complete magazine

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complete magazine

Virginia Lawyer
V O L . 6 3 / N O. 3 • O C T O B E R 2 0 1 4
VIRGINIA LAWYER REGISTER
The Official Publication of the Virginia State Bar
Improving Access to Justice
and Pro Bono Services in Virginia
Virginia Lawyer
October 2014
Volume 63/ Number 3
Features
PRO BONO
25 Improving Access to Justice and Pro Bono Services in Virginia
by Cynthia D. Kinser, Chief Justice of the Supreme Court of Virginia
26 We Can Be Heroes
by Justina Uram-Mubangu
28 Rethinking Access to Justice
by James J. Sandman
30 Access to Justice Commission Homes In on Specifics
32 Legal Aid Programs Produce Results That Touch Everyone in Virginia
by Mark D. Braley
35 The Impact of the Justice Gap on Litigants: Are We Providing a Level
Playing Field?
by John E. Whitfield
39 Getting a Pro Bono Case
40 Pro Bono Assistance Sought for Clients Struggling to Pay Court Debt
by Carolyn Kalantari and Richard DeMeglio
Noteworthy
VSB NEWS
50 Voting for President-Elect will
be Online
51 Notice to Members: MCLE
Compliance Deadline Is October 31
51 Diversity Conference Events
Scheduled
42 Lawyering for a Cause: Do Good and Feel Great
by Crista Whitman Gantz
PEOPLE
46 Pro Bono Challenges: Time, Distance, Money, Culture
52 In Memoriam
52 Local and Specialty Bar Elections
49 Advocates for Cancer Patients, Founders of Pro Bono Referral Program
Recognized for Service
Departments
GENERAL INTEREST
14 Ten Lessons from Health Care Reform
by Robert H. Spicknall
16 When Federal Immigration Law is a State Issue:
Special Immigrant Juveniles in Virginia
by Christine Lockhart Poarch
VIRGINIA LAWYER REGISTER
60 Disciplinary Proceedings
60 Disciplinary Summaries
62 Notices to Members:
Comments on Proposed
Amendments to Rules
62 Mandatory Continuing Legal
Education Suspensions
63 Nominations Sought for
2015–2016 District Committee
Vacancies
Pro Bono Conference
and Celebration
Cover: We Can Be Heroes and other illustrations in the Pro Bono feature section by Madonna Dersch
6 Letters to the Editor
12 Candidates Forum
19 Book Review: The Most Dangerous
Book: The Battle for James Joyce’s
Ulysses
21 Law Stories
56 CLE Calendar
67 Professional Notices
68 Classified Ads
70 Infographic
Columns
8
President’s Message
10 Executive Director’s Message
53 Law Libraries
54 Technology and the Practice
of Law
Virginia Lawyer
http://www.vsb.org
Editor:
Gordon Hickey
(hickey@vsb.org)
Advertising:
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(mcelroy@vsb.org)
Virginia Lawyer Graphic Design:
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VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473)
is published six times a year by the Virginia State Bar,
1111 East Main Street, Suite 700, Richmond, Virginia
23219-3565; Telephone: (804) 775-0500. Subscription
Rates: $18.00 per year for non-members. This material
is presented with the understanding that the publisher
and the authors do not render any legal, accounting,
or other professional service. It is intended for use by
attorneys licensed to practice law in Virginia. Because of
the rapidly changing nature of the law, information
contained in this publication may become outdated. As
a result, an attorney using this material must always
research original sources of authority and update
information to ensure accuracy when dealing with a
specific client’s legal matters. In no event will the
authors, the reviewers, or the publisher be liable for
any direct, indirect, or consequential damages resulting
from the use of this material. The views expressed herein
are not necessarily those of the Virginia State Bar. The
inclusion of an advertisement herein does not include
an endorsement by the Virginia State Bar of the goods
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otherwise. Periodical postage paid at Richmond,
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Virginia State Bar
2014–15 OFFICERS
Kevin E. Martingayle, Virginia Beach, President
Edward L. Weiner, Fairfax, President-elect
Sharon D. Nelson, Fairfax, Immediate
Past President
Karen A. Gould, Executive Director and Chief
Operating Officer
EXECUTIVE COMMITTEE
Kevin E. Martingayle, President
Edward L. Weiner, President-elect
Sharon D. Nelson, Immediate Past President
Alan S. Anderson, Alexandria
Doris H. Causey, Richmond
Nancy C. Dickenson, Abingdon
Tracy A. Giles, Roanoke
Leonard C. Heath, Jr., Newport News
Michael W. Robinson, Tysons Corner
Mary M. Benzinger, Washington, DC,
CLBA Chair
Eva N. Juncker, Silver Spring, MD,
Diversity Conference Chair
Renae R. Patrick, Winchester, SLC Chair
Maureen E. Danker, Fairfax, YLC President
COUNCIL
1st Circuit
Nancy G. Parr, Chesapeake
2nd Circuit
Steven G. Owen, Virginia Beach
Judith L. Rosenblatt, Virginia Beach
Daniel M. Schieble, Virginia Beach
3rd Circuit
Nicholas D. Renninger, Portsmouth
4th Circuit
Lisa A. Bertini, Norfolk
I. Lionel Hancock, III, Norfolk
vacancy
5th Circuit
Carl Phillips “Phil” Ferguson, Suffolk
6th Circuit
Peter D. Eliades, Hopewell
7th Circuit
Leonard C. Heath, Jr., Newport News
8th Circuit
Lesa J. Yeatts, Hampton
9th Circuit
W. Hunter Old, Williamsburg
10th Circuit
Charles H. Crowder, Jr., South Hill
11th Circuit
Dale W. Pittman, Petersburg
POSTMASTER:
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RICHMOND VA 23219-3565
12th Circuit
Graham C. Daniels, Chester
13th Circuit
Paula S. Beran, Richmond
Brian L. Buniva, Richmond
Doris Henderson Causey, Richmond
Christy E. Kiely, Richmond
George W. Marget, III, Richmond
Eric M. Page, Richmond
O. Randolph Rollins, Richmond
14th Circuit
Thomas A. Edmonds, Richmond
Jon A. Nichols, Jr., Glen Allen
Daniel L. Rosenthal, Richmond
Virginia State Bar Staff Directory
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-staff.
4
VIRGINIA LAWYER | October 2014 | Vol. 63 No. 1
15th Circuit
Jennifer L. Parrish, Fredericksburg
16th Circuit
Bruce T. Clark, Culpeper
James M. Hingeley, Jr, Charlottesville
17th Circuit
Raymond B. Benzinger, Arlington
John H. Crouch, Arlington
Harry A. Dennis, III, Arlington
Adam D. Elfenbein, Arlington
David A. Oblon, Arlington
18th Circuit
Alan S. Anderson, Alexandria
Foster S. B. Friedman, Alexandria
Carolyn M. Grimes, Alexandria
19th Circuit
James F. Davis, Fairfax
Peter D. Greenspun, Fairfax
Joyce M. Henry-Schargorodski, Fairfax
Sean P. Kelly, Fairfax
Gary H. Moliken, Fairfax
Jay B. Myerson, Reston
Luis A. Perez, Falls Church
William B. Porter, Fairfax
Dennis J. Quinn, Vienna
Catherine M. Reese, Fairfax
Michael W. Robinson, Tysons Corner
Melinda L. VanLowe, Fairfax
James A. Watson, II, Fairfax
Michael M. York, Reston
20th Circuit
Christine H. Mougin-Boal, Leesburg
T. Huntley Thorpe, III, Warrenton
21st Circuit
Joan Ziglar, Martinsville
22nd Circuit
Lee H. Turpin, Chatham
23rd Circuit
Mark K. Cathey, Roanoke
Tracy A. Giles, Roanoke
24th Circuit
David B. Neumeyer, Lynchburg
25th Circuit
Roscoe B. Stephenson, III, Covington
26th Circuit
W. Andrew Harding, Harrisonburg
27th Circuit
Richard L. Chidester, Pearisburg
28th Circuit
Roy F. Evans, Jr., Marion
29th Circuit
Joseph M. Bowen, Tazewell
30th Circuit
William E. Bradshaw, Big Stone Gap
31st Circuit
Gifford R. Hampshire, Manassas
MEMBERS AT LARGE
Nancy C. Dickenson, Abingdon
William E. Glover, Fredericksburg
Michael HuYoung, Richmond
Beverly P. Leatherbury, Eastville
Darrel Tillar Mason, Manakin Sabot
Todd A. Pilot, Alexandria
Savalle C. Sims, Silver Spring, MD
Lorrie A. Sinclair, Leesburg
A. Benjamin Spencer, Charlottesville
Conference of Local Bar Associations Chair
Mary M. Benzinger, Washington, DC
Diversity Conference Chair
Eva N. Juncker, Silver Spring, MD
Senior Lawyers Conference Chair
Renae R. Patrick, Winchester
Young Lawyers Conference President
Maureen E. Danker, Fairfax
www.vsb.org
Appeals
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When it comes time
to appeal or to resist an
appeal, call Steve Emmert
at (757) 965-5021.
L. STEVEN EMMERT
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emmert@virginia-appeals.com
SYKES, BOURDON, AHERN & LEVY
VIRGINIA BEACH
Letters
Fracking
Thank you and James A. Howard II for
the August 2014 article on fracking and
zoning law in Virginia.
I would like to add some additional
information.
Mr. Howard notes that in the fracking process that “millions of gallons of
water mixed with sand” are used to
extract the gas.
In addition to the sand and water,
many chemicals are also used including
hydrochloric acid, quatenary ammonium chloride, sodium chloride, formic
acid, boric acid, and many more.
These types of chemicals are a
major concern for those of us who rely
on well water throughout Virginia.
I wish it were just “water mixed
with sand.”
Thomas Y. Savage
Fredericksburg
On VSB Finances
I write to thank you for Executive
Director Karen A. Gould’s informative
piece about the VSB’s finances in the
August issue of Virginia Lawyer. I can’t
opine on many of the cuts Ms. Gould
referenced since I don’t know the VSB’s
operations well enough to say whether
they are fat or muscle. I suspect at least
some of the latter, but budgets mean
hard choices. I don’t envy the VSB having to make them.
I was struck, though, by two statistics that strike me as probably unsustainable. First, dues have stayed flat or even
rolled backwards for the last fourteen
years. Certainly costs have not. If the
VSB has identified mission-related programs that are important to serve the
bar and protect the public, we ought to
fund those in a way that fulfills the
agency’s mission. It is hard to imagine
that is feasible with flat dues. (I understand a $25 dues increase is slated for the
near future and that strikes me as reasonable enough. Even that, though, is
only a roll-back of a previous dues roll6
VIRGINIA LAWYER | October 2014 | Vol. 63
back. Were that increase not recovering
lost revenue ground, but instead a brand
new increase, it would represent less
than a 1 percent annual increase over
the last fourteen years.)
Second, VSB staff has had only a
single 2 percent raise since 2007. That
strikes me as both unfair and likely to
induce top quality people to leave VSB
service sooner than they ought to. It also
strikes me as putting the VSB at a competitive disadvantage when seeking to
attract quality employees. Certainly,
many applicants would blanch if told
that their salary would be substantially
frozen, apart from a single 2 percent
raise, for the next eight years. I appreciate that many state employees are in this
boat and the economy generally has
been hard on wage growth all around
Virginia. Still, we ought to be thinking
about the long-term vitality of the State
Bar’s infrastructure.
It may be that some dues increase is
necessary to speak to these questions. If
that’s the case, I hope our membership,
dependent as we are upon the success
and professionalism of the VSB, will
support reasoned and smart growth to
ensure the fulfillment of the VSB’s mission. The VSB provides great service to
our members, and is an important
protection to the public. We have
grown to expect and depend upon
that and rightly so.
Corrections
The article titled “The Duty of SelfReport Malpractice to the Client” in
the August 2014 Virginia Lawyer
relied on content from an earlier article by Professor Benjamin P. Cooper
of the University of Mississippi
School of Law. By oversight, the
author neglected to cite Professor
Cooper’s earlier article. The corrected
version of the Virginia Lawyer article,
including proper citation, is published
on the Virginia State Bar’s website
at www.vsb.org/docs/valawyer
magazine/vl0814-self-report.pdf.
Because of an editing error, the first
name of Justice Lewis F. Powell Jr. was
misspelled in headline in the June/July
issue of Virginia Lawyer. We regret
the error.
Letters
Send your letter to the editor to:
hickey@vsb.org
or mail to:
Virginia State Bar,
Virginia Lawyer Magazine
1111 E MAIN ST STE 700
RICHMOND VA 23219-3565
Letters published in Virginia Lawyer
may be edited for length and clarity and
are subject to guidelines available at
http://www.vsb.org/site
/publications/valawyer/.
