Virginia Lawyer April 2016

Virginia LawyerVOL. 64/NO. 6 • APRIL 2016 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

Lawyers at Leisure — Barbara Williams

International Practice The Redskins and Trademark Law The Rise of ADR Life, Long-Term Care, Health, Professional Liability VIRGINIA Disability & Fixed Annuities & Business Coverage BARRISTERS . Phone ...... 804-270-5128 Phone ...... 804-377-1012 ALLIANCE INC I N S U R A N C E A G E N C Y Toll-Free...... 800-358-7987 Toll-Free...... 844-370-9218 A s u b s i d i a r y o f T h e V i r g i n i a B a r A s s o c i a t i o n

VBAI_2016_ad_8.5x10.875_4C.indd 1 1/21/2016 2:14:03 PM Virginia Lawyer The Official Publication of the Virginia State Bar April 2016 Volume 64/Number 6

Features

GENERAL INTEREST Access to Legal Services

12 Horses and Sheep and the Law, Oh My! 38 New VSB Service to Provide Legal by Deirdre Norman Answers Anytime, Anywhere

14 A Rose By Any Other Name… by Pamela C. Gavin and Rina Van Orden Noteworthy

20 How ADR Has Changed the Practice of Law – VSB NEWS 41 Highlights of the February 27, 2016, or Has It? Join Our Dialogue 12 by Jeanne F. Franklin Virginia State Bar Council Meeting 41 Elizabeth K. Shoenfeld Named 22 Local Bar Associations and Others Educate, Assistant Bar Counsel Register Voters with So You’re 18 Brochure 41 Christine Corey Joins VSB as by Deirdre Norman Assistant Bar Counsel PEOPLE 42 42 Marion Toomey Baker 43 In Memoriam INTERNATIONAL PRACTICE 43 Local and Specialty Bar Elections 43 Call for Nominations 25 International Practice 43 Solo & Small-Firm by Melissa Stear Gorsline Practitioner Forum 44 Michael N. Herring Honored 26 The Trans-Pacific Partnership Provides New with the 2016 Harry L. Carrico Protections for United States Companies Professionalism Award Investing Abroad 45 Chief Justice Donald W. Lemons by Melissa S. Gorsline, Lindsay Reimschussel, Receives the Virginia State Bar and Tammi Pilgrim Leadership in Education Award 46 Carl J. Witmeyer II Honored 30 Exchanges of Personal Data between the for Lifetime Achievement in EU and the US: After the Safe Harbor Family Law by Jana C. Fuchs

34 US Wavers on Visa Waiver Program Departments by Satnam Singh and Jeffrey T. Talbert 25 24 Law Stories 51 CLE Calendar 56 Professional Notices 58 Classified Ads VIRGINIA LAWYER REGISTER 59 VSB 78th Annual Meeting Schedule

54 Disciplinary Proceedings 55 Awards Columns 55 Disciplinary Summaries 55 TECHSHOW 55 Notices To Members: 55 Free Legal Answers 8 President’s Message 10 Executive Director’s Message 55 Comments Sought on Proposed 55 Annual Meeting 47 Law Libraries Legal Ethics Opinion 55 Administrative Suspensions 48 Technology and the Practice of Law 55 Criminal Defense Seminar 49 Risk Management

Barbara Williams at her farm in Purcellville. Photo by Deirdre Norman Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2015-16 OFFICERS 17th Circuit Edward L. Weiner, President Timothy B. Beason, Arlington http://www.vsb.org Michael W. Robinson, President-elect Raymond B. Benzinger, Arlington Kevin E. Martingayle, Immediate Past President John H. Crouch, Arlington Editor: Karen A. Gould, Executive Director and Chief Harry A. Dennis, III, Arlington Gordon Hickey Operating Officer Rachelle E. Hill, Arlington ([email protected]) EXECUTIVE COMMITTEE 18th Circuit Edward L. Weiner, Fairfax, President Barbara S. Anderson, Alexandria Assistant Editor and Advertising: Michael W. Robinson, Tysons Corner, Foster S. B. Friedman, Alexandria Deirdre Norman President-elect Carolyn M. Grimes, Alexandria ([email protected]) Kevin E. Martingayle, Virginia Beach, 19th Circuit Immediate Past President James F. Davis, Fairfax Graphic Design: Brian L. Buniva, Richmond Joyce M. Henry-Schargorodski, Fairfax Caryn B. Persinger Marni E. Byrum, Alexandria Chidi I. James, Fairfax Nancy C. Dickenson, Abingdon ([email protected]) Sean P. Kelly, Fairfax Leonard C. Heath, Jr., Newport News David L. Marks, Fairfax Michael HuYoung, Richmond Illustration and Ad Design: Gary H. Moliken, Fairfax Daniel L. Rosenthal, Richmond Jay B. Myerson, Reston Madonna G. Dersch Jack “JB” W. Burtch, Jr., Richmond, CLBA Chair ([email protected]) Luis A. Perez, Falls Church Providence E. Napoleon, Richmond, Diversity William Boyle Porter, Fairfax Conference Chair Dennis J. Quinn, Tysons Robert T. Vaughan, Jr., Danville, SLC Chair William L. Schmidt, Fairfax VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Nathan J. Olson, Fairfax, YLC President Melinda L. VanLowe, Fairfax is published six times a year by the Virginia State Bar, COUNCIL James A. Watson, II, Fairfax Michael M. York, Reston 1111 East Main Street, Suite 700, Richmond, Virginia 1st Circuit 20th Circuit 23219-0026; Telephone: (804) 775-0500. Subscription Nancy G. Parr, Chesapeake Christine H. Mougin-Boal, Leesburg Rates: $18.00 per year for non-members. This material 2nd Circuit T. Huntley Thorpe, III, Warrenton is presented with the understanding that the publisher Steven G. Owen, Virginia Beach Judith L. Rosenblatt, Virginia Beach 21st Circuit and the authors do not render any legal, accounting, Daniel M. Schieble, Virginia Beach Joan Ziglar, Martinsville or other professional service. It is intended for use by 3rd Circuit 22nd Circuit attorneys licensed to practice law in Virginia. Because of Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham the rapidly changing nature of the law, information 4th Circuit 23rd Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Mark K. Cathey, Roanoke Eugene M. Elliott, Jr., Roanoke a result, an attorney using this material must always Gary A. Bryant, Norfolk Neil S. Lowenstein, Norfolk research original sources of authority and update 24th Circuit David B. Neumeyer, Lynchburg information to ensure accuracy when dealing with 5th Circuit Carl Phillips “Phil” Ferguson, Suffolk 25th Circuit a specific client’s legal matters. In no event will the 6th Circuit Roscoe B. Stephenson, III, Covington authors, the reviewers, or the publisher be liable for Peter D. Eliades, Hopewell 26th Circuit any direct, indirect, or consequential damages resulting 7th Circuit W. Andrew Harding, Harrisonburg from the use of this material. The views expressed herein Leonard C. Heath, Jr., Newport News 27th Circuit are not necessarily those of the Virginia State Bar. The 8th Circuit Richard L. Chidester, Pearisburg inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton 28th Circuit an endorsement by the Virginia State Bar of the goods 9th Circuit William M. Moffet, Abingdon or services of the advertiser, unless explicitly stated W. Hunter Old, Williamsburg 29th Circuit otherwise. Periodical postage paid at Richmond, 10th Circuit Joseph M. Bowen, Tazewell Virginia, and other offices. Charles H. Crowder, III, South Hill 30th Circuit 11th Circuit William E. Bradshaw, Big Stone Gap Dale W. Pittman, Petersburg 31st Circuit POSTMASTER: 12th Circuit Gifford R. Hampshire, Manassas Send address changes to Graham C. Daniels, Chester MEMBERS AT LARGE Marni E. Byrum, Alexandria VIRGINIA LAWYER 13th Circuit Paula S. Beran, Richmond Nancy C. Dickenson, Abingdon MEMBERSHIP DEPARTMENT Brian L. Buniva, Richmond Afshin Farashahi, Virginia Beach 1111 E MAIN ST STE 700 Dabney J. Carr, IV, Richmond William E. Glover, Fredericksburg Michael HuYoung, Richmond RICHMOND VA 23219-0026 Leah A. Darron, Richmond Christy E. Kiely, Richmond Beverly P. Leatherbury, Eastville George W. Marget, III, Richmond Todd A. Pilot, Alexandria Eric M. Page, Richmond Lorrie A. Sinclair, Leesburg A Benjamin Spencer, Charlottesville 14th Circuit Conference of Local Bar Associations Chair Jon A. Nichols, Jr., Glen Allen Jack “JB” W. Burtch, Jr., Richmond Daniel L. Rosenthal, Richmond Rhysa G. South, Henrico Diversity Conference Chair Providence E. Napoleon, Richmond 15th Circuit Virginia State Bar Staff Directory Jennifer L. Parrish, Fredericksburg Senior Lawyers Conference Chair Robert T. Vaughan, Jr., Danville Frequently requested bar contact 16th Circuit information is available online at James M. Hingeley, Jr., Charlottesville Young Lawyers Conference President R. Lee Livingston, Charlottesville Nathan J. Olson, Fairfax www.vsb.org/site/about/bar-staff.

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

Employee benefits specialists dedicated to the needs of Virginia law firms. Are you ready for our changing health insurance environment?

» Health insurance Robert Spicknall, CEBS, President » Term-life insurance P: 877.214.5239 » Disability insurance E: [email protected] » And more www.vsbmic.com VIRGINIA STATE BAR MEMBERS’ INSURANCE CENTER an afﬁliate of Digital Beneﬁt Advisors endorsed by the Virginia State Bar

VSBMIC_VALawAdBW_42013V1.indd 1 7/1/2013 8:35:42 AM ADVERTISEMENT The Education of Letters Joe Condo Send your letter to the editor to: He’s Practiced Matrimonial Law in Northern [email protected] or Virginia State Bar, Virginia for 40 Years. His Message Today? Virginia Lawyer Magazine, Divorce Can Bring Renewal 1111 E Main Ste 700, and Spiritual Growth. Richmond VA 23219-0026 ou’ll notice a paradox or two about Joe Condo. He can be Letters published in Virginia Lawyer may be edited for length and Y pugnacious - and genial. clarity and are subject to guidelines available at He can be hot-headed - and http://www.vsb.org/site/publications/valawyer/. remarkably sentimental. They’re all lifelong traits, he says, so it’s little surprise that Condo, after more than four decades as one of the region’s most suc- and political skill. He worked his cessful divorce lawyers, remains Up Next every bit a passionate practitioner. way to the top of the 23,000-mem- He began back in the 1970s, when ber Virginia State Bar, becoming the state’s divorce laws were its president in 2000. For a New Coming in the June issue of Virginia Lawyer: vastly different. He’s handled York native with no special con- nections to the Commonwealth’s Business Law followed by hundreds of divorces in Northern Virginia, building case law along legal community, Condo’s ac- Employment Law and Technology in August. the way. complishments in the bar broke barriers. And he’s still active in That’s not all. Condo has the bar, chairing the state bar’s made good use of a natural charm committee that JOE CONDO’S TIPS FOR YOUNG LAWYERS vets candidates • The legal community term, earn for the short- for statewide is your community. term. In the beginning judgeships. The only way to take a job that offers Over the grow and prosper in the most valuable years, too, he this profession is to experience - not hired, developed meet, know and grow necessarily the highest - and ultimately with other lawyers, paycheck. If you are throughout your career. split with - a saddled with debts it’s small league of • A bridge once burnt much harder to invest in divorce lawyers. is nearly impossible the growth of your legal Almost all of to rebuild. Almost career. them compete everyone in the law has • Partnerships are fine, an excellent memory. against him and the peer pressure of today. Lawyers don’t forget partnerships are really crummy conduct. There central to high standards At $675, is simply no wisdom in in our profession. But Condo’s hourly alienating people. It’s “When Trial Lawyers partnerships and the rate is one of the too small a community. ” risks of equity are not highest among di- Need Appellate Lawyers • Focus on a healthy for everyone. vorce lawyers in routine. Lawyers who • Trusting people the Washington have chronic personal area. He prefers problems simply can’t too much is always Jackson & Campbell’s Appellate Section preferable to the the most complex handle the personal and contentious concentrates on state court appellate problems of others, alternative. In our age cases, referring including those of their professional trust and practice in DC, MD, & VA. clients. It’s the lawyers loyalty may be old- out many clients with serious personal fashioned, but we are, who find his rate Robert N. Kelly, Chair problems of their own after all, officers of the too high, a role who have most hurt court. Live up to that. that’s further en- our profession over the • Believe in the hanced his stature 202.457.1600 years. privilege of being a in the Northern [email protected] • Work for the long lawyer. I do. Virginia divorce www.jackscamp.com bar. Read Joe Condo’s full interview: www.tenleaders.com/JCondo

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

President’s Message by Edward L. Weiner The Value of Membership

In preparing this last of my Ethics Hotline chart 1 columns, I’m reflecting back on my The VSB Ethics Hotline receives approximately 650 calls each month term as VSB president thus far. It is MANDATORY STATE TOTAL going by far more quickly than I could from attorneys seeking advice on a wide BARS THAT PERFORM BAR DUES/ have imagined. range of issues in their practice. The REGULATORY FEES TO most common include: One privilege of being VSB pres- FUNCTIONS PRACTICE Conflict of Interest Screening; ident is the opportunity to meet not Withdrawal of Representation (When only leaders from many of our local must I withdraw? When can I? Client Alaska $660 and specialty bars in the common- hasn’t paid. Disruptive client.); File Oregon $537 wealth, but also leaders from state bars Maintenance (How long must I Texas $500 across the country. During roundtable maintain client files? How much must discussions, bar presidents and exec- be maintained? Client has hired new Virgin Islands $500 utive directors raise issues of concern counsel, must I keep a copy? Do I need Arizona $475 within their states and brainstorm a signed receipt, when files are turned Nevada $450 solutions. The issues are remarkably over?); Dissolution and Formation Idaho $445 similar: the unauthorized practice of of Law Firms/Attorneys Leaving a law, the independence of the judiciary, Practice. Louisiana $435 technology in the practice of law, and Jim McCauley and his superb California $430 access to legal services. team have answered my questions and helped me get a better night’s sleep on South Carolina $430 Other hot topics of bar leaders are many occasions. The hotline can be Utah $430 bar dues and member benefits. reached at (804-775-0564). In July 2015, VSB dues were increased South Dakota $415 1 for the first time since 2000. According Fastcase Montana $395 to the ABA’s 2015 Membership, Since 2006, every VSB member receives North Carolina $361 Administration and Finance Report, a free subscription to Fastcase, a lead- Washington $355 twenty-seven states or territories have ing legal research service. Fastcase’s mandatory bars that perform regulato- libraries have primary law from all Wyoming $355 ry functions. Of those, Virginia’s dues fifty states, as well as federal coverage. Mississippi $335 are among the lowest. (see chart 1) Fastcase includes cases, statutes, regu- Alabama $325 lations, court rules, and constitutions, Even when looking at states Georgia $323 whose mandatory bars do not perform as well as access to a newspaper archive, regulatory functions, VSB dues remain legal forms, and a one-stop PACER Kentucky $310 among the lowest. (see chart 2) search of federal filings. Founded in Michigan $285 1999 by a VSB member, Fastcase has Again, VSB dues have been at or District of more than 800,000 subscribers around $280 below $250 per year for the past sixteen Columbia the world. years. Oklahoma $275 When VSB members ask me, Lawyer Referral Service Florida $265 “What do my dues do for me?” I could The Virginia Lawyer Referral Service Virginia $250 expound (and often do) on the many has helped people obtain effective and value-rich programs of the VSB. Here high-quality legal assistance since 1977. West Virginia $250 are four, which continue to benefit VSB In 2015, the VLRS answered more Nebraska $98 members. than 14,000 calls and made 4,490 paid

8 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org President’s Message referrals to the active 500 attorney panel our profession. Individuals may call for chart 2 members. The knowledgeable VLRS confidential help: (877) LHL-INVA; staff prescreens the callers to ensure their www.valhl.org. MANDATORY matter is of a legal nature that requires STATE BARS THAT TOTAL BAR the assistance of an attorney. If it is These are but a sample of the benefits DO NOT PERFORM DUES/ FEES REGULATORY TO PRACTICE determined — with discussion between of VSB membership. Many more are FUNCTIONS caller and referral specialist — a referral described on the VSB’s website (www. for consult for up to thirty-minutes is vsb.org). The VSB staff is as committed New Hampshire $545 made for a pre-paid fee of $35. For more to serving you, our 49,000 members, as Hawaii $524 information on panel membership in the you are to serving your clients. Virginia Lawyer Referral Service please It has been an honor to serve as the 77th Wisconsin $490 visit www.vlrs.net. president of this great organization. Rhode Island $450 Thank you! Missouri $410 Lawyers Helping Lawyers Lawyers Helping Lawyers provides free, Endnote: New Mexico $410 confidential, nondisciplinary assistance 1 The 2015 increase was $25 for active North Dakota $380 to members of the legal profession who members ($12.50 for associate mem- are professionally impaired by substance bers). In 2011, dues were decreased from $250 to $225 for active members abuse or mental health issues. Assistance ($125 to $112.50 for associate members). is provided through a statewide network of volunteers and a professional staff. LHL offers assistance designed to avoid disciplinary problems, protect clients and the public, support the impaired person’s family and associates, and strengthen

COMMITTED TO EXCELLENCE Students receive unparalleled skills training and graduate practice-ready.

• #1 in July Virginia Bar passage* • A top 20 school for public defenders and prosecutors** • Ranked 9th in the nation in Moot Court program • Honor Roll award – Best schools for practical training***

* Virginia first-time test takers as defined by the Virginia Board of Bar Examiners ** Winter 2016 preLaw magazine *** February 2016 National Jurist

[email protected] | (434) 592-5300 | Liberty.edu/Law/VALaw |  /LULawSchool

www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 9 Executive Director’s Message by Karen A. Gould Oversight of the VSDB’s Discipline System

As you know, the primary mission discussions with VSB counsel and of the Virginia State Bar is to regulate committee chairs. Each COLD member COLD comprises fourteen volunteers. the legal profession of Virginia. That is is assigned to two district committees The Disciplinary Board comprises accomplished in large part by the office to coordinate the discussion with the twenty volunteers. The seventeen district committees each have ten of the bar counsel and the disciplinary committee’s chair and the bar counsel volunteers. That adds up to more board and district disciplinary com- assigned to that committee. The bar’s than 100 people who volunteer mittees, which are made up of dozens chief investigator sits in on each COLD their time and expertise to help the of volunteers who donate thousands of meeting to answer questions that bar accomplish one of its primary hours of service to all of us at the bar. may arise. In addition, the oversight missions. Sometimes they agree with the position subcommittee of COLD randomly of the bar counsel, and sometimes they reviews case files to ensure that VSB matters. The programs at the confer- disagree. In every case, though, they counsel handled them in a procedurally ence are designed to provide education work very hard and take their oversight correct manner. In fiscal year 2015, and updates on the disciplinary process responsibilities seriously. there were approximately 120 random to the volunteers serving in the disci- But, the bar counsel’s office and reviews. Further review is done of plinary system. the volunteers who serve the disci- specific files if complainants or respon- Every potential disciplinary case plinary process do not operate in a dents have questioned the handling of is handled in exactly the same man- vacuum. The overseers of our disci- a case, and in FY2014–2015 there were ner — impartially and based on the plinary system are themselves subject eight such reviews. facts — regardless of the standing or to professional oversight. COLD also formulates and pres- lack of standing of the respondent or That supervision of the Virginia ents proposed amendments to Part complainant. The VSB employees and State Bar’s disciplinary system is Six, Section IV, Paragraph 13 of the the volunteers who make the rulings provided by the Standing Committee Rules of the Supreme Court of Virginia, on disciplinary matters take their on Lawyer Discipline (COLD). The which govern the disciplinary process. responsibility seriously. The VSB is the committee is composed of ten attor- Proposed amendments are published only profession in Virginia that enjoys neys, two laypersons, and one member for comment and then presented to the the privilege of self-regulation. It is a of the VSB Disciplinary Board, who Virginia State Bar Council, which de- privilege earned through the dedication serves ex-officio. The list of the current cides whether to petition the Supreme of our volunteers. members of COLD can be found on the Court for adoption of the changes. In VSB’s website: www.vsb.org/site/about/ FY2014–2015, six proposed revisions lawyer-discipline. to Paragraph 13 were published for COLD’s supervision of the comment. attorney disciplinary process includes COLD hosts an annual oversight of the bar’s investigation and Disciplinary Conference, which is prosecution of complaints. Members attended by attorney and lay mem- of COLD are assigned to monitor the bers of the district committees, the progress of investigations and prosecu- Disciplinary Board, COLD members, tions in each of the district disciplinary and judges who sit on three-judge cir- committees through interactions and cuit court panels that hear disciplinary

10 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org 800.422.1370 R www.mlmins.com Insuring Virginia Attorneys Since 2002

Policy Highlights (Not all firms will qualify for all items listed) Ask MLM about the following: • Full Prior Acts Coverage. • Profits returned to policyholders as • First Dollar Defense. dividends for 27 consecutive years, over • Broad Definition of “Professional Services.” $47 million total • Predecessor Firm Coverage. • Defense Firm Program Policy • Innocent Insured Protection. Enhancements and Premium Discount • Supplementary Payment Coverage. • Online Risk Management Library with • Limits of up to $10,000,000. Business Forms and Templates • Worldwide Coverage for Suits First Brought in the • Monthly Webcasts for CLE Credit (Three US, its Territories, or Canada. free to MLM insureds, $195 value) • On-Demand CLE Videos for Credit ( Two free to MLM insureds, $130 value) To get a quote contact: Thomas Auth, Esq. Kay G. Kenny 410.798.6229 or 612.344.4367 [email protected] [email protected]

Virginia Lawyer April 2015

Security Clearance Confidential help for Lawyers substance abuse problems and mental health issues. McAdoo Gordon & Associates, P.C. For more information, call our toll free number: 202-293-0534 (877) LHL-INVA www.mcadoolaw.com or visit http://www.valhl.org. Horses and Sheep and the Law, Oh My! by Deirdre Norman

