Virginia LawyerVOL. 69/NO. 4 • December 2020 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

Virginia Lawyer Virginia Lawyer Virginia Lawyer VirginiaVIRGINIA LA WYERLawyer REGISTER VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER

Wayne Marcus Scriven M. Rachel Wolfe Tyler A. Klink Susan H. G. Rager South Hampton Roads Bar Association Wise County & City of Norton Bar Association Pittsylvania County Bar Association Northern Neck Bar Association

Virginia Lawyer Virginia Lawyer Virginia Lawyer Virginia Lawyer VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER

Nicholas J. Gehrig Luis A. Perez Reiss F. Wilks Oscar Wilks Veronica D. Brown-Moseley The Alexandria Bar Association Fairfax Bar Association Virginia Creditors Bar Association A good boy Hill Tucker Bar Association

Virginia Lawyer Virginia Lawyer Virginia Lawyer Virginia Lawyer VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER

Roy V. Creasy Christine H. Mougin-Boal Dillina W. Stickley Lewis A. Martin III Roanoke Bar Association The Loudoun County Bar Association Harrisonburg-Rockingham Bar Association Charlottesville-Albemarle Bar Association

Virginia Lawyer Virginia Lawyer The Conference of Local and VIRGINIA LAWYER REGISTER VIRGINIA LAWYER REGISTER Specialty Bar Assocations Issue Diversity Perspectives from Three Lawyers

Marketing for Lawyers Private Criminal Complaints Lindsey A. Strachan Charles M. Lollar Child Support in COVID-19 The Bar Association of the City of Richmond Norfolk and Portsmouth Bar Association

Virginia Lawyer The Official Publication of the Virginia State Bar December 2020 Volume 69/Number 4

Features GENERAL INTEREST Noteworthy 26 Talking to Two Million People at a Time: How Lawyers Can Build VSB NEWS Business with Social Media 38 Highlights of the Oct. 23 VSB by Jennifer Jessie Council Meeting 30 Pro-se Prosecution in Virginia 39 Former VSB President Receives by Henry H. Perritt Jr. Governor’s Volunteerism Award 34 Family Law: The Impact of COVID-19 on Child Support Cases in 2020 39 Young Lawyers Create Foster and Beyond Care Resource Guide for Hampton by Bretta Z. Lewis Roads 39 MCLE Compliance Deadline THE CONFERENCE OF LOCAL 40 Join the Leadership of Your AND SPECIALTY BAR ASSOCIATIONS Virginia State Bar 41 Committee Preference Form 15 Yet Another Message from a Conference Chair! 42 Announcing Virtual Techshow by Susan H. Godman Rager 2021 16 CLSBA Leaders Share Their Diverse Experiences 43 New Virginia by Charles M. Lollar Sr. Lawyer Ad Rates 16 Bar Election Results 44 In Memoriam 17 Perspective of a Female Attorney 45 Bernard S. Cohen by Lindsey A. Strachan 45 The Honorable Jackson L. Kiser 18 Perspective of a Hispanic Attorney by Luis A. Perez Departments 19 Reflections of an Attorney of Color 6 Forum by Wayne Marcus Scriven 37 Wellness 20 You are More of a Bar Leader Than You Think: 57 CLE Opportunities Join Us at the Bar Leaders Institute 58 Professional Notices by Christine H. Mougin-Boal 60 Classified Ads 22 Why Every Bar Association Should Have a CLSBA Representative: 61 Cartoon Why Not You? 63 Advertiser’s Index by Lewis A. Martin III 24 CLSBA Award Nomination Deadlines 2021 Columns 10 President’s Message VIRGINIA LAWYER REGISTER 12 Executive Director’s Message 50 Disciplinary Summaries 14 Ethics Counsel’s Message 46 Access to Legal Services 52 Disciplinary Proceedings 47 Law Libraries 53 Notices to Lawyers: A Roundup of News and Proposed Rule Amendments 48 Technology and the Future Practice from vsb.org of Law 54 CPF Board Authorizes $54,075 in Reimbursements 49 Risk Management 62 The Last Word

www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 3 Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2020–21 OFFICERS 15th Circuit Brian L. Buniva, President Allen F. Bareford, Fredericksburg Jay B. Myerson, President-elect Marni E. Byrum, Immediate Past President 16th Circuit www.vsb.org Karen A. Gould, Executive Director and R. Lee Livingston, Charlottesville Chief Operating Officer Palma E. Pustilnik, Charlottesville Editor: EXECUTIVE COMMITTEE 17th Circuit Deirdre Norman Brian L. Buniva, President Adam D. Elfenbein, Arlington ([email protected]) Jay B. Myerson, President-elect Jennifer S. Golden, Arlington Marni E. Byrum, Immediate Past President Gregory T. Hunter, Arlington Creative Director: Eugene M. Elliott, Roanoke Joshua D. Katcher, Arlington Caryn B. Persinger Stephanie E. Grana, Richmond William H. Miller, Arlington ([email protected]) Chidi I. James, Fairfax 18th Circuit Eva N. Juncker, Falls Church Barbara S. Anderson, Alexandria Assistant Editor: William M. Moffet, Abingdon Stacey Rose Harris, Alexandria Kaylin Bowen Eric M. Page, Richmond John K. Zwerling, Alexandria ([email protected]) CONFERENCE CHAIRS AND PRESIDENT 19th Circuit Conference of Local and Specialty Bar Advertising: Susan M. Butler, Fairfax Associations – Susan N. G. Rager, Coles Point Brian C. Drummond, Fairfax Deirdre Norman Diversity – Sheila M. Costin, Alexandria ([email protected]) David J. Gogal, Fairfax Senior Lawyers – Margaret A. Nelson, Sandra L. Havrilak, Fairfax Lynchburg Chidi I. James, Fairfax Young Lawyers – Melissa Y. York, Richmond Douglas R. Kay, Tysons Corner VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) COUNCIL Daniel B. Krisky, Fairfax is published six times a year by the Virginia State Bar, Christie A. Leary, Fairfax 1st Circuit David L. Marks, Fairfax 1111 East Main Street, Suite 700, Richmond, Virginia Damian J. (D.J.) Hansen, Chesapeake Nathan J. Olson, Fairfax 23219-0026; Telephone: (804) 775-0500. Subscription 2nd Circuit Luis A. Perez, Falls Church Rates: $18.00 per year for non-members. This material Ryan G. Ferguson, Virginia Beach Susan M. Pesner, Tysons Corner is presented with the understanding that the publisher Jeffrey B. Sodoma, Virginia Beach Wayne G. Travell, Tysons Michael M. York, Reston and the authors do not render any legal, accounting, Bretta Z. Lewis, Virginia Beach or other professional service. It is intended for use by 3rd Circuit 20th Circuit Meredith B. Travers, Portsmouth R. Penn Bain, Leesburg attorneys licensed to practice law in Virginia. Because of Susan F. Pierce, Warrenton the rapidly changing nature of the law, information 4th Circuit 21st Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Gary A. Bryant, Norfolk G. Andy Hall, Martinsville a result, an attorney using this material must always Neil S. Lowenstein, Norfolk research original sources of authority and update 22nd Circuit 5th Circuit Eric H. Ferguson, Rocky Mount information to ensure accuracy when dealing with Thomas G. Shaia, Suffolk a specific client’s legal matters. In no event will the 23rd Circuit 6th Circuit Eugene M. Elliott Jr., Roanoke authors, the reviewers, or the publisher be liable for J. Daniel Vinson, Emporia K. Brett Marston, Roanoke any direct, indirect, or consequential damages resulting 7th Circuit 24th Circuit from the use of this material. The views expressed herein Benjamin M. Mason, Newport News Eugene N. Butler, Lynchburg are not necessarily those of the Virginia State Bar. The 8th Circuit 25th Circuit inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton William T. Wilson, Covington an endorsement by the Virginia State Bar of the goods 9th Circuit or services of the advertiser, unless explicitly stated 26th Circuit Susan B. Tarley, Williamsburg Nancy M. Reed, Luray otherwise. Periodical postage paid at Richmond, 10th Circuit Virginia, and other offices. 27th Circuit E. M. Wright Jr., Buckingham R. Cord Hall, Christiansburg 11th Circuit 28th Circuit Shaun R. Huband, Petersburg William M. Moffet, Abingdon POSTMASTER: 12th Circuit Send address changes to 29th Circuit P. George Eliades II, Chester D. Greg Baker, Clintwood VIRGINIA LAWYER MEMBERSHIP DEPARTMENT 13th Circuit 30th Circuit Dabney J. Carr IV, Richmond Greg D. Edwards, Jonesville 1111 E MAIN ST STE 700 Leah A. Darron, Richmond RICHMOND VA 23219-0026 31st Circuit Eric M. Page, Richmond Maryse C. Allen, Prince William Cullen D. Seltzer, Richmond MEMBERS AT LARGE Sushella Varky, Richmond Denise W. Bland, Eastville Eva N. Juncker, Falls Church Neil S. Talegaonkar, Richmond Lenard T. Myers, Jr., Norfolk Henry I. Willett III, Richmond Lonnie D. Nunley, III, Richmond Virginia State Bar Staff Directory Patricia E. Smith, Abingdon Frequently requested bar contact 14th Circuit Lisa A. Wilson, Arlington Craig B. Davis, Richmond Vacancy (3) information is available online at Stephanie E. Grana, Richmond www.vsb.org/site/about/bar-staff. Marissa D. Mitchell, Henrico

4 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org

Forum

In Response to “Legal Deserts in Rural Virginia” I believe that the October 2020 issue has some serious flaws in its representation of the Letters number of lawyers in the Northern Neck of Virginia. You have shown Northumberland County as having 21 lawyers and Lancaster County as having 43 lawyers. While it may be true that there are a number of lawyers living in those counties who are members Send your letter to the editor to: of the Bar, the actual number of practicing lawyers is dramatically less. I would suggest [email protected] or that the statistics be directed more to the number of lawyers in active practice. Virginia State Bar Virginia Lawyer Magazine Matson C. Terry II 1111 E Main St., Suite 700 Hubbard, Terry & Britt Richmond, VA 23219-0026 Irvington Letters published in Virginia Editor’s Note: Our legal desert data was compiled by the American Bar Association Lawyer may be edited for length using information provided to them by the VSB. Determining whether an active lawyer is still practicing is an inexact science, and Herb Sebren of Tappahannock seconded and clarity and are subject to guide- Mr. Terry’s conclusion that there are fewer lawyers practicing in rural Virginia than our lines available at www.vsb.org/site/ map suggests. We hope that those lawyers in high density areas, including Northern publications/valawyer/. Virginia, Virginia Beach, and the Richmond area will consider providing virtual pro bono assistance to rural Virginians via the JusticeServer (justiceserver.org) or by volun- teering online with Virginia Free Legal Answers.

In Response to “What are You Afraid Of?” Practice, practice, practice is what it takes to become a truly competent speaker. The October 2020 article, What are You Afraid Of? serves as an excellent first step for all who might want to improve communication effectiveness. The well-presented arti- cle by Jim Lofton did not mention the Toastmasters club. Since 1924, Toastmasters International has been recognized as the leading organization dedicated to communi- cation and leadership skill development. Might your local Bar want to sponsor or host a noon or evening club? There is precedent for law schools and justice centers to do likewise. For example, Georgetown Law, the District of Columbia Courts, and the ABA- Pro-BAR all offer bi-weekly club meetings. Virginia lawyers may find www.toastmas- ters.org to be an enjoyable resource.

Eric Assur, M.A. Certified Mediator – Mentor Fairfax

December 2020 corrections: About the cover: In our October issue, in the The Conference of Local and article on capital punishment, we Specialty Bar Associations referred to “the Virginia House sponsored this issue of of Representatives” which should Virginia Lawyer. As social dis- properly have been called the tancing continues in response “House of Delegates.” to the ongoing pandemic, a In that same article, we said that cover design was created to the Hon. Joseph Migliozzi was illustrate the multiple parts “appointed” to the Circuit Court that make up the whole of the CLSBA while bench when we should have said, protecting the board members. Thank you to “elected by the legislature” to the CLSBA staff liaison Paulette Davidson (above) bench. for assisting with the issue. Cover art montage We regret the errors. by Kaylin Bowen.

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President’s Message by Brian L. Buniva Bias – Can We Eliminate It?

EVERY SO OFTEN THERE COMES credit for courses on the elimination to look inward most of us are hard a time in our history when we are of bias. Seize that opportunity on this pressed to deny that unconscious bias forced by the events around us to important issue. (racial and otherwise) does indeed pause and look inward. I believe we are exist. currently in such a time. The question coming before the The question coming before the To say that 2020 has been February Bar Council meeting is tumultuous is perhaps the February Bar Council meeting whether members of the Bar should understatement of the decade. In is whether members of the Bar receive continuing legal education January and February, the Coronavirus credit for courses discussing the issue pandemic was raging around the world should receive continuing legal of bias in the legal profession, its roots, and just getting a foothold in the U.S. and hopefully its elimination. As spring blossomed, federal and state education credit for courses The proposal will add “elimination emergency executive orders limited of bias” as a topic along with the topics public gatherings, called on us to “stay discussing the issue of bias in the of legal ethics and professionalism for at home,” and generally prohibited legal profession, its roots, and which two credit hours are currently visitation with our loved ones isolated required annually. Offerings on in their homes, or, tragically, in long- hopefully its elimination. elimination of bias are defined as term care facilities. trainings that relate to bias (race, In addition to the unprecedented The Founding Fathers claimed gender, economic status, creed, color, public health crisis (more than that “all men are created equal,” but in religion, national origin, disability, 9,000,000 confirmed COVID-19 1787 the vote was limited to white men age, or sexual orientation) in the cases and more than 232,000 deaths who owned property. It took more legal profession. To be eligible for in the US as of this writing), our than “four score and seven years” and elimination of bias CLE credit, a nation and our Commonwealth have the slaughter of more than 800,000 program must address diversity or also witnessed a reinvigorated cry Americans in a Civil War before bias issues in the legal profession (e.g. for justice stemming from the deaths African American men were given the among lawyers, in a law firm, or in the of far too many African Americans. right to vote. It took 133 years after the courtroom). The death of George Floyd along adoption of our Constitution before Numerous written comments with others has ignited protests in white women were given the right were received by the October 2 Virginia and throughout our country to vote with the passage of the 19th deadline, with a significant number of and led to calls for sweeping criminal Amendment. Many African American commenters thoughtfully weighing the justice reforms. Some of us have been and other minority women (and men) pros and cons. It is important to note surprised by the intensity of the outcry, were not allowed to exercise the right that neither professionalism nor legal but for many others the shootings and to vote until the Voting Rights Act of ethics will be replaced by the addition deaths were merely an all too common 1965 was enacted and enforced, some of this new topic. The amendment expression of the unintended vestiges 178 years after the adoption of our merely makes it possible for this of implicit bias. Is there a role for the Constitution. new topic to receive CLE credit, as Virginia State Bar in this discussion? I Why did the bias in favor of white it does in nearly ten other states. believe the answer is yes. property-owning men to the exclusion Please contact your representatives on Before the next meeting of the Bar of all other men and women come to Council and let your voices be heard Council in late February, you will have be and why did it take a full 178 years on this important issue. The contact an opportunity to advise your Council to change? There is insufficient space information for members of the members of your views on a proposal here to delve into that question. Suffice Council can be found at https://www. to provide continuing legal education it to say that when we take the time vsb.org/site/about/council. q

10 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org

Executive Director’s Message by Karen A. Gould You Should Join a Statewide, Local or Specialty Bar Association

WHEN I WAS A YOUNG voluntary statewide bar associations communities and their legal needs. lawyer in private practice, I attended are dedicated to improving Virginia The Prince William County Bar a Metropolitan Richmond Women’s law. These efforts benefit the adminis- Association (www.pwcba.org) has Bar Association luncheon where Gail tration of justice. They each actively a list of programs and services on Starling Marshall1 spoke about the propose legislation, some specific its website: Beat the Odds Program; need for every lawyer to do more than to the needs of their organizations, Breakfast at SERVE; Character Counts; just practice law—we should also be and much directed toward helping Court Tour/MockTrial, to name a involved in our legal community by Virginia’s citizens. Their lobbyists also few. Its professional executive director doing pro bono or by serving on a inform lawmakers and appear at hear- Allyssa Hudson and the PWCBA staff volunteer or regulatory board. That ings in the Virginia General Assembly put out a terrific 10-page newsletter on speech served as a wake-up call for me. to support specific initiatives. In addi- a regular basis. I discovered that bar service was the tion to being an advocate for Virginia’s The Norfolk & Portsmouth Bar fun part of law practice. While I truly lawyers, the VBA also offers educa- Association continues to offer CLEs, enjoyed trying cases, serving as a vol- tional programs, useful resources, and in person and virtually, during the unteer for the Virginia State Bar in its many social opportunities. Its website, COVID pandemic, as well as a news- regulatory mission opened my eyes to vba.org, goes into greater details on its letter. One of its recent CLEs was a the benefits of service to the profession services. virtual Pro Bono Clinic to celebrate of the law. The VADA is a voluntary bar Pro Bono Week. I urge you to get involved, if you association comprised of over 850 at- The Richmond Bar Association’s are not already, with a local, state- torneys whose practices are primarily newsletter for November 2020 high- wide or specialty bar association, of focused on the defense of civil actions. lights Richmond Times Dispatch politi- which there are 150 throughout the VADA offers CLEs, including a boot- cal columnist Jeff Shapiro’s appearance Commonwealth. What are the benefits camp for young lawyers to be held at the RBA’s luncheon November 18th, of joining a voluntary bar association? in December 2020 and a deposition the Pro Bono Housing Law CLE set Fellowship, continuing legal educa- workshop scheduled for March 2021. for December 1st, and the Bench- tion seminars, opportunities to give The Virginia Trial Lawyers Bar Conference 2020 “Re-Do” set for back to your community and im- Association is a voluntary statewide March 18, 2021. prove bench-bar relations are just a bar association dedicated to enhancing The Roanoke Bar Association puts few I have personally experienced. the knowledge, skills and professional- out a newsletter for its members, The The statewide voluntary bar as- ism of trial lawyers and to improving Roanoke Bar Review, available online sociations provide a strong resource the law and the fairness of Virginia’s at roanokebar.com. A recent column for Virginia’s lawyers in their diverse system of justice. VTLA works to ed- by Judge David Carson describes the areas. The big three are the Virginia ucate the public about the role of trial local circuit judges’ response to the Association of Defense Attorneys lawyers and the importance of the jury pandemic. My thanks to VSB Council (VADA); the Virginia Bar Association in our justice system. members Gene Elliott and Brett (VBA); and the Virginia Trial Lawyers In addition to statewide bar groups, Marston who recently wrote about Association (VTLA). local bar associations offer many op- recent VSB news and the October The importance of the legislative portunities to get to know other law- Council meeting. advocacy efforts of all three statewide yers in your community. Networking The Fairfax Bar Association (fair- voluntary bar associations cannot may be a lost art in this time of faxbar.org ) has a robust membership be stressed enough. The VSB can- the COVID pandemic, but it should and includes a lawyer referral service, not engage in such efforts, except in not be overlooked in the toolbox. a CLE section, a career center, and a limited circumstances, because of Participation in your local bars can newsletter. The Journal, a quarterly constitutional constraints. The three be a path to better knowledge of your Executive Director continued on page 55