Cullen D. Seltzer
Richmond
Editor’s note: By Supreme Court of
Virginia order dated September 1, 2014,
effective July 1, 2015, bar dues will
increase by $25 for active members and
by $12.50 for associate members. In
2011, dues were decreased from $250 to
$225 for active members and from $125
to $112.50 for associate members. Dues
have not been increased since 2000.
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According to legend,
an ostrich will shove its
head in the sand when
confronted with something
unpleasant. I think you’ll
agree - probably not the
best approach.
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an affiliate of Digital Benefit Advisors endorsed by the Virginia State Bar
by Kevin E. Martingayle
Time is Right to Expand Access
to Justice for All
“[A] RIGHT WITHOUT A REMEDY
[is] a thing unknown to the law.”1
“Constitutional rights are of no
value if there is no way or no method
to vindicate those rights.”2
So how do these quotes relate to
what we do as Virginia lawyers?
The core elements “relating to the
existence, power, and authority of the
Virginia State Bar” are “professional
regulation,” “public access to legal services,” and “improving the system.”3
All of our efforts to provide effective self-regulation and improve our
legal system have limited value to the
poorest members of society unless they
have meaningful access to justice.
Rights without opportunities are practically worthless. That is why the State
Bar has long engaged in efforts to
improve the general public’s access to
justice, and these efforts have intensified in recent years.
In 2010, the Supreme Court of
Virginia, in conjunction with the
Virginia Bar Association, held its first
“Pro Bono Summit.” The meeting provided a forum for assessing the status
of pro bono efforts across the commonwealth, sharing success stories and
strategies, and developing new ideas.
The summit was held again in 2012
and 2014.
On September 13, 2013, Chief
Justice Cynthia D. Kinser, on behalf of
our Supreme Court, entered an order
establishing the Virginia Access to
Justice Commission.4 Members include
a justice of the Supreme Court, judge
of the Court of Appeals, judges of the
circuit, juvenile/domestic relations and
8
district courts, a law school representative, legal aid representatives, and several other highly qualified attorneys
and legal service providers. As the
order states, the mission of the commission is to “promote equal access to
justice, with particular emphasis on the
civil legal needs of Virginia residents.”
Additionally, one of the State Bar’s
committees is the “Special Committee
on Access to Legal Services,” which was
formed by the State Bar during the
1992–93 bar year as a merger of the
pro bono and legal aid committees.
This committee continues to function
with the mission of “fostering support
for free and reduced fee legal services
with the goal of improving access to
the legal system for all Virginians and
nonprofit charitable and civic groups
that serve the public good.”5
Rights without
opportunities are
practically worthless.
Historically, there has been a great
deal of discussion about access to justice needs, but many lawyers do not
know of the serious recent efforts that
have been undertaken to study access
problems and develop ways to ensure
an improved delivery of services. With
the creation of the biennial “Pro Bono
Summit” in 2010, the Virginia Access to
Justice Commission in 2013, and continued operation of the VSB’s Special
Committee on Access to Legal Services,
there are now very strong organizational structures in place to enable all
members of the State Bar to learn
about and participate in meaningful,
important pro bono work. Karl Doss
(Doss@vsb.org; 804-775–0522) is the
VSB staff point of contact for questions
and concerns regarding pro bono and
access to legal services issues, and he
always welcomes opportunities to share
information and ideas.
In an editorial published after the
first Pro Bono Summit in 2010, the
Virginian-Pilot newspaper editors said:
Attorneys who gathered at the
summit this week agreed that pro
bono work will grow if and when
law firms, judges and bar associations all make it clear that they
value this vital public service.
That’s a challenge to every attorney in the state, and it’s coming
straight from the top.6
During my career, I have had
many opportunities to hear members
of the Supreme Court speak, including
former Chief Justices Harry L. Carrico
and Leroy R. Hassell, and current Chief
Justice Kinser. One theme that has been
repeated consistently is the need to
ensure that everyone has equal access
to true justice. While our Supreme
Court has vigorously and persistently
encouraged Virginia’s attorneys to
Justice continued on page 11
www.vsb.org
You’re going places.
Charles Harvey Bayar, Esq.
Attorney at Law (VSB # 16306)
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Executive Director’s Message
by Karen A. Gould
E-mail Address of Record Requirement: a
Good Idea Misunderstood
THE EXECUTIVE COMMITTEE of
the Virginia State Bar at its April 2014
meeting endorsed the concept of an
e-mail component to the address of
record requirement contained in
Paragraph 3 of Part 6, § IV of the
Rules of the Supreme Court,
Organization & Government of the
Virginia State Bar, directing that it
be published for comment.
The proposed rule change read
as follows:
the address of record or any alternate
address information shall be promptly
reported in writing to the membership
department or changed online at the
Virginia State Bar website within thirty
days of its effective date. Members, by
request, may have their names and
addresses removed from the Virginia
State Bar’s membership list when it is
distributed for other than official purposes. (Deleted material indicated by
stippling and new material underlined.)
3. Classes of Membership —
Members of the Virginia State Bar shall
be divided into five classes, namely:
(a) Active Members, (b) Associate
Members, (c) Judicial Members,
(d) Disabled and Retired Members,
and (e) Emeritus Members. Each
member shall submit in writing to the
membership department of the
Virginia State Bar an address of record
which will be used for all membership
and regulatory purposes, including
official mailings and notices of disciplinary proceedings. The address of
record shall include a current street
address, e-mail address (if any), telephone number, and any post office
address the member may use. If a
member’s address of record is not a
physical address where process can be
served, the member must submit in
writing to the membership department
an alternate address where process can
be served. The alternate address is personal information and shall not be disclosed pursuant to Section 2.2-3704,
Code of Virginia. Members have a duty
promptly to notify the membership
department in writing of any changes
in either the address of record or any
alternate address. Any change in either
The VSB received 156 comments
on the proposal to add e-mail
addresses and phone numbers to the
address of record. Seventy-five percent
of the comments opposed the proposal
or part of the proposal:
• 102 opposed the proposal;
• 15 opposed it in part and favored it in
part or under certain conditions;
• 37 favored the proposal;
• 2 were blank.
10
The comments came from all segments of the bar including: judges, past
presidents, the VSB’s former risk manager, government attorneys (federal
and state), active members, members
who maintain active licenses but do
not practice, associate members, and
the Virginia Conference of
Commissioners of Accounts.
Most cited concerns about safety,
privacy, increased spam, and the reliability of e-mail as reasons for their
opposition. Some said that they did not
want to receive e-mails from current or
prospective clients. Some also objected
to the requirement that the address of
record be updated within thirty days,
because it could expose members to
unintentional violations of the rules.
Those who favored the proposal
thought it was a proposal whose time
had come, e-mail being a frequent and
useful form of communication.
Virginia Code § 2.2-3705.1(10)
creates an exception to the Virginia
Freedom of Information Act that permits the VSB to withhold e-mail
addresses from public disclosure when
the owner of the e-mail requests us to
do so. The VSB specifically permits
members to opt out of public disclosure of e-mail addresses on its website
address of record page and on its dues
form. The proposed amendments
would not have changed the protective
function of Va. Code § 2.2-3705.1(10)
nor would it have made it more likely
that members’ e-mail addresses would
become public. Va. Code § 2.23705.1(10) would still have applied,
and the VSB would have continued to
honor members’ request that the email address not be disclosed. The VSB
would also remove the member’s name
and address from the membership list
when it is distributed for other than
official purposes.
Unfortunately, this salient information regarding the function of
Virginia Code § 2.2-3705.1(10) was not
included in the publication regarding
the proposed rule change. Given the
opinions expressed by those who
responded to the proposal, a recommendation was made and accepted at
the September Executive Committee
meeting that the proposal be withdrawn at the present time in the hope
that in the future a better crafted and
thought-out proposal will be more
accepted.
www.vsb.org
Justice continued from page 8
devote time to pro bono activities, the
simple truth is that it requires dedication and effort from all of us to make
legal services available to those least
able to afford them.
Each lawyer in Virginia has talents
and abilities worth sharing. There is little in life that is more gratifying than
knowing that you helped a person
truly in need. The opportunity is there
for you, and all you have to do is take
advantage of the groundwork that has
been laid. The right time to do it is
right now.
Endnotes:
1
Wyatt v. McDermott, 283 Va. 685, 693
(2012) (quoting Norfolk City v. Cooke,
68 Va. (27 Gratt.) 430, 439 (1876))
Editorial, “A Lawyer’s Duty to
2
Virginia’s Poor,” Virginian-Pilot, April
30, 2010 (quoting then-Virginia
Supreme Court Chief Justice Leroy R.
Hassell)
3 “Commentary” to the “Overview and
Mission” of the Virginia State Bar,
www.vsb.org/site/about (last viewed
September 5, 2014)
4
Available at www.courts.state.va.us
/programs/vajc/resources/order.pdf
Virginia State Bar
Harry L. Carrico
Professionalism Course
December 4, 2014, Richmond
February 18, 2015, Alexandria
April 16, 2015, Charlottesville
May 14, 2015, Hampton
July 16, 2015, Roanoke
August 27, 2015, Richmond
See the most current dates and registration information at
http://www.vsb.org/site/members/new.
www.vsb.org
5
6
Available at www.vsb.org/site/pro_bono
/access-mission-statement (Last viewed
September 5, 2014)
Editorial, “A Lawyer’s Duty to
Virginia’s Poor,” Virginian-Pilot,
April 30, 2010
VSB.org: A Member Benefit
VSB.org — the Virginia State Bar’s website — helps you
with your membership obligations and your practice.
There you’ll find the Member Login, where you can:
• download your dues statement and pay your dues,
• certify Mandatory Continuing Legal Education,
• conduct research on Fastcase, and
• update your contact information with the bar.
At VSB.org, you also can link to:
• Latest News on VSB regulation, programs, and practice information;
• the Professional Guidelines that contain the Rules of
Professional Conduct;
• Rule Changes, proposed and approved;
• the Ethics Hotline;
• Meetings and Events; and
• Search Resources for locating Virginia attorneys and
checking their status with the state bar.
VSB.org will keep you current and connected.
Vol. 63 | October 2014 | VIRGINIA LAWYER
11
Candidates Forum
> VSB PRESIDENT-ELECT
Candidates Seek President-elect Endorsement
Statement of Raymond B. Benzinger
The candidate who is elected this November
will assume the responsibilities of president of the Virginia State Bar in June 2016.
Many things will occur between now and
then and the president must be prepared
to react to such concerns as they arise. My
experience participating in local and statewide bar positions as well as in thirty-plus
years of private practice has prepared me
to meet the challenges that will arise.
Looking ahead to 2016, my current
goals and priorities fall into two areas —
outreach and funding. I believe it is
important that all members of the bar be
represented and included in bar management, programs, and activities. I intend to
reach out to underrepresented specialties,
such as Intellectual Property. And I will be
available to all local and specialty bar associations. Funding is also of utmost importance. There are currently three areas of
concern with budgets and funding. First,
our VSB staff is woefully underpaid. We
are fortunate they have loyally served
despite the failure to keep their salaries
current. Second, our association has four
conferences with specific programs —
Senior Lawyers, Young Lawyers, Local Bar
Associations, and Diversity. Of these four,
three are funded by the bar out of members’ annual dues. It is an embarrassment
that the conference intended to promote
inclusion, Diversity, is the only one that is
not funded by VSB contributions. And
third, we must keep up our efforts to see
that judicial vacancies are funded.
I have the experience and desire
needed to lead our bar association. As I
have retired from active practice, I am
and do commit to devoting 100 percent
of my time to the position of VSB president. Please see my website —
raymondbenzinger.com — for additional
information about my background and
experience. I ask for your consideration
and vote.
Benzinger is a graduate of Georgetown
University Law School and also has an
LLM from Georgetown. He is a member of
the VSB Council. He has been the recipient
of honors for his public service and service
to the bar, and has been awarded the James
Keith Public Service Award from the
Fairfax County Bar Association. He is
married and has three children and seven
grandchildren.
Statement of Thomas A. Edmonds
Over my legal career spanning more than
forty-five years I practiced law; taught law
and served as dean of two schools,
including ten years at the University of
Richmond; and for nineteen years was the
VSB’s executive director. As executive
director, I worked closely with the officers,
Executive Committee and the council. I
handled Supreme Court and legislative
matters, advised many of the bar’s committees and boards, and served as president of the National Association of Bar
Executives. After retiring as executive
director in 2008, I was elected by my peers
to the VSB Council, representing the fourteenth circuit. During my two terms, I
have helped council resolve such difficult
issues as payee notification and strengthening the Clients’ Protection Fund.