Lawyers at Leisure is a Deep in the Middleburg Hunt Country, Revolutionary War patriot John West built West Manor, crafted of stone, hewn timber, new feature of Virginia past miles of black four-board fencing and clay and lime mortar, in 1791. West had been briefly jailed for his anti-crown activi- Lawyer that profiles the containing grazing horses, past mortar- ties during the war, but was released by King interesting hobbies, less stone walls edging tree-lined lanes, George because his uncle, Benjamin West, was one of the founders and the second presi- passions, and projects down a long, rutted gravel road that dent of the Royal Academy of Art in London. Today, the two-story shuttered house sits on a of the members of the doglegs at a small pasture where three knoll overlooking Williams’s small farm. In her cozy kitchen, warmed by a black Virginia State Bar. small ponies quietly graze sits a small cast iron stove, where a slim gray cat lolls on the counter, Williams says, “I never wanted to farm in Purcellville called West Manor, be a lawyer. I wanted to be a veterinarian.” She the home of farmer and lawyer Barbara majored in Animal Science at Virginia Tech and upon graduation applied to veterinary S. Williams. schools. When she didn’t get into vet school,

12 VIRGINIA LAWYER | April 2016 | Vol. 64 | LAWYERS AT LEISURE www.vsb.org LAWYERS AT LEISURE

Williams decided to regroup and used her an- Thomas Jefferson learned the law imal science degree to become a sheep farmer. this way, and perhaps because it Williams decided on sheep after working with represents the road less travelled them at Virginia Tech because, “They are so – her success is a rarity. gentle and quiet, easy on the fields, and ana- Of the almost 19,000 people tomically just like small cows.” who passed the Virginia Bar “I was selling custom cut lamb to Examination from February private customers long before the farm-to- 2000 to July 2013, only thirty table movement became a thing,” she says. of them had read the law. The Williams later grew her sheep enterprise into reality behind the romance is a wool production enterprise and switched that it takes an extreme personal from raising Suffolk sheep for meat to raising commitment on both the part of Lincoln and Romney sheep for wool. Today, the law reader and the supervis- as she talks about the ins and outs of caring ing attorney to succeed. In that for a herd of 135 pound ewes and 175 pound same time period law readers had rams, Williams is wearing a soft brown sweat- only a 21 percent pass rate for er and shawl woven from the wool of her the exam compared to almost 70 beloved sheep. percent pass rate for law school In the course of her thirty-five-year sheep graduates. farmer career, Williams has delivered hundreds Williams not only succeeded of lambs. She also castrated the rams, docked in becoming a lawyer against the their tails, vaccinated them, and dewormed odds, she has become a very suc- them — all of which took full advantage of her cessful and active lawyer. In her animal science degree as well as her science lengthy legal career, Williams has inclinations in general. Her two grown chil- been the president of the Virginia dren have both developed upon their mother’s Trial Lawyers Association and scientific bent with her daughter, Samantha the president of the Virginia Williams Roberts, attending veterinary school Women Attorneys Association as at the University of Georgia and her son, Stuart well as the chair of the board of Williams, having obtained a PhD in chemistry. governors of the VSB Litigation During her farming career, Williams has Section. When she’s not prac- been involved not only with raising sheep, but ticing law, Williams rides her caring for horses and also raising angus cattle. horse, Colour, almost daily In the 1980s, Williams’s love of farming led and maintains a small flock of her to a role managing a horse farm for a local sheep to keep Colour company. plaintiffs’ attorney and her love of science led Though she has been a lawyer her to helping this attorney with a case that infor twenty-eight years now, volved medical records. “I was working on this Williams has been a farmer for case and going through the medical records thirty-six years — and main- and the attorney suggested I read the law — a tains that she is always happiest means of becoming a lawyer without attending in her barn. Says Williams, Scenes from Barbara Williams’ historic farm. law school by essentially studying under an “This barn, this place is where I attorney for three years and then taking the bar really like to be. Here, or out on exam.” a trail riding Colour!” Williams says the Law Reader program was originally a way for those living in re- If you have a passion other than mote parts of the state with little access to the law, or know a lawyer who law schools to apprentice and learn under a does, please let us know by practicing attorney. While there is a certain contacting Gordon Hickey at [email protected]. romance associated with the idea of a law reader — perhaps because Abraham Lincoln and www.vsb.org LAWYERS AT LEISURE | Vol. 64 | April 2016 | VIRGINIA LAWYER 13 TtrademarkM A Rose By Any Other Name…

by Pamela C. Gavin and Rina Van Orden

that trademark law For Fags” were denied as disparaging. Other marks deemed disparaging include “The faces a direct conflict with con- It’s not often Christian Prostitute,” “Heeb,” “Amishhomo,” stitutional law. Yet recent cases have “Ride Hard Retard,” and “2 Dyke Minimum.” turned a bright spotlight on the tension Compare these to the registered marks “Off- White Trash,” “Celebretards,” and “Dykes On between federal registration of dispar- Bikes.” aging marks and the First Amendment. Though cancellation of the Washington Redskins’ trademarks may have dominated the The Lanham Act provides for federal regis- discussion of disparaging trademarks among tration of trademarks that identify the source Virginians, recent major strides for deeming of goods or services. Trademark examiners Section 2(a) of the Lanham Act unconstitu- at the United States Patent and Trademark tional have come from a groundbreaking case Office (USPTO) review trademark applications in the US Court of Appeals for the Federal and determine whether a mark is registrable. Circuit involving the trademark “The Slants.”2 Section 2(a) of the act prohibits registration of After an arduous process, the Asian-American immoral, scandalous, or disparaging marks. rock band The Slants succeeded in defeating The disparagement provision states that a the disparagement provision so the band can mark can be refused registration or cancelled if register its trademark.3 it may disparage “persons, living or dead, insti- Initially, the USPTO rejected “The Slants” tutions, beliefs, or national symbols, or bring because the name was “offensive to people them into contempt or disrepute.”1 of Asian descent” and therefore disparaging Uneven application of the disparagement under Section 2(a). The 2010 application provision has been particularly problematic. included a specimen showing use of the mark For example, the USPTO allowed the mark that referenced Asian themes and culture, “The Devil Is A Democrat” to register, but potentially adding to the trademark exam- rejected “Have You Heard That Satan Is A iner’s impression of possible disparagement. Republican” as disparaging. “F*A*G Fabulous The band abandoned the original application And Gay” was permitted to register, while after receiving an initial rejection on this basis “Fag Forever A Genius!” and “Marriage Is and refiled for the trademark using different

14 VIRGINIA LAWYER | April 2016 | Vol. 64 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST specimens that did not reference the band tangible form of expression is suppressed.” members’ Asian descent. The application was The court failed to cite legal authority for its once again denied under the disparagement rationale. provision. A persuasive dissent by Circuit Judge Trademark registration provides im- Kimberly Ann Moore questioned McGinley’s portant legal rights including presumptions precedent and whether refusal of disparag- of ownership and validity, nationwide con- ing trademarks does in fact violate the First structive notice, and the ability to obtain US Amendment. Subsequently and apparently Customs assistance in combatting infringing or persuaded by Judge Moore, the US Court of counterfeit imports, among others. Although Appeals for the Federal Circuit (CAFC) issued a disparagement refusal does not ban use of a a sua sponte order vacating its own April opin- mark, the mark holder loses the benefits associ- ion. On December 22, 2015, the court held in a ated with federal registration and may there- 9-3 decision that precluding disparaging trade- fore be discouraged from using such a mark. marks from federal registration violates the Throughout In re Tam, the court repeatedly First Amendment.9 Emphasizing that “the First underscored the numerous valuable benefits Amendment protects even hurtful speech,” the that federal registration bestows. court laid out its findings as detailed below, When examining potentially disparaging stating that, “Whatever our personal feelings marks, the USPTO examiners consider two about the mark at issue here, or other dispar- factors: (1) The likely meaning of the mark, aging marks, the First Amendment forbids considering not only dictionary definitions, but government regulators to deny registration also the word in relation to other elements in because they find the speech likely to offend the mark, the nature of the goods or services, others.”10 and how the mark is used in the marketplace; Trademarks have an expressive character and (2) Whether that meaning refers to identi- that is precisely what the First Amendment fiable persons, institutions, beliefs, or national protects. The CAFC explained that the ban symbols.4 Once an examiner makes a prima on marks that may disparage is based on the facie showing under these factors, the appli- expressive nature of the mark. Government cant must successfully rebut the finding or the regulations that ban or burden private speech examiner will refuse to register the mark. based on viewpoint discrimination are subject Disparaging mark refusals were fairly to strict scrutiny. The court noted that the basis uncommon until the last several decades.5 for refusal of a disparaging mark “is always Notably, examiners who determine that a mark [the] mark’s expressive character, not its ability is disparaging do not have to consult a supervi- to serve as a source identifier,” and thus the sor or take steps to ensure consistent applica- disparagement provision does not govern com- tion, as is required for marks deemed immoral mercial speech.11 The disparagement provision or scandalous.6 Thus, one single examiner can not only regulates private speech based on determine the fate of an ostensibly disparaging the nature of a trademark’s message, but also mark. The potential for arbitrary application clearly exists. In The Slants’ case, the examining attor- Notably, examiners who determine that a mark is ney stated that the term “has long been a de- rogatory term directed towards those of Asian disparaging do not have to consult a supervisor or take descent.”7 The refusal also pointed out that an applicant’s intent to disparage the referenced steps to ensure consistent application, as is required for group is not required. Thus, it is irrelevant that the band is attempting to “take the term back” marks deemed immoral or scandalous. and transform it into something positive. On April 20, 2015, the appeals court upheld the denial of registration, following the discriminates based on the viewpoint of that precedent of In re McGinley.8 McGinley permit- message. To demonstrate the facial discriminated refusal of disparaging marks because the tion of the provision, the court cited previously denial of federal registration does not prevent registered marks that refer to particular groups someone from using the mark. Thus, the court in positive or neutral ways: “Celebrasians,” held that the First Amendment is not violated “Asian Efficiency,” “New Muslim Cool,” because “no conduct is proscribed, and no “Jewishstar,” and even “NAACP.” Moreover, www.vsb.org GENERAL INTEREST FEATURES | Vol. 64 | April 2016 | VIRGINIA LAWYER 15 GENERAL INTEREST

marks that may seem disparaging can be trademark registration (not the trademark registered if the applicant can show that the itself) constitutes government speech.15 The referenced group perceives the term in a court disagreed, finding that trademark positive way. For example, “Dykes On Bikes” registration is merely a regulatory activity that registered after the applicant provided evidence does not transform a trademark into govern- that the relevant population uses the term ment speech. The court repeatedly pointed out with pride. The court held that such viewpoint that following the USPTO’s logic, copyrights discrimination based on the expressive aspect registered with the federal government would of a trademark is not permissible under the convert the underlying works into government First Amendment. Furthermore, in light of the speech. The government could therefore cen- application of strict scrutiny, the court found sor copyrighted works that contain immoral, that the government does not have a suffi- scandalous, or disparaging material — a clearly ciently “compelling interest in fostering racial untenable idea. tolerance.”12 In considering the argument that a trademark amounts to government speech, the court distinguished trademarks from the recent Supreme Court decision which found that specialty license plate designs constitute ... a mark that has been registered for decades could later government speech.16 The Sons of Confederate Veterans sought to sponsor a specialty plate be cancelled after substantial investment (e.g., Redskins). that depicted the Confederate flag, which the Texas DMV denied as offensive.17 License plates bear the state name, and the state requires and issues license plates, along with controlling their messages, design, and dispos- Rather than harkening back to the al.18 Thus, the Supreme Court held that license misguided approach applied in McGinley — plate designs are government speech, and that that refusal of a disparaging mark does not prohibiting certain messages is not a violation prohibit any speech — the CAFC highlighted of a private citizen’s First Amendment rights.19 the significant chilling effect that the dispar- While the Supreme Court found that “license agement provision has on private speech. Laws plate designs are often closely identified in the that burden speech, even indirectly, are just public mind with the state,”20 the court in In re as problematic as laws that censor outright. Tam found that trademarks do not convey the Emphasizing the value of federal registration, same connection. Indeed, the court cited nu- the court explained that “[d]enial of these merous marks which clearly have no govern- benefits created a serious disincentive to adopt ment affiliation — religious and drug-related a mark which the government may deem of- marks, as well as marks like “Capitalism Sucks fensive or disparaging.”13 The court expressed Donkey Balls,” “Murder 4 Hire,” and “Take concerns that a disparagement refusal is Yo Panties Off.” Moreover, the USPTO makes dependent on the subjective view of a particu- clear that federal registration is not an endorse- lar group, and that usage or meaning of terms ment of any mark, product, or service. As the may change over time or in different areas court stated, “There is simply no meaningful of society. Thus, a mark that has been regis- basis for finding that consumers associate tered for decades could later be cancelled after registered private trademarks with the govern- substantial investment (e.g., Redskins). Faced ment.”21 with this potentially severe penalty, applicants The CAFC’s opinion was loud and clear. are unwise to select a mark that may become “It is a bedrock principle underlying the First problematic in the future, contributing to the Amendment that the government may not chilling effect. Most applicants denied regis- penalize private [nongovernment] speech tration under the disparagement provision merely because it disapproves of the message it abandon the application and change their conveys.”22 For these reasons, the court found name rather than forego federal registration or the disparagement provision unconstitutional, challenge the rejection.14 in violation of the First Amendment.23 As support for its right to refuse to register The USPTO can appeal the CAFC’s deci- disparaging marks, the USPTO argued that sion to the US Supreme Court within ninety

16 VIRGINIA LAWYER | April 2016 | Vol. 64 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST days after issuance. Commentators agree that license plates in Walker, thus exempting them the Supreme Court would likely consider the from First Amendment protections. Notably, case. this decision did not consider the seeming Meanwhile, the battle rages on. The Slants conflict between this interpretation and the band has asked the USPTO to proceed with problems that parallel application to copyright federal registration of its mark. The USPTO registration entail. has refused this request, stating in a letter to In November 2015, the Redskins appealed the band’s attorney that registration will be to the Fourth Circuit, which is not bound by suspended until either the agency forgoes the the Federal Circuit’s ruling in The Slants’ case. appeal or the Supreme Court decides the case, In the meantime, the Redskins can still use as is consistent with USPTO policy following the name, and claim extensive common law a federal circuit ruling.24 Furthermore, the rights in the trademarks, but the marks no USPTO has stated it will generally suspend longer have the benefits of federal registration. consideration of potentially disparaging marks Final briefs were due mid-March 2016. If the until final resolution of these proceedings.25 Redskins can make the crucial distinction The USPTO has not sought a stay in enforcing between its case and Walker, the team may be the Federal Circuit’s determination that the able to obtain a reversal and resume its federal disparagement provision is unconstitutional — trademark registration rights. only a thirty-day extension to file a petition of If the Fourth Circuit’s decision emulates certiorari.26 In light of the extension request, an the Federal Circuit’s holding in In re Tam, appeal by the USPTO seems highly likely and the USPTO may see a flood of applications could potentially block the registration of dis- for marks that would have once been deemed paraging marks until a Supreme Court ruling. disparaging. Moreover, such findings open As of March 15, 2016, The Slants filed a peti- the door for the parallel statutory provisions tion for a writ of mandamus with the Federal forbidding immoral and scandalous marks to Circuit, calling for an order that would require be challenged as unconstitutional. Even with the USPTO to proceed with registration.27 The these cases, markholders with potentially dis- court reacted within hours, ordering that the paraging marks may not get definitive answers USPTO respond to the petition within one for quite some time — until the US Supreme week and answer The Slants’s accusation that Court makes its determination on whether the the agency has ignored the court’s ruling.28 disparagement provision is constitutional. As football fever slowly amps up again before the NFL draft at the end of April, the Endnotes: Redskins’ lawyers are also gearing up for the 1 Lanham Act § 2(a). Fourth Circuit appeal centered on the cancel- 2 In re Tam (Fed. Cir. 2015). lation of the team’s marks under the dispar- 3 Id. agement provision.29 While The Slants’ case 4 TMEP § 1203.03(b)(i). 5 Tam at 8. was based on First Amendment arguments for 6 Compare TMEP § 1203.03 (including no fur- a trademark application, the Redskins’ case is ther protocol to follow if examiner finds mark 30 based on both First Amendment and Fifth disparaging) with TMEP § 1203.1 (requiring Amendment arguments fighting the cancella- examiners to consult a supervisor after deem- tion of six marks. ing a mark immoral or scandalous). The Redskins team has been battling 7 Office Action, THE SLANTS App. Ser. No. cancellation of its marks for a long time.31 In 85/472044 (January 6, 2012). 2014, the Trademark Trial and Appeal Board 8 660 F.2d 481 (1981). (TTAB) found the Redskins’ marks dispar- 9 Tam at 62. Two of the judges in the major- aging to Native Americans and canceled the ity wrote a separate opinion that found the registrations. The Redskins then appealed to disparagement provision to be impermissibly vague as well, citing examples of inconsistent a federal court in Virginia, claiming that the application. Id at 63-73. marks’ cancellation violated First and Fifth 10 Tam at 4, 61. Amendment protections. On July 8, 2015, 11 Id. at 23-24. The court also determined that the district judge upheld the TTAB’s earlier even if the disparagement provision was decision, finding the disparagement provision found to address commercial speech, it would constitutional. The opinion deemed trademark fail the applicable intermediate scrutiny test. registrations government speech similar to the Id. at 56-61. www.vsb.org GENERAL INTEREST FEATURES | Vol. 64 | April 2016 | VIRGINIA LAWYER 17 GENERAL INTEREST

12 The court found that Bob Jones University v. 26 Id. United States addressed racially discriminatory 27 Bill Donohue, Fed. Circ. Orders USPTO To conduct, not speech. Thus, the government has Explain ‘Disparaging’ TM Delay, Law360 “an interest in combating ‘racial discrimination (March 15, 2016, 11:28 AM), available at in education,’ not a more general interest in http://www.law360.com/articles/771742/the- fostering racial tolerance that would justify slants-ask-court-to-make-uspto-comply-with- preventing disparaging speech.” tm-ruling. 13 Tam at 29. 28 Id. 14 See Id. at 33-34. 29 Pro-Football, Inc. v. Amanda Blackhorse, Case. 15 The USPTO argued that the markholder’s No. 15-1874 (Fourth Circuit). use of the (R) symbol, the mark’s placement on the Principal Register, and Certificates of 30 The Redskins’ First Amendment arguments in- Registration issued to markholders are govern- clude a claim that the disparagement provision ment speech. is impermissibly vague. 16 Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). The 31 In 2009, after 17 years of litigation, the court considered only license plate designs, Supreme Court of the United States denied typically sponsored by organizations, and not certiorari, upholding a ruling that the Native license plate letters/numbers. American plaintiffs in that case did not have 17 The offensiveness standard applied to the standing because they waited too long before license plates stems from a different area of law attempting to have the Redskins’ trademarks than the disparagement provision of § 2(a) of canceled. See Pro-Football, Inc. v. Harjo, 415 the Lanham Act. F.3d 44 (D.C. Cir. 2005). A group of younger 18 Id. at 2248. Native Americans brought the most recent 19 Id. case. See Pro-Football, Inc. v. Blackhorse, Case 20 Tam at 40 (quoting Walker at 2248) (internal No. 1:14-cv-01043 (E.D. Va. 2015). quotes omitted). 21 Id. at 41. 22 Tam at 4. 23 It is important to note that the holding applies only to the disparagement provision and not the rest of Section 2(a), which also forbids registration of immoral and scandalous marks. 24 Bill Donohue, ‘Slants’ Trademark Suspended For Now, USPTO Says, Law360 (March 14, 2016, 3:58 PM), available at http://www .law360.com/articles/771166/slants-trademark -suspended-for-now-uspto-says. 25 Id.

Pamela C. Gavin is the managing member of Rina Van Orden is an associate attorney with Gavin Law Offices, a Richmond-based premier Gavin Law Offices PLC. Before pursuing her intellectual property boutique. She has extensive law degree at the University of Richmond experience in trademark, copyright, and related School of Law, she worked in publishing for transaction and litigation matters, and has been nearly ten years. practicing law for more than twenty years. She has won national recognition in the field and has been asked to serve as an expert to the governor of Virginia at the Jefferson Innovation Summit, the Economic Summit in Astana, Kazakhstan, and the US Embassy in New Delhi, India.

18 VIRGINIA LAWYER | April 2016 | Vol. 64 | GENERAL INTEREST FEATURES www.vsb.org Fastest smartest malpractice insurance. Period.

800.906.9654 GilsbarPRO.com

International Destination CLE: LONDON 2016 Monday, November 7 – Monday, November 14

To keep the valuable tradition of the VSB annual Midyear Legal Seminar alive, Virginia CLE® is proud to announce its inaugural International Destination CLE. • Six nights in a premier hotel located in the heart of Mayfair • Airfare from Dulles and airport transfer included (optional) • All taxes and gratuities to hotel personnel included • Breakfast buffet daily at hotel • Welcome and Farewell receptions • Orientation Tour • Dedicated Hospitality Desk at hotel • Optional tours, to sites within and outside of London, every day • Nine hours of CLE, including a comparative law session with our English counterparts For detailed information on Live on Site: London, The Park Lane Hotel this program, including a full MCLE Credit: 9.0 • Live-Interactive Credit: 4.0 schedule and details on optional tours and pre- and post-trip extensions, please visit our special website at www.vacleinternational.org. How ADR Has Changed the Practice of Law – or Has It? Join Our Dialogue by Jeanne F. Franklin

ADR has become commonplace to “getting to yes”2 but it feels frankly more like the point where some lawyers express “sharing the loss?” • How does one minimize your or a client’s concern about what has happened to perceived downsides of mediation or arbi- the jury trial.1 There is little doubt that tration? For example, can a lawyer take the neutral side and express views about what scholarship, laws, and lawyer ethical doesn’t seem to be right in the process? rules that support using alternative • Do lawyers have control over the choice of dispute resolution have expanded the mediator? How best should a lawyer exercise that prerogative? What credentials make up ways lawyers can serve clients. Yet, the profile of a good mediator or arbitrator? touted as “quicker, quieter, and cheap- • We want to understand better how arbitrators er,” practicing ADR is not necessarily or panels reach a ruling – what should lawyers know when representing a client in arbitra- easier for the lawyer, whether serving tion to be on the winning side? as an advocate for the clients or as the • If it does not always seem easy, without neutral. Many of us still have things to appearing weak or losing client trust, to try to establish early dialogue with opposing learn about its use. However the best counsel to preserve the ability to resolve by ways to go about doing that might not other than litigation, how have others done this? Does it work? be so obvious. • If confidentiality protections applicable to mediation by virtue of Virginia statute apply Young lawyers want more ADR information to mediation conducted even before the legal and guidance to shape their success. And claim has been filed, what are the pros and perhaps because ADR has so permeated legal cons of engaging in mediation earlier in the practice, new or renewed questions are sur- life of a dispute before there is a lawsuit? facing. There are important questions about • How can exchange of information in media- basics that no lawyer should be ashamed to tion be accomplished in such early mediation ask. More challenging are those emanating to allow a fair, informed settlement? from the growth of the field; the tests of time • While there might not have been significant and experience are giving rise to perceptions cause for concern ten or so years ago about of possible trends and recognition of issues by durability or enforcement of mediated reso- practitioners. lutions, increasing litigation about mediation What follows is a sample of questions on a national level in the last decade might heard in various venues, some more private give us some pause. Are there steps or details than others (e.g., law firm hallways). Perhaps we lawyers should attend to so that the agree- you will peruse them to see if any of them ments we negotiate are durable? resonate with you and if you have answers. At • Assuming it is a good idea to commit in the end, this article states a question relevant advance to an ADR process before there is to the the title and introductory paragraph and even a breach or dispute, how should lawyers provides its answer. approach doing that without discouraging the • How is ADR really working for our clients? clients? What services offer standard clauses? How does financial compromise feel time and Is it a good idea to use standard clauses or are again when the parties are supposedly there traps for the unwary?