12 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org VOLECTEM PORENES DEBIT AUTE PEREM ENTUR, QUI OCCUS MAGNIS DERO QUI ALIAT ATIUS, SUM, QUOS EIC TET ARCIPIS VITIO. OTA VOLUPTAT ARCHICTUR, QUID QUIBUS QUI UT ACEPROVID UT QUAM, SUSCIET DOLUPTI BERCILL ORIATIATIORE IDERO EATIO. NEM ESTRUM NATIBUS CILLORUM QUAM AUT QUATI VELICITA VERITATUR APIENIM USDAE. NAM VELIA VOLUPTI NCIPSANDELES INUM A NOBIS EXERUND IONSEQUUNT. CON POREPE VENIMET LABORE NEM HICTIAE DOLUPTA QUIATUR, OFFIC TEMQUO CONSEQUODIT EX EXPLIT, NOS INVENIS DOLOCUT EIUREHE NDIPIS THROUGH DIS SAE AUTATIORE, UT DIONSENDI ODIO THE TOTAEPELIT, OFFICIA WHITE NDITIS ET QUAM, CUM ETURNOISE. SITA VID QUIS SINTUR AUT AS EUMQUIS ARUM FUGA.RUM ET ESSERUM A DOLUPTA TIORRUM VERIBUSANTI SITA VOLO ERSPEDIGENIS COREUTE SIT FUGIT, SINTEM VOLORI CUS SENT UT ARIO. IQUE LA SECEATE NON CUS, SI SIMPORENT VOLORRUM ET LAUTEM QUI CUME REPUDIS EIC TE DELIQUAE RE APELECATUST VOLUT EUM IS MOLES MA ACCAB IDEST HILIBUS DOLUPTAT.BORE ET AUTATUS, VOLUM NEMPORITATI CONSECTUR SENDAES TRUMQUOGET OMNITA THE DUNT.AXIMPERIATEM CLIENTS VERNAM, SIT UNT DEBIT, VOLUPTATEM YOU UT MAGNIATQUIS NEED. DUCIL ES ES PARUNT ILLUPTAEPERO OMNISTI SINCTUR ALIBEAT QUIDITAM, SUS, OFFICIPSUM IPSAERIA ET DOLUPTIO. EHENIS ET, SOLUPTAS ARUM ILLUPTIS ET RE DOLOREH ENTIATUMENDA NIS PRO ENDA QUATEM ET, SITEMPERE LITASPERO ET IPICIMUS, QUAS AUT FUGIT FUGIT QUATQUO QUUNT.BOREHEN IMOLENET VOLUPTI VELLABO REICTIUM ATA EICIDUCIT ALIQUUNT FUGA. ET LIANTEM UNDIC TET OFFICIUNT, SITAM AUT QUE ODIPIDEL IN- IMINGIVE ELIT RE NITIUR SI DEBITADVICE ABOREM. UT EL IUREM IPIT, NIMETTHEY ESCIPIC IENIMI, CONSEEK. PORPOREPTAT RE VID QUIATEM QUIA AS RE DOLORRO VITISSIN NULPARITAS ALIBUS SIMUS EUMQUI QUI QUAS ACCUPTATUR, NUS DOLORER SPEDISQUAE VENDITET, SEQUIAE PA QUIS AB INITAT- UR?LIST ET VOLENIMUS MAIOSSIT, SOLUT LAMUS MAGNIMAIO. ET ADICABOR ATECEPE RESTEM DELECTATI ID MINCTUR, SI QUI OPTASOLO MA ESTEM FUGA. ECTUR, CUS REM AM RE IDELLANDANDA VOLUPTAE EOS EICTEM QUI BERIT, NIM VELLANDI DEBIS ESCI UT OMNIMPORRUM ESCIENI SCIPSUNT PERNAT FUGIAE DOLUPTUR MOLOREP ELIBEAR CIENDIT VIT EXPERFERE AUT FACIPIS EA SUM VOLENDAE LIBEATIUM, SED MINTOWHY COMMOLUPTATE WAIT? RESTEMPED QUIA DOLUPTATET AUT ODIAM, SINTO EVERIBEA DUS UNTINCTUR, IDEMO CON ET IDERFER RUMENIS EXCESSIT HILLACEA NIS MODITI CUSCILLUPTAS NIHIL IS EA VENDI TEMPORUM NECTUM VOLENDA QUAMUS AUTET, COMNIMA XIMPERO DOLUPTUR?AXIMOLOREPTA NUSDAE SANTIO OPTAS AUT ODIA A VOLECERFERUM CUS ET IN NESCILIAE DOLORUM QUAM, SUM ULLATEM. TURWWW.VLRS.NET RE DIPSAM EUMEQUE VELESTRUME SINULLA BORERCIA SAM VOLUPTA TESEQUAS NIHIT EARUNT.UT APIS DOLUPTA DUSAM NULLATIISSI OPTATIO REPELENDEBIS RENT ULPARUM ET OPTASI QUAM DUNTIA DIS VOLUPTA EPUDAE NOBIST, QUE QUE QUO QUE EA NON ET QUATIS VELIBUSTO MODISTE CUS MAXIMILLA DIA CUS MAGNIA NAMUS A CORUM QUAE PORPOSA NIMUSANTO VOLORIBEA VOLOREI CIPIDERI Ethics Counsel by James M. McCauley Can We Talk? Communications with Employees of a Represented Organization

RULE 4.2 OF THE VIRGINIA RULES entity’s “control group” or is the “alter organization, this Rule prohibits of Professional Conduct states that: ego” of the entity. Comment [7] to communications with a constituent [i]n representing a client, a lawyer Rule 4.2. The “control group” test has of the organization who shall not communicate about the been described by some courts as: supervises, directs, or regularly subject of the representation with [T]hose top management persons consults with the organization’s a person the lawyer knows to be who [have] the responsibility of lawyer concerning the matter represented by another lawyer in making final decisions and those or has authority to obligate the the matter, unless the lawyer has employees whose advisory roles organization with respect to the the consent of the other lawyer or is to top management are such that matter or whose act or omission authorized by law to do so. a decision would not normally be in connection with the matter may The rule has been described by made without those persons’ advice be imputed to the organization some as the ex parte or “no contact” or opinion or whose opinions in for purposes of civil or criminal rule. fact form the basis for any final liability. Although application of the decision. Council approved LEO 1890 as rule is relatively straightforward Fair Automotive Repair, Inc. v. Car-X written because no one disagreed when the represented person is an Serv. Sys., Inc., 471 N.E.2d 554, 560 that the proposed opinion was an individual, the opposite is true when (Ill. App. 1984). See Klier v. Sordoni accurate restatement of the existing the one represented is a corporation Skanska Construction Co., 766 A.2d rule. However, by unanimous motion, or other collective organization. 761, 766-70 (N.J.App. 2001). Council directed that the Ethics Courts have fashioned at least five The VSB’s Standing Committee Committee study and consider different tests to apply Rule 4.2 to on Legal Ethics issued Legal Ethics whether to adopt the ABA Comment. communications with employees of a Opinion 1890, a compendium and The VSB petitioned the Supreme represented organization. Totherow v. restatement of current Rule 4.2, its Court of Virginia to adopt LEO 1890, Rivier College, 2007 WL 5968762 (N.H. comments and prior opinions applying which the Court did in January 2020, Super. 2007). The difficulty arises, the “no contact” rule. LEO 1890 was but vacated that order in April 2020. of course, because an organization intended to be a resource for lawyers, In August, the Ethics Committee met can act only through its agents and pulling together all the prior LEOs and voted to send LEO 1890 back to employees, and the critical issue applying Rule 4.2. The opinion set the Court for approval without the therefore is determining which agents out 14 different questions about this section of the opinion addressing or employees of the organization fall seemingly straightforward rule. One communications with employees of within the protection of the rule. of the questions was how Rule 4.2 a represented organization. At the On one extreme, some courts and applies to ex parte communications same time, the Committee voted to counsel have adopted a “blanket ban” with an employee of a represented study the ABA Comment and consider asserting that all employees (and in adversary. The Committee answered whether to adopt it in lieu of the some cases former employees) may that question applying Comment [7] current Comment [7]. not be contacted ex parte by counsel if to Rule 4.2—the “control group” test. ABA Comment [7] is adopted their employer is represented. When LEO 1890 was published by most states in their respective If a corporation or other for comment, and when the proposed versions of Rule 4.2. Virginia and a organization is represented by counsel opinion was submitted to Council for small handful of other states are in the with respect to a matter or controversy, approval, a minority of lawyers wanted minority with the “control group” test. Virginia Rule 4.2 prohibits ex parte the opinion to adopt the language in The ABA Comment certainly casts a communications with employees Comment [7] to ABA Model Rule 4.2 wider net of employees who are “off of the represented corporation or [“the ABA Comment”]: limits” to an ex parte contact by an organization if the employee is in the In the case of a represented Ethics Counsel continued on page 55

14 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Yet Another Message from a Conference Chair! by Susan H. Godman Rager, CLSBA chair the reetings! It’s okay if you don’t recognize my name. I’m a true solo in the Northern Neck of Virginia, Ga rural peninsula between the Potomac and the Rappahannock Rivers. I can, literally, see Maryland CLSBA from my house. First, I want to challenge you. As you’ve probably heard, “Everything you’ve ever wanted is on the other side of fear” (quote from George Addair). That does not mean go out in public ISSUE without a mask and you will win the lottery. It means take balanced risks, suit up, and go in to where you intend to accomplish great things. People who are apathetic in life tend to end with the first “a” removed from “apathetic.” These are challenging times. Inform yourself, inform your practice, inform your clients. Make your daily agenda include another step to defeat what you fear. Second, I want you to join your local bar association, and a specialty bar association. If you’ve already done that, good for you. Next, you should help that group accomplish more, better, move farther ahead. If you do become active in your local/specialty bar association, next learn what the goals of the group are — do what you can to further those goals, to refine them, to see them through to completion. Third, remember the one membership which is not optional to you is belonging to the Virginia State Bar. But that doesn’t mean you get to sit on the curb while it goes by you either. Find out about section memberships that will enhance your practice and join them. You will undoubtedly learn more about your area of legal practice and your knowledge will help every client, current and future, that you are fortunate enough to have. If you do these three things this year, we who are on the Executive Committee of the Conference of Local and Specialty Bar Associations will work hard to see that you continue to get CLE options in your area, and that your bar association leaders have a terrific resource like the Bar Leaders Institute to attend. It’s not a secret — every year the Susan H. Godman Rager is a sole practitioner in the CLSBA presents a Bar Leaders Institute to which your association Northern Neck at Coles Point on the Potomac River. For 30 years, she has focused on criminal defense. A member leadership is invited and encouraged to attend. Why? Because you can of the Virginia, Washington DC, and Maryland bars, she is get a head start on managing the awesome responsibility of heading past president of the Northern Neck Bar Association, past up your local or specialty bar associations. It will be available again in president of the Fifteenth Judicial Circuit Bar Association, and is current chair of the Executive Committee of the March. VSB’s Conference of Local and Specialty Bar Associations. In the meantime, do not be deterred by teleconferences and video She received her J.D. from the University of Richmond, conferencing. We got through law school, remember? We go to court and studied at Emmanuel College at Cambridge University, England. Undergrad studies were at Virginia Commonwealth and advocate for others, remember? This new form of conferencing University and Averett College. She is serving as voluntary and meeting should not deter you from participating nor from moving counsel at the national level for several non-profit charitable forward. That said, tally ho! organizations.

www.vsb.org THE CLSBA ISSUE | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 15 CLSBA Leaders Share Their Diverse Experiences by Charles M. Lollar Sr, past chair

he Executive Committee of the VSB Conference of Local and Specialty Bar Associations is composed Tof appointed leaders of bar associations around the Commonwealth. The conference’s constitution aspires to include geographically diverse attorneys. In the last decade, the conference leadership has expanded beyond geographic diversity, mirroring also the age, gender, racial, ethnic, and cultural diversity of the membership. Members with diverse backgrounds work together to further the conference goal of building lines of communication between the State Bar and the local and specialty bars on issues affecting the legal profession and to disseminate information about the Bar’s activities and policies. As bias and prejudice often dominate our daily news, this association might benefit some sharing of personal professional perspectives. Three writers were asked to share their stories of personal challenges as minorities in the profession. They were asked to reflect on change which might have occurred in the timeline of their legal career. Our goal is to listen and in turn gain empathic understanding. Bias Charles M. “Chuck” Lollar Sr. is past chair of CLSBA and has been involved and prejudice is learned. It does not fit in a logical world. in bar activities at various levels for over But to deny it exists is to deny it can be eliminated through forty-three years. He has a specialty intellectual thought. We all can learn to be more tolerant of practice in eminent domain and property rights in Virginia, North Carolina, and each other’s differences as we work together to improve our West Virginia, with his son Chip and profession. We hope this article provides perspectives and daughter Christina. He has offices in that it may stimulate inter-professional discourse. Norfolk and Raleigh, NC. Bar Election Results Local Government Attorneys of Virginia Lola Rodriguez Perkins, President Michelle Renee Robl, Vice President Lesa Joyce Yeatts, Secretary Mark Conrad Popovich, Treasurer Virginia Association of Defense Attorneys Melissa Hogue Katz, President Tate Custer Love, President-elect Julie Smith Palmer, Secretary Jason Guy Moyers, Treasurer

16 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | THE CLSBA ISSUE www.vsb.org Perspective of a Female Attorney by Lindsey A. Strachan

s a millennial female attorney, my initial foray into the That I am unmarried and without children cannot be legal profession and my experience practicing law in overlooked, either. I have no doubt these variables will inject ARichmond in the subsequent eight years is largely a new challenges to my career path and work-life balance. testament to those barrier-breaking, glass ceiling-shattering But most concerning to me are the statistics regarding more female attorneys before me. My law school class was evenly experienced female attorneys than myself, which show split between male and female students; I’ve witnessed my that women make up 45 percent to 50 percent of entering peers—both male and female—advance in our careers at law firm associates, while fewer than 20 percent of equity similar rates and on similar trajectories; and in my time at partners in private practice (as of 2018) are female.1 Worse, both big-law and smaller law firms, I’ve worked with male The American Lawyer predicted that gender parity in terms and female partners alike. of equity partners will not be achieved until 2181.2 The I’m now in an office with four female attorneys and only reasons behind these figures are likely numerous, but we can one male attorney, and I’m working towards making partner. all agree these figures underscore the need for continued I’ve enjoyed the mentorship of multiple female attorneys, change and progress. and I am now mentoring younger female attorneys. In fact, At the end of the day, I can’t deny that that there I rarely consider my gender a diversifying characteristic are real biases and challenges all female attorneys within the legal profession, and I’m fortunate to have had deal with—consciously or unconsciously. But I also can’t few, if any, barriers to entry or hurdles to advancement in my deny that we’ve made real progress, and I’m hopeful for chosen profession. continued change moving forward. My experience to date That being said, it would be naïve to pretend as is dramatically improved from that of female attorneys 50 if we’ve reached gender parity in the profession. years ago—take Ruth Bader Ginsburg’s early experiences, Preparing this article has forced me to reflect on certain, for example—and I can track noticeable differences just uncomfortable situations in my career that I can’t help between my first couple of years practicing and today. With but feel would have happened differently if I were male. movements like #MeToo, an increased focus on gender For example, I’ve received unwanted advances from male equality in all workplaces, and even opportunities like colleagues on attorney retreats—including once in the this article, the narrative is shifting and workplaces are presence of a judge; I’ve had a client, unprompted and committing to be better and do better. As a management- without any knowledge of my personal life, offer to set me side employment attorney, I work with employers every day up with his male friends; I’ve received emails from a male to create and implement policies, practices, and trainings opposing counsel that are noticeably more condescending that promote and encourage inclusivity and equality in the and insulting than his emails to my male boss, a fact my workplace. I’ve seen firsthand the strides being made, and male boss recognized; and I’ve had a male opposing counsel I’m proud to be a member of organizations like the Virginia comment on my appearance in his closing argument at trial. State Bar and the Executive Committee of the Conference of As a female litigator, I sometimes struggle with navigating Local and Specialty Bar Associations, that actively promote the line between perceived female passivity and more and value diversity and inclusion. negative stereotypes around female aggressiveness. Within the office, I’ve hesitated to volunteer for Endnotes 1 See NALP Bulletin, April 2019, https://www.nalp.org/0419research. more traditionally administrative tasks— 2 The “Special Report: Big Law is Failing Women,” The American Lawyer, May 28, 2015 like organizing a firm outing, collecting money for a colleague’s baby shower, etc.—for fear of typecasting myself.

Lindsey A. Strachan is a senior associate in IslerDare P.C.’s Richmond office. Her practice focuses on representing employers in state and federal court, and advising clients on a variety of labor and employment matters, including those arising under Title VII, ADEA, ADA, FMLA, FLSA, and state wage and hour laws. Strachan also has experience in complex litigation and class action litigation matters. She is a Richmond native and an active member of the Richmond community.

THE CLSBA ISSUE | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 17 Perspective of a Hispanic Attorney by Luis A. Perez

feel fortunate to have been born on a small island in the Caribbean called Puerto Rico. I am privileged in having been raised in the best of two worlds. While II was brought up in a predominantly Hispanic culture, we are also American citizens sharing the same values, ideas and principles shared by all American citizens. While Spanish is the main language of the island, I grew up in a bicultural, bilingual society, which defined my personality, experiences, and views. In 1992, I came to the mainland to work in the U.S. House of Representatives. For the first time I learned about the concept of being a minority, a concept I was not aware of since in Puerto Rico Hispanic is not a minority. Also, I experienced for the first time the concept of bias, many times unconscious. I remember on several occasions being mistaken as a server at restaurants or an attendant in a store, and times when people questioned my legal status in the U.S. Twice in my career, I had judges ask for my Bar card shortly after I introduced myself. Even while applying for judgeships, I remember having my temperament questioned because of the hot-blooded stereotype of Hispanic males. I also had experiences during this process where I was doubted in my ability to impartially judge non- Hispanics over Hispanics. Despite these hurdles and the reality I faced, I realized that the best way to succeed and excel was not by complaining but instead by getting involved, networking and assuming positions of leadership. I decided to put myself in a position to change some of the preconceptions and ideas that influence people’s biases, leading by example. Through the years, I have been blessed by having met great people who have gotten to know me for who I am, people who were not prejudiced by misconceptions about where I come from, people who valued the concept of diversity and welcomed the receiving of different views and perspectives from people originating from different backgrounds. Thanks to my active participation and involvement in community projects, charitable causes, and local and state bar organizations, I have met a great number of people and have made a lot of connections with people who know me for who I am, value my capabilities and appreciate what I can offer. They have encouraged and promoted me to assume many positions of leadership within the Fairfax Bar and the Virginia State Bar, positions that have enabled me to influence policy decision-making and to change mistaken impressions and biases.

Luis A. Perez maintains an active litigation practice focus in the areas of domestic relations, criminal, and traffic law. For the past 30 years, he has been actively involved with the Virginia State Bar, the Fairfax Bar, and the community. He is past president of the Hispanic Bar Association, the Fairfax Bar Law Foundation, and the Fairfax Bar Association, past chair of the Board of Governors of the Virginia State Bar Diversity Conference, and is a member of the Virginia State Bar Council and an Executive Committee member of the Virginia State Bar Conference of Local and Specialty Bar Associations. Perez has received many awards including the James Keith Public Service award in 2007, the Chief Justice Harry L. Carrico Pro Bono award in 2009, and the Leader in the Law award by Virginia Lawyers Weekly in 2011.

