lawyers like you.
Since 1976, the Virginia State Bar Clients’ Protection Fund has helped almost 2,000 people and paid out over $7 million in claims through the work of hundreds of volunteers, and funds from every lawyer practicing in Virginia.
Virginia Lawyers Care.