20 VIRGINIA LAWYER | April 2016 | Vol. 64 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST

Moving from questions about practice In the end, while ADR has tips and strategies to some broader or policy impacted legal practice, core aspects The committee’s council has realized questions: of legal practice have not changed. that most lawyers do not seem to know • What are patterns of ADR practice among Lawyers want the same things they the Joint ADR Committee is a valuable Virginia lawyers? Is there anything to be always have – to be successful for practice resource that assists lawyers in a learned from such patterns? their clients, to be good at how they broad range of practice areas. Its record • Does the public reporting of mediation accomplish that, and for the client of cutting edge CLE continues and now it settlements in dollar figures have an effect on to recognize and be pleased with the can offer more through an online shop. It our perception of what mediation process is lawyer’s service. We think that the posts materials of value on the committee about and become a self-fulfilling prophecy? impact of ADR now and in the future website including those developed years Does it drive the idea that mediation is always on legal and law firm practice, our ago that remain relevant. Most recently, about money and getting the most or giving system of justice, and our own careers updates and current lawyer questions are the least, or that it always follows knuck- is worthy of further focused discus- highlighted through the recently launched le-baring discovery? sion. Won’t you join the committee blog: www.vba.org/allthingsadr. • What is the meaning and significance of data and enhance such important conver- 4 about trial statistics and about use of ADR? sations? There are many more questions from whence the foregoing came. Last but not least Endnotes: 1 This statement is not meant by the author to for our purposes is this: assume or assert a causal effect between the • Where do lawyers go to find out answers to growth of ADR and declining numbers of jury these and more questions about this area of trials. legal practice? 2 This term in quotation marks derives from the The Joint ADR Committee is a collabo- title of a book, Getting to Yes by Roger Fisher rative entity of the Virginia State Bar and The and William Ury, considered to be a foundation Virginia Bar Association. It is a substantive for the growth of interest-based mediation and negotiation. committee of, by and for Virginia lawyers of 3 Activity includes vetting or advising on legis- all ages. Like other substantive sections and lative content and informing our members of committees, its work is done by volunteers; potential legislation should they wish to take per agreement with the VSB, it is staffed by a position on an issue as a citizen lobbyist; we the VBA. Its history is luminous in terms of also can seek the superb lobby services of the advancing this field of practice and it continues Virginia Bar Association. Achieving passage of Virginia’s ADR statutes and this year’s effort to focus on education, networking for shared espousing amendments with respect to me- learning, and review of policy and legislative diation of J&DR matters are examples of how issues, disseminating such information to its VBA carries the water on legislative initiatives members.3 Licensure by the VSB or member- affecting this field of practice and in collabora- ship in The VBA, the voluntary bar, is the only tion with others such as the Virginia Mediation eligibility requirement. Network. The committee’s council has realized that 4 To find out how easy it is to join the Joint ADR Committee, simply go to www.vba.org/adr which most lawyers do not seem to know this is a is the website for the committee. Click and join valuable practice resource that assists lawyers instructions are found there. Or call the VSB or VBA in a broad range of practice areas. Its record to ask for help. of cutting edge CLE continues and now it can offer more through an online shop. It posts materials of value on the committee website including those developed years ago that remain relevant. Most recently, updates and current lawyer questions are highlighted through the recently launched blog: www.vba.org /allthingsadr. Knowing that ADR is an access to justice Jeanne F. Franklin served as chair of the VSB-VBA issue for many Virginians who cannot afford Joint ADR Committee in 2014. In her ADR practice, litigation or even a lawyer, the committee is she mediates disputes, facilitates client planning and also looking into ways to make ADR more conflict resolution discussions, and trains health providers and lawyers regarding ADR skills and processes accessible. It wants to encourage lawyers to useful for handling tensions and disputes. She is a past become certified as mediators and trained president of the Virginia Bar Association, a governing arbitrators and then promore their public pro board member of the VSB’s Section on The Education bono service as neutrals. This also can provide of Lawyers, named to the Virginia Business Legal Elite, and a winner of the VBA’s William B. Spong, Jr. practice experience for lawyer-neutrals. Professionalism Award. www.vsb.org GENERAL INTEREST FEATURES | Vol. 64 | April 2016 | VIRGINIA LAWYER 21 GENERAL INTEREST Local Bar Associations and Others Educate, Register Voters with So You’re 18 Brochure by Deirdre Norman

So You’re 18, a brochure for and so do the attorneys involved. It is so easy to find the ninety volunteer attor- young adults written and fund- neys this program requires.” ed by the VSB Conference of The volunteer attorneys visit with Local Bar Associations, contains every high school government class in information about the rights the 31st Judicial District to talk with the students and distribute the brochure. and responsibilities immediately Other topics the attorneys cover include conferred upon US citizens when driving, drunk driving, criminal law they turn 18, including the right once no longer a minor, smart spending and the use of credit, as well as health Lawyer John Primeau presents the So You’re 18 program to vote, the right to marry, and the insurance, wills, and when a person may to Manassas Park High School students. right to apply for credit. Other re- require a lawyer. Hudson said of the law- sponsibilities covered in the bro- yers’ efforts, “Our focus with the students is to give them the information they need Norfolk Department of Human Services, chure include registering for the to make good choices and to be model and a number of Juvenile and Domestic Selective Service, jury duty, and citizens.” Relations Courts throughout Virginia being liable for all your actions. Winston Forrest, Election who hand out the brochures during Communications Coordinator for Prince drivers’ licensing ceremonies to better The informative brochure, which is William County, estimates that so far inform young people about the law and given out free of charge, has been used in the 2015-16 school year the program their rights. to great effect by numerous local bars, has reached 3,000 students and, of the The Virginia State Bar has designed high school government classes, the approximately 2,400 eligible to register, the brochure to appeal to young people. Department of Social Services for minors resulted in 1944 new voter applications.. Illustrated by Madonna Dersch, the aging out of its programs, election regis- “This is an amazing program that helps VSB’s graphic designer, the twenty-eight trars, and many individuals who want to young adults understand their rights as page brochure features more than 100 help inform young people about changes well as their responsibilities.” hand drawn illustrations and has been in the law that apply to them as soon as “I tell the students: ‘You have a right styled like a “zine,” the underground they turn 18. to free speech and a right to an attorney publications often created and distrib- The largest program in Virginia if you are accused of a crime. You would uted by young people at schools and involves the Prince William County not give those rights up, so why would universities. Bar Association that has joined with the you give up the right to vote?’ Studies The result of the program so far has Prince William County Public Schools are showing that early voters go on to been better informed young people who and Prince William County Voter become frequent voters, and that means understand the many legal changes that Registration to develop a program for that the students will likely be exercis- occur as they reach the age of majority, high school students using the brochure. ing the right to vote for the rest of their as well as the registering of thousands According to Alissa Hudson, the lives,” Forrest said. of new voters. The York County Voter Executive Director of the association, the According to Paulette Davidson of Registrar also recently requested 1,250 project began in 1999 and now serves all the Virginia State Bar, who coordinates brochures to be used at student presenta- thirteen high schools in Prince William the So You’re 18 program, the brochures tions about the importance of registering County and the cities of Manassas and have also been used by the Hanover to vote. Manassas Park, as well as some alter- County Bar Association where Adam The VSB provides these brochures free native education programs. “We have Nelson has been distributing the bro- of charge. If you are interested in devel- distributed 88,000 brochures since 2000, chures for fifteen years as an annual Law oping such a program with a school or helping teenagers to understand how the Day project. school district in your area, please contact law changes once they reach eighteen. The brochures are also distributed Paulette Davidson at (804) 775-0521, or The teachers absolutely love the program, by the Warrenton Bar Association, the [email protected].

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

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

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

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

www.vsb.org GENERAL INTEREST FEATURES | Vol. 64 | April 2016 | VIRGINIA LAWYER 23 Law Stories

I’ll See You in Court shake of his head and a statement that he “He’s a made man, one of the top by Daniel H. Kolber was not budging from his position. gangsters in New York!” This gave me the opportunity to I took different routes to and from Upon graduating from Virginia Law in utter the words, the threat, that I had work for the next few weeks. 1978 I became an associate in the cor- waited to say ever since I was sworn into porate department of a large Wall Street the Virginia Bar during my third year of law firm. law school. Standing up, clutching my Most of the clients were large corpo- briefcase, puffing out my chest, I looked rations, but occasionally there would be the elderly man straight in the eyes and a small business client, often a friend of a said in my sternest voice, lowering it Tell Us Your Favorite partner who had a legal problem. an octave or two, “Well, then,” I almost Law Story One day during my first year, I was shouted, “I’ll see you in court!” summoned by a partner and given an There was a pause while I held his Every lawyer has a story set aside for gatherings of friends or relatives. assignment. I was to attempt to nego- stare and then he started laughing, not It’s a special tale about a legal battle tiate a settlement of a small landlord/ a strained, nervous laugh, no, a real, won, or lost. Or about an amusing tenant dispute on behalf of my client, raucous belly laugh. A laugh as if he had encounter with a judge. Or a story the tenant. The client was not some large just heard the funniest joke in his life. with a surprising twist. Maybe it’s corporation so I frugally took the subway Confused, I turned around and walked a story that will bring a knowing to the landlord’s office which was located out of the office, down the stairs, still smile, or shake of the head, from a in a small building in lower Manhattan. hearing the hearty laughter behind me. colleague. Pick your best Law Story, your I was escorted into a rather messy office When I got back to my law firm, I incredible adventure, your unusual with furniture from the 1950s. reported to the partner who had dis- courtroom or even boardroom esca- My adversary was an elderly man patched me what had happened. He pade, and send it to us. Keep them with a gruff manner. After some small started laughing at me, too. “What’s so short — about 400 words or less — talk, I told the landlord what my client funny?” I wanted to know. and send them in. was willing to do to settle the dispute. He said, “You idiot, do you realize E-mail your stories to us at The landlord rejected my proposal imme- who you threatened?” My blank look told [email protected]. diately. There was no counter-offer, just a him I had no idea.

Res ipsa loquitur….

…that there are few better values than advertising in Virginia Lawyer.

Whether you are hiring, selling, or promoting your services, we reach 49,000 lawyers, judges, and legal professionals around Virginia and across the USA.

Please contact Dee Norman at (804) 775-0594 ([email protected]) if you are interested in Virginia Lawyer classified or display advertising opportunities.

24 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org International Practice

by Melissa Stear Gorsline

As the chair of the Virginia State Bar’s invalidated the “Safe Harbor” for data pro- International Practice Section, I would like tection and the subsequent efforts by EU and to thank you for reading this month’s issue, US negotiators to create a new privacy frame- which is dedicated to issues relevant to inter- work called the “Privacy Shield,” which was national law and international practice. We announced in February 2016. have pulled together three articles that not Finally, we think you will enjoy reading an only represent an interesting cross-section of excellent article about the important changes international practice, but that also provide to the Visa Waiver Program that occurred in important information for Virginia lawyers December 2015. about cutting-edge issues relevant to many law The IPS and Virginia CLE will be firms and corporations. co-sponsoring a CLE program on the Trans- The first article summarizes the rights Pacific Partnership on May 19 and one on key and protections that will become available to developments in US export controls and eco- US individuals and companies investing in nomic sanctions on June 9. More details about Australia, Canada, Japan, Malaysia, Mexico, these CLE programs and other IPS activities Peru, Vietnam, Chile, Brunei, Singapore, or New Zealand once the recently signed Trans- can be found on our website at www.vsb.org/ Pacific Partnership agreement — negotiated site/sections/internationalpractice. between the United States and the eleven In addition, if you have interest in any countries listed above — enters into effect. aspects of international law and are not yet a Next you will find a fascinating article member of the IPS, we would encourage you about the landmark decision issued in October to consider joining our section and becoming 2015 by the European Court of Justice that active in our work.

World Flags photo by Bill Dickinson. Sky Noir Photography. www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 25 The Trans-Pacific Partnership Provides New Protections for United States Companies Investing Abroad

by Melissa S. Gorsline, Lindsay Reimschussel, and Tammi Pilgrim

In the search for trade and invest- These economic benefits of the TPP have been ment opportunities abroad, the Trans- hotly debated and widely covered in the media. However, less attention has been paid to the Pacific Partnership, or TPP, represents investor-state dispute resolution provisions in a significant development in American Chapter 9 of the TPP, which provide substan- commerce.1 It has been championed by tive legal protections for protected investors the United States trade representative and guarantee a neutral dispute resolution forum for Americans investing in Australia, as “the most significant trade negoti- Canada, Japan, Malaysia, Mexico, Peru, ations in a generation,” and one “that Vietnam, Chile, Brunei, Singapore, or New promises significant economic bene- Zealand. fits for American businesses, workers, What Is a BIT, and Why Should farmers, ranchers, and service provid- Investors Care? 2 ers.” By erasing punishing import tax- Bilateral and multilateral investment treaties es and other non-tax barriers, the TPP like Chapter 9 of the TPP, collectively referred has given “Made in America” man- to as BITs, guarantee the investors of one sig- ufactured agricultural, automotive, natory state certain rights and protections for investments made in the territory of another and information-and-communication signatory state. Importantly, they also generally products favorable and unprecedent- guarantee qualified investors the right to bring ed access in TPP member countries, an arbitration against a signatory state for vio- which collectively account for more lations of the treaty that negatively impact their protected investments. 3 than one-third of the global GDP. For Traditionally, BITs were signed between example, the chemicals industry, which developing and developed nations as a way accounted for $3.2 billion of Virginia’s to encourage foreign investment by ensuring total merchandise exports in 2014,4 investors from developed nations a minimum standard of treatment and a promise of a stands to benefit tremendously from neutral dispute resolution forum should things expanded free market access in the go awry. Now, with the astronomical growth TPP member countries. of foreign direct investment, BITs are routinely

26 VIRGINIA LAWYER | April 2016 | Vol. 64 | INTERNATIONAL PRACTICE SECTION www.vsb.org THE TRANS-PACIFIC PARTNERSHIP concluded between developing nations and in- investments in existence at the date of its entry cluded in multilateral treaties, such as NAFTA, into force.11 CAFTA, and now, the TPP. Among the signatories to the TPP, the What Substantive Protections Does the TPP United States has existing investment treaties Provide? with only Mexico and Canada.5 Thus, this sin- The TPP establishes certain fundamental gle agreement provides new, substantive legal obligations on the part of TPP member states protections for American investors in several of that can give comfort to potential investors the world’s largest economies. that neither they nor their investments will be Each treaty is unique in the precise nature discriminated against. These obligations extend of protections it contains and the remedies to regional governments and any person or available, and the TPP is no exception. A close enterprise that exercises delegated govern- read of the text shows that the drafters explicit- mental authority.12 The discussion below is by ly tried to avoid certain lines of cases in public no means an exhaustive list of the obligations international law and to steer future tribunals of TPP member states vis-à-vis investors, but towards others. Thus, a prudent investor rather a brief overview of those duties that are should consult with counsel regarding the best fundamental to the operation of an investment way to structure an investment to maximize in a foreign country. investment treaty protections. Ultimately, TPP protections include obligations of while more state-friendly than other BITs, the National Treatment and Most-Favored Nation TPP still provides several important protec- treatment, which means that a TPP member tions to qualified investors. state must provide protected foreign investors treatment equal to or better than what it What Investments Are Covered by the TPP? provides in similar circumstances to its own Like most BITs, the TPP is engineered to pro- investors and investors of any other country. vide protections for a wide array of investors 13 Notably, the TPP explicitly disallows the and investments but contains some interesting application of “most favored nation” status to caveats of which investors should be aware. “international dispute resolution mechanisms A qualified investor can be either an individ- and procedures.”14 ual citizen or a legal entity of a signatory that Signatories to the TPP also promise to attempts to, is in the process of making, or provide a minimum standard of treatment has made an investment in another signato- to covered investments that is not measured ry’s territory.6 However, the treaty explicitly by local or national considerations, but by permits a signatory state to deny treaty benefits “customary international law principles.”15 in circumstances where the investor is a shell In the TPP, the minimum standard includes company owned or controlled by an investor who is a national of a non-TPP signatory or of guarantees of “fair and equitable treatment” the state denying the benefits.7 (FET), including in adjudicatory proceedings, Similarly, a qualified investment and “full protection and security,” meaning can take many forms but must possess the the level of police protection required under 16 “characteristics of an investment,” such as “the customary international law. However, this commitment of capital,” “the expectation of section of the TPP is also carefully worded in gain or profit,” or “the assumption of risk.”8 an attempt to limit the impact of international This explicit description of the “characteristics arbitral decisions that have interpreted both of an investment” displays the intention of the of these provisions in other treaties much TPP member states to force arbitral tribunals more broadly. For example, the TPP provision to apply a set of heightened criteria for defining regarding FET is explicit that a state action a protected investment, colloquially known as that is “inconsistent with an investor’s expec- the Salini test.9 That said, the TPP’s definition tations” by itself does not constitute a breach of investment nonetheless follows the broad of the provision, even if that action negatively pattern of other BITs and includes, among impacts the investment.17 This is in direct con- other things, shares, debt instruments, con- trast to a string of earlier decisions that found tracts, intellectual property rights, and physical violations of the FET standard where the state’s property and its related property rights.10 The actions frustrated an investor’s “legitimate TPP will also retroactively protect qualified expectations.”18 www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 27 THE TRANS-PACIFIC PARTNERSHIP

Finally, signatories to the TPP promise other BITs, the TPP also provides an expedit- not to expropriate or nationalize covered ed procedure for claims that are “manifestly investments, whether directly or indirectly.19 without legal merit” that is similar to a motion However, this obligation is subject to explicit to dismiss in US civil court proceedings.26 exceptions in which expropriation or na- Finally, the TPP permits an investor or a state tionalization is justified. For instance, it is a to request consolidation of similar claims into recognized principle that a state may nation- one proceeding.27 alize an investment for a public purpose if the Most importantly, an investor should action is non-discriminatory, in accordance know that, unlike other arbitration options with due process, and fair compensation is under international agreements, which may provided.20 The TPP codifies this principle, permit confidential proceedings, transparen- but also creates specific exceptions for certain cy is the general rule under the TPP. Arbitral intellectual property licenses and government submissions, hearing transcripts, and tribunal subsidies and grants, and makes clear that orders, awards, and decisions are generally to regulations regarding public health, safety and be made available to the public by the disput- the environment should rarely be considered ing state.28 Hearings are also conducted in pub- expropriatory.21 lic.29 The TPP does permit the parties to have certain information protected by the tribunal, How Are Disputes Resolved Under the TPP? but this is the exception rather than the rule. 30 For covered investors whose treaty protections In sum, it is clear that the TPP affords US have been violated, the TPP provides recourse investors tremendous opportunities for trade to a neutral arbitral forum. The TPP permits and commerce within the newly created free an investor to bring a claim under the ICSID trade area, including investor protections and Rules, the ICSID Additional Facility Rules, the arbitral dispute-resolution rights. In a single UNCITRAL Rules, or any other set of arbitral document the TPP has managed to achieve, rules to which the parties agree.22 However, for American investors, the benefits of eleven linked to the TPP’s grant of access to inter- separate bilateral investment treaties. However, national arbitral tribunals are a number of investors and their counsel should be aware of features of which investors should be aware. the special features attached to these protec- First, an investor must decide early on tions, and adjust their investment strategies to resolve the dispute in national courts or accordingly, in order to maximize available through international arbitration. This is benefits. because: the TPP contains a relatively brief The views set forth here are the personal views ... it is a recognized principle that a state may nationalize of the authors and do not necessarily reflect those of any law firm with which they are an investment for a public purpose if the action is non- associated. discriminatory, in accordance with due process, and fair Endnotes: compensation is provided. 1 The TPP was signed on February 4, 2016 in New Zealand. See Rebecca Howard, Trans- statute of limitations of 3.5 years;23 and the Pacific Partnership Trade Deal Signed, but Years TPP contains a fork in the road provision that of Negotiations Still to Come, Reuters, Feb. 4, requires an investor who wishes to arbitrate the 2016, http://www.reuters.com/article/us-trade dispute to submit a written waiver of its rights -tpp-idUSKCN0VD08S. However, it is not yet in force. It will become binding either: to initiate or continue parallel proceedings in (a) 60 days after all TPP states complete their any other court or tribunal.24 respective domestic treaty ratification process- Second, an investor should be aware of es; or (b) if two years pass, 60 days after at least some of the unique procedural elements of six TPP states, representing 85% of the total an arbitration under the TPP. For example, GDP of the original signatories, have complet- the TPP specifically allows an arbitral tribu- ed their domestic ratification processes. nal to accept submissions from TPP member See TPP Full Text (“TPP”) art. 30.5, https://ustr states that are not parties to the dispute, as .gov/trade-agreements/free-trade-agreements/ well as amicus curiae submissions.25 Unlike trans-pacific-partnership/tpp-full-text.