18 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | THE CLSBA ISSUE www.vsb.org Perspective Reflections of a Hispanic Attorney of an Attorney of Color by Luis A. Perez by Wayne Marcus Scriven

am an African American attorney who has been a legal aid lawyer. member of the Virginia State Bar for more than 40 I remember that in Iyears. My experience has been a varied and mixed bag of one of my first civil case jury conscious or intentional bias, unconscious bias, and implicit trials in private practice, when bias towards me and other African American attorneys there were still 12 persons on that I have spoken to and interacted with over the years. the jury, we ended up with an all I will describe just a few experiences which I hope will Caucasian (or white) trial jury. generate a better understanding. Before I was 30 years old, Numerous local attorneys came I experienced the intentional bias attitude of a circuit court to sit in the courtroom during judge. The judge failed to call me “Mr. Scriven” once I stood the trial, partially because the word up for the docket call of my client’s case in a room of about was out that a Black attorney was in 100 Caucasian lawyers. To me, it appeared that initially town and partially because my opposing he thought I was a white lawyer because of my last name. Caucasian counsel was reportedly a son of a powerful state I was the only attorney of color in the courtroom, which senator. appeared to then affect the judge’s demeanor with me once The next morning of the second day of trial, the he recognized my ethnicity. He called the other attorneys by senator’s son approached me smiling widely as I entered Mr., but he referred to me as Scriven, only. the courtroom and stated that the judge wanted to speak Several years ago, a deputy sheriff conducting to us in his chambers. I then felt pressured by the court courthouse security screening of my large trial briefcase to encourage my client to settle before pursuing a verdict, asked me whether I was the court reporter for the only although the judge admitted that the case looked very jury trial that was taking place that day. When I told favorable to my client. The judge appeared pressured to him that I was the attorney for one of the parties for the prevent a young African American attorney from receiving trial, he had a look of shock on his face. He informed his a favorable all-white jury verdict against the senator’s deputy colleagues around him that I was an attorney. His privileged son and their law office. astonishment appeared to be a case of unconscious bias or Because of an increased settlement offer, my client implicit bias. As the years moved on, there was a noticeable decided to settle the case. I was willing to proceed to a jury positive change in the presumption of court personnel verdict. As we thanked the jurors leaving the courtroom for that I was anything other than an attorney when visiting their service, several on the jury stated that they hoped we various court houses. Some of these changes in attitude got a good settlement because my client’s case was strong, about me being an attorney are likely due to a significant and all the jurors were leaning in our favor. Of course, as increase in African American attorneys, both male and a result of settling the case, I did not get the publicity that female, since my entry into the profession decades ago. would have grown my reputation as a trial attorney with I wish the changes were due more to enlightenment and a jury verdict for my client against this perceived worthy understanding among members of the legal community. opponent. As a community-minded and service-oriented attorney, Attorney of Color continued on page 55 obvious ethnic bias was a challenge to my determination to pursue a private law practice career. I was one of four lawyers of color in the surrounding counties where I began my law practice. While some accepted me as an equal colleague of the legal profession, most white lawyers and judges appeared to view me as a novelty that somehow slipped through the cracks to become a part of their profession. Only after many came to know me by Wayne Marcus Scriven has his principal law office being my opposing counselor or judges presiding at my in Virginia Beach. Scriven is an active member of hearings and trials did they set aside some of their bias and the Virginia State Bar, the Washington, D.C. Bar, the appear to accept me on the merits of my competence and South Carolina State Bar, the California State Bar, the United States Supreme Court Bar, the Federal Circuit qualifications as a colleague. Court of Appeals, and the Maryland Federal Courts. Although I received positive experiences as an attorney He is a member of the American Bar Association, with the local legal services program, the experiences of the South Hampton Roads Bar Association, the Washington Bar Association, and the Northern being in private practice were quite different from being a Virginia Black Attorneys’ Association.

www.vsb.org THE CLSBA ISSUE | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 19 You are More of a Bar Leader Than You Think: Join Us at the Bar Leaders Institute by Christine H. Mougin-Boal

he Bar Leaders Institute provides a treasury of resources for any attorney involved in any Tlevel of local or state bar association work. However, many attorneys who willingly devote their time to bar association work don’t realize that the Bar Leaders Institute has been designed specifically to serve their needs and those of their bar associations. You may have seen the Bar Leaders Institute advertised in Virginia Lawyer magazine and thought “I am not a bar leader” and flipped past the page without further thought. Or perhaps you are a local or specialty bar association president or executive committee member and you have been invited to attend, but the thought of taking a full day out of the office gives you pause because you aren’t sure of what the program entails. And many attorneys, even those who are involved in local or specialty bar association work, often do not know about this excellent program provided annually and free of charge by the VSB through the Conference of Local and Specialty Bar Associations (CLSBA). The Bar Leaders Institute (commonly known Supreme Court of Virginia Justices William C. Mims, Cleo E. Powell, and Stephen R. McCullough with as the BLI) is a one-day program which presents VSB Immediate Past President Marni E. Byrum at the Bar Leaders Institute in 2019. concrete advice and information that all current bar leaders may immediately take back to their throughout the day. Past recent speakers have included bar associations and use during their term in office. The The Honorable Roger L. Gregory, Chief Judge of the U.S. BLI provides inspiration and a great foundation for attor- Court of Appeals for the Fourth Circuit, and Robert J. neys who are in the pipeline to becoming bar leaders. It is Grey Jr., past President of the ABA and current President also an excellent resource for attorneys who may wish to of the Leadership Council on Legal Diversity and a mem- become more involved in bar association work but do not ber of the Board of the Legal Services Corporation. believe they have the requisite knowledge or background The BLI is often honored by the participation of at to do so. least one, if not more, Virginia Supreme Court Justices. The CLSBA hosts the BLI, which has been held annu- In 2019, the BLI was proud to present an interactive panel ally since 1986. Currently, the BLI takes place in March in of three Justices of the Supreme Court that allowed attend- Richmond and provides bar leaders with valuable infor- ees to engage directly with Justice Mims, Justice Powell mation to help them plan their bar years and to advise and Justice McCullough, who each spoke about what bar on numerous topics associated with running service had done for them. a local bar association such as organiz- There is a particular focus on ing programs for their members, discussing “nuts and bolts” issues addressing internal management relevant to bar associations, such policies and procedures, and as improving and maintaining recognizing ethical issues membership, communicat- that may arise. ing with bar members and The BLI incor- the community, main- porates a variety of taining a social media speakers and panels presence, creating

20 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | THE CLSBA ISSUE www.vsb.org THE CLSBA ISSUE

bylaws and protocols, planning and presenting CLEs, and bar associations. The BLI traditionally ends with an ethics tax status and rules applicable to bar associations. presentation that provides the attendees one free hour of The BLI also highlights bar associations from across ethics CLE credit. the state who have been recent recipients of the CLSBA’s The Bar Leaders Institute program is always guaran- awards of merit. Representatives of these bar associations teed to be an engaging, inspiring and information-filled present in detail their award-winning programs and day for attendees. The information provided is priceless explain what each respective bar association did in order for bar leaders. To derive the greatest benefit from this to prepare and present these programs. The information program, the CLSBA suggests that attendees sign up shared during this presentation is often used as a spring- before their terms of service begin so that they can board by attendees to implement similar programs in their fully use and implement the information during their bar associations across the Commonwealth. tenure as a bar leader. Other breakout sessions have included a dual In recent years, the Bar Leaders Institute has taken track presentation schedule so attendees place at the Lewis Ginter Botanical Garden can choose from a greater number of in Richmond, usually in March. topics and interact more directly However, with the presence of with presenters, allowing for the COVID-19 virus, the an exchange of “hands-on” CLSBA is planning a vid- information. During eo-based platform for these sessions, at- the BLI in March of tendees can discuss 2021. Regardless of recurring issues what this pandem- found in bar Each and every one ic has thrown at associations. us, the BLI will Questions such continue to as “Our bar is invited to attend and provide vital in- association is formation and losing mem- participate in the BLI so they inspiration for bers, what can all current and we do?” or “Our upcoming bar website is a can grow and expand in their leaders and bar mess — how do representatives. we get someone roles as bar leaders. So mark your to manage it and calendars to re- keep it up to date?” member to sign up Other questions for the BLI in March discussed might be, “As of 2021 where the bar president, how do I CLSBA looks forward to improve the communication providing all of you another between the attorneys and the excellent program. bench?” and “As a bar president what can and should we do when a member of the community comes to us with a complaint about a lawyer or seeks assistance on a commu- nity issue?” The break-out sessions and working lunch program also provide valuable networking opportu- nities for attendees to develop and maintain contacts with other bar leaders from across the state. Many bar associations are experiencing an increase in the membership numbers and need resources on how to Christine H. Mougin-Boal is a partner at the Laurel Brigade Law evolve from a small bar to a medium-sized bar association Group in Leesburg and practices family law. She has been a member or from a medium-sized bar to a larger bar association. of the CLSBA Executive Committee since 2017 and the chair of the The BLI addresses such issues by bar leaders and executive BLI Planning Subcommittee since 2019. She has served as president of The Loudoun County Bar Association, the Loudoun Chapter of the directors from different sized bar associations to share Virginia Women Attorneys Association, and the state-level Virginia their experience and insight regarding growing pains of Women Attorneys Association. www.vsb.org THE CLSBA ISSUE | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 21 Why Every Bar Association Should Have a CLSBA Representative: Why Not You? by Lewis A. Martin III

he purpose of this article is to describe the role of a and told him we should attend, which we did on the first CLSBA conference representative; to recommend that Friday in March. Tthose of you who are currently serving as local bar When we arrived at the registration table, the first leaders designate a member of your association to serve thing I observed was Paulette with a variety of publications as representative; and to encourage the remaining tens of and handouts for distribution to the attendees. I took one thousands of you to volunteer to serve as such or to accept of each, while thinking to myself how nice it would have the assignment, if your local bar leadership asks you to been to have had this information in the spring of 2015, a serve in that position. few months before my year as bar president started. On July 1, 2015, I began my year as president of the One of the reasons I didn’t have the information was Charlottesville-Albemarle Bar Association (CABA). that, although CABA had in the past had conference Thirty-two years earlier, after completing a year as chair of representatives serve on the executive committee of CABA’s Young Lawyers Section, I promised myself I was the CLBA, at least two of whom had been chairs of that never going to serve on another CABA bar committee. But committee, it had been at least a decade, which may as in a moment of weakness in April 2014, when contacted well have been a lifetime, since CABA had designated by CABA’s immediate past president, who was chair of a CLBA representative. So, nobody on CABA’s board CABA’s nominating committee, I agreed to serve on was familiar with what the CLBA had to offer local bar CABA’s board of directors as president-elect. associations. During the summer of 2015, when not much was happening in Jefferson’s country, I received an email The Conference Representative from Paulette Davidson, the VSB’s Local and Specialty The representative serves a three-year term, as a conduit Bar Relations Coordinator, without whom the Executive of information between the VSB and your association. The Committee of the Conference of Local and Specialty representative does the following: Bar Associations (CLSBA) would be hopelessly adrift, • attends meetings of the executive committee or board informing me that, as CABA president, I needed to of your local or specialty bar association designate a representative to what was then known as • develops and maintains communication with the the Conference of Local Bar Associations (CLBA), and if member or members of VSB Council who represent CABA didn’t have one, I would be designated by default. your association I had never heard of the CLBA, but I had enough sense • develops and maintains communication with the to know that the last thing I needed that year was another member of the CLSBA Executive Committee to duty, especially connected with VSB activity in Richmond. whom your bar association is assigned So, I fired off an E-Blast to the 462 members of CABA, • ensures that information about CLSBA programs, soliciting a volunteer. I was pleased when one member projects and opportunities are communicated to your volunteered and then not surprised a couple of months bar association’s leadership and membership later, when that person deserted, which meant the job • is a catalyst for bench/bar projects in your community was mine. • encourages your bar association to nominate itself While I forwarded any informational emails from for the CLSBA’s Bar Association of the Year Award, to Paulette about CLBA activities to the CABA nominate deserving bar leaders from your association membership, I didn’t pay much attention to any for the Bar Leader of the Year Award and to nominate of them, until early in 2016, when I received bar projects run by your association for an annual the CLBA’s notice of the annual Awards of Merit Bar Leaders Institute (BLI) to • attends the annual BLI which usually occurs the first be held at the Lewis Ginter Friday in March, and for the past seven years has been Botanical Garden. The held at the Lewis Ginter Botanical Garden notice stated that the BLI • attends the annual meeting of the CLSBA to vote for included free breakfast, the CLSBA Executive Committee, learn of projects lunch, and one hour of CLE run by local and specialty bar associations which ethics credit, so I contacted have won awards of merit and applaud those who CABA’s president-elect have been selected as bar leaders of the year and the

22 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | THE CLSBA ISSUE www.vsb.org association which has been selected as Bar Association of of the Year. These awards the Year. honor outstanding dedication and achievement by a How a CLSBA Conference Representative Benefits Your Bar deserving bar leader from each Association category of association with an Designating a representative for your bar association helps your emphasis on service during the past association better serve its membership and the community. ten years. Having a member of your bar association, other than the B. Bar Association of the Year. president, serve as representative, relieves your president This award has been given annually of having to serve, which means the president can focus on since 2014. Once a bar association other matters requiring presidential attention and ensures that wins the award it is thereafter forever you have a member of your association who can concentrate ineligible to win again. This means your on informing your membership of what the CLSBA has to bar association is guaranteed to be selected, if you just offer your association, your association’s leadership, and your keep nominating it until it wins; and every year your individual members. association is nominated, the odds of winning improve. Scanning the CLSBA’s website will introduce you to C. Bar Project Awards of Merit. If your bar association the annual awards program administered by the executive has run any project, whether to benefit the members of committee, the BLI, the “So You’re 18” project, and other your association or the community you serve, nominate the information about the CLSBA. A good representative can project for an Award of Merit. The CLSBA website provides motivate your membership to become involved with the information about projects run successfully by other following, especially submitting nominations for awards, which associations, which your association may be able to run are presented at the annual meeting of the CLSBA during the successfully. Projects submitted by associations which receive VSB’s annual meeting at Virginia Beach in June. merit awards will be added to the database and will be available for other bar associations to peruse and determine whether Annual Awards Administered by the CLSBA they can run the project to benefit their membership or their All CLSBA awards and entry instructions can be found at communities. bit.ly/CLSBA. Nominations are due by May 5, 2021. The CLSBA selects the following for recognition at the annual meeting: A representative can (i) ensure that everyone who chairs a A. Local Bar Leader of the Year and Specialty Bar Leader project for your bar association enters the project for a merit award and (ii) work with a committee to nominate your association for Bar Association of the Year and one of your hardworking bar leaders for Bar Leader of the Year and submit those entries by the spring deadline.

So You’re 18 Project The CLSBA has prepared a booklet on legal topics important for all Virginians as they reach the age of majority. It is updated annually and available for distribution to high schools and organizations in your community. Copies are available from the VSB. It is an easy project to run, and every local bar association should provide these booklets to the appropriate residents of your community. Your representative can work with a committee from your association to coordinate receipt and dissemination of the booklets and direct you to the website: soyour18.com.

The Annual Meeting of the CLSBA All representatives should plan on attending the CLSBA’s breakfast during the VSB’s annual The CLSBA Award of Merit presentation at the Annual Meeting in 2019. meeting at Virginia Beach, where the CLSBA awards are distributed. The dress code is www.vsb.org THE CLSBA ISSUE | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 23 These awards honor Serving on the CLSBA Executive Committee outstanding dedication If you are or have been a bar association president or representative and you are inspired to serve a three-year term on the CLSBA Executive Committee, contact Paulette and and achievement by a let her know of your interest. Every year a few slots on the Executive Committee come open. There are 14 members of the deserving bar leader beach Executive Committee, and Paulette does a good job of ensuring casual, we have a diverse group with geographical representation and a throughout the Commonwealth. At the end of the annual Hawaiian meeting at Virginia Beach in 2019, as the illustrious past shirt is chairpersons of the CLSBA Executive Committee were filing mandatory out of the room bedecked in their colorful Hawaiian shirts, attire. Anyone the legendary Ed Weiner exclaimed, “Of all the committees in who appears in the VSB, this is the most fun one on which to serve!” Having a coat and tie, suit completed one three-year term and now into the second year of or women’s formal wear my second term, I heartily concur. will be held in contempt. The breakfast buffet is free and all you can eat, and the coffee, which Conclusion is allegedly from Starbucks, has been exceptionally good each If each of the approximately 122 local and specialty bar of the past three years. Except for 2020, the meeting in recent associations that belong to the CLSBA designate a conference years has taken place at 7:30 a.m. in the Sheraton Virginia representative as a liaison between that bar association and the Beach Oceanfront Hotel. Details will be in the VSB’s notice of executive committee of the CLSBA to communicate about the the 2021 Annual Meeting. matters described in this article, the benefits each association provides its leaders, its members and the communities it serves Communication and Coordination with the CLSBA’s will be significantly enhanced. Executive Committee If your bar association does something that you consider unique or that benefits your members or the community, your representative should email that information to Paulette Davidson, so that the CLSBA’s Executive Committee can consider sharing it with other bar associations. It can be something as simple as a recurring agenda item at your association’s regular meetings, which you believe may be unique Lewis A. Martin III is a Triple Hoo and has practiced law for 41 years to your association, or a new project your association has in Charlottesville, where seven generations of his family have lived. He was president of the Charlottesville-Albemarle Bar Association and is the developed and run for the community you serve. immediate past chair of the Executive Committee of the CLSBA. Award Nomination Deadlines 2021

Awards of Merit Local Bar Leader of the Year May 5, Specialty Bar Leader of the Year 2021 Bar Association of the Year Information on qualifications application deadlines, past recipients, and instructions to submit a nomination can be found at bit.ly/CLSBA.

24 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | THE CLSBA ISSUE www.vsb.org Virginia State Bar Publications The Virginia State Bar publishes resources on law-related issues for Virginia’s lawyers and Virginia’s citizens on its website at www.vsb.org/site/publications/publications-home. With this form, you can order printed copies of those resources, where available. Please note that some are available in bulk quantities, and others only in single copies.

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orderform.indd 1 11/18/20 9:20 AM Talking to Two Million People at a Time: How Lawyers Can Build Business with Social Media by Jennifer Jessie

I’ve been a social media practi- referrals and networking to help grow their tioner for as long as I’ve been a business. Word-of-mouth is still a reliable source of new business. But in the chaos of lawyer; I created my own system, COVID-19, in-person networking events ignoring the “rules” we have all are limited and feel like a relic of the past. seen. My tweets show up on one to two In addition, getting potential clients million people’s Twitter feeds each month, to sit in front of a screen for a webinar or close one or two clients from the platform networking event after a day of sitting in each week, and often have reporters reach front of their computer all day for work is out to me as a source for stories, which challenging. increases my visibility. Yet, there are still opportunities for In the midst of this pandemic, social lawyers to network to grow their business media platforms are more important than in this new, ever-changing climate. Some of ever for client building and networking. those opportunities can be found on social When I think of in-person legal events, media. it feels like a distant memory. And what I Many lawyers use social media to con- remember about networking events was nect with friends and family. Some forget feeling the weight of anxiety as I went to that social media can also be used to build the event, feeling alone in the first couple a network and find profitable opportunities. of minutes, forcing myself to talk to people, Others realize the opportunity is there, but eventually enjoying myself, then leaving don’t know how to utilize social media in a wondering, “Why don’t I do this more way to generate new business. often?” In this article, I will present simple strat- I had big plans to network more in egies you can execute right now to create 2020. I am sure many of you reading this additional opportunities on social media. I had similar aspirations. 2020 had different will provide tips on how to build your own plans for us all. social media strategies with ideas you can Most lawyers rely on word-of-mouth implement immediately.