My long, comprehensive state bar
experience has prepared me well to continue my volunteer service. I am ready and
able to respond effectively to issues that
confront the bar, and I look forward to
assisting it in formulating rules and poli-
12
cies, when needed, that are fair and make
sense to both bar members and the public.
I pledge to keep the VSB’s resources
focused on its core responsibilities:
improving and regulating the profession,
and helping assure availability of quality
legal services for all Virginians.
While no one seeking office in the
VSB should have a personal agenda, I recognize there are some issues that require
on-going attention. Examples: we must
continue improving our educational and
ethics advisory efforts to keep lawyers out
of the disciplinary system, while resolving
ethics complaints that are received fairly
and expeditiously. We need to find means
of more effectively assisting and strengthening the services provided by our legal aid
organizations, which have suffered severe
funding and staffing cuts in recent years.
The VSB Council has grown too large,
and we should curtail further growth that
could impair its functionality.
Thanks very much for considering my
candidacy.
Edmonds is a graduate of Mississippi College
and Duke University School of Law. He is a
member of the VSB Council. He also served
as executive director of the VSB. He was
dean, director of the Law Center, and professor of law at The University of Mississippi,
as well as dean and professor of law at The
University of Richmond. He has served on
numerous committees and organizations,
including as president of the National
Association of Bar Executives. He is married
and has three children.
www.vsb.org
VSB PRESIDENT-ELECT <
Candidates Forum
Statement of Michael W. Robinson
As Virginia lawyers, we share the privilege
and responsibility of regulating our profession through the Virginia State Bar. We
must serve our profession in a manner that
befits the continued grant of this privilege.
We draw the bar’s leadership from our
colleagues, and it is important for our regulation to be guided by those with a shared
experience of practicing law. I understand
the daily demands we face, whether practicing in small or large firms, as sole practitioners, or in public service. Service to the
profession has been an important part of
my career, and my judgment on bar matters will be guided and tempered by the
experience which has come from my
twenty-eight years as a practicing attorney.
As the practice of law continually
grows more complex, we must couple our
appropriate regulatory efforts with the
bar’s service as a resource for its members.
Our commitment to professionalism
guides our mission: self-regulation of our
profession, improving the availability and
quality of legal services, and improving our
judicial system. The VSB must continue to
work collaboratively with and foster the
role of our voluntary state-wide and local
bar associations as a resource in meeting
our shared goals of improving our profession and the public’s access to legal services.
My active practice and past commitment to the bar has prepared me to serve
as president, and demonstrates that I will
commit the time and energy that the position demands. I have served on Bar
Council since 2008, currently serve on
the Executive Committee, and chair the
Standing Committee on Legal Ethics. I
previously chaired the Special Committee
on Bench-Bar Relations, and was honored
to serve on the faculty of the
Professionalism Course.
I believe strongly in the VSB’s mission. I ask for your vote and your support.
F O R T Y - F I F T H
Robinson is a graduate of George Mason
University with a BA in Philosophy. His law
degree is from the George Mason University
School of Law. He has been a member of the
VSB Council since 2008 and chairs the
Standing Committee on Legal Ethics. He has
served on the faculty of the professionalism
course and has chaired the Special
Committee on Bench-Bar Relations. He is a
partner with Venable LLC. He is married to
Courtney R. Robinson and has five children.
A N N U A L
2015
Criminal Law
Seminar
FEBRUARY 6, 2015
DoubleTree Hotel, Charlottesville
FEBRUARY 13, 2015
DoubleTree Hotel, Williamsburg
Video Replays in Several Locations
MCLE Credits (including ethics credit) Pending
V I R G I N I A
A N D
www.vsb.org
S T A T E
V I R G I N I A
B A R
C L E
13
© shutterstock.com
Ten Lessons from Health Care Reform
by Robert H. Spicknall
For more than twenty years my
colleagues and I have assisted law firms
and sole practitioners with their health
insurance, serving as their broker or
agent. This year brought many changes to
health insurance as the health care reform
provisions became effective. So what have
sole practitioners and small and medium
sized law firms learned from this changing health insurance environment?
Health Insurance Premiums Fluctuate Greatly
in 2014; Underwriting Changes
Perhaps the biggest health care reform change was
the implementation of community rating at the
group’s or individual’s 2014 renewal date. Under
the community rated system, insurance companies base rates on age and geographic location.
Medical questions may no longer be asked, with
the exception of smoking status (smokers can pay
14
VIRGINIA LAWYER | October 2014 | Vol. 63 | GENERAL INTEREST FEATURES
50 percent more). No longer will groups with
fewer than fifty employees, and individuals, be
rewarded by receiving lower rates from their
favorable claims and medical histories. Likewise,
no longer will any person or group be penalized
or charged a higher premium for adverse claims
or medical conditions. Community rating
resulted in premium reductions for some.
However, for the majority it resulted in increased
premiums.
Open Enrollment Period
Many are familiar with the open enrollment
period that lasted from October 1, 2013, through
March 31, 2014. Only those individuals qualifying
with a special event (such as loss of health insurance, birth) can get individual coverage after
March 31. The next open enrollment period for
individuals will be from November 15, 2014,
through February 15, 2015.
Groups of two or more employees can get
coverage the first of any month.
www.vsb.org
GENERAL INTEREST
Exchange
The federal government’s highly publicized
exchange, healthcare.gov, was the mechanism
people used to enroll in health insurance to
receive subsidized premiums from the federal
government. Anyone earning up to 400 percent of
the poverty line — up to $45,960 for individuals
and $94,200 for a family of four — could receive
a subsidy based on income. A June 2014 federal
report noted that 87 percent of the people
enrolled in the exchange received a subsidy. Many
of those not eligible for a subsidy experienced
delays in attempting to enroll. In retrospect, they
would have been better off obtaining coverage
directly through an agent or broker than enrolling
through the exchange since they were not eligible
for a subsidy.
No One Health Insurance Company or Product
is the Answer
It is best to evaluate a variety of products from a
variety of health insurance companies through an
independent broker. Typically, individual and
groups up to fifty do not pay any additional premium by receiving a broker’s assistance.
One thing that hasn’t changed is the criteria
that should be used to evaluate health insurance
options. First, examine the benefits, or what services are covered. Second, the premium or cost is
always important. Finally, the provider availability
must not be overlooked. One should ask, “Are my
physicians and hospitals in the network?”
Many law firms have abandoned a “one size
fits all” approach to health insurance and are
offering a choice of two or three products to
qualified high deductible plan, then one may contribute to a health savings account, which is an
IRA-like account for health care. In the past, this
has appealed to those who consider themselves
healthy and without large foreseeable medical
expenses. It has also appealed to those in the
higher tax brackets, and to those who desire to
pay for out-of-pocket medical expenses with pretax dollars.
In 2014, many healthy people with relatively
low rates are disgruntled with community rating
and now have to pay higher premiums. Therefore,
today more than ever, people are considering this
health savings account approach.
Establish a Group Plan or Purchase Individual
Coverage?
In the past we sometimes suggested that a small
law firm have people purchase coverage individually rather than have a small group health insurance plan. This was because when health
insurance was medically underwritten the entire
small group would be penalized and everyone
would receive high rates due to one individual’s
adverse medical situation. By breaking the group
into components, only one employee would
receive high rates due to his medical history and
the rest of the firm would receive low rates.
Sometimes it made sense to even break up a family’s coverage by getting separate policies and have
the remainder of the family receive low rates.
Today this strategy of isolating the high risk is no
longer necessary or justified as rates are no longer
based on health conditions.
A June 2014 federal report noted that 87 percent of the people
enrolled in the exchange received a subsidy.
employees. Stereotypically, the staff may desire a
traditional copayment plan while partners may
opt for the tax advantages associated with the
high deductible/health savings account approach.
Health Savings Account Approach Grows in
Popularity
The health savings account approach is a combination of two things. If, and only if, one selects a
www.vsb.org
In fact, small firms may be better served by
establishing a group product rather than having
everyone get their own individual policy. In general, wider spectrums of products, including more
generous benefits, are available with group products. Also, greater provider availability sometimes
exists in group health insurance products than in
Health Care Reform continued on page 23
”
GENERAL INTEREST FEATURES | Vol. 63 | October 2014 | VIRGINIA LAWYER
15
GENERAL INTEREST
When Federal Immigration Law is a State Issue:
Special Immigrant Juveniles in Virginia
by Christine Lockhart Poarch
Since Congress’s creation of the
special immigrant juvenile status (SIJS)
remedy in 1990, its scope and application
has confused family lawyers, judges,
guardians ad litem, and even immigration attorneys. The federal statutory or
regulatory language — intended to apply
across the fifty states to juvenile court
practice involving certain qualifying
undocumented children — does not
pair intuitively with the parlance of the
Virginia juvenile and domestic relations
courts. Accordingly, more than a few
judicial brows furrow when practitioners
walk through the interpretative gymnastics necessary to explain why a state
juvenile court is involved with federal
immigration law.
The present border crisis with undocumented
juveniles has only heightened the sense that these
children may overwhelm the already-stressed
judicial and social services system and that remedies like SIJS must be highly scrutinized. Even
though Congress has not expanded the scope of
the law since 2008, and in the last fiscal year
only 3,993 SIJS applications were filed with U.S.
Citizenship and Immigration Services nationally,1
the palpable sense in certain state court proceedings is that SIJS is an illicit end-run around normal immigration processing or an impermissible
short-cut to green card status. This article is
intended to answer some of the questions concerning the propriety of SIJS and the confusion
that often arises regarding state court jurisdiction.
To understand why this law has been a source of
confusion and consternation at the state level, it
is necessary to briefly examine the history of the
law, its legislative amendments and its current
requirements.
16
SIJS: An Overview
SIJS is a federal immigration remedy for certain
undocumented children2 in the United States, for
whom family reunification with one or both parents is not viable due to abuse, abandonment,
neglect, or a similar basis under state law, and for
whom it would not be in their best interests to
return to their home country.3 Congress tasked
the state court with jurisdiction over juveniles —
in Virginia, typically the juvenile and domestic
relations (JDR) court — with making these factual findings. The predicate order from the JDR
court containing these findings is then used to
support the child’s application for permanent status to U.S. Citizenship and Immigration Services
(USCIS). While the juvenile court’s order does
not confer immigration status on the child, without this SIJS order the child cannot apply for status to USCIS, the benefits-granting agency that
ultimately decides the child’s eligibility for SIJS.
Why Are State Courts Involved in SIJS?
Commonly, state courts question the propriety of
Congress’s dependence on state predicate orders
to prove the factual determinations regarding
SIJS. After all, isn’t there an immigration court
that can make these decisions? Although immigration courts are organized around the country,
SIJS determinations are not within their mandate.
Because immigration courts are regional, often
covering several states, they may lack local insight
or access to fact witnesses necessary to make the
particularized findings SIJS requires. In the same
way, JDR courts regularly make findings of fact
regarding the best interests of children and as
such are experts on this standard. Immigration
courts have no such expertise. Moreover, state
courts have statutes governing notice and service
of process on absent parents that give the SIJS
determination a higher indicia of reliability than
if it was heard by a regional immigration court.
Finally, having immigration courts hear these
cases would put an undue burden on local
departments of social services as to those undocumented children in that agency’s custody. State
www.vsb.org
GENERAL INTEREST
courts are simply the best triers of the facts
regarding the underlying SIJS requirements.
How Is the SIJS Case Heard by the State Court?
SIJS cases arrive on the courthouse steps in a variety of ways. Some children are involved in true
dependency proceedings, are removed from an
abusive home, or are otherwise identified as children in need of services by local departments of
social services. Others are subject to probate proceedings of deceased immediate family members.
Private petitions for custody by a family member
or other adult with whom the child lives initiate
other cases. The issue of SIJS also arises in adoption proceedings. The federal law considers any of
these proceedings appropriate for SIJS. In fact, the
2008 TVPRA amendments specifically included
children who were:
declared dependent on a juvenile court
located in the United States … or …
legally committed to, or placed under
the custody of, an agency or department
of a State, or an individual or entity
appointed by a State or juvenile court
located in the United States.4
The plain language of this amendment
demonstrates Congress’s consideration of private
custody petitions (or guardianship in some states)
as one of the viable methods of bringing SIJS
cases to the state court’s attention. The agency’s
memorandum guidance specifically includes
guardianship and adoption.5
The original regulations also add credence to
the interpretation that Congress intended to permit SIJS findings within a more expansive list of
case types at the state level. The original implementing regulations merely required that the
child was “the subject of judicial proceedings or
administrative proceedings authorized or recognized by the juvenile court.”6 The statute, prior
regulations, and agency memoranda do not limit
the type of judicial or administrative proceedings
authorized under the act. Rather, the only limitations are the state’s own statutes governing subject matter and personal jurisdiction.7 If the
underlying case is properly before the court, then
the court may also hear the issue of eligibility for
special immigrant juvenile status and make the
requisite factual findings attendant to that status.