28 VIRGINIA LAWYER | April 2016 | Vol. 64 | INTERNATIONAL PRACTICE SECTION www.vsb.org THE TRANS-PACIFIC PARTNERSHIP

2 See Office of the U.S. Trade Representative, (Jan. 25, 2000). As a practical matter, Article USTR Fact Sheet: Economic Benefits of 9.5(3) can likely be read as limiting the TPP’s Trans-Pacific Partnership (2013), http:// MFN clause to substantive protections. goo.gl/iWR8J0 (“USTR Fact Sheet”). See also 15 TPP art. 9.6. The Trans-Pacific Partnership, Leveling the 16 See id. Playing Field for American Workers & American 17 Id. art. 9.6(4). Businesses, Office of the U.S. Trade 18 See, e.g., Impregilo S.p.A. v. Argentine Republic, Representative, https://ustr.gov/tpp; White ICSID Case. No. ARB/07/17, Award, ¶ 291 House Office of the Press Secretary, Fact (June 21, 2011) (finding that Argentina’s Sheet: How the Trans-Pacific Partnership decision to change the parity levels of the U.S. (TPP) Boosts Made in America Exports, Dollar and Argentine Peso and to freeze tariffs Supports Higher-Paying American Jobs, frustrated the investors’ legitimate expectations and Protects American Workers (2015), based on the totality of the circumstances). https://goo.gl/EoXcXA. 19 See TPP art. 9.8; id. annex 9-B. 3 USTR Fact Sheet. 20 See id. art. 9.8. 4 Department of Commerce, International 21 See id. art. 9.8(5)-(6); id. annex 9-B, art. 3(b). Trade Administration, Virginia: Expanding 22 See id. art. 9.19(4). Exports and Supporting Jobs through 23 See id. art. 9.21(1). The TPP also mandates Trade Agreements 1 (2015), http://goo.gl/ a six-month “cooling off” period between QVGyAX. when the claimant first notifies the State of 5 The US also has existing free trade agreements the dispute and actually submits the claim to with Chile, Peru, and Vietnam, which provide arbitration. See id. art. 9.19(1). similar, but not identical, protections to those 24 See id. art. 9.21(2)(b). There is an exception for contained in the BITs. Additionally, the US/ parallel disputes of an injunctive nature that is Australia Free Trade Agreement includes intended to preserve the parties’ rights during substantive protections for investors, but does the pendency of the arbitration. See id. art. not provide for dispute resolution beyond the 9.21(3). national court system. 25 See id. arts. 9.23(2)-(3). 6 See TPP art. 9.1 (definition of investor). 26 Id. arts. 9.23(4)-(5). 7 See id. art. 9.15(1). 27 See id. art. 9.28. 8 Id. art. 9.1 (definition of investment). 28 See id. art. 9.24(1). 9 See Salini Construttori S.P.A. v. Kingdom of 29 Id. art. 9.24(2). Morocco, ICSID Case No. ARB/00/4, Decision 30 The TPP’s definition of “protected informa- on Jurisdiction, ¶¶ 52-57 (July 16, 2001). tion” includes confidential business informa- 10 See TPP art. 9.1 (definition of investment). tion, information privileged under domestic 11 See id. art. 9.1 (definition of covered investment). law, and classified government information. 12 See id. art. 9.2(2). Id. art 9.1. The tribunal is required to “make 13 See id. arts. 9.4, 9.5. appropriate arrangements” to prevent 14 Id. art. 9.5(3). The exclusion of international disclosure of protected information, which dispute-resolution mechanisms and pro- can include closing portions of the other- cedures from the MFN obligation is most wise public hearing. Id. art. 9.24(2). A State certainly a response to cases like Maffezini v. also cannot be required to disclose protected Spain, where the tribunal interpreted an MFN information or information that falls under clause as encompassing such procedural rights. Article 29.2 (Security Exceptions) or Article See Maffezini v. Kingdom of Spain, ICSID Case. 29.7 (Disclosure of Information). See id. art. No. ARB/97/7, Decision on Jurisdiction, ¶ 64 9.24(3).

Melissa S. Gorsline is a partner in Jones Day’s Lindsay Reimschussel is an associate in the Tammi Pilgrim is an LLM candidate at Global Disputes practice, resident in Washing- Washington, DC, office of Jones Day. Georgetown University Law Center. ton, DC. She is also chair of the International Practice Section of the Virginia State Bar. www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 29 Allianz Global Assistance USA offices in Richmond, Virginia, photo by Bill Dickinson. Sky Noir Photography.

Exchanges of Personal Data between the EU and the US: After the Safe Harbor Understanding the ECJ’s “Safe Harbor judgment” and an outlook on its impact on Trans-Atlantic data exchanges by Jana C. Fuchs

The European Court of Justice’s companies cannot resolve the conflicts (ECJ) decision to invalidate the “Safe between US and EU data protection Harbor” raises more questions than it laws without assistance from policy- answers. For EU companies that ex- makers. Although the announcement change personal data with US-based of a new negotiated framework called companies or have such data processed “Privacy Shield” suggests a political solu- in the US, the primary effect of the ECJ’s tion is emerging, it is still too soon to tell judgment is legal uncertainty. Internal if this new framework will hold against structures for data transfers to the US the ECJ’s judgment. are now subject to scrutiny. Affected

30 VIRGINIA LAWYER | April 2016 | Vol. 64 | INTERNATIONAL PRACTICE SECTION www.vsb.org EXCHANGES OF PERSONAL DATA BETWEEN THE EU AND THE US: AFTER THE SAFE HARBOR

When information not meant for the public Rather, it stated that the case relates to the was released in the summer of 2013, people implementation of EU law and that the Safe learned that international governmental agen- Harbor decision must be assessed exclusively cies in both the US and in the EU (e.g., in the in accordance with EU law. The Irish High United Kingdom) have extensive powers to Court further declared that, with his complaint, access personal data, above all online. Because Schrems was in effect questioning the lawful- of the revelations by whistleblower Edward ness of the Safe Harbor decision. However, a Snowden, the PRISM program became known formal challenge to the Safe Harbor decision as the basis for extensive spying on global had not been made. Internet applications by the US National Security Agency (NSA). Questions Referred to the ECJ At the center of the issue was Facebook, The Irish High Court ordered a stay of pro- which supplied the NSA with extensive user ceedings and presented questions, which are data. Maximilian Schrems was a Facebook user reproduced below in simplified form, to the starting in 2008. In an effort to prevent the ECJ for preliminary ruling: transfer of his user data to US security agencies Question 1: Is a data protection author- and intelligence services, Schrems filed a claim ity bound by the finding of the Safe Harbor on June 25, 2013, with the Irish data protec- decision when making its determination in tion authority. He called upon the authority connection with a complaint related to the to prevent Facebook from transferring his inadequate protection of personal data that is personal data to the US-based parent compa- being transferred to a third country, notwith- ny. He argued that US law and practice fail to standing the provisions of Article 25(6) of the adequately protect the personal data stored Data Protection Directive? there from access and surveillance by the US Question 2: Alternatively, may and/or authorities. must a data protection authority conduct its The Irish data protection authority own investigation of the matter and consider dismissed Schrems’s claim for two reasons. factual developments since the Safe Harbor First, it noted that there was no evidence that decision was first published? Schrems’s personal data had been accessed Neither question referred to the ECJ by the NSA. Second, the Irish data protection explicitly challenged the validity of the Safe authority pointed out that Facebook, as a Harbor decision. company certified under the “Safe Harbor” Briefly, the ECJ’s judgment of 6 October framework established by the US Department 20152 can be summarized as follows: of Commerce, ensures an adequate level of Question 1: No data protection to satisfy the European Data Question 2: Yes Protection Directive, Directive 95/46/EC. Unasked: The Safe Harbor decision is US-based Facebook Inc., like more than invalid. 4,000 other companies of various sizes and organizations, had been certified in accordance Because of the revelations by whistleblower Edward with the “Safe Harbor” rules until the recent Snowden, the PRISM program became known as the basis decision by the European Court of Justice (ECJ). Consistent with the EU Commission’s for extensive spying on global Internet applications by the fifteen-year-old “Safe Harbor decision”1 US National Security Agency (NSA). US-based companies that were Safe Harbor- certified were deemed to have an adequate The ECJ answered the questions posed by level of data protection in accordance with the the Irish High Court in its first ruling, which standards of EU law. states: Schrems appealed the decision of the Irish “Article 25(6) of the Data Protection data protection authority to the courts. The Directive, read in the light of Articles 7, Irish High Court found that Irish national data 8 and 47 of the Charter of Fundamental protection law prohibits the transfer of data Rights of the European Union (the to the United States despite the Safe Harbor, Charter), must be interpreted as mean- since an adequate level of data protection ing that a decision adopted pursuant cannot be ensured. It noted, however, that the to that provision, such as the Safe matter is not governed by Irish law exclusively. Harbor decision, by which the European www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 31 EXCHANGES OF PERSONAL DATA BETWEEN THE EU AND THE US: AFTER THE SAFE HARBOR

Commission finds that a third country conduct mass surveillance on personal data ensures an adequate level of protection, transferred to the EU, and that they will im- does not prevent a supervisory authority plement “clear limitations, safeguards, and of a Member State, within the meaning oversight mechanisms” to protect privacy. The of Article 28 of the Data Protection US also agreed to conduct an annual joint Directive, from examining the claim of review on privacy issues and to appoint an om- a person concerning the protection of budsman to field complaints from EU citizens. his rights and freedoms in regard to the However, the details of this new framework processing of personal data relating to and the effects it will have on companies on him which has been transferred from a both sides of the Atlantic remains unknown Member State to that third country when until the terms of the agreement are finalized, that person contends that the law and which is expected in about three months. practices in force in the third country do For now, and until the Privacy Shield is not ensure an adequate level of protection.” implemented first by policy makers and then by concerned companies, there remain only In its second ruling, the ECJ went beyond certain ways to legally transfer personal data the scope of these questions and ruled, without from the EU into the US. solicitation, that the Safe Harbor decision is 1. Use of standard contractual clauses invalid. As grounds for its decision, the ECJ A data controller can use standard contractual stated that, in view of its findings with regard clauses that ensure sufficient data protection to the questions posed by the Irish court, a safeguards for the transfer of personal data to a determination was necessary as to whether the third country. Pursuant to Article 26(4) of the Safe Harbor decision met the requirements of Data Protection Directive, the EU Commission the Data Protection Directive and the charter. was authorized to develop standard contractu- In view of the substantial and direct imal clauses for data transfers to countries which pact of the judgment, the procedural grounds do not ensure an adequate level of data protec- cited by the ECJ to invalidate a decision whose tion. In practice these clauses are also used in validity had not been challenged are question- cases where the level of data protection in the able at the very least. recipient country cannot be evaluated by the data controller in a definitive manner. Significance of the Safe Harbor Judgment To date, the EU Commission has ap- The ECJ’s Safe Harbor judgment means that proved three sets of standard contractual companies that until now had either been clauses. Two apply to the transfer of data by a Safe Harbor-certified themselves or worked controller in the EU to a controller in a third with Safe Harbor-certified service providers country (a controller-to-controller trans- will have to modify the legal structure of their fer). The third applies to transfers between a data transfers and, in some cases, will have to controller in the EU and a processor which technically restructure those transfers. As of processes personal data outside of the EU (a October 6, 2015, the Safe Harbor no longer controller-to-processor transfer). ensures an adequate level of data protection in Not covered by standard contractual the US. clauses is the processing of data by a service provider both within (e.g., through subcontractors) and outside of the EU if the processor, For now, and until the Privacy Shield is implemented first in its function as a contract data processor, by policy makers and then by concerned companies, there processes data, either within its corporate group or through subcontractors, for the remain only certain ways to legally transfer personal data purpose of executing an order. The Article 29 from the EU into the US. Working Party3 developed a draft agreement (processor-processor transfer) but the EU Commission never approved of the draft.4 In these situations, the Safe Harbor played a In February 2016, the EU and the US dominant role in practice since controllers in announced a new privacy framework called the EU cooperated with IT service providers Privacy Shield, which resulted from written as- which were positioned internationally, and surances that US law enforcement and nation- whose data processing activities often were not al security agencies will not indiscriminately confined to any one location.

32 VIRGINIA LAWYER | April 2016 | Vol. 64 | INTERNATIONAL PRACTICE SECTION www.vsb.org EXCHANGES OF PERSONAL DATA BETWEEN THE EU AND THE US: AFTER THE SAFE HARBOR

2. Binding corporate rules subject and the controller is permissible, pro- Binding corporate rules (BCR) can also ensure vided the data transfer is necessary for perfor- sufficient data protection safeguards for data mance of the contract. transfers within a corporate group. This is comparable to the rule in Article One advantage of such binding corporate 26(1)(c) of the Data Protection Directive, rules (in the form of binding internal com- under which a data transfer is allowed to the pany data protection policies) is that they are extent necessary for performance of a contract approved by a competent data protection au- which was concluded in the interests of the thority after that authority consults with other data subject between the controller and a third data protection authorities. As a result, they party. constitute an individualized form of approval In both cases, companies would face legal by the supervisory authorities. challenges given the fact that the definition Companies with approved binding corpo- of necessity is subject to a broad range of in- rate rules can rely on the fact that, at the time terpretations. In general, however, “necessity” the approval was issued, the competent data requires a close and material connection be- protection authority took the view that the tween the data subject and the purposes of the policies ensured sufficient safeguards of data contract in each case. protection to allow the exchange of data within The data protection authorities have al- the corporate group (including transfers to ready opposed an all too broad interpretation the US). The legal basis on which data protec- of this exceptional rule in an opinion from the tion authorities can withdraw or modify their Article 29 Working Party, formulating strict 5 approval of BCRs (particularly if it has been requirements for the criterion of necessity. established that the corporate group has not 5. Individual approval violated the BCRs) may be open to question Finally, the data protection authority of each depending on any ancillary provisions and, in Member State can approve data transfers to a case of doubt, may have to be clarified by the third country. administrative courts. Like binding corporate rules, individual approval by the competent data protection 3. Consent authority affords legal certainty in that an ad- Consent is a permissible means of affording le- ministrative act exists which provides security gal protection to the transfer of data to a third for the controller within the framework of na- country with no additional measures. This tional laws. It also remains to be seen whether rule benefits providers that are in contact with the data protection authorities will make use customers, as they are in a position to obtain of this authority, which has existed since the such consent in the first place. Consent must Data Protection Directive took effect, to make be declared beyond any doubt. In accordance their own determinations as to whether a third with the applicable local laws, the rule is that country can ensure an adequate level of data consent requires a free and informed decision. protection, in order to avoid possible individu- The requirement that requests for consent al approval procedures. be transparent and clearly indicate the intended transfers and that consent be voluntarily Conclusion given often creates challenges for companies. Until the uncertainty arising from the Safe This is particularly the case with regard to Harbor judgment is resolved, companies will employees, where it is often assumed in many need mechanisms to address data transfers EU countries that, because of the hierarchical between the US and the EU. Standard contrac- relationship between employer and employee, tual clauses, individual approvals, or consent consent cannot be freely given. In addition, do not limit the rights of the security agencies consent must be able to be revoked at any time to access personal data. Companies need a re- without citing the reasons for the revocation. liable legal framework as soon as possible that 4. Contracts with Data Subjects ensures a sound foundation for the transfer Another rule for data transfers to a third of data to the US. At the same time, the fun- country can be found in Article 26(1)b of the damental right to data protection in light of Data Protection Directive. Under this rule, investigations by secret services should be se- the transfer of data to a third country without cured not just for data transfers to the US, but an adequate level of data protection for the performance of a contract between the data Safe Harbor continued on page 37 www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 33 US Wavers on Visa Waiver Program

by Satnam Singh and Jeffrey T. Talbert

Legislation passed at the end of through the program. In designating a country to participate, the Department of Homeland 2015 made changes to the Visa Waiver Security, in consultation with the secretary of Program (VWP). Congress perceived state, considers only those countries the US that the VWP, which relaxes the re- holds “the best law-enforcement and security relationships with.”2 Each program country quirements for entry into the United must permit US citizens to enter that country States, might be manipulated by terror- for business or tourism without a visa.3 ists to achieve easy entry. The new Instead of applying for and obtaining a visa at a US embassy or consular office before legislation seeks to address Congress’ traveling to the US, a citizen of a program concern, but may reach too far. country, after obtaining pre-travel authorization via the Electronic System for Travel The VWP began in 1986. It’s governed by § 217 Authorization (ESTA),4 simply travels to the of the Immigration and Nationality Act (INA). US and presents his or her passport at the The program allows travelers from certain point of entry. ESTA authorization is normally countries to enter the US for business or good for two years. The usual visa requirement pleasure without obtaining a visa in ad- is waived, accounting for the name of the pro- vance. Currently, thirty-eight countries,1 — gram. Assuming the traveler clears inspection mostly European countries, and Australia, at the point of entry, the traveler is permitted Brunei, Chile, Japan, New Zealand, Singapore, to stay in the US for ninety days.5 In exchange South Korea, and Taiwan — are part of this for the convenience of traveling to the US program, with more than twenty million vis- without a visa, the traveler gives up certain itors utilizing it each year. The VWP was cre- options available to travelers who enter with a ated to facilitate efficient and secure inbound visa. For example, the traveler cannot extend travel to the US, and requires pre-travel au- his or her stay beyond ninety days, cannot thorization of travelers who are pre-approved change to a status other than traveler under the

34 VIRGINIA LAWYER | April 2016 | Vol. 64 | INTERNATIONAL PRACTICE SECTION www.vsb.org US WAVERS ON VISA WAIVER PROGRAM

VWP, and waives the right to contest (other Program Reform” (the Act) has three compo- than for asylum) any action for removal.6 nents: In response to recent tragedies in Paris 1. The Act terminates VWP privileges of and California, the White House announced nationals of Iraq, Syria, Iran, and Sudan. These at the end of November 2015 new security four countries are not VWP countries. The enhancements for the VWP and a willingness import of this provision is to terminate VWP to work with Congress to make additional privileges for travelers who are nationals of improvements. On December 08, 2015, the Iraq, Syria, Iran, or Sudan and also nationals House overwhelmingly passed H.R. 158, the of a VWP country.12 This provision is effective Visa Waiver Program Improvement and immediately. Terrorist Travel Prevention Act of 2015. The 2. The Act terminates VWP privileges of all House passed the bill by a vote of 407 to individuals who have traveled to Iraq, Syria, 19.7 The bill was received in the Senate on Iran, or Sudan on or after March 1, 2011.13 December 09, 2015, and marked as S. 2362. This provision is effective immediately. The text of this bill, like the refugee bill passed 3. Travel documents and procedures are in November, was rushed to the floor with lit- improved. By April 1, 2016, all VWP travelers tle review (no committee markup or hearings must have machine-readable electronic and on the legislation). fraud resistant passports which contain rele- Many organizations expressed concern vant biographic and biometric information.14 over the language of the bill, saying it was By October 1, 2016, VWP countries must cer- overbroad and would have unintended conse- tify that they require such passports for entry quences. For example, the bill would potential- into their countries.15 By the end of February ly make travel more difficult for journalists and 2016, the ESTA application was to be changed humanitarian aid workers. During a Senate to add additional questions.16 VWP countries Foreign Relations Committee hearing on the must report lost or stolen passports within a Joint Comprehensive Plan of Action (JCPOA) day of being notified.17 If a US agency deter- on December 17, 2015, Senator Chris Murphy mines that a visa waiver country is not sharing (D-Conn.) asked the State Department’s coor- information effectively, DHS can terminate the dinator for JCPOA implementation, “Have the country’s participation in the VWP.18 Finally, Europeans raised concerns to you or have oth- the Act establishes that Congress wants the ers raised concerns to you about that specific United Nations to standardize globally the provision?”8 State Department official Stephen introduction of electronic passports featuring D. Mull replied that both he and Secretary of biometric and biographic information.19 State John Kerry had heard from “very senior” The Department of Homeland Security European officials “that it could have a very (DHS) or the Department of State may add negative impact on the deal.”9 additional countries to the list of Iraq, Syria, According to media reports, the European Iran, and Sudan.20 The Act provides limited Union was keenly concerned as well. exceptions to the revocation of VWP privi- David O’Sullivan, the European Union leges described above. One exception applies ambassador to the US, in an open letter on to travelers who are members of the military December 14, 2015, said that the VWP mem- or federal government full-time employees of ber countries are “really quite concerned about what is happening and fear that this could be extremely counterproductive.”10 Despite the ... the White House announced at the end of criticism, the bill was tacked on to the 2016 November 2015 new security enhancements Omnibus Appropriations Bill, a must-pass bill that would prevent a government shutdown. for the VWP and a willingness to work with On December 18, 2015, the House passed the 2016 Omnibus Appropriations bill on a vote of Congress to make additional improvements. 316–113. The bill was promptly passed by the Senate and signed by President Obama on the VWP countries who visited Iraq, Syria, Iran, same day. 11 or Sudan on official business.21 This exception In general, the part of the appropria- does not apply to dual nationals. Another ex- tions legislation addressing the VWP, titled ception permits the DHS to exempt individuals “Terrorist Travel Prevention and Visa Waiver on a case-by-case basis.22 www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 35 US WAVERS ON VISA WAIVER PROGRAM