26 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST

Find a Social Media Home Think of every bio and headline for so- The biggest mistake most lawyers make when cial media in the same way. You aren’t just an they start building their brand on social me- attorney, who do you help and how do you help dia, is that they attempt to do it all. They join them? Discuss the value you bring to the table. Instagram, Pinterest, Facebook, Twitter and Use your biography to give a short eleva- start posting sporadically or worse, posting the tor pitch. Add details to each experience in same thing multiple times, appearing repeti- LinkedIn. If you can share a link in your bio, tive (annoying!) to people following them on don’t just send people to your homepage. multiple sites. Send them to the most valuable piece of Remember, depth not width is the goal. Pick content, a blog post or a video. a primary platform as your home base, post Here is a formula I use as a platform when there when you have value to share, and if you creating a headline, bio, or even incorporate get overwhelmed on other social media plat- into my experience for my LinkedIn profile to forms, scale back and focus on your primary showcase my value. platform. I help [insert information about ideal client] How do you pick a primary platform? by [information about the problem you solve], Decide what you want to say and how you want which leads to [outcome your ideal client to say it. desires]. Here are some good guidelines: Example: [Attorney helping small business • Twitter is great for back-and-forth owners] [by creating loan opportunities] [to dialogues that can include short videos, protect businesses post COVID-19.] photos, gifs. Make sure you put an alert on your calendar • Facebook is great for longer dialogues that to update your profile, bios, and any other social will produce comments as well as longer media material every six months to ensure it videos and live videos. stays fresh, up to date, and is providing value to • LinkedIn is for those who want to keep the ideal client you hope to attract. a professional tone. LinkedIn just intro- duced stories — videos or photos that dis- Don’t Just Show Up, Have a Meaningful appear after 24 hours — and are planning Conversation to roll out live video to all users soon. If you start reading social media best practices • TikTok is not just for younger people blogs or books, they will tell you there are a or dancing. Short, educational videos lot of rules: For example, “Use 5 hashtags, no perform well on the platform. Example, “5 10 hashtags minimum. Post only at 11:59 a.m. things to know if you are pulled over.” and 5:32 p.m. Post at least 10 times a day. The • Instagram is also great for short educa- Facebook algorithm loves [fill in the blank], it tional videos as well as infographics or hates [fill in the blank]. This guarantees you will graphics to educate potential clients on be seen.” legal topics. Example, “Things to consider My rule is simple: if I find something inter- when determining if a worker is an em- esting and valuable, others might also. I post ployee or a contractor.” It is also great for relevant news any time of day and if it is topical informal “day in the life” photos or videos enough, people eventually find it. In fact, one of that give potential clients a sense of your my most recent clients found me because of a personality. post I posted over a year ago. Pick one primary platform. Get into a How do you find something interesting to rhythm. Then, add another once you have mas- talk about? tered the first. • What is the one thing you are known for talking about? Let Clients Know Your Value in Your Profile • What is the area you love talking about? Imagine you are in front of an ideal client hop- • What case law or articles do you find ing to close them. They say, “What do you do?” interesting? Would you respond with “attorney at law [insert • What are questions your clients always ask name of practice]?” You might start there, but you that you feel you can answer online hopefully you would expand on this idea during without violating ethical rules? the conversation.

www.vsb.org GENERAL INTEREST | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 27 GENERAL INTEREST

These are all possible ideas for posts on • Be aware of what is happening in your social media. industry Did you read a great article? Post the article, • Engage in conversations relevant to you, tell others why you found it to be valuable, tag presenting additional content opportuni- the author and start a conversation with them ties about it. • Learn more about what is resonating and Did you have a rowdy conversation with what isn’t making you more effective in your fellow lawyers during a meeting or at your communication court? Continue the conversation online. My • Discover new audiences friend Anna Ivey once published a great article • Build meaningful connections presenting that was a reflection based on her notes from a new opportunities to expand. meeting. Another unexpected benefit I found to par- allel partners is that they helped me grow my Remember, depth not width is the goal. audience and ensure my content continues to be seen. My parallel partners tend to comment Working on an article or presentation? Do on my posts, engage with me online, and have what my friend Akil Bello does: Publish some back-and-forth dialogues. That interaction of the slides in advance to generate interest then gets seen by their followers. Many of their or get feedback. If you can’t fit a slide into a followers become my followers after they see presentation, make that your next social media the value I bring to the table. post. I also find that my parallel partners ensure I When creating a post, think to yourself, show up to the platform regularly. Sometimes I “How can I provide value while sharing my don’t want to get on social media, but I do want expertise?” You do not need fancy graphics or to see what my parallel partners are up to or see cool videos when you start or even after you what they tagged me in so I can respond. Social become established. Keep it simple, be true to media, in these instances, is not a chore. I am yourself, provide value and eventually people excited to return to continue conversations and will find you. move the dialogue forward, which is valuable to my ideal client. Find Parallel Partners Who are your “competitors?” Start networking Familiarize Yourself with Ethical Guidelines with them. Think of them as parallel partners Recently, I have seen a lot of ads by marketing rather than competitors. companies who want to market specifically to Provide value to your parallel partners lawyers. Many of them agree to work on com- without thinking “What’s in it for me?” mission under the “We don’t get paid, unless Share any content that you think your ideal you get paid” rule. In addition, they advise client would find valuable. Recognize by lawyers to record automated general messages doing this that you are building connections that can be used for “any scenario.” When I while providing value to your ideal client. ask, “Are you aware of the ethical guidelines for This makes your ideal client interested in re- lawyers?” many respond with, “What ethical turning to your page/profile in the future. guidelines?” When I ask the same question to If you are unsure who potential parallel lawyers, I get the same response. partners are, search using keywords or hashtags Many lawyers are unaware there are ethical using any social media search function. See rules that exist to cover advertising. There are who keeps popping up, follow them. See who also ethical rules that cover fraud and misrep- they follow and follow those who you think resentations as well as fee-splitting for referral will provide you or your ideal clients value. purposes. One of the best ways to learn about Another great way to identify parallel ethical rules covering the solicitation of clients partners: read books, read magazines such as is to go to the Virginia State Bar website and this one, read articles, watch YouTube videos, examine Rule 7.3. listen to podcasts. See who keeps showing up, Solicitation of clients is not the only rule then find them online. Talk to them about their implicated when you start making public state- work and tell them what you found valuable. ments online. You may find the rules of confi- Finding parallel partners allows you to: dentiality to be important as you discuss cases.

28 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST

As you construct your social media profiles, bios, and even headlines, examine ethical rules NETWORK of communication. Are you publishing client stories to generate word of mouth? Consider WITH THE the impact on privilege, confidentiality, and then also make sure you examine provisions VIRGINIA of the ethical rules that prevent lawyers from creating unjustified expectations or misleading STATE BAR the public. When sharing legal advice, make sure you have the disclaimers the ethical rules require. Also, examine the ethics decisions. When researching for this project, I learned quite a @Vastatebar bit by reviewing the rules and ethics opinions. The VSB ethics decision page has two lists, one Legal Ethics Opinions (LEO) indexed by rules and another, courtesy of Tom Spahn, by topic. Explore those, not just in the area of marketing. Take some time to familiarize yourself with /virginiastatebar these rules and ethics decisions. For starters, always be cognizant of the jurisdictions where you are eligible to practice. Secondly, lawyers should be very careful not to give legal advice on social media to specific situations which is distinguishable from legal Virginia State Bar information, which is more general. Lawyers who interact casually with prospective clients need to ensure that they don’t inadvertently establish attorney-client relationships. Thirdly, lawyers should take care with their parallel partners who are other lawyers to make @virginiastatebar it clear to the public that they are not associat- ed in the same firm when they are not. When in doubt, don’t assume, ask a ques- tion. The VSB website has a place where you can submit questions for review. www.vsb.org/site/regulation/ethics. The VSB also has an ethics hotline (804) 775-0564 where lawyers can seek free, informal advice on ethi- cal questions.

Networking is not over, it’s just moved online All networking is not over just because of COVID-19. Lawyers still have the ability to adapt and find new connections, opportunities, and clients via social media. While COVID-19 has limited what we can do physically for the time being, it has also increased our opportu- Jennifer Jessie is a licensed attorney in Virginia who helps lawyers and small business owners find clients nities to connect socially. And the best part is, on social media. While studying for the Virginia bar once COVID-19 has passed and we are able exam, she started a TV blog that eventually landed to move forward, social media networking her on the Emmy’s red-carpet. She’s been teaching profitable social media strategies for a decade. Her can continue to be a tool you deploy to grow primary platform for marketing is LinkedIn, which is your business as you network and connect in also the home for her course, Personal Branding on Social Media. person. q

www.vsb.org GENERAL INTEREST | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 29 Pro-se Prosecution in Virginia by Henry H. Perritt Jr.

Virginia law permits any private citi- to have a citizen prosecute their own mis- zen to obtain an arrest warrant when demeanor complaint.” he or she can convince the magistrate On the other hand, Jacqueline P. that probable cause exists to believe Brubaker, general district court clerk in that a crime has been committed and Franklin County, said police officers and that the subject of the arrest warrant complainants usually appear alone, unless committed it. Misdemeanor warrants the defendant is represented by coun- can be obtained without any involvement sel or unless many witnesses need to be by law-enforcement agencies or common- questioned, and she said it has worked wealth’s attorneys.1 fine for over 20 years. The Fairfax County But what happens after the defendant is Commonwealth Attorney’s website enu- arrested? merates the types of misdemeanors that the In many places in Virginia, misdemean- office will prosecute and said misdemean- ors are prosecuted not by commonwealth’s or cases not listed will be prosecuted “by attorneys, but by city or county attorneys, other means.”2 And “[t]he Virginia Beach police officers, private criminal complain- Commonwealth Attorney’s Office is not ants, or rarely, by private attorneys appoint- involved in prosecuting most misdemeanor ed as special prosecutors. offenses.”3 Practice varies considerably around Whether commonwealth’s attorneys the Commonwealth. The commonwealth’s should handle misdemeanor cases in gen- attorney prosecutes all cases in the Henrico eral district court spilled over into public General District Court, according to Chief view in Chesterfield County,4 where the Judge John K. Honey. In Wise County, the commonwealth’s attorney announced that previous commonwealth’s attorney did he would stop handling cases in General not prosecute misdemeanor cases, but the District Court and relented only after the present incumbent does. A 23rd District county board of supervisors voted to fund General District Court Judge said, “The additional prosecutor positions.5 Commonwealth appears on every matter Virginia law does not require com- prosecuted in our courts, including traffic monwealth’s attorneys to appear in misde- infractions. It would not be my preference meanor cases. When they do not appear,

30 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST significant questions arose about judicial and with prejudice, or by a motion for nolle prose- complainant roles. qui is absent in pro se prosecutions, although a Commonwealth’s attorneys are not obligated private complainant or a police officer may drop to prosecute misdemeanors. the case once an arrest warrant or summons Virginia statutory law makes it clear that a com- issues. monwealth’s attorney is not obligated to pros- Whether a judge can decline a criminal case ecute misdemeanors. “he may in his discretion, on prudential grounds is uncertain. To be sure, prosecute Class 1, 2 and 3 misdemeanors, or any judges have large discretion in handling crim- other violation, the conviction of which carries inal cases. They review nolle prosequi motions a penalty of confinement in jail, or a fine of $500 for good cause.12 They consider a wide variety or more . . . .”6 of factors in imposing sentences.13 They can suspend sentences, 14 impose terms of proba- Police officers and complainants often appear tion,15 and defer disposition. But the power of a pro se, unless municipal attorneys appear. judge to exercise prosecutorial discretion when When neither commonwealth’s attorneys nor no commonwealth’s attorney appears is uncer- municipal attorneys appear, police officers or tain.16 In the federal courts, unresolved contro- private complainants present the case pro-se. versy surrounds judicial nullification, some- Such a practice is consistent with tradition— times referred to as the judicial “prerogative of private complaints and law officers traditionally leniency.”17 The Virginia Court of Appeals said appeared before justices of the peace, with- quite plainly, in Taylor v. Commonwealth,18 that out public prosecutors. “[T]he judge usually Virginia trial judges may not exercise prosecuto- shepherds the case along and does not allow the rial discretion like a commonwealth’s attorney.19 complaining witness to act as prosecutor.”7 But then, the Virginia Supreme Court, in When a commonwealth’s attorney does not Starrs v. Commonwealth,20 reversed the Court represent the Commonwealth, the judge does of Appeals and emphasized the rule that trial not act improperly by asking questions at trial.8 judges enjoy broad discretion to defer disposi- There certainly is no problem with the tion until they make formal findings of guilt.21 county, town, or city attorney prosecuting mis- The majority did not say so explicitly, but Justice demeanor cases; 9 this simply is an allocation of McClanahan’s dissent characterized the majority responsibility among different public officers in decision as approving prudential dismissals.22 the executive branch. Deferring disposition is different from adjudicating guilt and suspending sentence. A Special prosecutors are appointed rarely. deferred disposition does not involve conviction Circuit courts have the authority to appoint of a crime.23 Some statutes authorize deferred special prosecutors,10 but they rarely do so when disposition without an adjudication of guilt commonwealth’s attorneys are not involved. “I ever occurring,24 but in Epps v. Commonwealth, have never appointed a private prosecutor and the Virginia Court of Appeals held that, absent cannot imagine the circumstances under which statutory authority, a trial judge may not vacate I would,” said one Virginia judge. “I would be a conviction at the competition of a suspended concerned about the private prosecutors’ loyalty sentence.25 being to the complainant, and not the interests The need for a screening device in police of the Commonwealth. “ officer and pro se prosecution militates in favor Private attorneys with an interest in the case of some kind of screening device, and thus are disqualified from appointment as special Starr should be interpreted to permit exercise prosecutors, and when a private attorney is of judicial discretion similar to prosecutorial appointed to assist a prosecution, the common- discretion. wealth’s attorney must remain in control of the If, for example, a commonwealth’s attorney case, under Cantrell v. Commonwealth.11 has been involved in a misdemeanor prosecu- tion and has nolle prossed the case, the judge Substitutes for declination and nolle pros certainly should be able to dismiss it on those decisions are murky. grounds alone if the complainant subsequently The possibility for prosecutorial discretion being procures an arrest warrant from a magistrate exercised through declining to bring charges and tries to prosecute the same defendant for altogether (“declination”), dismissal of charges the same crime, himself.

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The arrangement is here to stay. can handle a case in 15 minutes when a lay com- Virginia is not alone. About a third of the states do plainant would take 45; a lawyer is far more likely not use professional prosecutors in their misde- to know the caselaw, which may have rejected an meanor courts.26 argument a complainant finds perfectly reasonable The principal argument in favor of the sta- on its face.” tus quo is that public resources are insufficient Changing the system in Virginia legislatively to support an increase in the ranks of assistant would be simple. All the General Assembly need commonwealth’s attorneys that would be necessary do is to change the word “may” to the word “shall” to handle all misdemeanor prosecutions. Already, in § 1627(B). That legislative change would not, of commonwealth’s attorney offices are stretched thin course, solve the resource problem; The General because of the additional work involved in screen- Assembly also would have to appropriate more ing video recordings from police body cameras. funds for additional prosecutors—hundreds of Newly elected Fairfax County Commonwealth them, by some estimates. Attorney Steve Descano told a committee of the A middle ground exists. One possibility is for county supervisors that he needs 137 more staff to General District Court judges to use their discre- be able to handle all cases, including misdemeanors tion to call upon the commonwealth’s attorney to and traffic cases.27 involve a prosecutor in a specific case, where it Moreover, it is not entirely clear that the system seems to the judge that further adversarial develop- needs “fixing.” Individual commonwealth’s attor- ment of the record would be helpful. neys and local legislative bodies make their own Another possibility is for individual General decisions about resource allocation. District Courts to develop a corps of ad hoc There is not much point in allowing a private auxiliary prosecutors. Selection, appointment, and person to obtain an arrest warrant if there is no supervisory mechanisms could be put in place mechanism for prosecuting the arrestee, so the to ensure that the special prosecutors meet the complainant needs a pathway to court if the public requirements of the Cantrell case as to impartiality prosecutor does not provide one. and retention of commonwealth attorney control. Virginia has a long history of special masters and appointed defense counsel, and there is no reason Deferring disposition is different from that this history cannot be adapted to meet needs adjudicating guilt and suspending sentence. on the prosecutorial side. Interest in pro se prosecution may increase as more public prosecutors embrace “decriminaliza- It also is far from clear that a professional tion” and as pressure builds for criminal charges prosecutor’s presence in a typical misdemeanor against police officers. q case makes much difference. In many misdemeanor courts, prosecutors have only seconds to make dec- lination, charging and plea-bargaining decisions, having seen the file, typically no more than a police report, for the first time when the case is called. Not only that, the most inexperienced prosecutors usually are assigned to misdemeanor courts. Most prosecutors tend to go along with the police recom- mendation.28 A police officer is perfectly capable of presenting the contents of the police report to the court. The defendant is always free to have his own lawyer present, and the presence or absence of a professional prosecutor makes no difference in his Henry H. Perritt Jr. is a retired professor of law entitlement to counsel. and former Dean, Chicago-Kent College of Law, On the other hand, criminal justice reformers now living in Albemarle County. He is a member long have had police courts in their sights. They of the Bars of Virginia, Pennsylvania, District of Columbia, Maryland, Illinois, and the Supreme Court urge more professionalism, with legally-trained, of the United States. He has authored more than 100 salaried, prosecutors and judges involved. As Wise articles and 25 books on judicial procedure, dispute County Deputy Commonwealth Attorney Ken resolution, technology and law, and labor law. He is a commercial helicopter and private instrument air- Lammers said, “Even an inexperienced prosecutor plane pilot and extra class radio amateur (K9KDF).

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Endnotes 2013) (applying Yarbrough). of deferred disposition); Edwards v. Common- 1 See Henry H. Perritt Jr. “Taking the Law into 11 229 Va. 387, 392-393, 329 S.E.2d 22, 26 (1985); wealth, Record No. 1541-18-4, 2020 WL 200769 Your Own Hands,” Virginia Lawyer, June, 2020 Riner v. Commonwealth, 40 Va. App. 440, 474 at * 2 (Va. Ct. App. Jan. 14, 2020) (affirming (analyzing Va. Code § 19.2-71. 579 S.E.2d 671, 688 (2003) (applying Cantrell to denial of deferred disposition; trial court had 2 https://perma.cc/HM8M-FUP3 allow private prosecutor). no authority). Moreover, the language of Va. 3 https://perma.cc/9NAX-GRCF 12 The relationship between commonwealth attor- Code § 19.2-265.3 suggests that the court may 4 Mark Bowes, “Chesterfield Prosecutors Plan to neys and trial courts in determining good cause not exercise is discretion to nolle pros a case Stop Handling Misdemeanor Criminal Cases, is before the Virginia Supreme Court now in sua sponte, without a motion by the Common- Traffic Offenses Sarting May 1 Because of Work- In re Dehghani-Tafti, Record No. ___ (Va. filed wealth. load,” Richmond Times-Dispatch, Feb. 21, 2018, Aug. 14, 2020) (Memorandum in support of 20 287 Va. 1, 752 S.E.2d 812 (2014).  https://perma.cc/VW3Q-TRQD. (reporting on petition challenging In re: Criminal Dockets Be- 21 287 Va. at 13, 752 S.E.2d at 819. decision by Commonwealth’s attorney to stop ginning Mar. 10, 2020, Misc. No. CM20000239- 22 “[T]he issue is whether the trial court . . . erred handling misdemeanor cases because of short 00 (Cir Ct. Arlington Cty, Mar. 4, 2020)). in holding that it did not have authority to staffing and increased burden from police body 13 In Aispuro v. Commonwealth, Record No. dismiss the charges…” 287 A. at 14, 13-14, 752 camara recordings) 0269–09–1, 2010 WL 906636 (Va. Ct. App., Mar. S.E.2d at 819-820, 820 (McClanahan, J., dissent- 5 Jim McConnell, Supervisors approve funding 16, 2010), the court found nothing wrong with ing), citing Ex parte United States, 242 U.S. 27, for prosecutors, Chesterfield Observer, July 25, the judge questioning witnesses at a sentencing 41–42 (1916). 2018, https://perma.cc/ET2D-VAHL hearing. Id. at *7. 23 Randolph v. Commonwealth, 45 Va. App. 166, 6 Va. Code § 15.2-1627(B). (emphasis added). 14 Keselica v. Commonwealth, 34 Va. App. 31, 171-172, 609 S.E. 2d 84, 87-88 (2005) (distin- 7 Ken Lammers, Comment, Private Prosecutors, 35-36, 537 S.E.2d 611, 613 (2000) (affirming guishing the two procedures and holding that Virginia CrimLaw, Mar. 3, 2020, https://perma. revocation of suspended sentence because of order deferring disposition was not appealable cc/DY8A-GD9X. failure to make restitution). final order). 8 Hicks v. Commonwealth, 33 Va. App. 561, 566- 15 Va. Code § 19.2-303. 24 See Va. Code §18.2-57.3(E) (first-offense simple 568, 535 S.E.2d 678, 680-681 (2000) (citing and 16 “To say that the law on this issue is unclear is an domestic assault and battery); Va. Code §18.2- quoting Mazer v. Commonwealth, 142 Va. 649, understatement.” White v. Commonwealth, 67 251 (first-offense drug violation); Va. Code 655, 128 S.E. 514, 516 (1925)), reh’g en banc, 36 Va. App. 599, 614, 798 S.E.2d 818, 825 (2017) §19.2-303.2 (first offense misdemeanor crime Va.App. 49, 548 S.E.2d 249, (2002), aff’d, 264 (intensively reviewing Starrs and preceding against property, including larceny, trespass, Va. 48, 563 S.E.2d 674, (2002), rev’d on other cases on inherent judicial authority to defer; vandalism, injuring animals, and obstructing or grounds, sub nom. Virginia v. Hicks, 539 U.S. rejecting deferral simply because court believes damaging infrastructure) 113 (2003). None of the proceedings subsequent that conviction and sentencing is unwise, unde- 25 59 Va. App. at 76-78, 717 S.E.2d at 153-154. to the panel decision in the Court of Appeals served, or unjust). Avoiding sentencing and punishment is not dealt with the question of prosecutor represen- 17 Compare United States v. Lynch, 952 F.Supp. 167, the same as avoiding adjudication of guilt and tation in the general district court. On granting 171-172 (S.D. N.Y. 1987) (exercise of “preroga- a record of conviction. 59 Va. App. at 79, 717 rehearing en banc, the Court of Appeals “stayed” tive of leniency” to decline to convict abortion S.E.2d at 155. the “mandate” of the panel rather than vacating protestors of criminal contempt of court) with 26 See Alexandra Natapoff, “When the Police the opinion. Hicks v. Commonwealth, 34 Va. United States v. Lynch, 162 F.3d 732, 740, 747 (2d Become Prosecutors,” New York.Times, Dec. 26, App. 42, 42, 537 S.E.2d 616 (2000). Cir. 1998) (Feinberg, J., dissenting) (arguing that 3018 (op-ed piece arguing against practice in 9 See Va. Code § 15.2-1542(D) (authoring city judicial nullification is unconstitutional) and Pa- “at least 14” states in which police function as and town attorneys to prosecute ordinance mela S. Karlan, Judicial Independencies, 95 Geo. prosecutors). violations and misdemeanors when authorized L. J. 1041, 1058 (2007) (arguing against “judicial 27 2020 Fairfax County Commonwealth’s Attorney by local governing body and approved by com- independence run wild”). Resources Report, Sept. 22, 2020, https://perma. monwealth attorney). 18 58 Va.App. 435, 447, 710 S.E.2d 518, 524 (2011). cc/CML2-DKYY 10 Va. Code § 19.2-155. See Yarbrough v. Com- 19 58 Va. App. at 442, 710 S.E.2d at 522. See also 28 Alexandra Jatapoff, Punishment Without Crime monwealth, 258 Va. 347, 361, 519 S.E.2d 602, Harris v. Commonwealth, 63 Va. App. 525, 535, 68-69 (2018) (reporting on practice in busy 608 (1999) (within inherent authority of court; 759 S.E.2d 29, 34 (2014) (rejecting judicial courts, but lamenting systems that do not use rejecting challenge to appointment outside lim- nullification and judicial clemency). Accord, professional prosecutors). its of § 19.2-155). Accord, Tucker v. Common- Vandyke v. Commonwealth, 71 Va. App. 723, wealth, 2013 WL 3298168 (Va. Ct. App. July 2, 735, 840 S.E.2d 8, 13 (2020) (affirming denial