This interpretation is not new. Prior to the
2008 amendments, courts made SIJS determinations in a variety of proceedings including
true dependency actions, probate, delinquency,
and adoption cases as well as private custody
petitions.8
www.vsb.org
Since the 2008 amendments, private custody
petitions have likewise been utilized in various
courts in various states to fulfill the purposes of
the federal SIJS statute.9 Moreover, recent guidance
promulgated by the United States Citizenship and
Immigration Services (USCIS) in 2009 and additional guidance provided to courts by the office
of the USCIS Ombudsman likewise includes
guardianship and custody as possible actions to
seek SIJS findings in state court.10 Finally, nothing
in Virginia law contradicts or limits the use of
private custody petitions to secure SIJS findings.11
Why Is SIJS Important for Lawyers to Know
and Use?
Anecdotally, immigration lawyers frequently
encounter children who could have benefitted
from SIJS but either never sought counsel or
were not properly advised regarding the availability of the remedy.
In Padilla v. Commonwealth of Kentucky,12 the
U.S. Supreme Court held that criminal attorneys
had a duty to advise defendants of the specific
immigration consequences of their criminal pleas
and convictions. One may extrapolate from this
opinion, and existing Virginia State Bar rules
regarding competence,13 that a similar duty exists
regarding undocumented, minor children represented by family law practitioners. Accordingly, it
is incumbent on family attorneys, guardians ad
litem, and other lawyers who encounter undocumented children to properly assess or refer them
to be assessed regarding whether they qualify as
special immigrant juveniles or for some other
ground of eligibility. Guardians ad litem, in particular, are uniquely situated to screen for and
advise the court regarding the child’s eligibility
for SIJS.
…and in the last fiscal year only
3,993 SIJS applications were filed
with U.S. Citizenship and
Immigration Services nationally…
SIJS: An Underutilized Remedy
Virginia, to date, is ranked fifth behind California,
Texas, Florida, and New York in the number of
undocumented child placements from January to
July 2014, a period reflecting the current border
crisis.14 From October 2013 through the March
2014, however, the USCIS ombudsman notes that
”
17
GENERAL INTEREST
USCIS received only 2,400 applications
nationally.15 As previously stated, in fiscal year
2013, USCIS reported that only 3,993 SIJS applications were filed nationally with USCIS.16
These numbers indicate that the visa category is not overused nationally. In fact, while
Virginia is in the top five states for undocumented minor placements, it is replaced by
Illinois in the list of the top five states for SIJS filings.17 While SIJS petitions may feel like they are
becoming more common than before, especially
in rural areas, the novelty is the result of migration, not overuse or abuse of the SIJS process.
While the subject matter of this article is narrow, myriad resources are available to assist the
court, practitioner, guardian ad litem, or other
stakeholder to navigate the nuances of SIJS. These
include:
• Immigrant Legal Resource Center, Immigration
Benchbook for Juvenile and Family Court
Judges18
• Capital Area Immigrants Rights Coalition,
Practice Manual for Pro Bono Attorneys19
Endnotes:
1
See http://www.dhs.gov/yearbook-immigrationstatistics-2013-lawful-permanent-residents (table
7)(last accessed on August 26, 2014).
2
See INA § 101(b)(1); 8 § U.S.C. 1101(b)(1). A
child is defined under federal law as an “unmarried person under 21 years of age.”
3
INA § 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J);
8 C.F.R. § 204.11(c).
4
See INA § 101(a)(27)(J)(i), 8 U.S.C.
§ 1101(a)(27)(J)(i)
5
See USCIS Memorandum, D. Nuefeld and P.
Chang, Trafficking Victims Protection
Reauthorization Act of 2008: Special Immigrant
Juvenile Status Provisions, (Mar. 24, 2009);
attached USCIS Pamphlet, Information for
Juvenile Courts; attached USCIS Pamphlet,
Immigration Relief for Abused Children.
6
8 C.F.R. § 204.11(c)(6); see also Angie Junck,
Special Immigrant Juvenile Status: Relief for
Neglected, Abused, and Abandoned Undocumented
Children, 63 Juv. & Fam. Ct. 48, 54 (2012).
7
While beyond the scope of this article, a child’s age
is one key issue distinguishing Virginia practice
from federal SIJS law. Under INA § 101(a)(27)(J),
a child must apply for SIJS prior to age 21, consistent with the definition of a child in INA § 101(a).
In Virginia, certain rules permit continuing jurisdiction beyond age 18, but these rules are strictly
construed. See Va. Code §§ 16.1-241, 16.1-228
and 16.1-242. In certain states like Maryland, the
state legislature has brought state statutes into
compliance with the federal definition in order to
facilitate consistency between state and federal law.
See Md. Code Ann. §§ 3-801 and 3-803 (2014).
18
8
9
10
11
12
13
14
15
16
17
18
19
See In re: Petitioner [Redacted], AAO Opinion,
2007 Immig. Rptr. LEXIS 25182 (February 26,
2007— Phoenix, Arizona); See In re: Petitioner
[Redacted], AAO Opinion, 2007 Immig. Rptr.
LEXIS 13385 (November 21, 2007— Boston,
Massachusetts); See In re: Petitioner [Redacted],
AAO Opinion, 2006 Immig. Rptr. LEXIS 21717
(August 16, 2006 — Boston, Massachusetts)
(probate); See In re: Petitioner [Redacted], AAO
Opinion, 2007 Immig. Rptr. LEXIS 26237 (June 5,
2007— Miami, Florida) (adoption).
See In re: Petitioner [Redacted], AAO Opinion,
2012 Immig. Rptr. LEXIS 10410 (February 11,
2012— Newark, New Jersey); See In re: Petitioner
[Redacted], AAO Opinion, 2010 Immig. Rptr.
LEXIS 9056 (March 30, 2010 — Baltimore,
Maryland).
See USCIS Memorandum, D. Nuefeld and P.
Chang, Trafficking Victims Protection
Reauthorization Act of 2008: Special Immigrant
Juvenile Status Provisions, (Mar. 24, 2009);
attached USCIS Pamphlet, Information for
Juvenile Courts; attached USCIS Pamphlet,
Immigration Relief for Abused Children.
See Virginia Code § 20-124.2.
See Padilla v. Commonwealth of Kentucky, 559 U.S.
356 (2010).
VA. R. OF PROF’L CONDUCT 1.1 (Competence).
See http://www.acf.hhs.gov/programs/orr
/programs/ucs/state-by-state-uc-placed-sponsors
(last accessed August 25, 2014).
Powerpoint: Special Immigrant Juveniles: Hot
Topics, Federal Bar Association, Immigration Law
Section Annual Conference (USCIS Ombudsman
2014) (on file with author).
See supra note 1
See supra note 23
See http://www.ilrc.org/files/2010_sijs
_benchbook.pdf (last accessed August 25, 2014).
See, http://www.caircoalition.org/wp-content
/files_mf/1391555303CAIRCoalitionPractice
ManualforRepresentingUnaccompanied
ImmigrantChildrenJan312014.pdf (last accessed
August 25, 2014)
Christine Lockhart Poarch is the managing attorney
at Poarch Law Firm, an immigration law practice in
Salem. She is a frequent speaker at national, state, and
local conferences on immigration law and is a member of the governing board of the Immigration Law
Section of the Federal Bar Association. She also serves
on the Virginia Latino Advisory Board.
www.vsb.org
Book Review
The Most Dangerous Book:
The Battle for James Joyce’s Ulysses
By Kevin Birmingham
The Penguin Press
New York, 2014
$29.95, hardcover
Reviewed by Thomas J. Byrne
“Obscenity is as illegal today as it was in
1873. What changed is the way we define
it.”1 If someone were to ask what Kevin
Birmingham’s new book is about, this
pithy description could not be called
inaccurate. But it would be like describing Moby Dick by saying, “It’s a book
about a whale.”
In The Most Dangerous Book:
The Battle for James Joyce’s Ulysses,
Birmingham sets Joyce’s novel in the
context of his life and times — especially
the times relevant to the cultural movement now known as modernism — a
context which in significant part consists
of the book’s tortured publishing history
and the legal challenges it faced in being
brought to American readers.
Birmingham undoubtedly was
aware of the massive volume of commentary on Joyce’s works. But he justifies his project by noting that the “story
of the fight to publish Ulysses has never
been told in its entirety,”2 and he
admirably fills this gap. To call his inclusion of historical detail voluminous is to
beggar the word somewhat. This is not a
book you glide through in one sitting;
rather, it is best appreciated by being
savored episodically to get the full flavor
of the momentous consequences the
battle had for individuals, the publishing
industry, and constitutional law.
Some readers may be put off by
the breadth of the historical research
Birmingham incorporates into his story
and, in fairness to such readers, the
numerous layers and contextual
detours do occasionally sidetrack. The
detours, however, always lead back to
the main story and add a richness of
understanding.
www.vsb.org
Those interested primarily in the
details of the legal battle over Ulysses
can begin reading on page 297 and still
get their money’s worth. But even such
focused consumers will be drawn back
to the beginning or some previous section(s) of the book. Intellectual treats,
after all, are not tightly orchestrated
strolls. They are, at their best, sumptuous and often surprising romps.
Birmingham’s book is no less than that.
The legal and social background
involves the Comstock Act, passage of
the Espionage Act in 1917 on the eve of
America’s entry into World War I, the
violent anarchist movement in America
during that period, and the federal government’s casting of so wide a net in
search of these dissidents that it also
ensnared those with barely colorable
affiliations to known or suspected anarchists. In America, episodes of Ulysses
were first published in The Little Review,
a New York City magazine edited by
Margaret Anderson and Jane Heap that
regularly published articles by Emma
Goldman, a radical feminist and vocal
supporter of anarchism.
One of the surprising threads
Birmingham weaves into his tapestry
is the early history of America’s postal
service. Incredible as it seems, he convincingly argues that in the decades
preceding World War I, “The Post Office
Department was a major federal law
enforcement agency” and “the cornerstone of the U.S. censorship regime.”3
And those who crave a little action in
their reading will be thrilled by the story
of Anthony Comstock, a special agent of
the Post Office Department with a gun, a
badge, and the authority to make arrests
anywhere in the country, who began as
head of the New York Society for the
Suppression of Vice. In 1873 he traveled
to Washington, DC, with proposed
legislation he had drafted, designed to
expand and strengthen the scope of
what could be censored and what consequences could follow. After a month of
lobbying, President Grant signed the bill
and Comstock got his gun and badge.
No chair-bound administrator,
Comstock personally and vigorously
joined the crusade.4
Regarding the actual litigation5 over
Ulysses, Birmingham fleshes out the
characters involved, rarely resorting to
black hat-white hat stereotypes, as he
details the cooperation of the federal
attorney, Sam Coleman, in the numerous postponements and adjournments
that ultimately landed the case on the
docket of the only judge of the Southern
District of New York deemed favorable
by Morris Ernst, the lawyer defending
Ulysses. Coleman further cooperated by
waiving the government’s right to a jury
trial, thereby ensuring that Judge John
Woolsey would have complete control
over the outcome.6
As for Woolsey’s decision, I’m not
giving anything away by saying he ruled
that importation and distribution of
Ulysses in the United States did not violate the Tariff Act. The opinion is relatively brief and does not address the
legal particulars until near the end. The
bulk is taken up with an account of
Woolsey’s reading and study of the
19
Book Review
entire novel (he declined the prosecutor’s request that he follow the so-called
Hicklin rule, which allowed a factfinder
to consider only those isolated passages
the government deemed obscene),7 and
with his lengthy explication of the avantgarde creative task Joyce set for himself.