Canadian citizens are visa exempt. However, Congress passed the Act with little or Canadian citizens who are also citizens of Iraq, no debate or consideration of the issues. In its Syria, Iran, or Sudan are not affected by the haste, Congress made questionable decisions Act. that discriminate against particular countries Nationals of Iraq, Syria, Iran, or Sudan are and nationalities, which may dismantle and not prevented from coming to the US. They adversely affect the American tourism industry can come to the US but may not use the VWP and useful programs like the VWP and ESTA. to do so. Instead, they must apply for and It may be difficult for affected travelers to visit obtain a visa before traveling to the US.23 the US for legitimate purposes for the foresee- able future. The US Travel Association cau- The Department of Homeland Security (DHS) or the tioned that the Act could cost the US billions of tourism dollars over the next five years.25 Department of State may add additional countries Although the government represents that travel to the US is still open to travelers who can no to the list of Iraq, Syria, Iran, and Sudan. longer use the VWP and that these travelers need only obtain a visa, one wonders how On January 21, 2016, the DHS and the welcome their applications will be. Heightened Department of State issued a joint press scrutiny of their applications would not be release on the new law. On January 22, 2016, surprising. Amendments to the Act would US Customs and Border Protection (CBP), serve to avoid unintended discrimination and a branch of DHS, issued frequently asked damage to tourism and business interests and questions. The press release and FAQs provide help preserve advantageous relationships with guidance on how the Act will be implemented. VWP countries. On or about January 21, 2016, CBP will e-mail individuals known to be dual nationals Endnotes: affected by the Act. The e-mail will revoke their 1 U.S. Customs and Border Protection (CBP) ESTA authorization. As soon as possible, CBP Frequently Asked Questions (FAQs) — will e-mail individuals known to have traveled http://www.cbp.gov/travel/international to Iraq, Syria, Iran, or Sudan since March 1, -visitors/visa-waiver-program/visa-waiver 2011, that their ESTA authorization is revoked. -program-improvement-and-terrorist-travel- In each case, CBP will use the e-mail address prevention-act-faq 2 http://immigrationimpact.com/2015/12/09 the individual used on the ESTA application. /house-passes-visa-waiver-program-bill-that Individuals who could be affected by the Act -excludes-nationals-of-syria-iraq-iran-and should check their ESTA authorization before -sudan/ traveling to the US to determine if the autho- 3 http://www.cbp.gov/travel/international rization has been revoked. If CBP does not -visitors/visa-waiver-program revoke an affected individual’s ESTA autho- 4 CBP FAQs — http://www.cbp.gov/travel rization, that individual should not expect he /international-visitors/visa-waiver-program or she will be admitted to the US. Instead, the /visa-waiver-program-improvement-and affected individual should apply for a visa.24 -terrorist-travel-prevention-act-faq The Department of State is prepared to 5 INA § 217(a)(1), 8 US Code § 1187(a)(1) expedite visa applications of affected individu- 6 NA § 217(b)(2), 8 US Code § 1187(b)(2) als who have urgent travel plans. CBP’s FAQs 7 http://www.govtrack.us/congress/votes provide examples of categories of travelers /114-2015/h679 who may qualify for a case-by-case waiver of 8 http://www.foreign.senate.gov/hearings the ban on VWP privileges. The Act applies /the-status-of-jcpoa-implementation-and only to individuals who are seeking admission -related-issues-121715 9 http://www.foreign.senate.gov/hearings/the to the US. Individuals who have already been -status-of-jcpoa-implementation-and-related admitted to the US are not affected. -issues-121715 The VWP provisions were apparent- 10 See David O’Sullivan, European Union’s ly meant to reform the VWP and prevent (EIU) Ambassador to the United States, and future terrorist attacks by people who might the ambassadors to the U.S. of the 28 EU abuse the VWP. Given the events in Paris, member states, Opinion, What the Visa Waiver California, and around the world, Congress’ Program means to Europe, THE HILL (Dec. concern about safety of US citizens is laudable. 14, 2015), http://thehill.com/blogs/congress

36 VIRGINIA LAWYER | April 2016 | Vol. 64 | INTERNATIONAL PRACTICE SECTION www.vsb.org US WAVERS ON VISA WAIVER PROGRAM

-blog/foreign-policy/262999-what-the-visa 22 CAA 2016, Division O, Title II, § 203, adding -waiver-program-means-to-europe INA § 217(a)(12), 8 US Code § 1187(a)(12) 11 http://clerk.house.gov/evs/2015/roll705.xml; 23 CBP FAQs — http://www.cbp.gov/travel https://www.congress.gov/bill/114th-congress /international-visitors/visa-waiver-program /house-bill/2029/all-actions?overview=closed /visa-waiver-program-improvement-and 12 Consolidated Appropriations Act, 2016 (CAA -terrorist-travel-prevention-act-faq 2016), Division O, Title II, § 203 adding INA 24 CBP FAQs — http://www.cbp.gov/travel § 217(a)(12), 8 US Code § 1187(a)(12) /international-visitors/visa-waiver-program 13 CAA 2016, Division O, Title II, § 203, adding /visa-waiver-program-improvement-and INA § 217(a)(12), 8 US Code § 1187(a)(12) -terrorist-travel-prevention-act-faq 14 CAA 2016, Division O, Title II, § 202, 25 http://www.ustravel.org/press/us-travel amending INA § 217(a)(3), 8 US Code -forcasts-huge-economic-losses-if-vwp § 1187(a)(3) -disrupted 15 CAA 2016, Division O, Title II, § 202, amending INA § 217(a)(3), 8 US Code § 1187(a)(3) 16 CBP FAQs — http://www.cbp.gov/travel /international-visitors/visa-waiver-program /visa-waiver-program-improvement-and -terrorist-travel-prevention-act-faq 17 CAA 2016, Division O, Title II, § 204, amending INA § 217(C)(2)(D), 8 U.S. Code § 1187(c)(2)(D) Satnam Singh is the principal lawyer in Satnam Jeffrey T. Talbert is with Shuttleworth, Ruloff, 18 http://www.dhs.gov/visa-waiver-program Singh PC, and American Immigration Law Swain, Haddad & Morecock PC in Virginia 19 http://www.congress.gov/bill/114th-congress Office, PLC, practicing law in the US since Beach. He focuses his practice on business and 1990. He is admitted to the Supreme Court estates and trusts law. /senate-bill/2362/text; Senate Bill 2362, § 11. of Virginia; the US Courts of Appeals for the 20 CAA 2016, Division O, Title II, § 203, adding 1st, 2nd, 3rd, 4th, 5th, 6th, 9th, 10th, 11th, and INA § 217(a)(12), 8 US Code § 1187(a)(12) Federal Circuits; Federal District Court for the Eastern District of Virginia; US Tax Court; US 21 CAA 2016, Division O, Title II, § 203, adding Court of International Trade; the US Supreme INA § 217(a)(12), 8 US Code § 1187(a)(12) Court; and the Bar Council in India.

Safe Harbor continued from page 33

for data transfers within the European Endnotes: Union as well. 1 Decision 2000/520 of the EU The agreement on a “Privacy Shield” Commission 2 ECJ, 6 October 2015, Case No. marks a step towards a reliable legal C-362/14. framework for data transfers between 3 The Article 29 Working Party was es- the EU and the US. Where the Safe tablished within the framework of the Harbor judgment was also interpreted Data Protection Directive, Directive as affecting the validity of standard con- 95/46/EC. It is an independent advisory group and consists of a representative tractual clauses and binding corporate from the data protection authorities rules, clear and uniform guidance from of the member states, the EU data the EU regulators will hopefully be protection authority and the European forthcoming. On February 3, 2016, the Commission. Article 29 Working Party announced 4 http://ec.europa.eu/justice/data -protection that they will analyze the standard con- /article-29/documentation/opinion tractual clauses and binding corporate -recommendation/files/2014/wp214_ rules in light of the Privacy Shield agree- en.pdf (viewed: 1 December 2015) Jana C. Fuchs is an associate in the Hamburg, ment. Until that assessment is finalized, 5 Artikel-29-Group WP 114 Germany, office of Bryan Cave LLP. She started the Article 29 Working Group assumes her legal career in-house at an international IT company headquartered in the United States. that those alternative data transfer tools She focuses her practice in the areas of trade may still be used. compliance and data protection law. www.vsb.org INTERNATIONAL PRACTICE SECTION | Vol. 64 | April 2016 | VIRGINIA LAWYER 37 Access to Legal Services New VSB Service to Provide Legal Answers Anytime, Anywhere

Karl Doss, the Virginia State Bar’s direc- addressed the VSB Special Committee on Q: So the website provides assistance in tor of Access to Legal Services, provided Access to Legal Services, which recom- civil legal matters? an overview and answered questions mended that the VSB host the website. about the new online pro bono service — The VSB Executive Committee approved A: Yes, this service will provide limited Freelegalanswers.org — that the Bar will this recommendation. scope pro bono legal advice to low-in- begin offering in August. come people. Eligible clients may ask Q: Who is paying for this? questions about and receive answers Q: What is Freelegalanswers.org? involving all types of civil legal problems. A: The ABA is actively conducting A: Freelegalanswers.org is part of a new Q: What income qualifies a client to use fundraising to provide the service. The initiative undertaken by the ABA Pro this service? fundraising will cover the malpractice Bono Committee to build and main- insurance, which will be provided by tain a fifty-state interactive website to A: It is anticipated that access to the the National Legal Aid & Defender provide online pro bono assistance to service would be limited to Virginia low-income citizens. To date, more than Association (NLADA) Insurance residents who have income levels of 200 thirty-five states, including Virginia, have Program, for volunteer lawyers and the percent of the federal poverty guidelines signed up for the project. This August, cost of a national site administrator. or less (or a household income of just the VSB will host a site where low-in- They estimate that these expenses will over $23,000 per year for a single adult). come Virginians can log on, file legal run approximately $130,000-$140,000 This threshold is fairly common among questions, and get answers from volun- per year. They are hoping that partici- non-profit pro bono legal services pro- teer lawyers licensed in Virginia. pating states could help with their fund- viders. When a prospective client logs on, raising efforts, perhaps through private he or she will answer a series of questions Q: Where did this idea come from? donations. However, there would be regarding income, residence, and assets. no cost to the VSB to host the site and If the user meets eligibility guidelines, the A: Tennessee was the first state to no need to increase bar fees or dues to question is placed in a queue for Virginia launch an interactive pro bono website support this program. lawyers. If the user exceeds eligibility (OnlineTennesseeJustice.org) six years guidelines, he or she will be advised ac- ago. This project was a collaborative Q: What is the Bar’s responsibility in cordingly and referred to other potential effort of the Tennessee Alliance for hosting the website? resources for legal assistance. This is how Legal Services and the Tennessee Bar the screening process works in the six Association and was developed by the A: The VSB will be responsible for states already operating online pro bono law firm of Baker Donelson through the websites. recruiting volunteer lawyers, working leadership of George “Buck” Lewis, who with the ABA’s site administrator, and is the chair of the Technology Committee Q: What’s my obligation to the client promoting awareness of the website to of the ABA Pro Bono and Public Service after I answer the question? the potential consumers, the public, the Committee. Since its inception, the Tennessee website has assisted more bar, the judiciary, legal services providers, A: The user will post a request for legal than 10,000 clients and signed up more social services agencies, and other stake- advice information and provide facts than 450 lawyers. Alabama, Indiana, holders. VSB staff will also confirm that that will help the lawyer answer the Minnesota, South Carolina, and West volunteers are in good standing, screen question. Users will be able to go back Virginia have also launched similar online questions to make sure that they involve to their posted question one time to add pro bono websites using the Tennessee actual civil legal issues, and review an- information. The lawyer may ask for ad- software. In 2015, Buck Lewis spoke at a swers as a means of quality control, and ditional information before responding meeting of the Virginia Access to Justice monitor questions in the queue to make to the user’s request. The user will have Commission, which endorsed Virginia’s sure that they do not remain unanswered a choice to respond to that request or participation in the project. He later for a long period of time. not. Only lawyers licensed and in good

38 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org Access to Legal Services standing in Virginia will be authorized to organizations and pro bono resources representation. Senior lawyers who use the system and to respond to user’s in their area where they might be able are no longer engaged in a traditional requests. Their responses will be based to receive legal representation as well as practice can still use their considerable on applicable Virginia and/or federal law. the Virginia Lawyer Referral Service and experience to help the disadvantaged. If a lawyer responds to a user’s request, VALegalAid.org. Lawyers on family or medical leave and the user will receive a written response are taking time away from full-time legal through the website. Q: Why is this service needed? practice can use their knowledge and skills to assist low-income individuals. Q: If I volunteer for the service must I A: Sadly, data shows that 80 percent of The beauty of these websites is their answer questions? the legal needs of the poor both nation- convenience. Lawyers can do pro bono ally and in Virginia are not being met. In anytime – day or night – and anywhere A: That is really up to the attorney. recent years, federal funding of legal aid – at home or work, on a bus or train, at Lawyers certainly are free to decline to has decreased and IOLTA funds are pret- a coffee shop or bookstore, while waiting respond to requests — especially if it ty much non-existent. This has resulted to catch a flight or at the park during involves an issue beyond their experience or expertise. However, questions will be posted according to the area of Sadly, data shows that 80 percent of the legal needs of the poor law. Volunteer lawyers are encouraged both nationally and in Virginia are not being met. to review all of the posted questions, conduct research as warranted, and provide concise and plain English legal in 20 percent staff cuts at Virginia’s legal their children’s soccer match. I like to advice according to their knowledge, aid offices while the poverty population think of it as “arm chair pro bono” or experience, and expertise. As I previously in Virginia has increased by 30 percent. “pro bono in your slippers.” noted, the VSB will periodically review One in eight people in Virginia are eligi- the queue for unanswered questions and ble for free legal services and 48 percent Q: Given the apparent convenience of advise volunteer lawyers about questions of low and moderate income households the website, won’t this service actually still requiring a response. However, if no experience some sort of legal problem decrease attorney pro bono representa- lawyer responds to a request after thirty each year, yet there aren’t sufficient legal tion of low-income individuals? days, the request will be removed and resources to meet their needs. Low- VSB will notify the user. income Virginians need free access to A. We believe that freelegalanswer.org is lawyers and legal information.1 While a great way for lawyers who have been Q: Can I give the client my name and freelegalanswers.org is not a substitute reluctant to accept a pro bono referral to ask the client to contact me? for full representation by a lawyer, it will represent a client in a case to “get their provide users with convenient, 24 hours feet wet.” Because of the anonymity of A: The identities of both the user and a day, 365 days per year access to lawyers both the client and attorney and the very the volunteer lawyer will be anonymous. who can answer their legal questions. limited scope of the legal assistance being Users will not know the name of the Users can access the service and pose provided, states with online pro bono lawyer who answers their questions. The questions from their smart phones or websites have found that their volunteer lawyer should not take any action to help anywhere they can have access to a com- lawyers actually increased and expanded the user except to respond to the request puter and an Internet connection, such the nature of their pro bono service. for advice and information that is posted as a public library. on the website. Q: Where and when can I sign up to Q: Is there a benefit to volunteer lawyers? volunteer? Q: What if the user needs to hire an attorney? May I offer to accept their A: States with interactive pro bono A: We’ll begin asking for and signing up case? What are the ethics issues of that? websites have found that they provide a volunteers later this year. significant benefit to lawyers. Tennessee A: Lawyers should not sign up for the reports that government and corporate Endnote: service with the expectation of solicit- lawyers who have difficulty in accepting 1 Legal Services Corporation of Virginia, ing potential clients. This is a pro bono a full representation pro bono referral Report to the Commonwealth and General Assembly FY 2013-2014 service. Freelegalanswers.org can provide can respond to questions anonymously users with information about legal aid and with no further commitment for www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 39 Dec VL 2015_vl1215 12/7/15 2:37 PM Page 34

THE ELUSIVE PERMISSIBILITY OF PASS-THROUGH CLAIMS IN VIRGINIA

Virginia Laws Ch. 691 (H.B. 1512). Pass-through claims have been allowed against VDOT by subcontractors since the 1991 amendments. See, e.g., Asphalt Roads & Materials Co., Inc. v. Com., Dept. of Transp., 257 Va. 452, 512 S.E.2d 804 (1999); Driggs Corp. v. Com. of Va., 1996 WL 1065551 (Va. Cir. Ct. 1996). 16 See VA. CODE §§ 2.2-4300 et seq. In 2000, the General Assembly sought to commission just a study Melisa A. Roy is an associate with Williams Mullen in its to consider whether the Virginia Public nationally-recognized Construction Litigation practice in Procurement Act (“VPPA”)$95/year should be amended to Tysons Corner. She focuses her practice on construction “allow contractors to submit claims to public law and represents clients in all phases of a construction owners on behalf of subcontractors and suppliers project. She has extensive experience with preparing and negotiating construction contracts and preparing and liti- who incurred costs and expenses on public pro- gating complex construction claims on federal, state and jects due to acts or omissions of the public private projects, in addition to advising on various types we have an increasedowner,” as with VDOT need contracts. for H.J. attorney Res. 229, of issues that arise from the pre-bid stage through dispute 2000 Gen. Assem., Reg. Sess. (Va. 2000) available resolution.you work hard for panelat members http://leg1.state.va.us/cgi-bin/legp504.exe?001 practicing +ful+HJ229+pdf (last visited on October 6, 2015). your clients. we work Unfortunately, the resolution ultimately failed, hard to connect and the study was never performed. See History of immigrationH.J. Res. 229, 2000 available at http://lis.virginia law clients with you. .gov/cgi-bin/legp604.exe?ses=001&typ=bil&val and bi-lingual=hj229. general practice lawyers who speak17 30 Va.rabic, Cir. 515 (Fairfaxhinese 1990). & panish 18 17A Va. App. 166 C(1993). S

For VLRS panel membership call (804) 775-0591

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

www.vsb.org 3440 VIRGINIA LAWYER | br April 2016 | Vol. o.64 CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION www.vsb.org VSB NEWS < Noteworthy

Highlights of the February 27, 2016, Virginia State Bar Council Meeting

At its meeting on February 27, 2016, in the 2016–17 budget proposal to the They define the scope and criteria of the in Richmond, the Virginia State Bar Supreme Court of Virginia. committee’s investigation. They also Council heard the following significant create a rebuttable presumption that a reports and took the following actions: Adoption of Amendments to the candidate who had previously been eval- Judicial Candidate Evaluation uated for an earlier judicial appointment Diversity Conference Request Committee Policies by the committee merits at least the same for Funding The council approved by unanimous rating in the new evaluation. By a vote of 68 to 6, the council approved vote proposed amendments to the JCEC funding for the Diversity Conference, policies. The amendments clarify proce- which now will be included for approval dures for evaluating judicial candidates.

Elizabeth K. Shoenfeld Named Assistant Bar Counsel Elizabeth K. Shoenfeld joined the involved representing auto manufac- Shoenfeld Virginia State Bar as an assistant bar turers in product liability cases. She has and her husband counsel in August 2015. She is respon- appeared in state and federal courts Eric have two sible for investigating and prosecuting throughout Virginia, as well as at least daughters, ages misconduct complaints in Fairfax ten other states. six and three. In County and Prince William County, Shoenfeld has a bachelor’s degree her free time she which are two of the busiest jurisdic- from the Pennsylvania State University, enjoys running tions in the commonwealth. where she was Phi Beta Kappa and (both after her children and in local rac- Prior to joining the VSB, Shoenfeld spent twelve years as a litigator in majored in political science, graduating es) and volunteering for her daughters’ private practice with law firms both cum laude. She received her law degree schools. large (Hunton & Williams) and small from William and Mary School of Law (Spencer Shuford). Although she had where she was a recipient of a graduate a varied practice, the bulk of her work student fellowship.

Christine Corey Joins VSB as Assistant Bar Counsel

The Virginia State bar has added Chris- Prior to coming to Richmond, of Law. During tine Corey as assistant bar counsel. She is Corey practiced family law and criminal law school she responsible for prosecuting professional law in Blacksburg and she also became clerked for the disciplinary cases in the first district and qualified as a guardian ad litem. Im- Office of the At- the second section of the second district, mediately after law school, she worked torney General in which include Virginia Beach, Newport as a prosecutor in Santa Rosa County, the Tort Claims News, Smithfield, Suffolk, Chesapeake, Florida, where she prosecuted misde- Division. and Portsmouth. meanor offenses. She also spent two In her free time, Corey enjoys Before joining the VSB, Corey years clerking for the US District Court hiking, biking, skiing and spending time worked as a family law litigator for the for the Northern District of Florida in with her husband and three children. Richmond firms Deanna D. Cook PC Pensacola. and Barnes & Diehl where she handled Corey received her bachelors in matters including divorce, complicated comparative international studies from equitable distribution, support, and the University of Washington and her protective orders. law degree from Seattle University School www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 41 Noteworthy > PEOPLE Marion Toomey Baker by Gordon Hickey

Marion Toomey Baker, an iconic representative of the Virginia Legal Aid Society, died March 24, 2016, at the age of 100. Ms. Baker had legendary status at Virginia Legal Aid. Her son Dylan Baker, who is the youngest of five children, said that his mother had stopped practicing law to raise her family, but by the time he was in the 7th or 8th grade his mother “kind of realized it was possible for her to get back to work again.” It was about the same time that Lynchburg opened its legal aid office. Until then, Ms. Baker was a stay-at- home mother. Her husband, Raymond, was a corporate attorney for General Above: Ms. Baker, center, received the Lewis F. Powell Jr. Electric. Ms. Baker, who graduated Pro Bono Award in 1994. Attending the award ceremony from the Columbia School of Law at were Chief Justice Harry L. Carrico, VSB President-elect Catholic University in Washington. DC, Kathleen O’Brien, Oliver W. Hill, and VSB President R. joined the District of Columbia bar at Edwin Burnette Jr. age 20. During WWII, she worked for Right: Baker in her office the Truman Committee, investigating war profiteers. The family moved to David Neumeyer, executive direc- Lynchburg in 1963. tor of the Virignia Legal Aid Society, Dylan Baker said his mother started said, “She was a passionate advocate work in Lynchburg as a paralegal in for low-income people. She was also 1974. “She was very nervous about it.” It politically involved as a volunteer had been thirty-five years since she had for the League of Women Voters and practiced law. “She was also very excited. Democratic causes.” She also volun- When she met the people there, she was teered for Meals on Wheels and read the late 1940s and Powell was already just thrilled.” to patients in hospitals, according an ABA leader,” Neumeyer wrote in an After receiving her Virginia license, to her obituary in the Harrisonburg e-mail. at the age of 60 she took a case to court Daily News-Record. The obituary also Ms. Baker moved to New York for the first time. noted that she was a delegate to the City in 1997, where she continued her In the late 1970s, President Carter 1984 Democratic National Convention, love of education at the New School, started funding legal aid groups around “proudly voting for Geraldine Ferraro as taking courses for retired profession- the country and for the first time money the first woman on a national presiden- als. In 2013, she moved to the Virginia was available in Lynchburg. Ms. Baker tial ticket.” Mennonite Residential Community in came home and told her husband, Neumeyer added that Ms. Baker Harrisonburg to be near to her oldest “‘They’re saying I should get a salary,’” “did not mince words and was charming son Greg. She is also survived by her her son recalled. So, in 1978 she started to boot… She was a force to be reckoned daughter Lisa Horner. getting paid a small salary. But in 1981, with.” She was also known for her gener- Lynchburg Circuit Court Judge R. the organization was facing cutbacks osity. Edwin Burnette Jr. grew up across the and she volunteered to stay on for free so Ms. Baker was among the three street from the Baker home. “I didn’t that another lawyer could keep getting lawyers who received the first VLAS- even know she was a lawyer growing paid. “‘We can’t lose her, she’s fantastic,’” Lynchburg Bar Association Pro Bono up,” he recalled. “She was Mrs. Baker.” her son recalled her saying of the other Award in 1992. In 1994 she received the Burnette recalled that Ms. Baker lawyer. Ms. Baker stayed on as a volun- Virginia State Bar’s Lewis F. Powell Jr. “was a delightful person.” After she teer until she retired at the age of 82. Pro Bono Award. “She recalled at the returned to practicing law, “She was “She really felt she was being paid ceremony that she had a crush on Powell a very compassionate person and ex- by being able to do the work,” Dylan when she was a young attorney at the tremely patient with her clients… She Baker said. Interstate Commerce Commission in was just so devoted.”