Manual para Adultos Mayores de Virginia COMING SOON El manual de los mayores de Virginia Información y Recursos The Senior Virginians Handbook will be The Senior Virginians Handbook in English Legales available online in Spanish thanks to the VSB is available for download online. Attorneys or Senior Lawyers Conference. individuals may purchase the books singly or by the

Un proyecto de la This book contains over 100 pages of box by completing the order form. https://www.vsb. Conferencia de Abogados Mayores information designed to assist older Virginias with org/site/publications/senior-virginians-handbook del Colegio de Abogados de Virginia a range of legal issues, and life decisions.

www.vsb.org GENERAL INTEREST | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 33 Family Law: The Impact of COVID-19 on Child Support Cases in 2020 and Beyond by Bretta Z. Lewis

As the nation experiences a spike in COVID cases, and as we embark on what is likely to be a bizarre holiday season (because…2020), family law- yers continue to face difficult questions from concerned clients who rely on child support to make ends meet, as well as clients paying support at levels they believe are not sustainable. Even in typical times, parents disagree about what costs are reasonable for childcare and healthcare, and each expresses doubt that the other is being forthcoming about gross income and earning potential. In 2020, the pandemic has thrown a new variable into these every- day arguments and has created additional stress on both sides of child support cases. Financial insecurity and the uncertainty of school attendance has made forecasting an economic future and calculating a reliable, long- term child support award more challenging than ever. Additionally, in child support asks, “How can we use these numbers? … Do I cases that have been pending since prior to the have to work overtime forever or go to jail?” pandemic, attorneys and trial judges face a myri- With these wildly fluctuating scenarios, ad of complex calculations that take into account how can Virginia attorneys competently advise unprecedented periods of low income caused clients, whether they are payors or payees, in by business closures, as well as income highs these uncertain times? This article, written with generated by unemployment payments and assistance from the Division of Child Support stimulus checks. Restaurant workers, hospitality Enforcement, aims to guide Virginia lawyers in employees, and airline industry personnel may advising clients and suggesting pragmatic solu- have periods of no income, while construction tions for the child support problems caused by workers, real estate agents, and grocery store the pandemic and the nightmare that is 2020. workers may be working overtime and making higher salaries than ever. None of these numbers Income Issues Caused by 2020 Anomalies are sustainable, but they represent real money In cases filed prior to 2020 that were continued that is changing hands, so the primary parent during Court closures (including appeals), as asks, “Shouldn’t the children benefit, even tem- well as cases with large arrearages accumulated porarily?” At the same time, the payor parent before 2020, child support calculations may span

34 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST a period of time since well before the pandemic. If numbers on paper may help calm the clients if they see your client is an employee of an industry impacted by that the bump in income on both sides actually the pandemic, your case will likely involve either very leveled out. low income caused by closures, or very high income In a case that spans several years, especially when bolstered by governmental benefit payments, or a there is an arrearage, running the 2020 guidelines and combination of both. assigning an amount to that year separately is one The payor will likely argue that 2020 unemploy- solution to determine the correct amount that should ment and stimulus payments should not be includ- have been paid in 2020. Once that is accomplished, ed because they are not regular income on which a a separate provision may be crafted for non-2020 long-term order should rely. To the contrary, the payee support. The parties may agree to average the 2020 will argue that all payments are income to which the number with 2018 and/or 2019, or use the 2019 num- child should be entitled in any computation of child ber as a more typical income figure for running 2021 support. In this scenario, the law favors the payee. guidelines. “Stimulus checks” are not mentioned in the statute, It is prudent to advise clients who are paying but are not excluded and would properly be consid- inflated 2020 support numbers to file early in 2021 for ered income. a reduction, because courts will continue to docket Pursuant to Virginia Code § 20-108.2(C), the slowly while managing the COVID closure backlog. definition of “income” used to calcaulate child support By the time the client gets into court, the payor and includes but is not limited to, “salaries, wages, com- payee will likely have 2021 data that will allow annu- missions, royalties, bonuses, dividends, severance alization, paving the way for faster relief if the payors pay, pensions, interest, trust income, annuities, capital find themselves in an economically perilous situation gains, social security benefits 1… workers’ compen- as the result of an inflated award. In the interim, medi- sation benefits, unemployment insurance benefits, ation or negotiation may be successful. disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards [em- Child Care Issues Caused by the Pandemic phasis added].” Currently, Virginia school systems are operating Although there are exceptions to what is consid- on various platforms including in-person, distance, ered income (please see footnote), the inclusion of and hybrid learning. There is no uniformity be- unemployment benefits is explicit, as are gifts, prizes, tween cities, counties, or regions, so attorneys in the and awards, which, by definition, are not guaranteed Commonwealth have an ever-changing matrix of to be repeated. As such, the clear intent of the legisla- childcare issues to consider in child support cases. ture was to include unusual payments in child support In many cases, parents face a Hobson’s choice of so that the child may share in the financial windfalls of paying for daycare that was not anticipated before the parents regardless of the reliability of the funds. the pandemic, or taking leave from work to supervise Case law holds “the amount of child support under children who are at home. To make matters worse, the guidelines must be based on the parents’ actual schools are changing plans daily, and parents have no gross income.”2 Cases that directly address unusual or idea how to calculate childcare costs from one month unique payments, such as gifts from family members, to the next. hold that it is proper to include such payments, even when the gift is not likely to be repeated.3 Encouraging parties to work together While case law seems clear, the result of inflated 2020 calculations is likely to cause consternation for for the good of the children remains payor clients, so the best practice in this anomalous year may be to find a solution that leads to an agree- the best practice. ment between payor and payee. When one or both parents have received stimulus As with changing income levels, attorneys should money or unemployment payments, which is clearly advise their clients to run the guidelines using ex- akin to a gift as contemplated in Howe, one solution penses that they actually have, and not the expenses is to calculate guidelines using actual (or annualized) that they would or could have in a different scenario. income from 2020 to determine if there is a marked In cases where the children are at home rather than inflation. It is likely in this scenario, particularly if school, it makes sense to identify periods when child both parents received governmental benefits, that the care was more expensive and to annualize the amount. 2020 child support may not be unreasonably elevated Parents have always annualized higher childcare costs because both parties will have experienced an increase for summer, so applying the “COVID” months in the that is unlikely to be repeated in 2021. Seeing these same way should not be a novel concept. www.vsb.org GENERAL INTEREST | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 35 GENERAL INTEREST

Endnotes Using DCSE to Assist Clients In Adjusting Support 1  Income under this section does not include benefits from public Amounts assistance and social services programs as defined in § 63.2-100; In the past, the Division of Child Support Enforcement Federal supplemental security income benefits; Child support (DCSE) would typically engage with parties in an admin- received; or Income received by the payor from secondary employ- istrative capacity only, or DCSE would become involved ment income not previously included in "gross income," where the after the entry of a decree if a substantial arrearage had payor obtained the income to discharge a child support arrearage es- accumulated and the payee sought enforcement. Although tablished by a court or administrative order and the payor is paying many family law attorneys have limited or no experience the arrearage pursuant to the order. with DCSE, this may soon change. In 2020, DCSE has taken 2 West v. West, 53 Va.App. 125, 135, 669 S.E.2d 390, 395 steps to alleviate the confusion and burden on the Court (2008) (citing Code § 20–108.2(C)). system that has been caused by the pandemic. 3 In Howe v. Howe, 30 Va.App. 207 (1999), the payor argued that With child support calculations thrown into turmoil by the trial Court erred in including a one-time gift for purposes COVID-19, DCSE hopes to provide assistance to parties of child support because the gift was not a reliable part of his who need to adjust support payments faster than the courts annual income. The Court of Appeals disagreed, stating, “[W]hen can accommodate. Since early 2020, DCSE has expanded determining child support, the emphasis should be on including, operations to provide non-litigation options when a prior not excluding, income especially where including the income more order needs to be reviewed and/or adjusted to accommo- accurately reflects a parent's economic condition and financial date changes in income, child care, or circumstances for that year.” The Court further noted, “Father can other expenses. seek a modification … for the next year, if and when his income no Geoffrey Scott Darnell, Esq., Legal longer includes such gift proceeds., citing Keyser v. Keyser, 2 Va.App. Director of Operations for DCSE East, 459, 461-62, 345 S.E.2d 12, 14 (1986) reported that since the onset of the 4 Virginia Code § 63.2-1921(A) authorizes DCSE to perform an pandemic, “DCSE has been expand- administrative review of a support order if a material change in ing its services and offering relief circumstances is shown. The statute directs the agency to report its to payors and payees alike.” “We findings to the Court, and if no objection is made by the non-re- don’t see ourselves as representing one questing party, the proposed change to the order shall be adopted. party,” he said, “We see ourselves as an Darnell agency that can help both parties come together to get the children the support they need, while taking into account the totality of the cir- cumstances so that the solution is viable for both parents.” Darnell explained, “Currently, DCSE is in the process of implementing new procedures to facilitate expanded appli- cations of the Administrative Review of Court orders under Virginia Code § 63.2-1921.”4 Darnell added, “The goal is to have more orders reviewed out of court, which can be done remotely in most cases. The only need for a hearing would be if there is objection to the new order and a hearing is requested.” Darnell stated that DCSE’s goal is threefold: “Our hope is to (1) reduce new docket size to assist courts in catching up with the backlog; (2) keep more people out of court for safety and efficiency; and (3) have more compliant parties because they have worked through and agreed Bretta Z. Lewis is a family law attorney with 20+ on an order in more cases.” Darnell added, “This has been years of litigation experience. She has specialized an underused option for DCSE in the past but will be a knowledge in matters involving special needs chil- priority in 2021.” dren, domestic and substance abuse, mental health issues, and non-traditional family structures. She In short, during the remainder of 2020 and beyond, is an adjunct professor at William and Mary Law encouraging parties to work together for the good of the School, a frequent lecturer in ethics and family law, children remains the best practice. With the help of DCSE, serves on the Virginia State Bar Disciplinary Board, is a member of Virginia State Bar Council and the Virginia lawyers have a new opportunity to encourage fam- faculty of the Harry L. Carrico Professionalism ilies to compromise and agree on a new path forward. q Course.

36 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 | GENERAL INTEREST www.vsb.org Wellness How Helping Others Helps Your Mental Health by Barbara Mardigian When I am not feeling great, having a physically and nutritionally. I have been the deputy clinical director. This career difficult day emotionally, or just feeling a CrossFit enthusiast for the past seven change had everything to do with my blah, the last thing I want to do is help years but have not always addressed my self-care, mental health, and my sanity. others. Typically, I want to crawl into my nutrition. Now, being mindful of what My prior job impacted my family life, shell, and not interact with humans. I eat has greatly improved my physi- and I found myself working all the time. One of the things that I have found cal health, and also my mental health. That was not how I wanted to spend to be 100% fail proof (yes, 100%) is When I do this consistently (not per- the rest of my career, or my life. I had helping another person. This does not fectly), I find that I am in a better place decreased my time at the gym, put junk need to be a Herculean task: It can to help others. I have also realized that into my body, gained weight, and did be something like giving directions, being right sized offers me grace, the not sleep enough. That is not living. holding the door for someone, being ability to be human, make mistakes and Today, I am so grateful to have this courteous to people you interact with, own them. I have learned more from opportunity to work with you all and or just saying thank you — two simple what did not go the way I wanted, than to be a small link in the chain of lawyer words with the most meaning in the when things did go my way. wellbeing. q English language. These simple gestures Self-care has always gotten a bad are often overlooked, especially when rap: too “foo foo,” too selfish, too we are involved in our day-to-day grind, much time to do, fill in the blank. Our focusing on work or home/ life issues. It society has supported this perception is about connection, how I connect on a for the most part, as have many pro- daily basis to my family, work, cowork- fessions, as you all well know! If we do ers, and my community. We are built not take the time to care for ourselves, to connect with others, but if we do not we cannot be there for those we love, for feed our soul, we cannot connect with our jobs, or for our coworkers. And then ourselves much less another human what do we have at the end of the day? Barbara Mardigian has worked in the addiction field since 1997. She received her Master’s degree being. Connecting and being introspec- For me, it is the shell of a person I was from MCV in Rehabilitation Counseling in 1997 and tive with ourselves is HOW we are able before I got sober. became a Licensed Professional Counselor (LPC) in to connect, empathize and be a support I joined Virginia Judges and 2004. She has worked in a variety of settings includ- ing Intensive Outpatient, Residential, private practice to our community and others. Lawyers Assistance Program (VJLAP) and with the first Health Professional Monitoring Since I have been sober, I have in September of 2019, after working as Program in Virginia as the Director of Intake learned to practice daily gratitude, as the executive director in an outpatient Services. She worked for the Farley Center from 2010-2016 as a lead clinician in their professionals’ well as giving back to my community. treatment center. The position was a program, having experience working with lawyers, One of the ways that I do this is by help- highlight of my career, theoretically a physicians, and CEOs as well as high ranking mili- ing a new sober living facility by work- time to celebrate, but I was miserable. I tary individuals. Most recently she was the Executive Director of an Intensive Outpatient treatment facil- ing with their owners on policy and held that position for one year and one ity in Richmond. She has been with VJLAP since procedures. I also focus on my health, month before I started with VJLAP as September 2019 as the Deputy Clinical Director.

Keep Up with VJLAP

K Updates, news, and advice monthly in The Beacon blog.

K Quarterly editions of The Lighthouse featuring resources, case 24/7 Help Line: studies, and more. 1-877-545-4682 K The Weekly Wellnote shares curated resources, spurs VJAP.ORG conversations, and fosters connection for lawyers.

www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 37 Noteworthy > VSB NEWS Highlights of the October 23 Virginia State Bar Council Meeting At its meeting on October 23, 2020, in Hot Springs, the Virginia State Bar Council heard the following significant reports and took the following actions:

Amendments to LEO 1850 The Council approved by unanimous vote the revisions to LEO 1850 regarding the outsourcing of work to a lawyer or nonlawyer outside the direct supervision of a lawyer in the firm and the requirement for client consent and explanation of fee structures. The proposed changes have been presented New Bar Council Members to the Supreme Court of Virginia for electronic meeting, to constitute a approval. quorum for an agreed disposition of a disciplinary matter. The proposed change Amendments to Rules of Professional have been presented to the Supreme Conduct 1.17, 1.18, and 5.5 Court of Virginia for approval. The Council approved by unanimous vote minor edits and corrections to Amendment to Change the Audit wording, numbering, and grammar in Requirements for the Virginia State these Rules. The proposed changes have Bar Bylaws been presented to the Supreme Court of The Council approved, with 36 yea votes Virginia for approval. and eight nay votes, amending the VSB audit requirements from yearly to once Nominating Committee Report every three years. To fill three vacancies on Council and one on the Disciplinary Board, Council voted President-elect Candidates Spoke and unanimously to nominate six candidates Answered Questions for Council vacancies and two candidates Stephanie Grana and David Neumeyer, for the Disciplinary Board vacancy candidates for president-elect, spoke at to the Supreme Court of Virginia for the Council meeting. The election began consideration for appointment to these November 2, 2020, and ended December positions. 1, 2020.

Amendment to the Diversity Conference Marni E. Byrum Tribute to Justice Bylaws Ginsburg and Presentation The Council voted unanimously to of Resolutions amend the Diversity Conference bylaws Immediate-past President Marni E. regarding quorums for the transaction of Byrum delivered a tribute to the late business. Justice Ruth Bader Ginsburg of the United States Supreme Court. Byrum Amendment to the Rules of the also received resolutions honoring her Supreme Court of Virginia Part 6, work and the work of her firm, McQuade Section IV, Paragraph 13-6.D Byrum PLLC, during her presidential The Council voted unanimously in favor year. The resolutions would traditionally of amending the Rule to allow a panel have been given at the 2020 Annual Top: VSB President Brian Buniva addresses the council. of five Disciplinary Board members, Meeting in June, cancelled due Bottom: Immediate Past President Marni Byrum recieves whether meeting in person or in an to COVID-19. a framed copy of her resolution.