In contrast, Martin Manton, dissenting
judge in the 2-1 decision of the Second
Circuit Court of Appeals affirming the
district court,8 refused to read the book,
reaching his decision based solely on the
complained-of passages. And Manton
refused to quote even one word of the
novel in his dissent. Birmingham cannot
resist adding parenthetically, “A few years
later, Manton would go to prison for
taking bribes.”9
Birmingham’s greatest achievement
is the almost cinematic presentation that
enriches his story as it marches, meanders, and storms its way to the titular
battle for Ulysses. But even this richness
is only the objective, external battle for
Ulysses. Equally compelling is the subjective, internal story of the struggle to
actually get the novel written. For one
thing, Joyce was obsessively inclusive,
constantly revising (usually by adding
to) his book. Few readers will suppress a
smile when they read of one such addition. Sensing that he needed solitude at
one point, his wife took their children
on a trip. During that time “he wrote
alone and talked to the cat. ‘Mrkgnao!’
said the cat. He wrote it down.”10
For those unfamiliar with Ulysses,
the skeletal outline of the story is patterned after the course of events in
Homer’s Odyssey, with lower middle
class Dublin characters substituted for
Homer’s mythological and demigod roster, and what was for Odysseus a tenyear journey is in Ulysses condensed into
one day — June 16, 1904 — a day widely
known ever since as Bloomsday. (The
Odyssean character in Ulysses is Leopold
Bloom.)
Joyce’s all-consuming focus on
Ulysses exacerbated the penury that had
long burdened his family; he was able to
ignore such mundane concerns only
through the seemingly superhuman
efforts of his wife, the former Nora
20
Barnacle. Joyce’s serious physical ailments were another aspect of their often
grueling existence. Birmingham’s
description of the eye surgeries Joyce
endured will unsettle many readers.
Then there were ailments actually caused
by the various treatments. His utter
dependence on and devotion to Nora, in
this and all aspects of their relationship,
is perhaps best epitomized by noting
that the date on which he chose to set
his modernist epic was the day of his
first sexual encounter with her.
Nora was Joyce’s lifeline, but the
people whose determination, courage,
and sacrifice ultimately made the legalization of Ulysses a reality are of equal
note, and Birmingham gives them their
stroll on the stage: Anderson and Heap,
Adrienne Monnier, Harriet Shaw
Weaver, Ezra Pound, John Quinn (a
wealthy New York lawyer and patron of
modernism), Ernest Hemingway, Barnet
Braverman (enlisted by Hemingway to
smuggle copies of Ulysses into the U.S.
from Canada, and whom Birmingham
cleverly refers to as a “booklegger”), and
arguably the most essential (and most
severely put-upon by Joyce) performer
in this cast, Sylvia Beach.11
Birmingham’s pronouncements on
artistic freedom will chafe some readers
but, agree or not, the fact that you have
the freedom to decide for yourself
should resonate more deeply after reading this book. The Ulysses case did not
settle the issue of censorship decisively
or finally. It was not until 1957 in Roth v.
United States that the U.S. Supreme
Court expressly repudiated the Hicklin
rule, and Henry Miller’s Tropic of Cancer
was widely banned and prosecuted in
the 1960s until the Supreme Court held
that it was not obscene. But the Ulysses
decisions changed the way issues of
obscenity and censorship are treated in
our legal system. Birmingham’s masterful tale of how that change came about
and, more importantly, what it came out
of, is an education and an enjoyment
that all readers will savor for one reason
or several. You should exercise your right
to read it.
Endnotes:
1
Kevin Birmingham, The Most Dangerous
Book: The Battle for James Joyce’s Ulysses
(New York: The Penguin Press 2014), p.
338. Hereafter, “Birmingham.”
2
Birmingham, p.13.
3
Id. at 108-109.
See id. at 111-113, 173.
4
5
The specific procedural basis for Judge
Woolsey’s decision was cross-motions
for what we now know as summary
judgment. (This was five years before
the Federal Rules of Civil Procedure
were adopted.) The citation is United
States v. One Book Called Ulysses, 5 F.
Supp. 182 (SDNY 1933).
6
See id. at 308-311.
7
Under the so-called Hicklin rule, the
prevailing standard in obscenity prosecutions at the time, “federal law allowed
juries to determine that a book was
obscene by examining isolated passages
rather than the work as a whole.
Moreover, the Hicklin standard measured a book’s obscenity by its most susceptible audience, not by its
acceptability to the community at large.”
Gerald Gunther, Learned Hand: The
Man and the Judge (New York: Alfred A.
Knopf 1994), p. 149.
8
The words “by James Joyce” were added
to the caption in the appellate court.
The citation is 72 F.2d 705 (2d Cir.
1934).
9
Birmingham, p. 334.
10 Birmingham, p. 100.
11 Sylvia Beach, an indispensable figure in
the literary culture of the 1920s, was the
owner and proprietor of a bookstorecum-lending library in Paris that served
as mailing address, gathering place and
much more to numerous writers and
artists.
Thomas Joseph Byrne, of Yorktown, is a retired
attorney who has been clerk to four judges
(state and federal), an attorney in law firms in
Washington, DC, and Lansing, MI, a prosecutor
in both Michigan and Virginia, and the first
statewide gang attorney for the Virginia
Commonwealth Attorneys’ Services Council.
www.vsb.org
Law Stories
First Appearance
by Olivia Fines
My very first court appearance, I arrived
to Arlington County Circuit Court at
9:30 a.m. on a Friday morning. Initially, I
thought, this isn’t so many people — I’ll
be fine. Of course, come 10 a.m., there
were hundreds of lawyers there, many of
whom were left with standing room
only. Stage fright began to set in.
Acknowledging my anxiety, I began
thinking over and over again, “You’ll be
OK. All you have to do is ask to set a
date for trial.”
Of course, this mantra did nothing
to assuage my growing panic. Would I
pass out? Throw up? Be disbarred?
Gripping my briefcase handle ever
so firmly, I felt myself go pale. Cases
were being called, and I had no clue how
the order was being determined. By case
number, party names, or what? Each
time a lawyer concluded before the
judge, I felt my stomach sink, thinking,
“I must be next.”
About fifteen minutes past 10, a
kind female attorney sitting next to me
reached over and said, “First time in
court?”
“Yes,” I squeaked.
“Let me see your case number.” I
showed her my folder. “Don’t worry,
you’ll be at the very end. Nearly everyone will have left. Breathe.”
Relief washed over me. And she was
right. By the time I was called, I had
watched dozens of attorneys approach
the judge — several of whom were reprimanded for poor courtroom etiquette. I
took note, and just prayed that when my
turn came, I would manage to introduce
myself and mutter the words, “I’d like to
set a trial date, your honor.” That’s all I
had to do.
Finally, I was up. Only a handful of
attorneys remained.
Then a judge who shall remain
nameless said to me, “I don’t remember
you. Have you been before this court?”
“No, your honor,” I said, “This is the
first time.” I felt my heartbeat in my ears.
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“Very well then,” the judge said with
a half grin, “Let’s have a recitation of the
case facts.”
A feeling of ice cold water ran
through my veins. My soul escaped from
me, and I hovered over myself looking
down. Suddenly, I realized someone was
talking.
Turns out, it was me!
Possessed by forces unknown, I successfully recited the facts, and we set a
trial date.
Afterwards, as I made my way out
of the courthouse, I recall thinking in
that moment,
I AM A LAWYER!
Olivia Fines is general counsel and director of
contracts for Golden Key Group LLC (GKG), a
government contractor headquartered in Reston.
She has also been an associate with Cornerstone
Venture Law PLC, since 2010, where her practice
focuses on general civil litigation, employment law,
and trademark and copyright law.
One late afternoon I was called to
the Urbanna law office to help with signing wills, power of attorneys, and
advanced medical directives for an
elderly couple. As attorney, staff, and
clients were busy hunched over signing
and stamping the stacks and stacks of
documents before us, my husband
turned to me and out of the blue said,
“Do you want to try something different
tonight, dear?”
A stunned silence hit the group as
we stared at Mr. Buxton with mouths
agape. Whatever was Mr. Buxton
suggesting? We could think of nothing
to say.
Finally it occurred to me that a new
restaurant had opened in Urbanna just
last week and it was called “Something
Different.” I immediately explained this
to the group and we all burst out into
fits of laughter. Not to worry. Mr.
Buxton was just feeling a bit hungry
and was simply offering to take his wife
out to dinner. From that point on it
was by far the most jocular will signing
we have ever attended.
Something Different
Tonight, Dear?
by Mary Wakefield Buxton
The Virginia Lawyer’s suggestion that
special memories from the practice of
law be published in a future issue of our
magazine set my attorney husband and
me off in laughing fits. Oh, the funny
memories over the many years that we
have enjoyed.
My husband of fifty-one years,
Joseph T. “Chip” Buxton III, has practiced law in the commonwealth since
1978. He is definitely a senior attorney
now with the staid, dignified, and greyhaired aura that we immediately think
of when we think “Virginia lawyer.”
Certainly he is not the type that would
ever use an off-color word or tell a
ribald joke.
Mary Wakefield Buxton is the author of twelve
books on love and life in Virginia including a new
novel, “The Private War of William Styron.” She
has been a columnist for the Southside Sentinel
since 1984, writing “One Woman’s Opinion.” She
lives in Urbanna with her husband, Chip Buxton,
senior partner of Buxton & Buxton Inc., and two
beloved spaniels, Dandy and Dasher.
It Had to Be Forged
by Brendan Feeley
As an assistant commonwealth’s attorney
I was prosecuting an individual who was
charged with presenting a forged pre-
21
Law Stories
scription at a pharmacy. I called the
pharmacist who had received the forged
script to the stand. In direct examination
he said that he knew the prescription
was forged.
On cross-examination, with a skeptical tone of voice, the defense attorney
asked the pharmacist, “How did you
KNOW the prescription was forged?”
The pharmacist replied, “The handwriting on the prescription was legible.”
Brendan Feeley served as an assistant commonwealth’s attorney in Arlington from 1972 through
1975. He has been in private practice since 1976.
He also has served as a substitute judge since 1997.
Bubba’s Case
by Karen Kranbuehl
Because of Bubba, I will never forget my
first court appearance. It was 1997 and
my second year of law school was behind
me. The United States Attorney’s Office,
Criminal Division, in Norfolk, had
accepted me as a summer intern. My
first court appearance was before Judge
Rebecca Beach Smith. I had heard she
was tough.
My job that day was to inform the
court of the facts in Bubba’s case in support of a plea bargain. It seemed that
Bubba had been caught (again) driving a
large quantity of marijuana up the East
Coast (again). The day before, I had read
his case summary over and over, learning the facts of his crime. I was determined to succeed in my first court
appearance. What I was not prepared for
was Bubba.
From my seat at the courtroom
table I saw a guard lead a man into the
courtroom. The judge was still in
chambers. Still, my stomach was knotted. Here he was, The Defendant, in the
flesh! Was he nervous, too? Would he
scowl at me? I steeled myself for whatever might happen.
As the guard led Bubba to the other
table, Bubba paused in front of me,
clearing his throat. “I hear this is your
first time in court?”
Gulp. “Yes.”
“Don’t worry, you’ll do fine.” He
smiled and winked.
I looked around. Was this for real?
Was this some kind of “prank the
intern” thing? All I could do was thank
him and smile back.
Minutes later I finished my presentation of facts to the court. The judge
thanked me and I sat, heart still pounding. Just then, something caught my eye.
There was Bubba, looking at me. We
made eye contact and I felt a pang of
mixed emotions. I was happy with my
performance, but now I was looking at
the human behind the facts. That limbo
lasted only a moment because the next
thing I saw was a smile spread across
Bubba’s face and his hands in the air giving me a double thumbs up behind his
attorney’s back. His friendliness and
empathy were real.
Fortunately, Bubba was transferred
to a prison in his home state so that his
family could visit him regularly. Yes, he
was going to prison, but clearly he still
had some sunshine to spread around.
Karen Kranbuehl previously clerked for a judge in
Tennessee and worked in private practice in
Chicago. She is now earning a master’s degree in
social work at the University of North Carolina,
Chapel Hill. She looks forward to combining her
masters and legal background to advocate for
social justice.
Tell Us Your Favorite Law Story
Every lawyer has a story set aside for gatherings of friends or relatives. It’s a
special tale about a legal battle won, or lost. Or about an amusing encounter
with a judge. Or a story with a surprising twist. Maybe it’s a story that will
bring a knowing smile, or shake of the head, from a colleague.
Pick your best law story, your incredible adventure,
your unusual courtroom or even boardroom
escapade, and send it to us. We hope to
get enough of these stories to produce
an ongoing “Law Stories” feature in
Virginia Lawyer. Keep them short—
about 400 words or less—and
send them in.
E-mail your stories to us at
hickey@vsb.org.
22
www.vsb.org
GENERAL INTEREST
Health Care Reform continued from page 15
individual policies. Therefore, we are starting to
see small firms discard their “every attorney for
himself” health insurance philosophy and return
to a group health insurance approach. Finally,
there are tax advantages to sponsoring a group
health plan and deducting the premium for
employees as a business expense.
Conversely, the drawback to maintaining a
group health insurance plan is that lower-paid
individuals become prohibited from receiving a
subsidy from an individual policy through the
government exchange.