42 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org PEOPLE < Noteworthy In Memoriam Call for Danny Michael Atkins Caroline Jean Stalker Nominations Charlottesville Richmond December 1950 – February 2016 August 1973 – December 2015 VSB Conference of Local Bar Associations nominations are due James E. Covington Jr. J. William Via Jr. April 29, 2016. Richmond Alexandria Awards will be presented at the February 1936 – January 2016 January 1932 – January 2016 CLBA Annual Meeting and Breakfast in June at Virginia Beach. William Edward Culverhouse Luther W. White III Award of Merit Competition rec- Springfiled, Tennessee Lynchburg ognizes outstanding projects and pro- November 1938 – February 2016 August 1923 – January 2016 grams of Virginia bar associations. Bar Association of the Year Award J. Maurice Miller Jr. Catherine J. Womack recognizes a member bar association Richmond Charlottesville that has best fulfilled the attributes June 1922 – February 2016 August 1950 – January 2016 member associations strive to attain. Local Bar Leader of the Year Award recognizes past and presently active leaders in their local bar associations who have continued to offer important Local and Specialty Bar Elections service to the bench, bar and public. See more information at ACC National Capital Region The Prince William County Bar www.vsb.org/site/conferences/clba/view (formerly Washington Metropolitan Association, Inc. /clba-awards. Area Corporate Counsel Association – Jeanice Bowden Wiethop, President WMACCA) Douglas Bradley Marshall, Luise M. Welby, President President-elect Afsaneh A. Ambrose, President-elect Sarah Jean Knapp, Secretary Solo & Navid Haghighi, Secretary Justin Michael Hargrove, Treasurer Small-Firm Mary Jane Saunders, Treasurer Mark Thomas Crossland, Director James David Villa, Vice President John Donald Whittington, Director Practitioner Programming Arthur von Keller IV, Director Forum Evan Stolove, Vice President Strategic Initiatives Virginia Association of Criminal The Solo & Small-Firm Practitioner Defense Lawyers Forum focuses on issues that con- Northern Neck Bar Association David Bernard Hargett, President front attorneys who practice alone Diana Cook Risavi, President Vikram Kapil, President-elect or in small firms. Law office man- Morgan Wade Alley, Vice President Glen Franklin Koontz, Secretary agement and ethics are among sev- Paul Christian Stamm Jr., Andrew Joseph Cornick, Treasurer eral topics covered at these CLEs. Secretary-Treasurer These CLEs are free, include lunch, and are available on a first- Pittsylvania County Bar Association come, first-served basis. Registration Molly Catherine Burke, President and the agendas will be posted on Timothy Martin Fisk, the CLBA website at www.vsb.org/ Secretary-Treasurer site/conferences/clba-calendar as soon as they are available.

The next Solo & Small-Firm Practitioner Forum will be Monday, May 16, 2016, at Virginia Tech, Blacksburg

www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 43 Noteworthy > PEOPLE Michael N. Herring Honored with the 2016 Harry L. Carrico Professionalism Award

The Virginia State Bar has awarded award, presented by the VSB Criminal Richmond Commonwealth’s Attorney Law Section, is named for the former Michael N. Herring with the 2016 Harry Virginia Supreme Court chief justice L. Carrcio Professionalism Award. The who promoted the ideals of profession- award recognizes “an individual (judge, alism during his forty-two years on the defense attorney, prosecutor, clerk or state’s highest court. other citizen) who has made a singular Retired Richmond Circuit Court and unique contribution to the improve- Judge Richard D. Taylor Jr. also wrote ment of the criminal justice system in in support of Herring. “Mike Herring the Commonwealth of Virginia.” makes what he does professionally in Among those nominating Herring and out of the court look almost easy,” were lawyers James A. Bensfield and Taylor wrote. “Yet, we all know that Jonathan Kossak of the Miller & Chevalier it is not. It involves relentlessly tough Judge Lucretia A. Carrico presented the award to Michael N. Herring. law firm. Bensfield and Kossak repre- and often gut-wrenching work. The sented Michael Kenneth McAlister in integrity, scholarship and compassion a successful petition for a pardon from that he has exhibited on a day-to-day the governor in 2015, after McAlister basis for decades cannot and should not Herring where he practiced criminal served twenty-nine years in prison for a be taken for granted by us.” law and medical malpractice law. rape he didn’t commit. Herring publicly Herring received his undergraduate Herring served as the first African- supported that petition. “Mr. Herring degree in economics in 1987 and his law American president of the Richmond did not need to make these statements degree in 1990 from the University of Bar Association in 2005, is a past chair (supporting McAlister) in such a public Virginia. He started his career as an asso- of the Criminal Law Section of the way,” Bensfield and Kossak wrote. “He ciate at Hunton & Williams, later join- VSB and of the Third District Attorney did it because he is a man of integrity, ing the Office of the Commonwealth’s Disciplinary Committee. He is an courage, and justice…. He is the sort Attorney in 1992, where he served as a active member of various professional of prosecutor we all hope exists — an senior felony trial attorney for violent organizations, including the American advocate for justice — not only for the crimes and narcotics offenses. He then College of Trial Lawyers. He also serves victims of crime, but for those who the returned to the private sector in 1996 at on several government, community, system may, every so often, wrong.” the law firm of LeClair Ryan where his and non-profit boards. Chief Justice Harry Carrico’s daugh- practice focused on medical malpractice ter, retired Judge Lucretia A. Carrico, defense and criminal defense. presented the award on February 5, Prior to his 2006 election as 2016, during the 46th Annual Criminal commonwealth’s attorney, he was a Law Seminar in Williamsburg. The partner at the law firm of Bricker &

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

44 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org PEOPLE < Noteworthy Chief Justice Donald W. Lemons Receives the Virginia State Bar Leadership in Education Award

Donald W. Lemons, Chief Justice of the taught and been very well received by Supreme Court of Virginia, has been students at several of the Virginia law named the recipient of the William R. schools. It is hard to imagine someone Rakes Leadership in Education Award who has contributed more to legal edu- from the Virginia State Bar Section on cation in your state and the nation.” the Education of Lawyers in Virginia. Chief Justice Lemons served The award recognizes an individ- as the A. L. Philpott Distinguished ual who has demonstrated exceptional Adjunct Professor from 1998–2000 leadership and vision in developing and the John Marshall Professor of and implementing innovative concepts Judicial Studies from 2005-2007 at to improve and enhance the state of the University of Richmond School of Chief Justice Donald W. Lemons legal education, and in advancing rela- Law. Since 2007, Chief Justice Lemons tionships and professionalism among has been the Distinguished Professor members of the academy, the bench, of Judicial Studies at Washington and Among Chief Justice Lemon’s many and the bar within the legal profession Lee University School of Law, where he awards are the Virginia Trial Lawyers’ in Virginia. teaches his extremely popular appellate Distinguished Service Award (2012), Throughout his career, Chief Justice advocacy class. and the William Green Award for Lemons has been involved in educa- Chief Justice Lemons has also been Professional Excellence (2006), which tional efforts to improve the quality very engaged in the American Inns of is the highest honor awarded by the of lawyers in the commonwealth. He Court. The mission of the American University of Richmond School of Law. began lecturing in numerous continu- Inns of Court is to inspire the legal Chief Justice Lemons and his wife ing legal education seminars spon- community to advance the rule of law Carol have three children, Christopher, sored by the bar early in his career. He by achieving the highest level of profes- Virginia, and Amy; and six grandchil- was a member of the MCLE Board, sionalism through example, education, dren. They live in Nelson County. and was on the faculty of the Judicial and mentoring. In 2014, he finished two The award was established in 2012 Conference of Virginia and the Judicial terms as president of the American Inns to honor former Virginia State Bar pres- Conference for District Courts. For ident and founder of the Section on the years he served on the faculty of the Of Court. He has also been the Master Education of Lawyers, William R. Rakes, bar’s annual disciplinary conference of the Bench in both the John Marshall a senior partner with the Roanoke firm and on the faculty for the bar’s Harry L. Inn of Court and the Lewis F. Powell, Jr. of Gentry Locke. Carrico Course on Professionalism. He Inn of Court, and he was the president was also a member of the board of gov- of the John Marshall Inn of Court in The award, which is underwritten by ernors for the Education Section of the 2002-2004. In 2008, he was awarded the Gentry Locke, is to be presented in June bar from 1994–97. rare honor of being named an Honorary at the Virginia State Bar’s annual meet- In his letter nominating Chief Master of the Bench by the Middle ing in Virginia Beach. Justice Lemons for the award, Robert Temple Inn of Court in London. K. Walsh, dean emeritus on the Wake Wyatt B. Durrette Jr., of Forest University School of Law, wrote: DurretteCrump PLC in Richmond, “He has been passionate about educat- wrote: “There are few who can match ing law students and young lawyers. Don’s contribution to the field of edu- In addition to his leadership of the cation in the legal profession and he is American Inns, Justice Lemons has highly deserving of this recognition.” www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 45 Noteworthy > PEOPLE Carl J. Witmeyer II Honored for Lifetime Achievement in Family Law

Carl J. Witmeyer II, who is recognized trenches’ lawyer and has been through- as one of the premier family law attor- out his career. In an era where many neys in Virginia, has been named the top family law practitioners practice in 2016 recipient of the Betty A. Thompson boutique family law firms, Cal is essen- Lifetime Achievement Award by the tially a sole practitioner in a small firm… Virginia State Bar’s Family Law Section. I am frequently amazed by the fact that The award recognizes and honors he tries a case in one jurisdiction in the an individual who has made a substantial morning and in another venue that contribution to the practice and admin- afternoon. I frankly don’t know how he istration of family law in Virginia. It will does it.” be presented at the Annual Family Law Witmeyer is a fellow of the Seminar April 21 at The Jefferson Hotel American Academy of Matrimonial in Richmond. Lawyers and previously served as the Witmeyer, of the Witmeyer Law chairman of the board of governors Carl J. Witmeyer II Firm in Richmond, has been a litigator of the Virginia State Bar Family Law for forty years focusing on domestic rela- Section. He is a past president of the tions law, personal injury, civil litigation, Hanover Country Bar Association and numerous articles throughout Virginia and criminal defense. Richmond Metropolitan Family Law Bar for professional and continuing legal In his letter nominating Witmeyer Association. In 2013, he was the recip- education organizations. for the award, Terrence R. Batzli of ient of the Chief’s Annual Award from Witmeyer is a graduate of Batzli Stiles Butler noted that Witmeyer Hanover Fire & EMT. He is a regular Gettysburg College and the T.C. has concentrated his practice on family lecturer for legal continuing education Williams School of Law at the University law. Batzli wrote: “Carl is a real ‘in the seminars as well as an author, publishing of Richmond.

What Seniors Need to Know.

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

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

46 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org Law Libraries Free Access to Law of the European Union and its Member States by Alexis Fetzer

While Europe may lie across the pond, imagine. The EU is one of the largest webpage using the free Google Website there are many reasons why today’s publishers of online information in the Translator plugin (http://translate.goo- practitioner would need to research the world. The official website, Europa.eu, gle.com/manager/website). By installing law of the European Union or one of its provides basic information about the EU this plugin into your Google Chrome member states. However, with a com- as well as latest EU news and events. In browser, you can easily translate the text plex institutional structure and multiple addition to Europa.eu, each institution of almost any foreign language website bodies producing various forms of law, and agency within the EU has its own into over ninety languages. As with any researching the law of the EU can seem website with corresponding information machine translation, however, keep in like a daunting task. and access to some documentation. mind that translations are not official. As with any research in an area of While these websites are good re- Use this tool as a quick resource to deter- unfa miliar law, a good place to begin sources for general information, a better mine a website’s contents, but do not rely is with a research guide. Prepared by source for researching EU published law on any translations as legal authority. subject experts, research guides will point is the Eur-Lex portal (EUR-Lex.europa. In addition to N-Lex, another to relevant sources for locating primary eu). Eur-Lex is a robust database that resource for locating national law is material and often contain helpful expla- provides access to EU treaties, directives, WorldLII (http://www.worldlii.org/). nations that assist in understanding the regulations, decisions, consolidated leg- WorldLII, or World Legal Information type of material being researched. The islation, preparatory acts, international Institute, provides a single search following are a few examples of some agreements, documents of the European location for law made freely available excellent research guides covering law of Free Trade Association (EFTA), as well through legal information institutes the European Union: as other documents. Documents are around the world. As of the date of this available in multiple languages. The data- article, WorldLII searches 1,743 data- European Union Legal Materials: base is free to access and individual user bases from 123 jurisdictions via fourteen An Infrequent User’s Guide by accounts are free to register. Registering Legal Information Institutes. Coverage Duncan E. Alford (Globalex) for an individual account allows users to varies depending upon the country and http://www.nyulawglobal.org/ perform more sophisticated searching, type of material being searched for; globalex/European_Union1.html save documents and queries, and add furthermore the availability for official — Geared specifically toward a other customization features. English translations is limited. researcher who is not familiar with A sister database to Eur-Lex is Finally, one of the best resources the structure of the EU, this guide N-Lex (N-Lex.europa.eu), a website that for researching law of the EU or one of provides information about the offers access to the national legislation of its member states is a law librarian who principal institutions of the EU, the member countries of the EU. While these specializes in foreign and international type of law produced, and where laws are published in various languages legal research. There are many librarians that law can be found in both print depending upon the country, N-Lex throughout Virginia in both academic and electronic formats. allows researchers to search in English and private law firm settings with such or other European languages. When expertise. Never hesitate to contact a Electronic Resource Guide for entering in search terms to the legislation librarian and request assistance. International Law: European search form of an individual country, Union by Marylin J. Raisch (ASIL) selecting the “EuroVoc” icon allows you https://www.asil.org/sites/default/ to translate your search terms into the files/ERG_EU.pdf — This guide spe- country’s official language. EuroVoc cifically highlights up-to-date online (http://eurovoc.europa.eu) is a multilin- resources for law of the EU, includ- gual dictionary and thesaurus that can ing links to founding treaties and translate terms in twenty-three EU lan- Europa, the official website of the guages. In addition to translating desired EU. Also included is a bibliography search terms, EuroVoc will propose other Alexis Fetzer is a reference and research services pointing to further commentary. related terms to assist you in crafting a librarian at the University of Richmond School of Law. She teaches legal research in the first more targeted search. year Law Skills course and Advanced Legal While understanding what to search When viewing N-Lex search results Research in Foreign and International Law. She has a master’s degree in library and information for can be a challenge, locating EU mate- in a Google Chrome browser, you can science, law degree, and diploma in civil law rial online is far simpler than you might automatically translate the text of the from Louisiana State University. www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 47 Technology and the Practice of Law Don’t Be Afraid, Embrace Technology by Lisa Robertson

A Los Angeles hospital recently made na- encourages us to embrace technology, or unauthorized disclosure of, or unau- tional headlines as the victim of a “mal- rather than avoid it, and to consider new thorized access to, confidential informa- ware attack.” The information stored practices that will enhance the quality tion. See Rule 1.6(d) and Comment [18]. within the hospital’s computer systems of legal services — even if we’re afraid In revised Comment [20] to Rule 1.6, was encrypted and rendered inaccessible of them. What constitutes “relevant the Supreme Court has indicated that to the hospital until a ransom demand technology” in your practice? In my own reasonable efforts are satisfied by a lawyer was met. (The malware is sometimes experience, technology relevant to my or law firm that employs: called “ransomware.”) Reportedly, the practice has included: copy machines “…appropriate data protection hospital received a decryption key after that store information from scanned measures for any devices used paying a ransom in bitcoins, worth about documents, faxes and e-mails; phones to communicate or store client $17,000. It’s unclear to me, from news and tablets used to send, receive and confidential information…. reports, whether the perpetrators could store electronic information; VoIP1 Because threats and technology both have viewed or manipulated the infor- telephones and voice mail; desktop and change, lawyers should periodical- mation if they wanted to; however, the laptop computers; data storage devices— ly review both and enhance their hospital stated that it found no evidence floppy disks, CDs, external drives, and security as needed; steps that are that any confidential information had the Cloud; and various software, “apps,” reasonable measures when adopted been viewed. operating systems, and internet services may become outdated as well….” Can you imagine losing access to all that allow document sharing, calendar [Emphasis added] of your client records? management, client communications; Does my office copy machine store Law firms across the nation, includ- client payments; and banking, payroll copies of scanned e-mailed or faxed ing in Virginia, have also been targets and accounting functions. documents? Where and for how long will of these types of attacks, in addition to Most of us utilize some combination information reside on the copier, and other viruses and hacking schemes. We of the technologies listed above. Fewer how can it be protected from unautho- understand, in the abstract, that we could of us understand how they work, or un- rized access? If my smart phone is lost be the victims of an attack like this; but, derstand the various ways in which our or stolen, how do I remotely wipe its aside from recognizing the risk, are we own patterns of use can make the devices memory? Is that the best thing to do? taking reasonable and proactive steps we use to communicate with clients, or What malware protection is available to protect clients’ electronically stored to store their confidential information, for a smart phone? When information is information? As many of you are already vulnerable to viruses and hacking, or stored in the Cloud, where does it actual- aware, effective March 1, 2016, the even to unauthorized access within our ly, physically, reside? How do I verify that Virginia Supreme Court amended Rule firms. To assess the risks of a particular the information is safe at that location? 1.6, and the comments to Rules 1.1 and device or application, one needs to have I and the other members of VSB’s 1.6, to provide guidance on the relation- some familiarity with its functionality, Special Committee on Technology ship between lawyers’ use of technology or the means to hire an employee or and the Practice of Law are working and their professional obligation to consultant who does. Luckily, I work in a to promote greater access to resources protect clients’ confidential information. setting that employs a department of IT that can help Virginia lawyers identify In order to maintain the requisite professionals, but I still worry about how and manage the risks of technology, knowledge and skill, “…[A] lawyer to satisfy my professional obligations and to embrace the great client service should engage in continuing study and through my own daily practices, and and practice management benefits that education in the areas of practice in about the cost to my employer/organi- technology can offer. We encourage local which the lawyer is engaged. Attention zational client of implementing security bar associations and specialized associ- should be paid to the benefits and risks measures. ations to include technology education associated with relevant technology.” Under the new provisions of Rule components in their CLEs. We also See Rule 1.1 (Professional Competence), 1.6, every lawyer is required to make rea- hope that you will consider attending revised comment [6]. This comment sonable efforts to prevent the inadvertent Technology continued on page 50

48 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org Risk Management Why You Should Never Say Never to Malpractice Insurance — The True Cost of “Going Bare” by Mark Bassingthwaighte

I will admit I honestly don’t understand injury matter blew a statute that resulted Next, let’s discuss the affordability why a lawyer would ever decide to not in a lost opportunity for any kind of issue. While I get that the term “expen- buy a malpractice policy, but many recovery you would expect to be made sive” is relative to one’s financial reality, lawyers do just that and the reasons I whole and you know it. You see, insur- legal malpractice policies are nowhere hear are many. Some try to justify their ing for malpractice isn’t about protect- near as expensive as some medical mal- decision by declaring that malpractice ing yourself. It’s about protecting your practice policies. In addition, the initial premiums are beyond affordable. They’ll clients should something go wrong and premium is going to be much less than tell me “just look at what docs have to that’s the way it’s supposed to be. what lawyers who have been in practice pay.” Others have decided that if they Now let’s talk about a few specifics. and insured for a number of years will ever get sued they’ll just declare bank- While numbers vary between the states be charged. This is simply due to the ruptcy in order to avoid the loss. Then and over time, approximately 4 percent fact that coverage will start from the there are those who choose to self-insure to 5 percent of lawyers practicing in the date a policy is first purchased because thinking that the premium savings will United States will face an allegation of you can’t buy coverage for work you’ve more than offset any possible loss. I’ve malpractice in any given year. Yes, it’s done in the past. In other words, newly even had attorneys tell me they’ve cho- true that a significant number of these insured lawyers have limited exposure sen to protect their assets in others ways. allegations will resolve without any loss because they don’t have a substantial And then there’s this one. “Having a being paid, but this doesn’t mean the amount of covered legal work under malpractice policy simply invites claims. claim has no impact. Time and money their belts yet. The odds of a covered No insurance means no one will ever are going to be in play. Claims can eas- claim arising from a newly insured prac- sue me because there’s no deep pocket.” ily take six to twenty-four months to titioner are going to be much lower than I just shake my head over the naivety of resolve and defense costs on a claim with those for a lawyer who has been insured that belief. any merit at all can break that $100,000 and in practice for ten years or more. As lawyers, we are to protect the mark before you know it. But that’s not Yes, premiums will rise for a period of interests of our clients. In addition, law- all. Lawyers who are sued often see their years as the newly insured lawyer does yers and those in their employ can and income drop for a period of time, partic- more and more work, but all things will make a mistake from time to time. ularly if they’re self-insured and forced being equal, it should stabilize about six None of us are perfect. In fact, even into devoting precious time defending years in. good lawyers who do great work can still get sued. It happens. We’ve handled Now let’s talk about a few specifics. While numbers vary such claims. The question, however, is this. Should a significant misstep ever between the states and over time, approximately 4 percent to occur on one of your client matters, 5 percent of lawyers practicing in the United States will face what might the fallout be? Think about an allegation of malpractice in any given year. the answer as a member of our learned and honorable profession. Clearly if and when a significant misstep occurs, the themselves or if the situation has made Finally, let’s take the “it’s the right client will be harmed in some fashion. it into the local news. Making matters thing to do” argument off the table for a Now put yourself in the client’s shoes worse, if the claim becomes something moment and just focus on the financial and ask yourself who should be held of a topic among the local bar and part risks and realities in order to address responsible, particularly if a financial of the story is that the involved lawyer is those who buy into the de facto self-in- loss is part of the equation? You know bare, it’s pretty much a given that good sure approach. If you count yourself as darn well what the answer is. After all, if referrals from other lawyers are going to a lawyer representing you on a personal drop off. Risk Management continued on page 50 www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 49 Risk Management continued from page 49 Technology continued from page 48

a member of this group, are you the Virginia State Bar’s upcoming religiously setting aside whatever you TECHSHOW (April 25, 2016, at would have spent on premiums to the Richmond Convention Center). deal with an allegation of malpractice? The TECHSHOW provides a unique All I can say is that I’ve never come opportunity for lawyers to simulta- across a situation where that was hap- neously discuss the latest technolo- pening. And truth be told, unless that Mark Bassingthwaight, ALPS risk manager, gy, how to use it, and how to protect pool is well into the six digits it’s not has conducted more than 1,000 law firm risk information. We want all of you to management assessment visits, presented going to be enough to put on a good numerous continuing legal education sem- be contemplating these interesting defense let alone cover a sizeable loss. inars throughout the United States, and and challenging issues. written extensively on risk management and Leverage those dollars and buy a pol- technology. His webinar on Best Practices Endnotes: icy. You will never be able to build for Client Selection in the ALPS CLE library is at http://alps.inreachce.com. He can be 1 Voice Over Internet Protocol a pool of funds in the small firm contacted at: [email protected]. (VoIP) self-insure model that comes close to the amount of coverage (not to men- tion peace of mind) that those same dollars could buy. But of course, we can’t take the “it’s the right thing to do” argument off the table because we are professionals who still have the privilege of self-regulation and Lisa Robertson is the chief deputy city attorney for the City of Charlottesville. our rules require that we protect the She is a co-chair of the Virginia State interest of our clients. The most cost Bar’s Special Committee on Technology and the Practice of Law. Her practice effective way to do so is through the includes all aspects of local government purchase of an appropriate level of operations and administration, including malpractice coverage. public record-keeping requirements.