38 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy Former VSB President Receives Governor’s 2020 Volunteerism Award Edward L. Weiner, founder and senior Weiner is also known for his annual partner at Weiner Spivey & Miller Law Day “Weiner Roast” event that PLC of Fairfax, and 2015-16 Virginia attracts over 700 attendees while raising State Bar president, has received a money for the Fairfax Law Foundation 2020 Governor’s Volunteerism and and legal aid. Community Service Award from Gov. His legal volunteerism includes Ralph Northam. serving as a former chair of the VSB The annual program recognizes Conference of Local Bar Associations, “…the outstanding contributions of as past president of the Fairfax Bar individual volunteers and organizations Association, and as past president to the well-being of the Commonwealth of the Fairfax Law Foundation. He and its people.” has also served on the faculty of the Weiner was recognized as Virginia State Bar’s Harry L. Carrico “Outstanding Senior Volunteer” for his Professionalism Course. over 20 years of service to his commu- Weiner graduated from the State Weiner nity. Weiner developed the Jazz4Justice University of New York at Binghamton. Program, replicated across Virginia, He received his law degree from the Additional information about the that has raised over $500,000 in music University of Richmond and his LL.M in Virginia Service Volunteer program scholarships and $500,000 in support of international law from the Georgetown may be found at https://virginiaservice. civil legal aid programs. University Law Center. virginia.gov/about-us/. Young Lawyers Create Foster Care Resource Guide for Hampton Roads The Young Lawyers Conference (YLC) that accompanies children and families general practice or pro bono services. of the Virginia State Bar has created involved in the foster care system, espe- The Children & The Law Commission a foster care resource guide to assist cially those children who become adults encourages any who would want a copy children and families involved in the while in foster care. or who would like to volunteer to assist foster care system in Hampton Roads. Many fostered children are unfamil- in the foster care system to reach out to The booklet is available at www.vsb. iar with the resources and services avail- the current commission chairs at bai- org/docs/Hampton_Roads_Resource_ able to them. The commission, with the [email protected], rhjeon@ Guide.pdf. aid of volunteers, spent countless hours vabeachlawgroup.com, or jhumphries@ The Children & the Law researching and collaborating to ulti- vadefenders.org. Commission of the YLC, chaired by mately create a resource for Hampton The VSB Young Lawyers Conference Ra Hee Jeon, Bailey A. Michener, and Roads families and children involved in allows new or young lawyers to network, Rebecca C. Lawrence, identified an foster care. engage, and interact while serving the urgent need in Hampton Roads and This booklet is currently being dis- public. The YLC promotes leadership worked to compile a booklet that assists tributed to local courts, agencies, clinics, and public improvement through its those struggling in the overburdened law schools, and other places it may be committees which focus on special proj- foster care system. All three chairs of use. This is a valuable resource for ects throughout each year. currently work as attorneys in Hampton attorneys who work with juveniles, prac- Roads and regularly see the frustration tice in the area of family law, or provide Check Your MCLE Hours Online Now Due to the COVID-19 pandemic the completion deadline for the 2020 MCLE Reminder: Of the 12.0 CLE hours required each year, 2.0 must be in requirement has been extended from October 31 to midnight EST December ethics and 4.0 must be from live, interactive programs. If you have any 31, 2020. The CLE hours need to be reported no later than 4:45 p.m. EST questions, please contact the Regulatory Compliance Department at (804) February 15, 2021. 775-0577 or [email protected]. Active lawyers recieved an MCLE end-of-year report in November, and Contact the course sponsor with any questions. A partial list of already any MCLE hours missing from the report must be reported by approved teleconference and webcast CLE courses is available at www.vsb. February 15, 2021. org/site/members/mcle-courses. www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 39 Join the Leadership of Your Virginia State Bar

Since 1938, the Virginia State Bar has operated as an administrative agency of the Supreme Court of Virginia, unifying Virginia lawyers into a mandatory state bar. Its mission is fulfilled by hundreds of Virginia lawyers who volunteer their time to serve on the many committees and boards that work to improve the legal system in the Commonwealth.

On the opposite page are opportunities to serve on at-large committees. Below are committees that recruit by circuit. All terms begin July 1, 2021.

The Standing Committee on Lawyer Discipline seeks active, in-good-standing lawyers and nonlawyers to apply for disciplinary district committee vacancies.

Disciplinary District Committee Vacancies in 2021

Attorney Vacancies Non-attorney Vacancies District* Judicial Circuits (V/R)** (V/R)**

1st 1st, 3rd, 5th, 7th, 8th (2/0) (1/0)

2nd 2nd, 4th (0/3) 0

3rd 6th, 11th, 12th, 13th, 14th (4/4) (0/2)

4th 17th, 18th (1/2) (1/1)

5th 19th, 31st (2/5) (0/2)

6th 9th, 15th (1/1) (0/1)

7th 16th, 20th, 26th (2/2) (0/1)

8th 23rd, 25th (2/2) 0

9th 10th, 21st, 22nd, 24th (0/4) 0

10th 27th, 28th, 29th, 30th (1/4) (0/2)

* Some districts have multiple subcommittee sections. ** Some current committee members are eligible for reappointment. V- indicates a true vacancy seeking a candidate. R- indicates a reappointment is pending approval.

Send a résumé and short statement of interest by February 28 to Stephanie Blanton at [email protected] or by mail to the Bar.

For more information, go to www.vsb.org/site/about/lawyer-discipline.

40 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org President-elect Myerson Seeks Members for Virginia State Bar Committees With Terms Commencing July 1, 2021 To: Active Virginia Lawyers From: Jay B. Myerson, president-elect As you know, much of the work of the Virginia State Bar is done through its committees, and we need lawyers willing to serve. Appointments will generally be for a three-year term, running from July 1, 2021, to June 30, 2024, with the possibility of another three-year term to follow. The work of the committees is time consuming and in most cases requires committee members to set aside substantial time to fulfill the requirements of the job. To encourage participation — and recognizing the time commitment — lawyers are generally limited to serving on only one committee. The number of available positions is quite limited, but I will attempt to accommodate as many people as possible. The committees are as follows: Standing Committees:* • Access to Legal Services • Legal Ethics • Budget & Finance • Professionalism • Lawyer Discipline** Special Committees: • Bench-Bar Relations • Lawyer Insurance • Better Annual Meeting • Resolution of Fee Disputes • Lawyer Referral • Technology and the Future Practice of Law

* Lawyer vacancies on standing committees are limited due to requirements for a specific number of Executive Committee and Bar Council members to serve on each committee. ** It is preferred that members of the Committee on Lawyer Discipline have served on a local disciplinary district committee. Go to http://bit.ly/districtctes for more information.

If you would like to be considered for appointment to any of the VSB committees listed, please complete this form and return it with a brief résumé by February 19, 2021, by mail or email to Asha B. Holloman:

Virginia State Bar 1111 East Main Street, Suite 700 Richmond, VA 23219-0026 [email protected]

Committee Preference Form (term commencing July 1, 2021) Please complete this form and return it with a brief résumé by February 19, 2021.

Name: Bar ID:

Address:

City/State/Zip: Phone: Email:

Choice Committee Name Have you ever served on this committee? Length of Service

1st Choice Yes No

2nd Choice Yes No

3rd Choice Yes No

Check here if you have never served on a VSB committee.

To assist us in the committee selection process, please provide the following information:

Private Practice Corporate Counsel

Primary area of practice: Other

Government attorney Commonwealth City/County Federal 41 Mark your calendar, we’re going virtual!

$50 per person includes: 7 hours live CLE, with a possible 3 hours of Ethics (depending on session choices) for day-of attendance, April 26, 2021 plus registrants will receive links to 8:30 a.m. – 5:15 p.m. recordings after the program where you can get up to 6 more hours of CLE

bit.ly/techshow21 Registration will open in January, so #VSBTECHSHOW watch your VSB news for updates!

Leroy Rountree Hassell Sr. Indigent Criminal Defense Seminar Advanced Skills for the Experienced Practitioner

Save the Date: Friday, May 7, 2021

A Day-Long Advanced Trial Skills CLE

Live Videoconference

Registration information and details will be available in early January at www.vsb.org/special-events/indigent-defense.

42 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org 43 Noteworthy > VSB NEWS In Memoriam

Emmanuel Damascus Akpan Mark Miller Harrison James Myron Sturgeon Jr. Mitchellville, MD Vienna Naples, FL December 1950 – May 2020 October 1951 – August 2020 May 1950 – March 2020

Lawrence R. Ambrogi Daniel Horowitz James Sanford Thomas Winchester Arlington Jonesville March 1937 – September 2020 June 1949 – August 2019 September 1965 – December 2019

Robert Stephen Bozarth Michael S. Horwatt Lyon G. Tyler Jr. Richmond Reston Charleston, SC May 1945 – November 2019 October 1941 – August 2020 January 1925 – September 2020

James E. Bradberry Ronald S. Kareken Judith Barrow Witcher Newport News Indianapolis, IN Richmond April 1940 – July 2020 December 1935 – April 2020 September 1960 – July 2020

James E. Brydges Jr. James Joseph Kelly Virginia Beach Woodbridge September 1942 – January 2020 February 1969 – April 2020

William St. John Chubb II Richard James Lacouture Springfield Granby, CO February 1947 – September 2019 August 1951 – July 2020

John Gordon Conover William H. Ledbetter Charlottesville Fredricksburg October 1945 – October 2020 August 1941 – October 2020

Joseph N. de Raismes III Bruce Henrie Nielson April 1944 – July 2020 Vienna Alexandria September 1959 – May 2020

Richard Charles Fleming Simon Marcellus Painter Jr. In Memoriam Bellevue, WA Staunton September 1952 – October 2020 May 1940 – March 2020 If you have a family member, colleague, or friend who was Joseph Edwin Gibson Michael Wayne Price Charlottesville Virginia Beach a VSB member and has passed August 1923 – August 2020 November 1943 – October 2020 away, please email mem- Richard C. Grizzard Stephen M. Schuster Jr. [email protected] so that we Boykins Ashburn may update their records and November 1938 – January 2020 January 1943 – August 2020 include them in In Memoriam. John Paul Harris III Alexander H. Slaughter Fredericksburg Richmond May 1941 – August 2020 November 1937 – October 2020

44 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy Bernard S. Cohen January 1934 — October 2020

Bernard S. Cohen, who together with ACLU for assistance. Philip Hirschkop won the 1967 Loving In his oral arguments before the U.S. v. Virginia case before the United States Supreme Court, Cohen read Richard Supreme Court, died in Fredericksburg Loving’s words to the nine justices of on October 12, 2020, at the age of 86 the Court: “Mr. Cohen, tell the court I from complications from Parkinson’s love my wife, and it is just unfair that I disease. The landmark case declared can’t live with her in Virginia.” anti-miscegenation laws unconstitu- In 1979, Cohen began representing tional. In 2016, the story of the case Alexandria in the Virginia House of and the young lawyers who represented Delegates and served eight terms there, Mildred and Richard Loving was made until 1986. He was known for sponsor- into the feature film, simply entitled, ing the legislation that banned smoking Loving. in public places in Virginia. Cohen and Hirschkop were young Cohen graduated from the City ACLU pro bono attorneys when they College of New York before receiv- were referred the Loving case after ing his law degree from Georgetown then-Attorney General Robert Kennedy University. suggested Mildred Loving contact the

The Honorable Jackson L. Kiser June 1929 — October 2020

The Hon. Jackson L. Kiser died on Judge Kiser worked as a United States October 20, 2020, at the age of 91. Commissioner for the United States Judge Kiser served the United States District Court and as an Assistant District Court for the Western District United States Attorney in the Western of Virginia for nearly 40 years after District of Virginia, before entering being nominated to the bench by private practice in Martinsville. Judge President Ronald Reagan in 1981. Kiser spent 20 years in private practice, Judge Kiser was born on June 24, trying both civil and criminal cases 1929, in Welch, West Virginia, and throughout Virginia. graduated from Concord College Judge Kiser had a demanding before receiving his law degree from standard for all those who appeared in Washington & Lee School of Law. After his court, including himself. He was law school, he served as an officer in known for once fining himself for being the United States Army JAG Corps, late to his own courtroom, the same and later, in the United States Army punishment he doled out to attorneys Reserves. who arrived late to court. After serving in the military,

www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 45 Access to Legal Services Pro Bono Service Makes You Happy by Ami Kim “We were so poor. But we were happy.” studies have shown that people feel Finally, volunteering as a pro bono —my mom, reflecting on living as a grad happier spending money on others, attorney allows you to use your super- student in the 1960s. rather than on themselves.3 Bottom powers for good! Attorneys have special line: When you focus on someone skill sets, experience, and knowledge “They were so happy.” — our priest as a other than yourself and do some- that are particularly needed by un- student, observing older priests. thing that benefits that person (or derserved populations. While many organization), you feel happier. volunteer opportunities exist in our Have you ever observed people so filled 2. Relationships bring happiness. In community, pro bono work leverages with joy that you felt a little happier just fact, having strong social networks your specialized skills and experience seeing their happiness? Have someone’s is one of the best predictors of a to make a difference. While you may expressions of delight made you wish happy life.4 consider the individual tasks simple you could experience the same? Have 3. Having a sense of purpose can or even mundane, for the client, you you experienced happiness in your prac- make you happy.5 Feeling that you may be helping them escape dangerous tice as a lawyer? are part of something bigger than circumstances, or helping them remain What do people do to find hap- yourself and that your actions are in their home during the pandemic or piness? The path to happiness may aligned with your values can in- helping them launch their nonprofit. surprise you, but it is closer than you crease your sense of well-being. The demand is great, and your skills can may think. While I — and maybe you For those looking to rediscover their joy provide meaningful access to justice to — were raised to think, if we had the in practicing law, pro bono work can clients in need. right education, studied hard enough, hit these happiness drivers. The volun- As you reflect on this year and make got the right job, made enough money, teers I have encountered through the your resolutions for 2021, I challenge THEN we would (or could) be happy, I Greater Richmond Bar Foundation are you to consider sharing your time, tal- have seen plenty of evidence that a great generous with their time (and often with ent, and treasure for pro bono. Donate education, an esteemed job, and even their money), yet they themselves reap to a legal aid organization. Volunteer to great wealth do not drive happiness. In benefits from their work and their gen- take one case. Or, if you’re already there, fact, I found many of my peers from erosity. One of our Greater Richmond bring a friend along. You’ll be doing the worlds of law and banking, always Bar Foundation (“GRBF”) volunteers, them a favor. well-educated, often earning substan- q who has spent hours developing training tial incomes, and, of course, in the materials and templates to help others Endnotes “right” types of professions, were highly 1 Allen, Summer. (2018). The Science of Generosity handle basic no-fault divorces and who stressed, often burnt out, and unhappy. [White paper]. Greater Good Science Center at UC has himself handled countless files, Berkeley. https://perma.cc/5S3B-KC68 One of the surprises of my move to the 3 describes his volunteer work as “so Id. (lower paying, less esteemed) nonprofit 4 Viviana Amati, Silvia Meggiolaro, Giulia Rivellini, and rewarding.” Susanna Zaccarin. (2018). Social Relations and Life world, was how many of my former Volunteering as a pro bono attor- Satisfaction: The Role of Friends. Genus. https://perma. colleagues told me, “You are lucky,” or “I cc/83L2-2CEG ney brings with it an entire network 5 Aliya Alimujiang, MPH1; Ashley Wiensch, MPH1; Jona- wish I could do what you’re doing.” 2 of relationships, from the relationship than Boss, MS ; et al. (2019) Association Between Life So, if happiness is not high incomes Purpose and Mortality Among US Adults Older Than 50 with the client, to the camaraderie with or prestige (and I’m guessing it is not Years. JAMA Network. https://perma.cc/GQ38-APXV other volunteers, to the network with billable hours), what is a lawyer’s path and as senior mentors and influencers. to happiness? Scientists and bloggers The work comes with shared stories, a and podcasters offer some insights that collective commitment to the mission seem particularly relevant to attorneys of closing the justice gap, and a sense looking for a happiness hit: of camaraderie and friendship. Pro 1. Generosity — defined as “giving bono attorneys are a diverse group, and good things to others freely and they are all good people (often with a abundantly” — can bring happi- wicked sense of humor) to have on your ness.1 Studies show that volun- Ami Kim is a recovering lawyer and the side. Many of our board members felt teers report greater quality of life, executive director of the Greater Richmond motivated to volunteer by the quality Bar Foundation. Anyone interested in pro increased sense of vitality, and and enthusiasm of the other pro bono bono (or chatting about technology or improved self-esteem.2 Similarly, dogs) can contact her at [email protected]. lawyers they encountered.

46 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Law Libraries Moving Forward Together: Local Bar Associations and Law Libraries in 2020 by Isaac Needell After nearly nine months of turmoil with information about engaging CLE States: amid all the challenges posed in 2020, sessions on countless topics. Law library National Conference of State the legal community has been forced collections generally include a variety of Legislatures: https://perma.cc/X3XX- to adapt, reinvent, and restructure CLE materials and can be an excellent KMEB nearly every aspect of daily life from place to begin or continue researching a The National Conference of State workplaces to workflows. As some specific legal topic. Legislatures provides both the semblance of workplace routine Although 2020 is nearly over, COVID-19 State Legislation Database returns, there are great opportunities to questions and research topics raised and COVID-19 State Legislation Data reconnect with coworkers, colleagues, during the year will certainly remain Visualization tools. and professional contacts. Local bar on many people’s minds, personally associations continue to provide a and professionally. Many local law Civil Justice: multitude of professional networking libraries have compiled research guides Civil Rights Legal Materials & News and educational programming or websites focusing on COVID-19 from Westlaw: https://content. opportunities, both in-person and resources or other topics of current next.westlaw.com/Browse/Home/ remotely. Local bar associations often interest.2 Additionally, a variety of CivilRightsLegalMaterialsNews have a close connection with local law organizations and entities, both familiar Complimentary resources on Police libraries, which can provide time and and new, have made information related Conduct, Unwarranted Criminal cost saving assistance to practices of all to timely research topics available Prosecution, Right to Protest, and sizes, particularly in these challenging online. The following resources are all Voting Rights. times. free and may offer a fresh perspective Racial Equality and Police Reform Law librarians can assist with or launching point for the next case, Legislative, Regulatory, and Municipal a variety of tasks from locating conversation, or research project: Updates: https://perma.cc/Y2PU-BXUG primary and secondary sources in Complimentary access to curated online databases to tracking down COVID-19 Public Health state and federal executive, legislative, one-of-a-kind historical resources Information: and regulatory actions related to civil while ensuring that research requests COVID Risk Level Map and COVID justice. return high-quality tailored results. Suppression Guidance for Policy Additionally, librarians are often able Makers and the Public [Harvard Global Law Libraries continued on page 55 to assist with questions that are not Health Institute, Harvard’s Edmond specifically legal in nature, like offering J. Safra Center for Ethics, Rockefeller advice on navigating the controls of Foundation, CovidActNow, Covid- videoconferencing services and other Local, CIDRAP and many others]: technologies. https://perma.cc/38QN-CMR8 With many CLE courses being This map presents the number of offered remotely this year, and with the coronavirus cases per 100,000 people extension of the Mandatory Continuing and presents the data down to the Legal Education deadline to December county level in an approachable, Isaac Needell is the law librarian of the Norfolk 31, 2020, the potential exists to take color-coded display. Law Library and the executive director of the Norfolk & Portsmouth Bar Association. He advantage of a variety of unique and received his bachelor’s degree from Colby exciting educational opportunities COVID-19 Legal Research: College with degrees in Classics and Classical that would have been impractical to Federal: Civilizations, has completed the Maine Criminal Justice Academy’s Basic Law Enforcement attend in person. The Conference of Congress.gov from the Law Library of Training Program, and holds a master’s degree Local and Specialty Bar Associations Congress: https://www.congress.gov/ of Library and Information Studies from maintains a list of local, statewide, A search on Congress.gov with the University College London. He is a member of the Virginia Association of Law Libraries, CILIP, and specialty bar associations that search string [“COVID-19” OR the American Association of Law Libraries and can be used to locate the websites of Coronavirus] yields a comprehensive its Southeastern Chapter, the Virginia Library bar associations across Virginia.1 Bar list of legislation related to COVID-19 Association, the American Library Association, members can use these pages to connect and the novel coronavirus. and the National Association of Bar Executives. www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 47 Technology and the Future Practice of Law Benefits to Remote Cloud Service for Small Law Firms by Seth Lindberg

In response to the COVID-19 pandem- to vendors or contractors. If a prob- operating system incapability within the ic, law firms of all sizes have adopted lem arises with the firm’s locally-based firm. work from home policies. Ensuring storage system, an IT technician is often seamless workflow from an in-person required to come fix the problem. The 5. Data migration: Data migration is office setting to a remote setting is remote platform performs all IT work quick and usually only takes about three challenging. Working remotely may without the need for local service sup- to four days, which can be accomplished be difficult or impossible if the firm’s port. The IT support team is trained to over a long weekend. During that time, electronic files are stored locally at specifically resolve the virtual platform’s the firm’s data is unavailable until the the law firm’s physical location. If hardware and software, which limits the migration is complete. Once the migra- a law firm’s office is closed, these files chances of IT support being unable to tion is complete, however, the firm’s data may be inaccessible, forcing users to address problems as they arise. is securely hosted in a remote setting. physically go to the office to email files The cloud vendor then assumes control or place specific individual files on USB 2. Hardware Upgrades: Another re- over the hardware and data storage. drives so that the files may be accessed curring issue for law firms is upgrading Remote cloud storage can drastically remotely. hardware. Computers, servers, and hard improve a law firm’s efficiency, security, A cloud-based remote desktop drives all have finite lives and require and workflow. As we continue to work platform is one way to alleviate these intermittent replacement. A virtual from home and live in an inter-connect- problems. A cloud-based virtual desktop platform frees the law firm from regular ed world, instant, reliable access to crit- hosts all the firm’s software and file hardware upgrades. Those upgrades are ical and secure data will remain integral systems. No data is saved locally on performed in the background, without to any firm’s success. q individual firm computers, nor is any any additional cost input from the firm. software installed locally. Instead, ded- The virtual platform upgrades and per- Endnotes 1 See LEO 1872 icated remote servers run the software forms regular system maintenance. and store the data. Authorized users can access the remote desktop with unique 3. Data Security: The legal profession login credentials from any computer has been slow in moving to the cloud, with access to the internet. Once a user but it is now well accepted by the VSB.1 is logged in, the remote desktop appears The virtual platform secures, encrypts, identical to a locally installed version. and backs up the firm’s critical data. It Meanwhile, the remote platform also further protects against data downtimes provides data encryption, anti-virus that law firms may experience such as support, software updates, maintenance, power outages. A remote platform re- and data backup. moves the risk of fire, flood, or power Law firm employees are not required surge that can destroy locally-stored to use a firm-issued computer to access data. As the data is hosted in a physi- the remote desktop. In fact, law firm cally secure facility, the prospect of an employees may use personal comput- act of God destroying the firm’s data is ers, insofar as there is a stable internet effectively nil. With remote access, there connection available that allows a secure is a reduced risk of employees losing or connection. Several additional benefits misplacing confidential client data as to a remote platform include: all information is stored with the cloud vendor. Seth Lindberg, is a shareholder with 1. Streamlined IT Support: Virtual Burnett & Williams, P.C. in Leesburg. He platforms streamline IT support. While 4. Software Uniformity: A virtual plat- represents plaintiffs who have been cata- most large law firms and companies form unifies all operating systems and strophically injured through no fault of their own. Lindberg was born in Fairfax and has have dedicated IT departments to software versions. This reduces instances a B.A. and J.D. from Syracuse University. resolve computer issues, small and me- of incompatibility between documents He serves on the VSB’s Special Committee dium-sized law firms do not have that and streamlines workflow. There are on Technology and the Future Practice of Law. He can be reached at (703) 777-1650 luxury. Instead, IT issues are outsourced rarely any instances of software or or [email protected].