Self-funding Is an Option for Very Healthy
Groups to Consider
Some “healthy” law firms will consider self-funding or an alternate funding arrangement as
opposed to accepting a fully-insured health insurance product with community rates. Law firms
with very few medical conditions may seek to pay
less than they ordinarily would with today’s fully
insured community rated products. Under the
self-funding approach, a law firm with as few as
five or ten employees may eventually have a portion of its premium returned if it incurs minimal
claims, in addition to receiving lower rates.
Frustration Galore
Despite the media devoting much attention to
health care reform, many are still unaware of how
the changes in the law will impact their health
insurance. Most of the media’s focus was on large
corporations, with little emphasis given to smaller
employers. Since 2010, I have worked to inform
my clients and the Virginia State Bar membership
with my papers (found in the Resource Center of
www.vsbmic.com) and through my many conversations (877-214-5239). With an understanding of
the changes, people will make informed selections. My goal is to simplify the complicated and
limit your frustration. The complication and frustration extends to the insurance companies in
their attempts to comply with the changing law in
a timely manner. A knowledgeable broker can
lessen this frustration and offer a variety of alternatives without increasing the cost of health
insurance.
www.vsb.org
Will Health Insurance Company Service
Improve?
In recent years, health insurance companies have
had to digest the changes associated with Health
Care Reform and modify their products in a
timely manner. They have been overwhelmed in
their attempts to provide customer service and
this has resulted in longer wait times for consumers who call and receive inconsistent answers.
Health insurance company service will continue
to be challenged by health care reform’s medical
loss ratio provision, which was effective several
years ago mandating that health insurance companies pay 80 to 85 cents in claims on every premium dollar received. With the remaining 15 to
20 cents they must run their business, pay
employees, and produce profit for shareholders.
As a more highly regulated industry, health insurance companies will need to make the most of
their operational and customer service expenses,
and may seek to limit their expenses to increase
profits.
Health Insurance Challenges to Continue
Most employee benefit specialists would agree
that despite all the changes to the health insurance industry, health insurance premiums are
expected to increase in the foreseeable future.
With health insurance claiming a larger portion
of most budgets, the need to review and evaluate
various options becomes increasingly important.
Robert Spicknall is president of the Virginia State Bar
Members’ Insurance Center. VSBMIC is an affiliate of
Digital Benefit Advisors and is endorsed by the Virginia
State Bar.
23
Virginia State Bar Mission
The Virginia State Bar (VSB) was created in 1938 by
SAVE THE DATE
VIRGINIA STATE BAR
ANNUAL
MEETING
JUNE 18-21 2015
the General Assembly as an administrative agency of
the Supreme Court of Virginia. The creation of the
agency unified Virginia's lawyers in a mandatory State
Bar. The VSB is governed by its Council and Executive
Committee, whose members are elected or appointed
from every judicial circuit in the Commonwealth. The
mission of the Virginia State Bar, as an administrative
agency of the Supreme Court of Virginia, is to regulate
the legal profession of Virginia; to advance the availability and quality of legal services provided to the
people of Virginia; and to assist in improving the legal
profession and the judicial system.
Read more at http://www.vsb.org/site/about.
0DNH<RXU&RQQHFWLRQ
Over 12,000 times each year, we connect lawyers with clients
from the general public, businesses, and legal professionals
seeking lawyer to lawyer referrals. We can do it for you.
Visit VLRS.net and find out how.
The Virginia Lawyer Referral Service.
Connecting the public with lawyers for more than thirty years.
24
www.vsb.org
Improving Access to Justice
and Pro Bono Services in Virginia
by Cynthia D. Kinser, Chief Justice of the Supreme Court of Virginia
This issue of Virginia Lawyer focuses on the issues
of access to justice and pro bono legal services.
These matters deserve our attention and ongoing
commitment. On behalf of the judiciary, I take
this opportunity to stress the need for improving
the availability and quality of pro bono legal
services in the commonwealth.
We are privileged to be a part of the greatest
legal system in the world — one that recognizes
the inherent value of all persons and adheres to
the rule of law. As much as our legal system is
one to cherish and protect, it is also one we can
improve. As attorneys and leaders in our communities across the commonwealth, we have the
opportunity and responsibility to make that system accessible and responsive to all individuals,
regardless of their circumstances. In my view, an
www.vsb.org
individual without access to justice and legal
services is an unacceptable proposition.
Today, the commonwealth faces the dual
challenges of an increase in individuals’ legal
needs with a decline in funding for the public
services on which so many rely, including legal
aid services. Thus, I stress to each of you the
importance of providing pro bono legal services
throughout your careers. It is our responsibility
as members of the Virginia State Bar. May we all
make every effort to use our gifts in service of
those in need, to improve the lives of others, to
strengthen our communities, and to preserve the
rule of law in the commonwealth.
I thank you for your service as members of
the Virginia State Bar.
PRO BONO | Vol. 63 | October 2014 | VIRGINIA LAWYER
25
We Can Be Heroes
by Justina Uram-Mubangu
I’ll never forget the first time I held her. She was very tiny, so I
was a little nervous. Then, she looked up at me with angelic blue eyes and
smiled. My heart melted. I knew I was tasked with an important duty
and I couldn’t let her down.
My very first client, an infant, was abused then
abandoned by her mother, a prostitute. I was so
taken aback by her sheer helplessness that the
usual excuses many of us make to distance ourselves from pro bono service didn’t have a chance
to cross my mind. I felt like a superhero. How
could I not take her case?
26
VIRGINIA LAWYER | October 2014 | Vol. 63 | PRO BONO
Later, though, when I was alone, the fears
and excuses crept up on me.
“What if I mess this up?”
“What if I don’t know what to do? Who’s
going to help me?”
“How much time is this going to actually
take?”
“Maybe I can still say no?”
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WE CAN BE HEROES
When I saw my little client again, the excuses
faded away. This was a no brainer. She was a
baby. How could she possibly represent herself?
And what kind of person would I be if I turned
my back on her?
Her case ended up being sort of….easy. Not
only that, it resolved positively. I was surprised.
“Did I help save a baby?”
I gained some confidence and decided to take
the pro bono case of another child, a victim of
incest. When I met her, she seemed so innocent,
despite years of being raped by her brothers. I
knew that I couldn’t let her down and I got that
superhero feeling again.
That night, I lay awake staring at the ceiling
fan above my bed, worried that her case would be
difficult, emotionally draining, and time consuming. It turned out being all those things, but once
I was actually in the thick of it, my worries faded
away. My desire to serve my client outweighed all
the excuses I could conjure up. When the case
finally ended, I felt really good because my client
was safe. Again, I was surprised.
“Did I just help save a kid?”
Sometimes, I still lay awake at night, staring
at the ceiling fan, now thinking about the horrors my little client endured. I guess that case
got to me.
My third case was a toddler who was left parentless after a natural disaster. She touched my
heart the most. I’ll never forget running through
Baltimore in a torrential downpour, carrying my
little client in one arm and my files and umbrella
in the other, praying we would make it to our
hearing on time. She laughed and screamed the
whole while. Before that, I hadn’t realized how
heavy a 3-year-old could be.
With each case I took, the more my heart
was touched and the more my life was transformed. Soon, I realized a growing desire to
devote my profession to helping vulnerable
people of all ages, and assist colleagues in their
endeavors to change lives, and themselves,
through pro bono. Since then, I’ve seen and
counseled many clients, and not all have been as
www.vsb.org
Editor’s note
If you are not currently participating in a pro bono
program and would like to volunteer, Karl Doss, the
VSB Director of Access to Legal Services, will assist
you in locating pro bono opportunities in your areas
of interest. You can reach Mr. Doss at doss@vsb.org
or by calling (804) 775-0522.
touching as the first three cases of my career. But
I will tell you, it doesn’t matter if your client is a
tiny baby, a single mom, a scared immigrant, or
a senior citizen — all are vulnerable, all our fellow human beings, and all can have their lives
drastically impacted by attorneys.
We are among the most educated, affluent,
and powerful people in our nation simply
because we have been afforded the training and
ability to read, write, discern, and advocate. Most
days, I don’t think we realize how fortunate we
are, or how much influence we hold.
Every attorney can be a superhero. We just
have to be willing to share a fragment of ourselves.
Sometimes, I still lay awake at
night, staring at the ceiling fan,
now thinking about the horrors
my little client endured.
”
Justina Uram-Mubangu is an attorney with
Gammon & Grange PC in Tysons Corner and
the executive director of Good Samaritan
Advocates, a faith-based legal aid organization
serving Northern Virginia and greater
Washington, DC.
27
Rethinking Access to Justice
by James J. Sandman
Access to justice is a national
value, captured in the first line of
the Constitution and in the
closing words of the Pledge of
Allegiance. For millions of lowincome Americans who cannot
afford a lawyer, however, it is an
unfulfilled promise.
declined in inflation-adjusted dollars. In fact, in
inflation-adjusted dollars spent per eligible
person, LSC funding is today at an all-time low.
State funding varies widely across the country,
and many alternative sources of revenue, such as
foundation grants, have significant limitations
on their use. Studies consistently show that only
20 percent of the civil legal needs of low-income
people are met, and state courts across the
country are today overwhelmed with unrepresented litigants.
To address this situation, we must overcome
The need for civil legal aid by the poor now
two challenges. The first is the invisibility of the
stands at an all-time high, with nearly 65 million
issue — the widespread ignorance of the magni-
people — 21 percent of the population — finan-
tude of the justice gap in the United States today.
cially eligible for assistance at legal aid programs
The second is a service-delivery model that leaves
funded by the Legal Services Corporation (LSC).
too many people with no assistance of any kind.
That is a 30 percent increase over 2007, the last
year before the recession began.
But funding for legal aid has remained stagnant in absolute dollars since 2007 and has
28
Those who care about this issue must carry
the message beyond the access-to-justice community to new audiences, particularly opinion
makers and opinion leaders, and also find people
www.vsb.org
RETHINKING ACCESS TO JUSTICE
outside the legal aid world to make the case —
Although the report focused on the use of
including corporate general counsel, chief execu-
technology, this goal represents a much-needed
tive officers, and those foundation leaders who
rethinking of the traditional service-delivery model
understand the issue and fund legal aid.
and points to a future where no one will get noth-
And the case for legal aid needs to be made
in terms that those outside that community can
understand, stressing the importance of fairness
ing, which is what happens all too often today.
This is a realistic but still inspiring goal for
access to justice in the world we live in today.
in our justice system, a value that recent research
shows resonates deeply with the public. The arguments should be illustrated with compelling stories
and make the business case for legal aid as well.
Endnotes:
1
http://voicesforciviljustice.org/
2
http://www.lsc.gov/media/in-the-spotlight/
report-summit-use-technology-expandaccess-justice
There is good news in the quest to raise the
visibility of the need for civil legal aid. Voices
for Civil Justice 1 is a new organization devoted
to raising and expanding public awareness of
the importance of civil legal aid in helping people protect their livelihoods, their health, and
their families.
To overcome the second challenge, we need
to change our delivery system. It is not realistic
to try to provide full representation in every
case, and pursuing that goal at the expense of
James J. Sandman has been president of the Legal Services
Corporation since 2011. He practiced law with Arnold &
Porter LLP from 1977 to 2007 and served as the firm’s managing partner from 1995 to 2005. From 2007 to 2011, he was
general counsel for the District of Columbia Public Schools.
other alternatives is letting the perfect be the
enemy of the good. The fact is that some assistance — including referrals to court-based
resource centers or online self-help resources —
is better than no assistance.
Studies consistently show that only 20 percent of the civil
legal needs of low-income people are met …
Late last year, LSC released a report2 addressing this issue following a technology summit that
it convened “to explore the potential of technology to move the United States toward providing
some form of effective assistance to 100 percent of
persons otherwise unable to afford an attorney for
dealing with essential civil legal needs.”
www.vsb.org
”
29
Access to Justice Commission Homes In on Specifics
by Gordon Hickey
30
Equal access to justice for all
With that concern, and others, in mind, the
Virginians has long been a concern of the
legal community. The gap between what
lawyers are expected to offer, under the
Rules of Professional Conduct, and what is
actually provided is vast and growing. For
example, Joanna L. Suyes, chair of the VSB
Access to Legal Services Committee, and
John E. Whitfield, executive director, Blue
Ridge Legal Services and commission cochair, reported in a February 2014 Virginia
Lawyer article that if each active Virginia
lawyer met the minimum goal established
by Rule 6.1, they would log 939,120 hours
of pro bono legal services annually. Instead,
they found that lawyers statewide are performing less than one-twenty-fifth of the
pro bono work that the rule expects.