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

www.vsb.org/site/sections/criminal

Video Replays on April 26 Approved 6.5 MCLE Credits (including 1.5 ethics credit)

VIRGINIA CLE® AND VIRGINIA STATE BAR

50 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org CLE Calendar

Sentencing Guidelines Knowledge & commission. Cost $100. Purchase man- each of the guidelines factors to include Skills Evaluation (Including Ethics ual separately. (Fee waived for judges, changes beginning July 1, 2016. Register Issues) commonwealth’s attorneys, P&P, public by completing the form and submit to Five-hour seminars, pending CLE ap- defenders and staff. Limited scholarships the commission. Space may be limited. proval for 5 CLE credits (1 ethics), July are available for attorneys.) Purchase manual separately. Cost $125. 6, Portsmouth (Social Services Building). Purchase manual separately. The evaluation course is designed for the Introduction to Sentencing Guidelines experienced user of Virginia’s Sentencing Six-hour seminars approved for six CLE Virginia Lawyer publishes at no charge Guidelines. Attendees will complete a credits, April 21, Wise (Inn at Wise; July notices of continuing legal education pro- knowledge and skills exercise that will 7, Chesapeake (Chesapeake Sheriff’s grams sponsored by nonprofit bar associ- determine the topics covered in this Office, 401 Albermarle Drive) July 12, ations and government agencies. The next seminar. Attendees will participate in Fairfax (Fairfax Government Center). issue will cover July 11 through August 22. a discussion-oriented workshop ad- Details at http://www.vcsc.virginia. Send information by June 2 to hickey@ dressing common errors and complex gov/training.html. The introduction vsb.org. For other CLE opportunities, scoring issues. Ethics council with the seminar is designed for the attorney see Virginia CLE calendar and “Current Virginia State Bar will lead the discus- or criminal justice professional who is Virginia Approved Courses” at www.vsb sion and answer questions related to new to Virginia’s sentencing guidelines. .org/site/members/mcle-courses/ or the ethical responsibilities relating to the The seminar will begin with general websites of commercial providers. Sentencing Guidelines. Register by com- background information and progress pleting the form and submitting it to the to detailed information on scoring

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

April 19 8:15 am–4:45 pm (Richmond video begins May 4 Accessing Equity in Virginia for Real at 9 am) Getting to Success: Chapter 13s in the Estate Opportunities Eastern and Western Districts of the U.S. Live — Charlottesville/Webcast/Telephone April 27 Bankruptcy Court 10 am–1:10 pm Accessing Equity in Virginia for Real Video — Alexandria, Charlottesville, Estate Opportunities Norfolk, Richmond, Roanoke April 20 Webcast/Telephone 8:30 am–4:45 pm (Richmond video begins Ethics Update for Virginia Lawyers 2016 10 am–1:10 pm at 9 am) Live — Charlottesville/Webcast/Telephone Noon–2 pm April 28 May 4 The Lemon Law and Breach of Automo- Ethics Update for Virginia Lawyers 2016 April 21 bile Warranties: Consumer Law Basics Webcast/Telephone 32nd Annual Advanced Family Law Live — Charlottesville/Webcast/Telephone Noon–2 pm Seminar: Trial Practice Skills Noon–2 pm Live — Richmond May 5 9 am–4:45 pm April 28–29 25th Annual Employment Law Update Legal Writing Workshop Seminar April 22–23 Live — Washington, DC Live — Fairfax 43rd Annual Advanced Business Law Thursday: 9 am–5 pm; 8 am–4:45 pm Conference: Back to the Future— Friday: 8:30 am–1:15 pm Business Lawyering for All Stages of the May 5 Company Life Cycle April 29–May 1 Getting to Success: Chapter 13s in the Live — Wintergreen The Douglas W. Conner 37th Annual Eastern and Western Districts of the U.S. Friday: Noon–5:20 pm; Advanced Estate Planning and Adminis- Bankruptcy Court Saturday: 8:15 am–1 pm tration Seminar Video — Abingdon Live — Hot Springs 8:30 am–4:45 pm April 26 Friday: 12:55–5:35 pm; Saturday: 8:30 am– 46th Annual Criminal Law Seminar 2016 1 pm; Sunday: 8:30 am–12:35 pm Video — Abingdon, Fredericksburg, Harrisonburg, Norfolk, Richmond, Roa- noke, Tysons Corner www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 51 CLE Calendar

May 11 May 24 May 31 Getting to Success: Chapter 13s in the Organizing and Operating Nonprofits 32nd Annual Advanced Family Law Eastern and Western Districts of the U.S. Video — Abingdon, Alexandria, Norfolk, Seminar: Trial Practice Skills Bankruptcy Court Richmond, Roanoke Video — Tysons Corner Video — Harrisonburg, Tysons Corner 9 am–4:15 pm 9 am–4:45 pm 8:30 am–4:45 pm May 24 June 1 May 11 Difficult Depositions Organizing and Operating Nonprofits 34th Annual Real Estate Practice Seminar Live — Charlottesville/Webcast/Telephone Live — Williamsburg Noon–3:15 pm Video — Tysons Corner 9 am–4:10 pm 9 am–4:15 pm May 24 May 12 Watergate — Dean’s Break with the White June 1 25th Annual Employment Law Update House: The Ethics of a Lawyer Represent- What Every Lawyer Needs to Know About Seminar ing an Organization in Reporting Crime the Trans-Pacific Partnership (TPP) Live — Richmond or Fraud That Is Continuing Webcast/Telephone 8 am–4:45 pm Live — Arlington 1–4:15 pm 1:30–4:45 pm May 17 June 2–3 34th Annual Real Estate Practice Seminar May 25 68th Virginia Conference on Federal Live — Fairfax Watergate — Dean’s Break with the White 9 am–4:10 pm Taxation House: The Ethics of a Lawyer Represent- Live — Charlottesville ing an Organization in Reporting Crime Thursday: 8:50 am–5:15 pm; May 17 or Fraud That Is Continuing Obtaining and Using Medical Records: Live — Fairfax Friday: 8:45 am–4:30 pm The Key to Success in Your Personal 9 am–12:15 pm Injury Suit June 7 Live — Charlottesville/Webcast/Telephone May 25 Representation of Children as a Guardian Noon–2 pm 32nd Annual Advanced Family Law Semi- ad Litem — 2014 Qualifying Course nar: Trial Practice Skills Video — Abingdon, Alexandria, Charlot- May 18 Video — Abingdon, Alexandria, Charlot- tesville, Norfolk, Richmond, Roanoke 34th Annual Real Estate Practice Seminar tesville, Norfolk, Richmond, Roanoke Live — Lexington 8:30 am–5:15 pm (Richmond video begins 9 am–4:45 pm 9 am–4:10 pm at 9 am)

May 18 May 25 June 7 43rd Annual Advanced Business Law 43rd Annual Advanced Business Law Obtaining and Using Medical Records: Conference: Back to the Future—Business Conference: Back to the Future — The Key to Success in Your Personal Business Lawyering for All Stages of the Lawyering for All Stages of the Company Injury Suit Company Life Cycle Life Cycle Webcast/Telephone Video — Tysons Corner Video — Abingdon, Alexandria, Charlot- Noon–2 pm tesville, Norfolk, Richmond, Roanoke 9 am–5 pm 9 am–5 pm May 25 June 8 Representation of Incapacitated Persons May 19 The Lemon Law and Breach of Automo- What Every Lawyer Needs to Know About bile Warranties: Consumer Law Basics as a Guardian ad Litem — 2014 Qualifying the Trans-Pacific Partnership (TPP) Webcast/Telephone Course Live — Charlottesville/Webcast/Telephone Noon–2 pm Video — Tysons Corner 10 am–1:15 pm 9 am–4:05 pm May 26 May 20 32nd Annual Advanced Family Law Semi- June 9 Spring 2016 Military Law Seminar: nar: Trial Practice Skills U.S. Export Controls and Economic Civilian’s Guide to Avoiding the Military Video — Dulles, Fredericksburg, Harrison- Sanctions Minefield burg Live — Fairfax/Telephone 9 am–4:45 pm Live — Quantico 9 am–12:15 pm 8:30 am–4:45 pm May 26 May 23 Watergate — Dean’s Break with the White June 14 Watergate — Dean’s Break with the White House: The Ethics of a Lawyer Represent- Representation of Incapacitated Persons House: The Ethics of a Lawyer Represent- ing an Organization in Reporting Crime as a Guardian ad Litem — 2014 Qualifying ing an Organization in Reporting Crime or Fraud That Is Continuing Course or Fraud That Is Continuing Live — Washington, DC Video — Abingdon, Alexandria, Charlot- Live — Richmond 3:30–6:45 pm (Baseball game begins at tesville, Norfolk, Richmond, Roanoke 2–5:15 pm 7:05 pm) 9 am–4:05 pm

52 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org CLE Calendar

June 14 June 28 Difficult Depositions 25th Annual Employment Law Update Webcast/Telephone Seminar Noon–3:15 pm Video — Tysons Corner 8 am–4:45 pm June 15 Representation of Children as a Guardian June 28 ad Litem — 2014 Qualifying Course 34th Annual Real Estate Practice Seminar Video — Tysons Corner Video — Lynchburg 8:30 am–5:15 pm 9 am–4:10 pm

June 15 June 28 Representing the Juvenile Criminal How to Successfully Try a Divorce Case in Defendant: Navigating the Juvenile Justice Virginia System Live — Charlottesville/Webcast/Telephone Live — Charlottesville/Webcast/Telephone Noon–2 pm Noon–2 pm

June 15 June 29 Intellectual Property and Information 34th Annual Real Estate Practice Seminar Technology Licensing for Transactional Video — Danville, Dulles, Norfolk, Tysons Attorneys Corner, Winchester Live — Charlottesville/Webcast/Telephone 9 am–4:10 pm 3–5 pm June 29 June 16 Intellectual Property and Information 42nd Annual Recent Developments in the Technology Licensing for Transactional Law: News from the Courts and General Attorneys Assembly Webcast/Telephone Live — Virginia Beach Noon–2 pm 8:45–4:25 pm June 30 June 21 34th Annual Real Estate Practice Seminar 25th Annual Employment Law Update Video — Warrenton Seminar 9 am–4:10 pm Video — Abingdon, Alexandria, Charlot- Virginia State Bar tesville, Norfolk, Richmond, Roanoke July 6 Harry L. Carrico 8 am–4:45 pm (Richmond video begins at Representing the Juvenile Criminal 9 am) Defendant: Navigating the Juvenile Justice Professionalism Course System June 22 Webcast/Telephone 34th Annual Real Estate Practice Seminar May 12, 2016, Hampton 11 am–1 pm Video — Abingdon, Charlottesville, July 21, 2016, Roanoke Hampton, Richmond, Roanoke July 6 9 am–4:10 pm August 31, 2016, Alexandria New Tools, New Rules: How to Stay Ahead June 23 34th Annual Real Estate Practice Seminar of the Changing eDiscovery Landscape September 22, 2016, Richmond Video — Fredericksburg, Harrisonburg, Live — Washington, DC Leesburg 1:30 am–3:30 pm (Baseball game begins at See the most current dates and 9 am–4:10 pm 4:05 pm) registration information at http://www.vsb.org/site June 24 July 12 /members/new. OBJECTION! Making and Responding to How to Successfully Try a Divorce Case in Objections Virginia Live — Charlottesville/Webcast/Telephone Webcast/Telephone Noon–3:15 pm 11 am–1 pm www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 53 Virginia Lawyer Register

DISCIPLINARY PROCEEDINGS

Respondent’s Name Address of Record Action Effective Date

DISCIPLINARY BOARD Rocco Joseph DeLeonardis Jr. Reston, VA Suspension – 4 years February 19, 2016 Gerald Isadore Katz McLean, VA Revocation February 9, 2016

DISTRICT COMMITTEES Kevin Peter Shea Hampton, VA Public Reprimand January 27, 2016

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Angela Marie Hensley Culpeper, VA January 29, 2016 William Magruder McKee Norfolk, VA February 10, 2016 Nnika Evangeline White Richmond, VA January 29, 2016 Robert Langston Williams Pittsburg, PA February 12, 2016

Impairment Effective Date Alexander Lee Brown Fincastle, VA February 17, 2016

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

DISCIPLINARY SUMMARIES NOTICES TO MEMBERS The following are summaries of disciplinary actions for violations COMMENTS SOUGHT ON PROPOSED LEGAL ETHICS of the Virginia Rules of Professional Conduct (RPC) (Rules of the OPINION Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of The Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed advisory Legal Ethics the Supreme Court Rules. Opinion 1884: Conflicts arising from a lawyer-legislator’s em- Copies of disciplinary orders are available at the Web link ployment with a consulting firm owned by a law firm. provided with each summary or by contacting the Virginia State www.vsb.org/site/regulation/public_comment_leo1884 Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB docket CRIMINAL DEFENSE SEMINAR numbers are provided. Space is still available at the webcast locations for the 12th Annual Indigent Criminal Defense Seminar Advanced Skills for the Experienced Practitioner. Court appointed council and public defenders may register for the May 5 webcasts in Weyers DISCIPLINARY BOARD Cave and Wytheville. www.vsb.org/special-events/indigent-defense/ Rocco Joseph DeLeonardis Jr. AWARDS Reston, Virginia Nominate your deserving colleagues for the following awards: 13-052-093159, 13-000-093170 The Conference of Local Bar Associations Awards of Merit, Effective February 19, 2016, the Virginia State Bar Disciplinary Local Bar Leader of the Year Award, and Bar Association of the Board suspended Rocco Joseph DeLeonardis Jr.’s license to practice Year Award. The nomination deadline is April 29, 2016. law for four years for violating professional rules governing safe- Details of VSB awards: keeping property, responsibilities regarding nonlawyer assistants, www.vsb.org/site/members/awards-and-contests/ and misconduct. The board also found that Mr. DeLeonardis violated the Virginia Real Estate Settlement Agents statutes. RPC TECHSHOW 1.15(c)(4),(e)(1,2),(f)(5,6); 5.3(b)(c)(1); 8.4(a,b); §§55-525.24 and Registration is open for the April 25 VSB TECHSHOW at the 55-525-27; 14 VAC 5-395-70; 15 VAC 5-80-50(B) Greater Richmond Convention Center. www.vsb.org/docs/DeLeonardis-032216.pdf www.vsb.org/site/events/item/vsb_techshow_0416

Gerald Isadore Katz FREE LEGAL ANSWERS McLean, Virginia Coming in August: Watch for the VSB’s new VirginiaFree LegalAnswers pro bono website, sponsored by the ABA. Lawyers 16-000-103422 sign up to provide online answers to legal questions posted by On February 9, 2016, the Virginia State Bar Disciplinary Board low-income Virginians. See page 38 for more information. revoked Gerald Isadore Katz’s license to practice law based on the revocation of his license in Maryland. In consenting to the revoca- ANNUAL MEETING tion in Virginia, Katz acknowledged that the charges against him Register online now for the 77th Annual Meeting, June 16-19, were true. His license was summarily suspended on September 24, 2016, in Virginia Beach. 2015. Part 6, §IV, ¶13-28 www.vsb.org/special-events/annual-meeting/ www.vsb.org/docs/Katz-032216.pdf ADMINISTRATIVE SUSPENSIONS DISTRICT COMMITTEE The following members of the Virginia State Bar were ad- ministratively suspended on October 14, 2015, for failure to Kevin Peter Shea comply with the Rules of the Supreme Court of Virginia, Part Hampton, Virginia Six, Section IV, Paragraphs 11 and/or 16, 18, 19; or the Code of Virginia, Sections 54.1-3912 or 54.1-3913.1. These attorneys 15-010-102761 were notified of their suspensions using their last address of On January 27, 2016, the Virginia State Bar’s First District record with the Virginia State Bar; however, in some instanc- Subcommittee issued a public reprimand to Kevin Peter Shea for es, this has not been effective. To assist the Virginia State Bar violating professional rules that govern competence, diligence, in re-establishing contact with these attorneys, anyone having communication, and meritorious claims and contentions. This was knowledge of the present location and practice status of persons an agreed disposition of misconduct charges. RPC 1.1, 1.3(a)(b), on this list should contact the VSB Membership Department. 1.4(b), 3.1 This list was published on March 28, 2016. www.vsb.org/docs/Shea-022416.pdf www.vsb.org/site/members/administrative-suspensions www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 55 Professional Notices W&M Law Professor Receives Bator Award

Professor Tara Leigh Grove of William & Courts and Constitutional Law, and is a intent to challenge Mary Law School received the Federalist very deserving recipient of this honor.” President Obama in Society’s 2016 Paul M. Bator Award Grove’s scholarship has gained court over his enforce- on February 27 at the society’s 35th substantial recognition in her seven years ment of the Affordable Grove National Student Symposium, held at the in academia. Her work has appeared in Care Act. University of Virginia School of Law. The top law journals, including the Harvard Alan Meese, the Ball Professor of award each year honors a legal scholar Law Review, the Columbia Law Review, Law at William & Mary, was a student under the age of 40 “who has demon- the New York University Law Review, the of Professor Bator at the University of strated excellence in legal scholarship, a University of Pennsylvania Law Review, Chicago and helped nominate Grove for commitment to teaching, a concern for and the Cornell Law Review, and also the award. According to Meese, “Tara’s students, and who has made a significant has been discussed and cited in leading scholarship exemplifies numerous virtues public impact.” federal courts casebooks. that characterized Professor Bator’s own Bator was a renowned legal scholar National media have turned to work, including careful attention to text, and professor, who taught at Harvard Grove for her expertise on stories con- history, and constitutional structure, and at the University of Chicago, and cerning the constitutional separation of the ability to stake out clear and forceful was a principal deputy solicitor general powers and the federal judiciary. In the positions, and a willingness to follow the during the Reagan administration. summer of 2014, for example, she was evidence wherever it leads. She is rapidly “I am delighted to see Tara Grove among legal experts quoted in The Wall becoming one of the leading voices in receive the Bator Award,” said Law Street Journal, the Los Angeles Times, the field of Federal Courts and is a very School Dean Davison M. Douglas. “She CBS News, and Newsweek when House worthy recipient of this award.” is a rising star in the fields of Federal Speaker John Boehner announced his

Stephen A. Bogorad has Marks & Harrison has added managing principal, Porter will provide joined John Thorpe Richards Kevin T. Hadden, Bryan L. strategic leadership and direction, over- PLLC which has been re- Meadows and D. Bradley seeing client, recruiting and community named Bogorad & Richards Kent as associates. Hadden initiatives for the firm. PLLC. The firm provides Bogorad and Kent will focus their Hadden Jeffrey L. Rhodes has joined the law firm advocacy and advice in civil practices on personal injury. of Doumar Martin PLLC as a partner. matters from its offices in Meadows previously worked for GEICO’s Staff Counsel Alexandria. Before joining the firm, P. David Tarter was recently in Roanoke. He will be Bogorad was a partner at Holland & re-reelected the Mayor of the practicing out of Marks & Knight LLP. Meadows City of Falls Church. Tart- Harrison’s Fredericksburg er is the founder of Tarter office. NoVa Law in Arlington, Rhonda D. Bond-Collins Tarter has been named a share- where his practice focuses Matthew W. Light has on commercial real estate, land use and holder in the law firm of joined BotkinRose in Kent business law. Bryant Miller Olive. Based Harrisonburg as a partner. Bond-Collins in the Orlando office, she He will continue to focus Kathryn Lee Taylor has focuses on public finance his practice on business law, real estate, joined The Law Office of and affordable housing. estate planning, tax-exempt finance, and E. Sean Tluchak PLLC as local government law. an associate attorney. Her D. Patrick Callahan has joined Eckert focus will be residential William B. Porter has been Taylor Seamans as an associate in the firm’s and commercial real estate named managing principal transactions. commercial litigation group. Prior to of Blankingship & Keith PC. joining private practice, Callahan was an Porter succeeds William honors attorney with the National Labor Carey who served in the role Porter Relations Board in Washington, D.C. from 2014 through 2015. As

56 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org Professional Notices

Professional The VSB E-News Notices For confidential, Have you been receiving the E-mail your news and high-resolution free consultation professional portrait to hickey@vsb. Virginia State Bar E-News? The available to all Virginia attorneys org for publication in Virginia Lawyer. E-News is a brief monthly sum- on questions related to Professional notices are free to VSB mary of deadlines, programs, rule legal malpractice avoidance, members and may be edited for length changes, and news about your claims repair, professional liability and clarity. regulatory bar. The E-News is insurance issues, and law office emailed to all VSB members. If management, call Fairfax County your Virginia State Bar E-News is lawyer, John J. Brandt, who acts being blocked by your spam filter, Virginia State Bar under the auspices of the contact your email administra- Staff Directory Virginia State Bar at tor and ask to have the VSB.org Frequently requested bar contact domain added to your permis- information is available online at (703) 281-2600 x101 www.vsb.org/site/about/bar-staff. sions list.