48 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Risk Management To Text or Not to Text, that is the Question by Mark Bassingthwaighte

Many people today prefer to communi- remind attorneys, cate by texting. What does this mean for in the context of a lawyers and malpractice? malpractice claim or Texting is ubiquitous in our culture, disciplinary matter: If which makes it too easy. Instead of it wasn’t document- taking the time to compose an email or ed, it wasn’t said, or pick up a phone, it takes far less time it didn’t happen. Are to send a quick text at any time, day you able to capture or night, and regardless of the setting. and preserve any But is texting a good thing, particularly and all substantive for a lawyer? Think about Comment 8 exchanges and are to ABA Model Rule 1.1 Competency, you willing to make which reminds lawyers that they are to the commitment to ac- “keep abreast of changes in the law and tually do so? If not, I’d its practice to include the benefits and seriously limit the use risks associated with relevant technolo- of texting. g y.” If you are communicating with 3. Do you charge for your time texting Look, I have no problem using text clients via text messaging, have you clients? I would assume you do. Do messaging to pass along that there’s thought about the ramifications of doing your clients know that? Text mes- been a delay, the courtroom where so? Please understand that I’m not try- saging is a very inefficient way to you were to meet your client has ing to suggest that a lawyer should never communicate, again in terms of trying changed, that a voicemail has been send a text message. I just want to make to have some sort of substantive ex- left that needs the client’s attention, sure you’ve thought about the associated change. Allowing clients that option is or that you are now available. Those risks before doing so. an inefficient use of your time and can types of texts seem appropriate for needlessly result in a larger bill than the method of communication. If you 1. Handing out your cell number to the client might be expecting. Why? count yourself among the lawyers who clients may be a bad idea absent It’s simply due to the need to send text, keep the above issues in mind and establishing some healthy boundaries multiple texts to make sure you have remember this: Texting has its place. upfront. It’s a work/life balance issue all the information you need as well I’m just hoping to help you define for me. I’m not a fan of 24/7 avail- as to confirm the client has correctly what texting might look like in your ability because we all need downtime. understood the exchange. Is this truly own practice, so you don’t get caught Also, when people send a text, they the way you want to communicate unaware. q are generally expecting an immediate with your clientele? response, even if it’s after you’ve gone home for the day. Are you prepared 4. Finally, how do you know if the texts and able to manage that expectation? you’re sending will be received by the correct party? We often don’t think 2. I am concerned about the informality about who might have access to the of text messaging and that it’s often client’s cell phone or even the family communication on the fly. Texts are computer where text messages can typically succinct, and that’s prob- show up. Making matters worse, how lematic if texts are being used in would you know that a client has Mark Bassingthwaighte, ALPS risk manager, has conducted more than 1,000 law firm risk manage- furtherance of advising a client or as texted you an urgent message when ment assessment visits, presented numerous continu- part of the client’s decision-making your phone is off because you’re in ing legal education seminars throughout the United process. Compounding the problem court? They will assume you received States, and written extensively on risk management is the failure of so many to capture and technology. His webinar on Best Practices for it and may rely on that belief in some Client Selection in the ALPS CLE library is at and preserve such exchanges as fashion. Could this be a problem for http://alps.inreachce.com. He can be contacted at: part of the client file. As I so often an attorney? It already has been. [email protected]. www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 49 Virginia Lawyer Register

DISCIPLINARY SUMMARIES RPC 1.1; 1.3(a-c); 1.4 (a)(b); 1.15(a)(1),(b)(3,4); 1.16 (a)(1) (3),(d); 8.1(a-d) www.vsb.org/docs/Bailey-110520.pdf The following are summaries of disciplinary actions for viola- tions of the Virginia Rules of Professional Conduct (RPC) or Ronnie Lee Clay another of the Supreme Court Rules. Fincastle, VA 24090 Copies of disciplinary orders are available at the link pro- 20-080-117080 vided with each summary or by contacting the Virginia State Effective November 5, 2020, the Virginia State Bar Disciplinary Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB Board issued a public reprimand without terms to Ronnie Lee Clay for violating professional rules that govern scope of rep- docket numbers are provided. resentation, diligence, and communication. This was an agreed disposition of misconduct charges. RPC 1.2(a); 1.3(a); 1.4(b) CIRCUIT COURT www.vsb.org/docs/Clay-110620.pdf

Mary G. Commander Jonathan Christian Dailey Norfolk, VA 23509 Potomac, Maryland 20854 18-022-110553 20-000-118485 Effective October 5, 2020, a three-judge panel of the Circuit Effective October 23, 2020, the Virginia State Bar Disciplinary Court for the City of Norfolk issued a public reprimand to Mary Board revoked Jonathan Christian Dailey’s license to practice G. Commander for violating professional rules that concern law in the Commonwealth of Virginia. This was a reciprocal conflict of interest; declining or terminating representation; revocation, based on his March 18, 2020, disbarment from the fairness to opposing party and counsel; bar admission and disci- practice of law by the Court of Appeals of Maryland. plinary matters; and misconduct. This was an agreed disposition Rules of Court, Part 6, Section IV, Paragraph 13-24 of misconduct charges. www.vsb.org/docs/Dailey-110520.pdf RPC 1.7; 1.16; 3.4; 8.1; 8.4 www.vsb.org/docs/Commander-100520.pdf Michael Dana Ephraim Annandale, VA 22003 Jan C. Smith 19-042-114420 White Stone, VA 22578 By Order entered October 27, 2020, the Virginia State Bar 19-060-115989 Disciplinary Board suspended Michael Dana Ephraim’s license By Order entered October 22, 2020, a three-judge panel in the to practice law in the Commonwealth of Virginia for a period of Circuit Court of the County of Lancaster suspended Jan C. 90 days effective November 20, 2020, for violating professional Smith’s license to practice law in the Commonwealth of Virginia rules that govern competence, safekeeping property, conflict of for a period of one year and one day for violating professional interest: prohibited transactions, and responsibilities regarding rules that govern truthfulness in statements to others and mis- nonlawyer assistants. This was an agreed disposition of miscon- conduct. This was an agreed disposition of misconduct charges. duct charges. RPC 4.1(a); 8.4(c) RPC 1.1; 1.15(a)(1)(b-1, 3)(c-1, 2i,ii, 4)(d-2, 3i-iv, 4); 1.8(f-1); www.vsb.org/docs/Smith-102820.pdf 5.3(a)(b)(c-1,2) www.vsb.org/docs/Ephraim-102720.pdf DISCIPLINARY BOARD Paul Christopher Galanides Jeffrey Brian Bailey Richmond, VA 23218-1998 Richmond, VA 23225 20-031-118030 19-032-111221 Effective September 28, 2020, the Virginia State Bar Disciplinary By Order entered and effective on November 4, 2020, the Board issued a public reprimand with terms to Paul Christopher Virginia State Bar Disciplinary Board suspended Jeffrey Brian Galanides for violating professional rules that concern com- Bailey’s license to practice law in the Commonwealth of Virginia petence, scope of representation, diligence, communication, for a period of six months for violating professional rules that conflict of interest, declining or terminating representation, govern competence, diligence, communication, safekeeping and misconduct. This was an agreed disposition of misconduct property, declining or terminating representation, and bar charges. admission and disciplinary matters. This was an agreed disposi- RPC 1.1; 1.2(a); 1.3(a)(b); 1.4(a-c); 1.7 (a, 2) (b, 1-4); 1.16(a,1) tion of misconduct charges. (d); 8.4(b) www.vsb.org/docs/Galanides-092920.pdf

50 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Virginia Lawyer Register

James McMurray Johnson Richard Thomas Robol Woodbridge, VA 22192 Columbus, Ohio 43201 19-060-115650 19-021-114994 By Order entered October 16, 2020, the Virginia State Bar By Order entered and effective September 25, 2020, the Virginia Disciplinary Board suspended James McMurray Johnson’s State Bar Disciplinary Board suspended Richard Thomas license to practice law in the Commonwealth of Virginia for a Robol’s license to practice law in the Commonwealth of Virginia period of 90 days effective October 8, 2020, for violating pro- for four years based on his breaches of the Ohio Rules of fessional rules that govern competence, scope of representation, Professional Conduct governing candor to the tribunal, fairness diligence, communication, conflict of interest, bar admission to opposing party and counsel, truthfulness in statements to and disciplinary matters, and misconduct. This was an agreed others, and misconduct. disposition of misconduct charges. Ohio RPC 3.3(a)(1); 3.3(b); 3.4(a)(c); 4.1(b); 8.4(c)(d) RPC 1.1; 1.2(a); 1.3(a)(b); 1.4(a)(b); 1.7(a)(2); (b)(2)-(5); 8.1(d); www.vsb.org/docs/Robol-101620.pdf 8.4(c) www.vsb.org/docs/Johnson-101920.pdf John B. Russell Jr. Bon Air, VA 23235 Michael Denis Kmetz, Esq. 20-000-117794 Virginia Beach, VA 23467-4547 Effective August 28, 2020, the Virginia State Bar Disciplinary 19-000-116040 Board suspended John B. Russell Jr.’s license to practice law in By Order entered and effective October 23, 2020, the Virginia the Commonwealth of Virginia for three years for failing to State Bar Disciplinary Board suspended Michael Denis Kmetz’s comply with Part Six, Section IV, Paragraph 13-29 of the Rules license to practice law in the Commonwealth of Virginia for of the Supreme Court of Virginia. The three-year suspension two years for failure to fulfill terms set in a previous nine-month begins November 1, 2021, the date his two-year suspension suspension. Kmetz failed to expires. comply with Part Six, Section IV, Paragraph 13-18.O of the Rules of Court, Part Six, Section IV, Paragraph 13-29 Rules of the Supreme Court of Virginia. Kmetz’s nine-month www.vsb.org/docs/Russell-090820.pdf suspension was for violations of his duties of competence, dili- gence, communication, and safekeeping property. Jeffrey Marc Sherman RPC 1.1; 1.3(a); 1.4(a); 1.15(a-d) www.vsb.org/docs/Kmetz-102820.pdf Manassas, VA 20109 18-041-111137 Evelyn Ann Miller Effective October 7, 2020, the Virginia State Bar Disciplinary Oakton, VA 22124 Board revoked Jeffrey Marc Sherman’s license to practice law in 19-052-115354; 19-052-115749 the Commonwealth of Virginia based on his affidavit consent- Effective October 2, 2020, the Virginia State Bar Disciplinary ing to the revocation. By tendering his consent to revocation at Board revoked Evelyn Ann Miller’s license to practice law in the a time when allegations of misconduct are pending, Sherman Commonwealth of Virginia based on her affidavit consenting to acknowledges that the material facts upon which the allegations the revocation. By tendering her consent to revocation at a time of misconduct are predicated are true. when allegations of misconduct are pending, Miller acknowl- Rules of Court, Part 6, Section IV, Paragraph 13-28 edges that the material facts upon which the allegations of mis- www.vsb.org/docs/Sherman-100820.pdf conduct are predicated are true. Rules of Court, Part 6, Section IV, Paragraph 13-28 Jon Edward Shields www.vsb.org/docs/Miller-100220.pdf Manassas, VA 20108 19-053-114105 Chung Suk Oh Effective October 22, 2020, the Virginia State Bar Disciplinary Falls Church, VA 22043 Board revoked Jon Edward Shields’ license to practice law in the 20-052-116520 Commonwealth of Virginia based on his affidavit consenting to By Order entered October 28, 2020, the Virginia State Bar the revocation. By tendering his consent to revocation at a time Disciplinary Board suspended Chung Suk Oh’s license to prac- when allegations of misconduct are pending, Shields acknowl- tice law in the Commonwealth of Virginia for a period of 90 edges that the material facts upon which the allegations of mis- days effective October 28, 2020, for violating professional rules conduct are predicated are true. that govern competence, diligence, communication, and declin- Rules of Court, Part 6, Section IV, Paragraph 13-28. ing or terminating representation. This was an agreed disposi- www.vsb.org/docs/Shields-102620.pdf tion of misconduct charges. RPC 1.1; 1.3(a); 1.4 (a); 1.16 (a-1,2,3) www.vsb.org/docs/Oh-102920.pdf www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 51 Virginia Lawyer Register

SUSPENSION–FAILURE TO COMPLY WITH SUBPEONA SUMMARY SUSPENSION–RECIPROCAL

Barry Ray Taylor William Franklin Burton Chesapeake VA 23320 Chevy Chase, MD 20815 20-022-118980 21-000-121116 On October 7, 2020, the Virginia State Bar Disciplinary Board Effective October 30, 2020, pursuant to Rules of the Supreme administratively suspended Barry Ray Taylor’s license to prac- Court Part Six, Section IV, Paragraph 13-24, the Virginia tice law for failing to comply with a subpoena duces tecum State Bar Disciplinary Board summarily suspended William issued by the Bar. Franklin Burton’s license to practice law in the Commonwealth www.vsb.org/docs/Taylor-100820.pdf of Virginia based on his disbarment by the Court of Appeals of Maryland on October 13, 2020. He was ordered to appear before the board on November 20, 2020, to show cause why the same discipline that was imposed in Maryland should not be imposed in Virginia. Rules of the Supreme Court Part Six, Section IV, Paragraph 13-24 www.vsb.org/docs/Burton-090320.pdf

DISCIPLINARY PROCEEDINGS

Respondent’s Name Address of Record Action Effective Date

Circuit Court Mary G. Commander Norfolk, VA Public Reprimand October 5, 2020 Jan C. Smith White Stone, VA One Year and One Day Suspension October 22, 2020

Disciplinary Board Jeffrey Brian Bailey Richmond, VA Six-Month Suspension November 4, 2020 Ronnie Lee Clay Fincastle, VA Public Reprimand November 5, 2020 Jonathan Christian Dailey Potomac, MD Revocation October 23, 2020 Michael Dana Ephraim Annandale, VA 90-Day Suspension With Terms November 20, 2020 Paul Christopher Galanides Richmond, VA Public Reprimand With Terms September 28, 2020 James McMurray Johnson Woodbridge, VA 90-Day Suspension October 8, 2020 Michael Denis Kmetz Virginia Beach, VA 2-Year Suspension October 23, 2020 Evelyn Ann Miller Oakton, VA Revocation October 2, 2020 Chung Suk Oh Falls Church, VA 90-Day Suspension October 28, 2020 Richard Thomas Robol Columbus, OH 4-Year Suspension September 25, 2020 John B. Russell, Jr. Bon Air, VA 3-Year Suspension August 28, 2020 Jeffrey Marc Sherman Manassas, VA Revocation October 7, 2020 Jon Edward Shields Manassas, VA Revocation October 22, 2020

Suspension – Failure to Comply with Subpeona Effective Date Lifted Barry Ray Taylor Chesapeake, VA October 7, 2020

Summary Suspension – Reciprocal Effective Date Lifted William Franklin Burton Chevy Chase, MD October 30, 2020

52 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Virginia Lawyer Register

NOTICES TO LAWYERS VSB Considers Reducing Clients’ Protection Fund Assessment, Removing Sunset Provision The VSB is seeking public comment on two proposals regard- Supreme Court of Virginia Issues Thirteenth Judicial ing the CPF B. The CPF Board unanimously approved both Emergency Order these proposals at its September 25, 2020 meeting. Comments On November 9, 2020, the Supreme Court of Virginia issued are due by January 8, 2021. its thirteenth declaration of judicial emergency in response to www.vsb.org/site/news/item/vsb_cpf_comments the COVID-19 pandemic. The unanimous Order applies to all courts of the Commonwealth and extends the time period Comments Sought on Changes to the Rules of Court until December 13, 2020. Regarding RESA and Legal Aid Societies www.vsb.org/site/news/item/thirteenth_judicial_emergency The VSB is seeking comments on proposed additions to the Rules of the Supreme Court of Virginia, Paragraphs 24 & 25, Supreme Court of Virginia Amends Rules to Clarify Usage regarding Real Estate Settlement Agents (RESA) Regulations of “Shall” and Legal Aid Societies, respectively. Comments are due by On Friday, November 13, 2020, the Supreme Court of Virginia January 8, 2021. www.vsb.org/site/news/item/comments_sought_para_24_25 amended the Rules of Court known as the Virginia Rules of Evidence to clarify the use of the word “shall” so as to “…im- Comments Sought on Changes to Rules Governing plement the mandatory meaning established by the Legislature, Delinquency Fees and preserve the statutory references in the title of each rule The VSB is seeking VSB Council authorization to petition the that is derived in whole or in part from the Code of Virginia.” Supreme Court of Virginia to reduce delinquency fees associ- The amendments become effective July 1, 2021. ated with some Rules violations governed by Part 6, Section IV, www.vsb.org/site/news/item/scv_usage_of_shall of the Rules of the Supreme Court of Virginia. Comments are due by January 8, 2021. Comments Sought on Amendments to Paragraph 13 of www.vsb.org/site/news/item/comments_delinquency_fees Rules of Court The VSB’s Standing Committee on Lawyer Discipline propos- Join the Disciplinary System es making a number of changes to the Rules of the Supreme The Standing Committee on Lawyer Discipline seeks active, Court of Virginia, Part 6, Section IV, Paragraph 13 to promote in-good-standing lawyers and non-lawyers to apply for disci- greater fairness, efficiency, consistency, and transparency in plinary district committee vacancies. Applications in the form Bar proceedings. Comments are due by December 7, 2020. of a résumé and short statement of interest are due February www.vsb.org/site/news/item/comments_sought_amendments_ 28, 2021. to_paragraph_13 www.vsb.org/site/news/item/first_line_of_defense_2021

www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 53 Virginia Lawyer Register

NOTICES TO LAWYERS was awarded half their initial claim after Sousa failed to attend court and complete divorce filings for his client. Sousa is under a three-year suspension3 effective January