Supreme Court of Virginia created the Access to
Justice Commission a year ago. Justice S. Bernard
Goodwyn, co-chair of the commission, put the
problem succinctly at the group’s first meeting in
December 2013: “If people have rights they can’t
vindicate in court, then they don’t really have
rights.” The commission most recently met on
September 12.
Since its first meeting, the commission has
created separate committees to better consider
different aspects of the issue of access to justice.
Those committees are Access for SelfRepresented Litigants, Pro Bono, Public
Relations/Communications/Education, and
Judicial Education.
Those committees have begun to focus on
specific ideas.
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ACCESS TO JUSTICE COMMISSION HOMES IN ON SPECIFICS
Access for Self-Represented Litigants Committee
The committee has discussed a number of issues
that would aid self-represented litigants, Judge
Deborah V. Bryan, Virginia Beach Juvenile and
Domestic Relations Court, said.
Bryan, who is committee chair, reported at
earlier meetings that the committee discussed
making the attorney field mandatory in the trial
court case management system, at least on the
district court level. That way, it would be possible
to track how many cases involved self-represented
litigants and track differences in outcomes.
Currently, the attorney field is not mandatory.
The committee is also working on two surveys, for judges and clerks, intended to provide
information about which cases involve pro se litigants most often and the forms that are most frequently used by those litigants. The committee
will then propose ways to make the most commonly used forms more user friendly.
At the September 12 meeting, Bryan said the
judges’ survey will be put online beginning in
October, with the approval of the Chief Justice.
“Until we get the information, we can’t move forward with the solutions,” she said.
Pro Bono Committee
The committee, chaired by George Hettrick,
Hunton & Williams, intends to propose mandatory reporting by all Virginia lawyers of pro
bono services, beginning in 2016. Whitfield, who
is a member, reported on the committee’s work
during the September 12 meeting. He said the
proposal would be ready for presentation to the
commission at its next meeting in December.
“We want people to understand how reporting
improves pro bono,” said Scott C. Oostdyk, a
committee member.
Whitfield also cited an ABA white paper that
noted some states have a rule of court allowing
limited scope representation. “That would be a
dream come true for us,” he said.
Whitfield said the committee intends to set
up meetings of local bars, based on judicial circuits, to develop pro bono plans “with the goal of
universal participation in pro bono work.”
The committee also wants to expand the
Firms in Service model, which exists in the
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Richmond area, to Tidewater and Northern
Virginia.
Also, Whitfield said the committee wants to
more publicly recognize major pro bono contributors.
Public Relations/Communications/Education
Committee
Among the ideas coming from the committee is
offering an “Access to Justice” vanity license plate,
said James V. Meath, of WilliamsMullen, committee chair. People who opt for such plates pay a fee
to the state and most of that money comes back
to the sponsoring organization. It would be a way
to raise money for legal aid.
Meath said the committee is working on
public service announcements and has been in
contact with the Martin Agency. And like the Pro
Bono Committee, the public relations group is
considering ways to recognize groups and individuals who are providing pro bono services.
Judicial Education Committee
Judge Tonya Henderson-Stith, Hampton General
District Court, chairs this committee. Member
Carolyn Kirkpatrick, Director of Educational
Services with the Suprme Court’s Office of the
Executive Secretary, said the committee is working on a draft of practice points for judges when
they are working with self-represented litigants.
The committee also is proposing providing judges
with statistics on self-represented litigants and
information on available mediation.
Training focused on self-represented litigants
will be including on the agenda for the Judicial
Conference of Virginia in May 2015.
Justice Goodwyn said the committees will
continue to meet and develop ideas with the full
commission acting as a clearinghouse. “Most of
the work is done through the committees. That’s
where the oars are going to get pulled really hard.”
Some of the proposals, when finalized, will
require approval by the Supreme Court. Others,
he said, “Will generate a groundswell of support.”
He expects the commission’s work to continue indefinitely.
31
Legal Aid Programs Produce Results That Touch
Everyone in Virginia
by Mark D. Braley
Providing civil legal aid to the poor
From a fiscal perspective, it is difficult to imagine
anyone who wouldn’t appreciate the purely positive economic benefits to society brought about
by legal aid’s representation of low-income
Virginians. For every dollar invested, Virginians
receive a return of $4. How many investments
return that much other than the sale of the Los
Angeles Clippers? Humor aside, from the perspective of the average taxpayer, how many items
provide such a high return for your payment?
Last year, the total economic impact of legal
assistance provided by Virginia’s legal aid programs was $99.8 million, a return of $4.18 for
every dollar of local, state, and federal funds
invested. The impacts include $43.4 million in
direct benefits for Virginia’s low-income families:
$32.3 million in federal benefits including Social
Security Disability, Supplemental Security
Income, the federal share of Medicaid, federal
funding for legal aid, and other federal benefits;
is about Equal Justice Under Law. To
paraphrase Legal Services Corporation’s
President James J. Sandman, when we
mention the notion of equal justice
under law we refer to that first sentence
of our Constitution. Within that first
sentence, the second declaration right
after “in order to form a more perfect
union” is to “establish justice.” This is the
very thing that makes the potential of our
democracy great: establishing justice for
everyone. In pursuit of that mission,
Virginia’s legal aid programs produce
economic benefits, cost savings, and quality of life improvements that affect everyone in the state.
ĐŽŶŽŵŝĐ/ŵƉĂĐƚƐƌĞĂŬĚŽǁŶ
A. Benefits and Savings for Low-Income Families
Back Awards
1. Federal benefits for low-income families
Social Security/SSI
Other Federal Awards
Federal operating grants for legal aid programs
Monthly Duration in
Awards
Years
$1,803,757 $138,924
$11,781
$10,942
9.7
3
Subtotals
$17,974,567
$405,693
$6,685,098
(LSC, Title III, Other Federal Funds)
Federal share of Medicaid benefits received
(61.58% total average annual benefits)
Cases in which Medicaid benefits were obtained or preserved
Average annual benefit*
Years Duration
Calculation (Cases x Average Annual Benefit x Years Duration)
Cases in which SSI eligibility was obtained or preserved
Average annual benefit*
Years Duration
Calculation (Cases x Average Annual Benefit x Years Duration)
$7,242,244
60
$8,425
4
$2,021,898
289
$8,425
4
$9,738,809
2. Income from child support payments
Family Law: Child Support
$4.7
$251,738
$123,849
3
$358,968
$155,474
$702,666
$367,561
$778,165
$247,413
$921,869
$85,388
$34,952
$39,229
$2,088
$20
$35,015
$11,246
0.5
3
1
1
1
1
1
$4,710,307
3. Income from other legal aid outcomes
A. Unemployment Compensation
B. Family Law - Alimony
C. Affirmative Landlord
D. Affirmative Employment
E. Affirmative Consumer
F. Affirmative Education
G. Other Benefits
Total Direct Impact on Low-Income Families
32
Total
($ Millions)
$32.3
$6.4
$871,294
$1,413,752
$1,173,419
$392,617
$778,405
$667,593
$1,056,821
$43.4
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LEGAL AID PROGRAMS PRODUCE RESULTS THAT TOUCH EVERYONE IN VIRGINIA
$4.7 million in child sup/Ŷ&zϮϬϭϮ-ϮϬϭϯ͕sŝƌŐŝŶŝĂ>ĞŐĂůŝĚWƌŽŐƌĂŵƐWƌŽĚƵĐĞĚΨϰ͘ϭϴŝŶ
port payments for Virginia
/ŶĐŽŵĞ͕:ŽďƐĂŶĚŽƐƚ^ĂǀŝŶŐƐĨŽƌǀĞƌǇŽůůĂƌ/ŶǀĞƐƚĞĚ͘
children and families in
need; and $6.4 million
/HJDODLGLVFRVW-HIIHFWLYH'XULQJ)<
)XQGV,QYHVWHG´RQWKHQH[WSDJH
from other revenue-gener-/6&9-IXQGHGOHJDODLG
7KHVHGROODUVDUHLQDGGLWLRQWRWKH
SURJUDPVSURGXFHGPLOOLRQRI
LQWDQJLEOHEHQHILWVWKDWFRPHIURP
ating representation by
PHDVXUDEOHHFRQRPLFLPSDFWVDQGPDQ\ SURYLGLQJIDLUVROXWLRQVWRFULWLFDOOHJDO
legal aid lawyers including
RWKHUEHQHILWVWKDWDUHQRWTXDQWLILDEOH SUREOHPVIDFHGE\9LUJLQLDQVOLYLQJLQ
unemployment compensa6HHER[³7KH(FRQRPLF,PSDFWRI
SRYHUW\
/HJDO$LGLQ9LUJLQLD)DU([FHHGVWKH
tion, spousal support, and
consumer settlements.
Legal aid lawyers also
make a difference in cost
savings for Virginia taxpayers. Last year, we saved taxCommunities
Federal Benefits Stimulate
Legal Services Secures
Experience a Big
Local Economies
Federal Benefits
payers about $3.1 million.
Multiplier Effect
By making domestic abuse
Representation by Virginia legal
Most of the money from federal
benefits is spent immediately on
aid
advocates
brings
federal
funds
Each
federal dollar circulates
of low-income Virginians a
necessities. In turn, these federal
into Virginia each year that
1.65 times* ($32.3 million in
funds provide income for local
otherwise would be lost to local
priority, we saved Virginia
federal benefits multiplied by
businesses and wages for working
economies.
1.65) in local communities.
residents another $1.9 milVirginians.
lion. Our advocates
$32.3 million
enabled 523 families to be
Necessities for Families:
$53.4 million*
Social Security Disability
protected from domestic
and Supplemental Security
Food and Housing
Income for local
Income benefits
Health Care
violence. Studies indicate
businesses
Federal share of Medicaid
Prescriptions
703 jobs for people
an average savings of
benefits
Utilities
throughout Virginia
Federal support to Legal
$3,645 per family in the
Transportation
Aid Providers
costs of medical care for
*Total impact was estimated by applying the widely accepted U.S. Department of Commerce "Regional Economic
injured victims, lost proMultiplier" for payments to low-income families in Virginia, indicating that every federal dollar b rought into
Virginia circulates through local economies 1.65 times and supports 24 jobs.
ductivity, and targeted education and counseling for
affected children. Our
That amount has been higher in the past, prehomelessness prevention efforts resulted in about
recession
and before funding for legal aid was cut
$1.2 million savings in emergency shelter costs.
through
a
combination of federal reductions and
We helped 632 low-income families (with 1,704
lower
interest
rates on Interest on Lawyer Trust
family members) avoid the need for emergency
Accounts
(IOLTA).
For example, three years ago,
shelter, saving an estimated $12,790 per family.
the
total
economic
impact
of legal aid work was
The U.S. Department of Commerce uses a
$139
million.
The
simple
and
obvious lesson is
calculation called the Regional Economic
that
the
return
will
be
lower
when
you reduce
Multiplier. It looks at the dollars brought into a
your
investment
in
legal
aid.
town, county, region, or state from outside that
Of course, there are many non-quantifiable
region to determine the ultimate impact of those
benefits
from the work of legal
aid lawyers. While
dollars on local economies. According to this
my
previous
analysis
addresses
the
economic benDepartment of Commerce multiplier, every dollar
efits
produced
by
legal
aid,
the
question
remains:
brought into a region from outside circulates 1.65
“How
do
you
quantify
establishing
justice?”
While
times and supports twenty-four jobs. After
I
meant
all
the
dollars
and
numbers
related
above
excluding the millions of dollars Virginia legal aid
to, in a sense, quantify the establishment of juslawyers produce every year in child and spousal
tice,
all of that was really for those who, for whatsupport, unemployment compensation, conever
reason, determine a program’s value only
sumer settlements, and tax savings for domestic
through
dollars-and-cents analysis. They do not
violence and homeless prevention, and multiplysee
value
in the abstract notion of establishing
ing the 1.65 regional economic multiplier by the
justice.
They
do not recognize that there is value
$32.3 million in federal supports and benefits
in
providing
a
level playing field in our legal syspreviously mentioned, you will see that our work
tem
for
everyone
— especially for those who lack
benefits Virginia communities by $53.4 million in
financial
resources
or political influence. Legal aid
income for local business and has resulted in the
lawyers
help
to
keep
children in school when
creation of 703 jobs. That was for last year alone.