“Not in Good Standing” Have You Moved? Search Available at To check or change your address of record with the Virginia State Bar, go to the VSB VSB.org Member Login at https://member.vsb.org/vsbportal/. Go to “Membership Information,” where your current address of record is listed. To change, go to “Edit Official Address The Virginia State Bar offers the of Record,” click the appropriate box, then click “next.” You can type your new address, ability to search active Virginia phone numbers, and e-mail address on the form. lawyers’ names to see if they are Contact the VSB Membership Department ([email protected] or (804) 775- not eligible to practice because 0530) with questions. their licenses are suspended or revoked using the online Attorney Records Search at www.vsb.org /attorney/attSearch.asp. The “Attorneys Not in Good ADVERTISER’S INDEX Standing” search function was designed in conjunction with the ALPS Corporation ...... 7 VSB’s permanent bar cards. Anthony Coppola ...... 11 Lawyers are put on not-in- Geronimo Development Corporation ...... back cover good-standing (NGS) status for Gilsbar PRO ...... 19 administrative reasons — such as not paying dues or fulfilling con- Jackson & Campbell, PC ...... 6 tinuing legal education require- L. Steven Emmert ...... 7 ments — and when their licenses Liberty University ...... 9 are suspended or revoked for vio- McAdoo Gordon & Associates ...... 11 lating professional rules. Minnesota Lawyers Mutual Insurance Company ...... 11 The NGS search can be used National Legal Research Group ...... 53 by the public with other attorney Norman Thomas, PLLC ...... 11 records searches — “Disciplined Attorneys” and “Attorneys without The Ten Leaders Cooperative ...... 6 Malpractice Insurance” — to check Virginia Barristers Alliance Inc...... inside front cover on the status and disciplinary his- Virginia State Bar Members’ Insurance Center ...... 5 tory of a lawyer.

www.vsb.org Vol. 64 | February 2016 | VIRGINIA LAWYER 57 Classified Ads

Position Available have top academic credentials, distance. Our on island agent at colling@collingswifthynes. outstanding transcripts and a will provide everything to com Check out the website ASSOCIATE ATTORNEY (FAIRFAX) judicial clerkship. Successful make your vacation perfect. for the villa at stcroixvaca- Civil practice firm in Fairfax candidates will be expected to Owner gives lawyers 15% tions.com. Or You Tube: The looking for a Virginia-licensed work long hours, produce a discount! Call Terese Colling, Islander St. Croix. associate attorney with 2-5 high-quality legal product that (202) 641-3456 or email me years of experience, preferably meets exacting standards, and in family law. Candidate will seek to enhance the reputa- deal directly with clients and tion of the Attorney General’s will fully handle cases from Office as a top law firm in start to finish. To apply, please the State of West Virginia. Advertisements and Classified Ads send your resume and income Candidates must also have Published six times a year, Virginia Lawyer is distributed to all expectations to lawfirmposi- an active WV license or be [email protected]. eligible for admission. Send members of the Virginia State Bar, judges, law libraries, other your resume, a writing sample state bar associations, the media, and general subscribers. GENERAL COUNSEL and preferred salary range to More information is available online at (WEST VIRGINIA) [email protected] with “Senior www.vsb.org/site/publications/valawyer, or you can contact The Attorney General’s Office Attorney” in the subject line. Dee Norman at (804) 775-0594 or [email protected]. seeks candidates for the position of General Counsel. PI JUNIOR ASSOCIATE Ideal candidates will have top ATTORNEY (JACKSONVILLE, FL) academic credentials, out- Law Firm of Military Veterans standing transcripts, a judicial is seeking Veterans for their clerkship and a minimum of growing law firm. PI five (5) years in-house counsel Junior Associate Attorneys (0-3 or senior management expe- years’ experience and recent rience. Candidates will have grads). Salary commensurate Are your clients interested in excellent judgment and the with experience. Please send legal information on Bankruptcy? ability to prioritize and man- cover letter and resume with Divorce? Wills? Marriage? We have age several simultaneous proj- references to Ron@youhurtwe- ects under deadline pressures. fight.com. a brochure on that. Successful candidates will be expected to work long hours, Rentals To download or order copies of any of our more produce a high-quality legal than a dozen brochures, go to the website at VSB. product that meets exacting ENJOIX ST. CROIX—15% org and look for “public information pamphlets.” standards, and seek to enhance LAWYERS DISCOUNT!! They are: the reputation of the Attorney U.S. Virgin Islands. General’s Office as a top law Fantastic Villa! Our Bankruptcy firm in the State of West agent greets you at the airport Children & Divorce Virginia. Candidates must also and takes you to our spec- have an active WV license or tacular villa, “The Islander,” Clients’ Protection Fund be eligible for admission. Send with breathtaking Caribbean your resume, a writing sample views, located in most desirable Divorce in Virginia and prestigious east island and preferred salary range to Fee Dispute Resolution Program [email protected] with “General location 10 minutes from Counsel” in the subject line. the unique seaport town of Financial Issues in Divorce in Virginia Christiansted with its Danish SENIOR ATTORNEY architecture, forts, restaurants, Marriage in Virginia (WEST VIRGINIA) shopping and break taking Minors, Alcohol and Virginia Law The Attorney General’s Office views. Our unique architec- seeks a senior level attorney. turally designed home now Protecting Your Intellectual Property: Candidates must have senior includes four MBR suites – the Patents, Trademarks & Copyrights management experience, be most recent also has a kitchen, motivated self-starters with office area, TV viewing area Selecting and Working with a Layer strong work ethic, integrity and patio. Villa has private Spare the Child and professionalism. Excellent pool, all amenities. Walk to interpersonal, organizational gorgeous sandy beach, snor- Wills in Virginia and verbal/written communi- keling and two restaurants. cation skills are a must for this Tennis, golf, sport fishing and position. Ideal candidates will scuba diving are within walking

58 VIRGINIA LAWYER | February 2016 | Vol. 64 www.vsb.org 78th Annual Meeting

ANNUAL 78 MEETING VIRGINIA STATE BAR JUNE 16-19 2016 VIRGINIA BEACH

We look forward to seeing you at the Annual Meeting. We’ll be easy to find, at the same beautiful beach, but with new hotels and several new events. We’ve worked hard to bring you the best of the old with a splash of the new. Come and rediscover your Annual Meeting. Annual Meeting brochures were mailed in early April. Complete Annual Meeting information, including online registration, forms, and hotel information and links, is available on the Virginia State Bar website at http://www.vsb.org. If you have not received a brochure and/or need more specific information, please contact the Virginia State Bar, Bar Services Department at (804) 775-9400 or [email protected]. All information on the following pages is tentative and subject to change. Please refer to VSB.org for updates.

Schedule of Events

WEDNESDAY, JUNE 15 FRIDAY, JUNE 17

NOON 7:00 A.M. Executive Committee Holiday Inn North Beach Yoga by the Sea Beachfront Sheraton 7:30 A.M. 2:00 P.M. Run in the Sun – 5K Run Boardwalk Annual Meeting Registration Sheraton Oceanfront Sponsor: Virginia Lawyers Weekly; YLC 6:30 P.M. 7:30 A.M. Conference of Local Bar Associations Sheraton Oceanfront Council Reception & Dinner Sheraton Oceanfront Annual Meeting & Awards Breakfast 7:45 A.M. THURSDAY, JUNE 16 Annual Meeting Registration Sheraton Oceanfront 8:30 A.M. Princess Anne 8:00 A.M. VADA Board Meeting Country Club Annual Meeting Registration Sheraton Oceanfront 9:00 A.M. – 11:00 A.M. 8:30 A.M. SHOWCASE CLE I Hilton Oceanfront Council Meeting Holiday Inn North Beach Debate on Religious Freedom in the Workplace 8:45 A.M. – 4:30 P.M. 42nd Recent Developments Seminar Sheraton Oceanfront 9:00 A.M. – 11:00 A.M. SHOWCASE CLE II Sheraton Oceanfront (separate registration with VaCLE) Official Acts and Honest Services in the Wake of U.S. v. McDonnell 11:45 A.M. Fore Diversity Golf Tournament Virginia Beach National 10:30 A.M. Sponsor: Diversity Conference Virginia Law Foundation Princess Anne Meetings & Lunch Country Club 12:30 P.M. Lawyers Helping Lawyers Holiday Inn North Beach 10:30 A.M. Virginia Legal Aid Project Directors Sheraton Oceanfront Board of Directors Meeting 11:45 A.M. 5:30 P.M. Section & Conference Joint Lunch Hilton Oceanfront Bill W. Meeting Oceanaire Resort (ticketed event) 11:45 A.M. 6:30 P.M. Virginia Legal Aid & Oliver Hill Sheraton Oceanfront Opening Reception for All Attendees Sheraton Oceanfront Pro Bono Awards Luncheon Sponsor: VSB Members Insurance Center Sponsor: ALPS

JUNE 16–19 2016 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 59 78th Annual Meeting

FRIDAY, JUNE 17 SATURDAY, JUNE 18 11:15 A.M. – 11:45 A.M. Virginia Women Attorneys Assn. Hilton Oceanfront 9:45 A.M. – 11:45 A.M. Annual Meeting & Board Meeting SHOWCASE CLE V Judiciary Squares Sheraton Oceanfront 11:45 A.M. YLC Membership & Fellows Sheraton Oceanfront 10:00 A.M. Reception & Annual Meeting (ticketed event) Brunch for 50-Year Award Recipients Sheraton Oceanfront Sponsor: Senior Lawyers Conference 1:30 P.M. – 3:30 P.M. 10:00 A.M. SHOWCASE CLE III 19th Annual Sandcastle Contest Beachfront Sheraton Cybersecurity for Lawyers Hilton Oceanfront NOON 1:30 P.M. – 3:30 P.M. Raffles & Closing Reception Sheraton Oceanfront SHOWCASE CLE IV Cash Bar The Pipeline to Diversity Sheraton Oceanfront 1:00 P.M. Tennis Tournament Princess Anne Sponsor: MichieHamlett Country Club 3:00 P.M. – 4:00 P.M. Family Bingo Sheraton Oceanfront 1:00 P.M. Sponsor: Walker Jones, PC David T. Stitt Memorial Beachfront Sheraton Volleyball Tournament 4:30 P.M. Rakes Leadership in Education Award Hilton Oceanfront Sponsor: YLC; Harris Matthews & Crowder PC (by invitation) Sponsor: Gentry Locke 5:00 P.M. YLC Membership Casual Reception Hilton Oceanfront Special Events Sponsor: Virginia CLE

5:30 P.M. Bingo – A Family Favorite! Bill W. Meeting Oceanaire Resort Take a break from the beach and bring your family to the 6:00 P.M. Sheraton Oceanfront Hotel on Friday afternoon for lots of fun Children’s Dinner Hilton Oceanfront and prizes! — Sponsor: Walker Jones, PC (ticketed event) 6:00 P.M. Boardwalk Art Show & Festival President’s Reception Hilton Oceanfront This year our meeting coincides with the 61st Annual Boardwalk Art Show! For more information, visit 7:00 P.M. – 11:00 P.M. http://www.virginiamoca.org/. Virginia Beach offers so much Dance Neptune Park/ Featuring The Rare Mixx Band Hilton Oceanfront to explore that it’s hard to fit it all into one visit. Go to www.vbfun.com to discover all the things to do in the area! 7:00 P.M. Banquet & Installation of President Hilton Oceanfront Athletic Events (ticketed event) 6th Annual Fore Diversity Golf Tournament to support the Sponsor: The McCammon Group Diversity Conference — Thursday, June 16, Virginia Beach 8:00 P.M. – 11:00 P.M. National. Dance Hospitality Hilton Oceanfront Cash Bar 35th Annual Run in the Sun — Friday, June 17, 7:30 a.m. on the Virginia Beach Boardwalk — Sponsors: Virginia Lawyers Weekly and Young Lawyers Conference SATURDAY, JUNE 18 14th Annual Tennis Tournament — Saturday, June 18, 1:00 7:00 A.M. Yoga by the Sea Beachfront Sheraton p.m. at Princess Anne Country Club — Sponsor: MichieHamlett 7:45 A.M. 32nd Annual David T. Stitt Memorial Volleyball Tournament Annual Meeting Registration Sheraton Oceanfront Saturday, June 18, 1:00 p.m. Sheraton Beachfront — Sponsors: 8:00 A.M. Young Lawyers Conference and Harris Matthews & Crowder PC Law School Alumni Breakfasts Sheraton Oceanfront Early Morning Yoga by the Sea (ticketed event) Friday and Saturday mornings. 9:00 A.M. General Session & Awards Sheraton Oceanfront Continental Breakfast Buffet Visit the Virginia State Bar website for more details and registration at http://www.vsb.org/special-events 9:30 A.M. Chappell-Morris Award Presentation Sheraton Oceanfront /annual-meeting/index.php Sponsor: Virginia Fellows, American College of Trial Lawyers

VIRGINIA STATE BAR • 78TH ANNUAL MEETING 60 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org 78th Annual Meeting

Showcase CLE Programs

FRIDAY & SATURDAY / JUNE 17 – 18 SATURDAY, JUNE 18 / 9:45 A.M. – 11:45 A.M. 6.0 MCLE Credits, 2.5 Ethics (pending) Judiciary Squares-Evidence and Other Related Topics Your Annual Meeting registration fee includes these programs Sheraton Oceanfront, Ocean Grand Ballroom sponsored by VSB sections and conferences in collaboration (2.0 Hours, including .5 Ethics pending) with statewide bars and other legal organizations. You must be Sponsored by the Young Lawyers Conference registered for the Annual Meeting to receive CLE credit for any program on Friday or Saturday. Back by popular demand! This fun, non-traditional CLE program is modeled on the popular game show, Hollywood Squares,

FRIDAY, JUNE 17 / 9:00 A.M. – 11:00 A.M. which follows the rules of the familiar childhood game, Tic, Tac Toe. Nine judges and justices from across the Commonwealth Debate on Religious Freedom in the Workplace: will serve as squares and answer questions from two contestants Freedom Of Religion versus Freedom From Religion? covering a broad range of recent developments affecting Virginia practitioners. Both contestants and audience members will have Hilton Oceanfront, Ballroom A&B (2.0 Hours) to decide whether the esteemed panel of judicial squares is telling Sponsors: Criminal Law & Corporate Counsel Sections, VWAA the truth or leading us into judicial traps for the unwary. Official Acts and Honest Services in the Panel: Wake of U.S. v. McDonnell Hon. John A. Gibney, Jr., Judge, U.S. District Court, Eastern Sheraton Oceanfront, Ocean Grand Ballroom (2.0 Hours) District, Richmond Sponsors: Construction Law, Litigation and Local Government Law Sections Hon. William C. Mims, Justice, Supreme Court of Virginia, Richmond

FRIDAY, JUNE 17 / 1:30 – 3:30 P.M. Hon. Cleo E. Powell, Justice, Supreme Court of Virginia, Richmond Cybersecurity for Lawyers: Current Developments and Hon. Glen A. Huff, Chief Judge, Court of Appeals of Virginia, Practical Steps to Ethically Protect Your Data Virginia Beach Hon. Wesley G. Russell, Jr., Judge, Court of Appeals of Virginia, Hilton Oceanfront, Ballroom A&B Richmond (2.0 Hours, including 2 Ethics, pending) Sponsors: Corporate Counsel, Real Property, Environmental, Hon. John M. Tran, Judge, 19th Judicial Circuit Court, Fairfax General Practice, and Health Law Sections Hon. David V. Williams, Chief Judge, Henry County Circuit Court, The Pipeline to Diversity: Martinsville Improving the Practice of Law in the Commonwealth Hon. Victoria A.B. Willis, Judge, 15th Judicial Circuit Court, Sheraton Oceanfront, Ocean Grand Ballroom Stafford (2.0 Hours, including 1 Ethics, pending) Hon. Tanya Bullock, Judge, J&DR District Court, Virginia Beach Sponsors: VSB Diversity Conference, Corporate Counsel Section, and Access to Legal Services Committee; Virginia MODERATOR: Diversity Foundation; MDI; Altria Group; Asian-Pacific American Hon. Stanley P. Klein (Ret.), Senior Counsel, Blankingship and Bar Association; and Hill-Tucker Bar Association Keith, Fairfax

Raffles and Prizes Don’t Miss There will be plenty of raffles and prizes for both adults Any of the Fun! and children at this year’s meeting. The raffle collection will be donated by our prize sponsors. Look for the raffle display listing the prizes and sponsors in the registration area of the Sheraton Oceanfront Hotel. Raffle entry forms will Visit the Annual Meeting website be distributed in your Annual Meeting registration badge www.vsb.org packet. Drawings for all raffles and sponsored prizes will be announced at the Closing Reception on Saturday, June 18, at Download Now — Annual Meeting mobile app! Noon, in the Grand Ocean Foyer of the Sheraton Hotel. You (visit the iTunes store or Google play) must be present to win!

JUNE 16–19 2016 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 64 | April 2016 | VIRGINIA LAWYER 61 78th Annual Meeting

Annual Meeting Sponsors

Access to Legal Services Harris Matthews & Crowder PC Virginia CLE We gratefully acknowledge Committee these sponsors of the 2016 Hill-Tucker Bar Association Virginia Diversity Foundation ALPS Annual Meeting for their con- The McCammon Group Virginia Lawyers Weekly tributions in hosting a variety Altria Group MichieHamlett of activities and special events VSB Members’ Insurance for our members and their Asian Pacific American Millennium Diversity Center guests. Bar Assn/VA Initiative Inc. Virginia Women Attorneys Assn. Conference of Local Bar Assns. Senior Lawyers Conference Walker Jones PC David P. Bobzien Sensei Enterprises, Inc. Diversity Conference Sheraton Oceanfront Hotel Weiner Spivey & Miller PLC Gentry Locke Venable LLP Young Lawyers Conference

Now Available! Annual Meeting Mobile App

Download the VSB Events App from iTunes or Google Play.

t StreSStr eet Hotel Locations 39½3939½ StStre trtreereeteee t 399t9thh SSSt The Hilton Oceanfront, Sheraton Oceanfront, and Holiday Inn North Beach will anchor our events this year, with additional options for overnight accommodations (see below). This

t Streereet variety of choices o ers something for everyone! 33838th St

VirginVirginia

Paciﬁc ia AtlanticAtlAtlanAtlantic A

BeaBeach

lal ch

AveAv anta NRH EN CECIN HE h

BoBoar enue nntic nue t h SSSttrtreereete a rdwalk 37t ic dwal

A k

venuevenvev

en rereetet 36½ St n N 9 ueu

t Streetrreete Lots of activities for kids 36th SSt

t Streereetet Great for families 35th St

6 AtlanticAtlAt A tlan l antantic t ntic thh SSttreereet 4t VirginiaVirgin Paciﬁc 34 A ia

AvAve

venvvevenue BeachBea

nue

ch u nnu e

uue BoBoar

60 e a Central location with adult appeal rdrdwalk dwal

t k Strtreereetee 33rd St

A central location for meetings

NeptNNepptunune NeptNeepptuune’unnee’s Statuatuuee PaPark

treereett 31st SSt

VIRGINIA STATE BAR • 78TH ANNUAL MEETING 62 VIRGINIA LAWYER | April 2016 | Vol. 64 www.vsb.org T urn to smarter tools for legal research.

Visualize search results to see the best results

Only Fastcase features an interactive map of search results, so you can see the most important cases at a glance. Long lists of text search results (even when sorted well), only show one ranking at a time. Sorting the most relevant case to the top might sort the most cited case to the bottom. Sorting the most cited case to the top might sort the ® most recent case to the bottom.

Fastcase’s patent-pending Interactive Timeline view shows all of the search results on a single map, illustrating how the results occur over time, how relevant each case is Smarter by association.based on your search terms, how many Log in at www.vsb.org times each case has been “cited generally” by all other cases, and how many times each case has been cited only by the super-relevant cases within the search result (“cited within” search results). The visual map provides volumes more information than any list of search results – you have to see it to believe it!

Free to members of the Virginia State Bar. Members of The Virginia State Bar now have access to Fastcase’s entire legal research database for free. That means unlimited next-generation searching, printing, and reference support. To start using your member beneﬁt log in to www.vsb.org and click the Fastcase logo. And don’t forget that Fastcase’s award-winning mobile apps for iPhone, iPad, and Android devices can be connected to your VSB account using Mobile Sync. Smarter research tools, brought to you by The Virginia State Bar and Fastcase. 140784_Ad_Casefinder_Ad 3/18/14 6:42 AM Page 1

CaseFinder databases include: ® The Supreme Court of Virginia CaseFinder Web . . . Published: Vol. 80 (1885) – latest slip opinions Unpublished Orders: 1999 – present Rules: Current

The Court of Appeals of Virginia Published: Vol. 1 (1985) – latest slip opinions

Unpublished: May, 1994 – latest opinions

Virginia Attorney General Opinions: 1967 – present Conflict of Interest Opinions: 1994 – present

Virginia Circuit Court 31 Circuits, various dates

Legal Ethics & Unauthorized Practice Complete and current

Workers’ Compensation Commission Published: Vol. 64 (1985) – latest volume (2000) Unpublished: 1993 – latest opinions ® . . . Virginia Constitution or CaseFinder CD Complete

Virginia Code Complete and current

Virginia Code Archive Full text of earlier versions back to 2002; Amendments back to 1994 United States Supreme Court Vol. 338 (1949) – latest slip opinions

U.S. Fourth Circuit Court of Appeals 450 F.2d (1971) – latest opinions

Eastern and Western Fed. District of Va. 700 F. Supp. (1971) – latest opinions

U.S. Constitution Complete

U.S. Code Current through December 2, 2013

Federal Rules of Civil Procedure Complete and current A Win-Win Choice.

$529 – Annual Web Subscription $589 – Annual CD Subscription

FREE – 14-day Web Trial Single Month Pricing Available