2020, and appeal was dismissed. This follows an earlier interim The Virginia State Bar Clients’ Protection Fund Board au- discipline suspension for failure to comply with a VSB subpoe- thorized payments totaling $54,075.00 in reimbursement to na duces tecum had been effective in November 2019. former clients of five Virginia attorneys at its June 9, 2020 Chesterfield attorney, Katina C. Whitfield’s former client meeting and at its most recent meeting on September 25, 2020. was awarded $3,500 for unearned fees in a family law matter. Eight additional payments were authorized and published from Whitfield failed to represent the client in a custody and child the June 9, 2020, meeting in the August 2020 issue of Virginia support matter. Whitfield’s license was revoked4 in November Lawyer. 2019 for a compliant to the VSB regarding this matter. In the September meeting’s largest award, Richmond law- Whitfield has an appeal for the revocation pending in the yer, Nnika Evangeline White’s former client received $35,365 in Virginia Supreme Court. reimbursements. For misappropriated funds during a bank- A former client of Eastville lawyer, Paul Granville Watson, ruptcy case. White’s license was revoked1 in 2015 for a period IV, was awarded $1,000 for failing to void a default judgement of three years for matters related to this case. Furthermore, she related to a prior damage claim. Watson’s license was suspend- was convicted of bankruptcy fraud and sentenced to one year ed in October 2019 prompting her to request her payment in prison. refunded, which he failed to do. His license has since been Richmond lawyer, Ellis Charles Baggs’ two former clients revoked5 in February 2020. received $4,500 and $3,210 respectively for his failure to ear A chart of the amounts paid as a result of the two meetings his fee for immigration cases. In the first case Baggs’ failed follows. The board delays the release of the final chart, as the to file a motion to change venue in an immigration removal awards given to new petitioners are subject to a 30-day appeal proceeding after accepting $4,500 in payment. In the second period. instance Baggs’ was found to have completed some of the work The Clients’ Protection Fund was created by the Supreme he was hired to do for an application for asylum and motion to Court of Virginia in 1976 to reimburse persons who suffer change venue of an immigration proceeding but admitted to a quantifiable financial loss because of dishonest conduct by not completing the case. Half of the fees paid were awarded to a Virginia lawyer whose law license has been suspended or the client. revoked for disciplinary reasons, or who has died and did Baggs’ license was revoked2 in March 2020 pursuant to not properly maintain client funds. The fund is not taxpayer a consent to revocation involving the two aforementioned funded but is supported by Virginia lawyers who pay an annual clients. fee of up to $25. The Supreme Court of Virginia has set the Two former clients of Randall Sousa of Fairfax were reim- current annual fee at $10 per Virginia lawyer with an active bursed $4,000 and $2,500. In the first case Sousa was hired to license status. Payments from the Clients’ Protection Fund are represent his client for a misdemeanor DUI charge and was discretionary and are not a matter of right. late to three court session causing a continuance each time. If you have any questions, you may contact Vivian R. Byrd, He then failed to attend one court date entirely. The client was administrator to Clients’ Protection Fund by email at (804) awarded two-thirds of his payment to Sousa. The second client 775-0572. 1 vsb.org/docs/White-060316.pdf 3 vsb.org/docs/Sousa-110619.pdf 5 vsb.org/docs/Watson-021020.pdf 2 vsb.org/docs/Baggs-031720.pdf 4 vsb.org/docs/Whitfield-112519.pdf

JUNE 9, 2020 Docket Number Lawyer’s Name City of Record Amount Paid Type of Case 20-555-003240 Nnika Evangeline White Richmond, VA $35,365.00 Unearned fees/Bankruptcy 20-555-003250 Katina C. Whitfield Chesterfield, VA $3,500.00 Unearned fees/Family Law SEPTEMBER 25, 2020 20-555-003275 Ellis Charles Baggs Richmond, VA $4,500.00 Unearned fees/Immigration 20-555-003274 Ellis Charles Baggs Richmond, VA $3,210.00 Unearned fees/Immigration 20-555-003269 Randall Sousa Fairfax, VA $4,000.00 Unearned fees/Criminal 20-555-003273 Randall Sousa Fairfax, VA $2,500.00 Unearned fees/Family Law 20-555-003276 Paul Granville Watson, IV Eastville, VA $1,.000.00 Unearned fees/Collections

54 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Executive Director continued from page 12 information about those bars that participate in the VSB newsletter published by the FBA, is available on the website Conference of Local & Special Bar Associations (CLSBA), under “In the News.” It now features a column by the cur- please contact Paulette Davidson at [email protected]. rent president, Donna R. Banks. Her intent while FBA pres- By the way, it does not cost anything for a bar to join the ident is to support the underlying principle of equal justice CLSBA. and to speak towards diversity and inclusion. She will work For a full list of the 122 bars you may want to consider with the FBA members, the courts, and the legal community joining, please visit: http://bit.ly/CLSBAbars. q to acknowledge and address these issues. Banks’s column is here: http://bit.ly/FBABanks. Endnotes 1 Change Agents: 5 Who Changed UVA, UVA Lawyer (Spring 2019) These are just some examples of the many wonderful https://perma.cc/R9PZ-3NX8 local bar associations in Virginia. If you need additional

Ethics Counsel continued from page 14 adopted, the Ethics Committee should consider whether to adversary’s lawyer. But a lawyer seeking to contact a non- add language that a lawyer is not subject to discipline for control group employee of a represented organization may an unintentional communication with a non-control group not know until after the contact whether that employee’s act employee protected under this rule. or omission is imputed to the organization. In contrast, a Stay tuned for more information as the Ethics Committee lawyer will typically know beforehand whether an employee considers whether the ABA Comment should be adopted or falls within the “control group” before undertaking any whether Virginia should keep its current Comment [7] to communication with them If the ABA Comment [7] is Rule 4.2. q

Attorney of Color continued from page 19 State Bar Diversity Conference, I have additional means I appreciate the opportunity to be a member of the of promoting diversity and inclusion through the work of Executive Committee of the Conference of Local and both. Positive change is more likely to come about through Specialty Bar Associations, where I may be a partner in the hard work of those committed to equality in the legal active promotion of diversity and inclusion of participants profession. We encourage all ethnicities and diversities of the and attendees for the many programs, we present around Virginia State Bar membership to participate in our activities the Commonwealth of Virginia each year. By also having and thereby expand our understanding and perceptions of the honor to sit on the Board of Governors of the Virginia those who are different than ourselves.

Law Libraries continued from page 47 spectrum and, although these versions lack the value- added annotations that would be found in legal databases, Elections: they are still a great way to access these resources quickly The Virginia Department of Elections: https://www. and efficiently. Pages are linked extensively and allow elections.virginia.gov/ the researcher to move from bills to statutes and back to The Virginia Department of Elections website has a wealth chapter laws. There can be some learning curve to using of information including a page specifically focused on the many facets of this resource, but a local law librarian Election Law: https://www.elections.virginia.gov/election- law/ can help explain the various navigation tools. q Code of Virginia, Virginia Administrative Code, Endnotes Constitution of Virginia, Charters, Authorities, Compacts, 1 See https://www.vsb.org/site/conferences/clba/local-statewide-bar-asso- Uncodified Acts: ciations. Virginia’s Legislative Information System: https://lis.virginia. 2 For example, a guide to relevant COVID-19 resources for legal profes- sionals prepared by Norfolk Law Library (https://norfolklawlibrary.org/ gov/ covid-19-resources-for-legal-professionals/) is currently posted on the Virginia’s Legislative Information System includes primary website of the Norfolk & Portsmouth Bar Association (https://www. resources across the Virginia legislative and administrative norfolkandportsmouthbar.org/).

www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 55 fiftY-first annuaL Criminal2021 Law seminar

Criminal Law Update • Trial Evidence: “Lack of Foundation” Objections Panel DON’T BATTLE IT OUT • New Criminal Discovery Rules If COVID-19 has put you and • a client at odds over fees, consider the VSB’s Emergency Powers (Covid-19) v. Constitutional Rights Panel Fee Dispute Resolution (Practical Applications) Program. • General Ethics Overview For over 25 years, this program has helped lawyers and clients resolve

fee conflicts without litigation and for only $20. February 21, 2021 Live Webcast or Telephone Seminar Learn more at www.vsb.org/site/members/ fee_dispute_resolution. www.vsb.org/site/sections/criminal 7.0 MCLE Credits Pending (including 2.0 ethics credits) FEE DISPUTE Virginia CLE® RESOLUTION and Virginia statE bar

Got an Ethics Question?

The VSB Ethics Hotline is a confidential consultation service for Virginia lawyers. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the “Email Your Ethics Question” link on the Ethics Questions and Opinions web page at www.vsb.org/site/regulation/ethics/.

56 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org These and more CLE opportunity webinars can be found at www. CLE Opportunities vsb.org/docs/vsb-webinars.pdf. December 10 The list will be updated weekly 1:00–2:30 p.m. with new events and details as Capital Raise or Sale: Current Trends and 2021 Predictions for VC, PE and M&A Deals they become available. (1.5-hour CLE pending) Sponsored by the Business Law Section

January 12, 2021 noon–1:00 p.m. Intellectual Property Webinar Virginia CLE, the non-profit educational division of the Virginia February 24, 2021 1:00–2:00 p.m. Law Foundation, sponsors many Breaking Up is Hard to Do - Clients & virtual CLE courses. For details, Partners see www.vacle.org/. (1-hour CLE pending) Sponsored by the General Practice Section

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www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 57 Professional Notices

Shannon Peak has joined counsel for several small to mid- the Hon. Randy I. Bellows of the Fairfax Shannon Mullins & Wright size corporations in the D.C. region, County Circuit Court and as judicial LLP as an associate where particularly in the federal government intern to the Hon. Gerald Bruce Lee of she focuses her practice on contracting space with an emphasis the United States District Court for the civil/commercial Litigation, Peak on the intelligence, defense, and Eastern District of Virginia. construction and real estate information technology sectors. matters, and business law matters. Peak Four members of the Richmond Bar has experience assisting start-ups and Gentry Locke has added Association received awards at the representing small and medium cap three new attorneys to its RBA’s luncheon in October: businesses at various growth stages, Roanoke team. Jean D. • George K. Martin, with different ownership structures, and Mumm is a partner in a partner at across many industries. Her litigation the General Commercial Mumm McGuireWoods, practice includes advocating on behalf practice group, assisting received the Hill- of contractors in a multi-million- clients with the acquisition, disposition, Tucker Public Service Martin dollar government contract dispute, leasing, and financing of commercial award. The award representing homeowners against real estate properties. recognizes members of the legal HOAs, litigating enforcement of non- profession who render conspicuous compete agreements, and resolving Max E. McCrary is an public service and distinguish partnership and shareholder disputes. associate in Gentry Locke’s themselves in service to society General Commercial beyond the practice of law. In 2013, The Appalachian practice group. McCrary Martin became the first African School of Law received previously worked in McCrary American to serve as the rector unconditional ABA Charlotte, North Carolina, of the University of Virginia. He approval as a fully working on mergers and acquisitions has served on numerous other accredited law school and general corporate issues for private boards and commissions, including in 100% compliance equity groups. the American Evolution/2019 with ABA standards for the first time Executive Committee; Virginia since 2017. The law school, now headed Hugh H. Brown is an Board of Bar Examiners; James by former Supreme Court of Virginia associate in Gentry Locke’s Madison University Board of Justice Elizabeth A. McClanahan, had business and commercial Visitors; and the Governor’s Blue its largest class in eight years and was law practice. Brown assists Ribbon Commission on Higher the most diverse law school class in the clients with the financing Brown Education. Commonwealth in 2019. required to power their • Lonnie D. Nunley III, businesses, including credit facilities, a partner at Hunton Andrew L. Hurst has syndicated and bilateral loans, Andrews Kurth, joined Baker Donelson’s accounts receivable monetization, received the John Business Litigation and collateralized loan obligations. C. Kenny Pro Bono Nunley Group as a shareholder During law school, Brown served as Award, presented in the firm’s Washington, Hurst a judicial extern for the Hon. William annually to an individual or law D.C. office. Hurst D. Broadhurst, Roanoke City Circuit firm that demonstrates a dedication focuses his practice on representing Court, and as an intern for the Hon. to furthering the delivery of pro corporations and individuals in civil Rebecca B. Connelly, Chief Judge, U.S. bono legal services to the poor and fraud investigations and litigation, Bankruptcy Court for the Western under-served in the Richmond primarily life sciences companies, District of Virginia. Metro area. He is a past chair of the health care providers and other VSB’s Special Committee on Access government contractors being sued Trav Clark has joined to Legal Services, chair of the Board by the government or qui tam relators Shannon Mullins & Wright of Directors of HomeAgain and a under the civil False Claims Act. He also LLP in Alexandria. Clark’s member of the Board of Directors regularly represents corporations and practice areas include civil/ of both Central Virginia Legal Aid individuals in connection with criminal commercial litigation, Clark and Legal Aid Justice Center. investigations and prosecutions by construction/real estate, • Barbara Ann Williams, deputy the U.S. Department of Justice and design professional, and all aspects of general counsel at McGuireWoods, other federal and state entities. In business law. Prior to joining the private received the Hunter W. Martin addition, Hurst serves as outside general practice, Clark served as a law clerk to Professionalism Award which

58 VIRGINIA LAWYER | DECEMBER 2020 | VOL. 69 www.vsb.org Professional Notices

recognizes lawyers who, Newport News. Kelly, who throughout their lives resides in Isle of Wight and careers in the law, County with her husband have best exemplified and four children, has been the conduct and high Williams with LFCU for three years Kelly ideals embodied in the as a manager and collections Bar’s Principles of Professionalism. attorney, and was recently designated a Williams’ interest in professional NAFCU Certified Compliance Officer. conduct, risk management, and Prior to her time at LFCU, Lindsey wellness issues stems from her worked at Shapiro & Brown, LLP; she service as bar counsel for the VSB. received her undergraduate degree from A former president of Virginia Sweet Briar College and her law degree Lawyers Helping Lawyers, she at the University of North Carolina- Anyone can join, it’s free, and takes only about two minutes. frequently speaks on professional Chapel Hill. Demonstrate your support for responsibility and wellness issues. the Diversity Conference by • Sean D. Hicks, a Senior Ian J. McElhaney becoming a member today. Associate at Williams has joined the firm of www.vsb.org/site/conferences/ Mullen, received the Blankingship & Keith, PC diversity Young Lawyer of the in Fairfax as an associate Year Award, given Hicks in its Civil Litigation and McElhaney Read the latest from the annually to a member Wills, Trusts, and Estates Diversity Conference in of the Bar’s Young Lawyers Section practice groups. Prior to joining the Invictus, the official newslet- who has excelled in the practice of firm, McElhaney clerked with the ter of the DC. Now available law to date and who has shown the Hon. Daniel E. Ortiz at Fairfax County online! Visit the new https://invictusva.com/. potential to become a leader in the Circuit Court. legal profession. A former chair of the RBA’s Real Estate Section, Mr. Patrick J. Keogh, a Hicks, in 2017, was appointed by former McLean real Governor Terry McAuliffe to the estate lawyer who now Virginia Manufactured Housing manages his family office Board. from Amelia Island, FL, has written a book, Make The Virginia Indigent Your Family Rich: Why Defense Commission to Replace Retirement (VIDC) has named Lakishi Planning with Succession Planning. You’ve Got Mail! Stevenson as the new Chief Keogh questions the standard portfolio Or you might, if your email Public Defender for the Stevenson value method of measuring success in Chesapeake Office of the the market because investors cannot address is up to date with the Public Defender. Prior to this position, control the performance of the market. Virginia State Bar. Stevenson served as the Deputy Public He recommends investors measure their Please make sure you are getting Defender in Portsmouth, Virginia. performance by income which they can our monthly VSB News and an- Stevenson was the first in her family to control. Keogh details his family’s plans nual compliance messages graduate from college when she received for succession by the next generations. by adding [email protected], a degree in Criminal Justice from North [email protected], and Carolina Central University. She went [email protected] to your email on to attend Regent University School of Professional Notices contacts. Law and graduated with her JD degree. And as always: Keep all of your Criminal defense work is at her core Email your news and professional por- information current by logging and she has dedicated her career to trait to [email protected] for publica- on at www.vsb.org. defending the indigent. tion in Virginia Lawyer. Professional NEW: You can opt out of receiv- ing Virginia Lawyer by mail if you Lindsey Kelly has been named notices are free to Virginia lawyers and Director of Legal Collections/Attorney prefer to read it online. at Langley Federal Credit Union in may be edited for length and clarity. www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 59 Classified Ads

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www.vsb.org VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 61 The Last Word On the Writing Process, Part II by Joe Fore

In my last column, I shared some 3. Edit for style to gloss over errors and fill in gaps with tips for going from blank page to Next, it’s time to fine-tune individual what’s supposed to be there.6 finished first draft. As we discussed, sentences. I recommend splitting this up So to catch more typos, trick your many writing problems come from the into multiple rounds, each one looking brain into thinking it’s seeing something writers trying to do too many things for slightly different things—from most new. Change the font or the text color, all at once. So the main idea was to to least substantive. Checklists are a or print it out and proofread on paper; separate out the different tasks to avoid powerful tool for this task.3 So you that may be enough to put your brain overloading your brain. At the editing may want to develop your own editing in a more attentive space.7 Also, edit in stage, too, it’s all about dividing and checklist. I generally try to edit in the reverse: read the last sentence first and conquering: breaking the revision following order: then work your way up, one sentence process into discrete phases so you can • Transitions within and between at a time. The writing won’t make sense focus on one thing at a time. paragraphs. Look for places where logically, but that’s the whole point. By you need transition words to deliberately reading out of order, you 1. Check for cohesive paragraphs show order (first, next, lastly), add take your brain’s attention off of the After you have a full first draft, it’s time information (and, also, another), substance of the words and let it focus to see if you have cohesive paragraphs contrast an idea (but, by contrast, on finding the small errors. that “focus the reader on a single point, instead), or conclude (thus, so, as a topic, or question.”1 And it’s important result).4 that that point, topic, or question is • Concision. Shorter, simpler Endnotes made clear in the paragraph—typically sentences and words—that’s the 1 Stephen V. Armstrong and Timothy P. Terrell, The Art and Architecture of Paragraphs: Focus, in a crisp opening sentence. So read name of the game. (For specific Flow, and Emphasis, Perspectives: Teach- through your draft—one paragraph at tips, see the February 2020 edition ing Legal Res. & Writing, Fall 2014, at 20. a time—and jot down each paragraph’s of this column. https://perma.cc/ZW9V-D66C central idea or function. Can you sum • Word choice. See any words 2 Id. at 21. that have an odd or off-putting 3 Romig, Jennifer Murphy, Checklists for Power- it up in one sentence? And do you ful, Efficient Legal Writing, Ga. B.J. Dec. 2011, actually convey that point somewhere in connotation? Too jargony or at 50. https://perma.cc/GCA4-DAVX the paragraph (hopefully at or near the informal? Or maybe the writing’s 4 Legal Writing Pro, 90 Transition Words and beginning)? too dull or passive, and you need to Phrases, https://perma.cc/N7EG-D5C8 sprinkle in some active or evocative 5 Raymond M. Kethledge, A Judge Lays Down One of my favorite editing tips— the Law on Writing Appellate Briefs, GP Solo, which flows from this idea—is to watch language. Sept.-Oct. 2015. for any paragraph that begins “In Smith One last point: when you edit for style, 6 Nick Stockton, What's Up With That: Why It's v. Jones…” 2 Why? Because the paragraph it’s crucial to read your writing out So Hard to Catch Your Own Typos, Wired (Aug. probably isn’t really about Smith, itself. loud. If you only look at the words on 12, 2014), https://perma.cc/5NEU-MUGR 7 Id. Instead, the paragraph is probably about the page, you may not notice a run-on the idea or principle that the case stands sentence, pervasive passive voice, or the for. So add a better topic sentence that fact that you used the word “column” in captures that takeaway point. three straight sentences (as happened when I edited an early draft of this 2. Audit organization piece). But you’ll hear it. Once you have your cohesive paragraphs, read through the piece, 4. Proofread focusing on the overall substance Misspellings, extra spaces, and and flow. Does the order of your grammatical errors are more than just points make sense? Do you need to annoying—they can cost you credibility. move paragraphs/sections or add As Sixth Circuit Judge Raymond more material? This is why I suggest Kethledge notes, for an advocate, making sure you have good, cohesive putting out a typo-riddled brief “is Joe Fore is an Associate Professor of Law, paragraphs first: if you have focused like walking up to the podium with General Faculty and Co-Director of the Legal paragraphs that each make an internally stains on your shirt.”5 But it’s hard to Research & Writing Program at the University catch our own mistakes. By the time of Virginia School of Law. Have a comment, a consistent point, then changing your question, or an idea for a future column? Email organization is as easy as cutting-and- we proofread, our brains are already so him at [email protected] or connect with pasting them to a new location. familiar with the writing that we tend him on Twitter (@Joe_Fore).

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