ĐŽŶŽŵŝĐ/ŵƉĂĐƚ
www.vsb.org
33
LEGAL AID PROGRAMS PRODUCE RESULTS THAT TOUCH EVERYONE IN VIRGINIA
Virginia Legal Aid Staff Losses By Year 2009-2014
Program
BRLS
CVLAS
LAJC
LASEV
Total Staff
2009
2010
2011
2012
24.5
21.5
21.5
2013
Projected 2014
19
21
21
# Lost
% Change
3.5
-14%
28
27
26
22
17
18
10
-36%
40.5
35
37
36.25
36
33.65
6.85
-17%
52
48
44
39
35
32
20
-38%
LSNV
73
68
67
62
54
54
19
-26%
LASRV
7.5
6.3
6.3
6.3
6.3
6.3
1.2
-16%
15.1
14.9
13.9
14.9
12.9
12.9
2.2
-15%
SVLAS
40
38
35
28
28
28
12
-30%
VLAS
33
33
33
29.5
29.8
30.5
2.5
-8%
VPLC
11.5
11.5
9.5
9
9
9
2.5
-22%
325.1
303.2
293.2
265.95
249
245.35
79.75
-25%
RLS
TOTALS
homelessness or domestic violence would have
otherwise disrupted their attendance. We help
poor families live in safe and healthy conditions
by handling cases involving substandard housing.
We also protect people from predatory lenders
and unscrupulous creditors.
Legal aid lawyers also directly contribute to
making Virginia courts more efficient by representing thousands of low-income Virginians
through the legal process each year. We help our
clients navigate a difficult process with which they
are not familiar. Studies confirm that those negotiating the legal system with a lawyer fare far better than those who must do so without one.
Unfortunately, legal aid lawyers must turn away
half the people who seek their assistance because
of the lack of funding and investment in what is a
guaranteed return.
If Virginians want our return on the investment in legal aid to keep growing, we need to
increase support of it. In the face of federal funding cuts over the past few years, the disastrous
decline in IOLTA funding, and the growth of
Virginia’s poverty population, we must count on
the private bar’s support through monetary contributions and participation in pro bono service
more than at any other time in legal aid’s history.
Since 2009, our annual IOLTA funding has
declined from a high of $4.6 million to less than
$600,000 last year, a loss of $4 million. Our federal funding has been reduced by more than $1
million. And the recession negatively affected our
fundraising and other grants so that we have
experienced a cumulative loss of about $6 million
per year. Senator Thomas K. Norment Jr. (R-3rd
District) and the Virginia Senate recognized this
and did their best to help address the losses, but
we still feel the impact of two-thirds of those
losses. Statewide, legal aid programs have lost 25
34
percent of their staffs since 2009. This has meant
a reduction in the number of applicants accepted,
a reduction in the number of cases closed, and a
decline in the level of service we can provide to
clients. All of this has happened at a time when
U.S. Census data shows a 30 percent increase in
Virginia’s poverty population.
Virginia’s legal aid offices provide quantifiable and unquantifiable, tangible and intangible
benefits to the people of our commonwealth. We
in legal aid hope that the private bar will gain a
better understanding of the value of legal aid
and consider investing more money, time, and
talent to improve legal representation of the
poor in civil cases. With the assistance of the private bar, we can continue to provide service to
Virginia’s most vulnerable residents so that
“equal justice for all” is, as Virginian and former
Supreme Court Justice Lewis F. Powell Jr. said,
“not merely a caption on the facade of the
Supreme Court building.”
Mark D. Braley is executive director of the Legal Services
Corporation of Virginia.
www.vsb.org
The Impact of the Justice Gap on Litigants:
Are We Providing a Level Playing Field?
by John E. Whitfield
The ideal of equal justice, regardless of one’s wealth or station in life, is a cherished
hallmark of our judicial system. We certainly pay lip service to it constantly. If there is
any such thing as an American creed, it is our Pledge of Allegiance, which we teach to
every one of our grade school students, and which we solemnly recite at almost every
public function, with our hands over our hearts. Of course, the pledge concludes with
the promise of “liberty and justice for all.”
The very first written code of law — the Code of Hammurabi, written in 1700 BC — explicitly stated
that one of the fundamental purposes of law was to protect the powerless from the powerful. This
view was likewise reflected in Judeo-Christian ethics. In the Book of Proverbs, circa 900 BC, Solomon
admonished:
Speak up for those who cannot speak for themselves,
for the rights of all who are destitute.
Speak up and judge fairly;
defend the rights of the poor and needy.
—Book of Proverbs, 31:8-9
In our lifetime, Lewis F. Powell Jr., the late U.S.
Supreme Court Justice and arguably the greatest
Virginia jurist since John Marshall, observed,
“Equal justice under law is not merely a caption
on the facade of the Supreme Court building, it is
perhaps the most inspiring ideal of our society. It
is one of the ends for which our entire legal system exists...[I]t is fundamental that justice should
be the same, in substance and availability, without
regard to economic status.”
Unfortunately, the harsh reality confronting
most low-income Virginians when they go to
court is more likely to be as described by retired
California Court of Appeals Justice Earl Johnson
Jr.: “Poor people have access to the American
courts in the same sense that the Christians had
access to the lions when they were dragged into a
Roman arena.” In the absence of available legal
aid or pro bono assistance, a low-income person
is typically unable to afford the services of an
attorney in a non-fee-generating civil matter. As a
result, he or she is often forced to litigate even the
most serious civil legal problems without the benefit of counsel, even if the opposing party has
counsel. The resulting imbalance can result in a
tilted playing field that produces significantly
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worse outcomes for self-represented litigants than
those where both parties are represented. There
are compelling data that confirm Justice Johnson’s
disturbing characterization of our civil justice system’s unequal treatment of the poor.
The unmet civil legal needs of people unable
to afford legal services are well documented at
both the national and state levels. On a national
level, the American Bar Association first commissioned a comprehensive legal needs study twenty
years ago. It found that only 20 percent of the
civil legal needs of low-income Americans were
being met by legal aid or pro bono attorneys. In
2005 and again in 2009, the federally-funded
Legal Services Corporation conducted a “Justice
Gap” survey of its 120 legal aid grantees across the
country and found that for every person helped
by a legal aid program, another needy person was
turned away due to a lack of a sufficient number
of legal aid or pro bono attorneys.
In Virginia, the Virginia State Bar, the
Virginia Bar Association, and the Virginia Law
Foundation first undertook a study of the civil
legal needs of the poor in 1991. This study found
that 84 percent of Virginia’s poor did not have
benefit of counsel when faced with a serious legal
35
THE IMPACT OF THE JUSTICE GAP ON LITIGANTS
What sort of treatment do you think the following groups of people receive in Virginia
Courts, compared to other groups?
Source: Office of the Executive Secretary, Supreme Court of Virginia, 2007 Citizens Survey.
problem, despite the work of Virginia’s legal aid
societies and the pro bono efforts of private attorneys across the commonwealth. This study was
updated in 2007 by the Legal Services
Corporation of Virginia, with partial funding
from the Virginia Law Foundation. The 2007
study found that only 17 percent of Virginia’s
low-income population had the benefit of counsel
when facing a serious civil legal problem, closely
mirroring the findings of the 1991 report.
Reinforcing this finding, in a survey of citizens across Virginia conducted by the Office of
the Executive Secretary of the Supreme Court of
Virginia in 2007, a majority of the public said
they believe the poor receive worse treatment in
Virginia’s courts compared to other segments of
the population. Thirty-six percent thought the
poor received “somewhat worse treatment,” and
another 20 percent thought the poor received
“much worse treatment.”
The Public’s Perceptions about How Different
Groups Are Treated in Virginia Courts
Philosophically, it is a tenet of faith for Americans
that the poor should have meaningful access to
our civil justice system, regardless of their ability
to afford the services of an attorney. Yet, as studies
establish, it is well documented and undisputed
that if we equate meaningful access to our civil
justice system to having the benefit of counsel, we
are failing miserably in achieving that ideal.
36
As a practical matter, what impact does a lack
of representation have on the outcome of a case?
With the exception of our small claims courts,
our system of justice relies upon the adversarial
model, with each side capably and zealously represented by counsel. When functioning properly,
it is a peerless mechanism for arriving at the truth
and applying the law fairly. But when one of those
parties can’t afford the services of an attorney, the
system cannot function properly. The normal
level playing field is tilted, despite the best efforts
of the court. The judge can’t be the pro se litigant’s counsel. What is the result? There is a growing body of research that indicates that outcomes
for unrepresented litigants are often far less favorable than those for represented litigants – confirming what, I suspect, common sense already
tells most of us.
In March 2012 the Boston Bar Association
Task Force on the Civil Right to Counsel released
the results of an important study, The Importance
of Representation in Eviction Cases and
Homelessness Prevention. This was a carefully
designed, controlled, randomized study designed
by Harvard Law School Professor Jim Greiner, a
statistician and lawyer, with statistically valid
results. The study compared the outcomes for
tenants facing eviction who were represented in
the Boston housing courts versus those who were
unrepresented in those courts. It found that in the
perfect court setting, with both sides represented,
tenants were able to retain possession of their
www.vsb.org
homes two-thirds of the time. In contrast, unrepresented tenants facing represented landlords
retained possession in only one-third of their
eviction cases. If you view the first scenario, where
both sides were represented – creating a level
playing field — as the model that produced the
most correct results, then the discrepancy
between the two is, essentially, the error rate — an
alarming error rate of 33 percent.
This particular study was just the latest of a
number of studies on the correlation of representation and outcomes in landlord-tenant cases.
There have been at least eight other such studies
of landlord-tenant eviction cases, from different
courts across the country, over the last forty years.
As the next graph shows, while the results varied
in the size of the discrepancy, in every study, the
pro se tenant fared much, much worse than the
represented tenant.
Correlation between Representation and
Outcomes for Tenants in Landlord-Tenant Cases
We see similar results in a study of child custody
cases in Maryland in 2006.1 When both parents
were represented, or when neither parent was represented — a level playing field in both cases —
mothers won custody approximately 65 percent
of the time. In contrast, when only the mothers
were represented and the fathers were unrepresented, mothers won a lopsided 95 percent of the
time. When the situation was reversed, with only
the fathers represented, fathers won 55 percent of
the time. Clearly, the presence or absence of counsel had an enormous impact on the outcome of
the case, and to the extent the results varied from
the norm — that is, the situation in which both
parties were represented — those discrepancies
constitute error rates of significant proportions.
Correlation between Representation and
Custody Outcomes
Other types of cases have also been the subject of
similar studies reflecting similar findings2:
• Social Security appeals results: 78 percent of represented claimants won, 28 percent of unrepresented claimants won.
• Unemployment appeals results: 44 percent of
represented claimants won, 30 percent of unrepresented claimants won.
• Immigration removal appeals results: 44 percent
of represented immigrants won, 39 percent of
unrepresented immigrants won.
• Domestic violence cases results: 83 percent of
represented victims obtained protective orders,
32 percent of unrepresented victims obtained
protective orders.
www.vsb.org
These studies confirm what the general public already intuitively knows and common sense
tells us all: you need a lawyer in order to effectively navigate our court system. So if you’re poor
and can’t afford an lawyer, you’re effectively
locked out of our system of justice in the absence
of legal aid or pro bono assistance. As a result,
injustice occurs on a regular basis — not intentionally, not due to anyone’s prejudice or bias, and
notwithstanding the best efforts of our judiciary
to be fair, but because of the inherent imbalance
created by lack of counsel in a system that presumes the presence of counsel. While a judge may
be bending over backwards to compensate for the
pro se litigant’s lack of counsel during the trial,
the judge cannot serve as the pro se litigant’s
attorney. Moreover, by that stage of the litigation,
the die may have already been cast for the unrepresented party. She has not had the the benefit of
counsel to analyze her case for the most effective
causes of action or defenses, to draft her pleadings
to identify those causes of action or defenses and
bring them to the court’s attention, to discover
those facts necessary to develop her case, to subpoena the necessary documents and witnesses to
have the evidence available at trial, and to provide
all the other “added value” that attorneys bring to
litigation when they represent a party, even before
the trial begins. It is therefore no surprise to find
that pro se litigants fare poorly vis-à-vis represented litigants.
Take the high error rates in case outcomes for
pro se litigants documented by these studies, multiplied by the documented overwhelming level of
unmet need, and I think we can all agree that we
have a hidden crisis in our system of civil justice,
if we truly believe what we say about equality
under the law being fundamental to that system.
At current funding levels, legal aid cannot realistically meet the most critical civil legal needs of the
poor without the help of the private bar.
The Justice Gap is not just legal aid’s problem
— it is the courts’ problem, the bar’s problem, a
problem for our entire society. We all proclaim
how highly we value the rule of law, and equality
and justice under law, and yet we benignly allow
inequality and injustice to persist unabated in our
civil justice system. If we want the poor to “play
by the rules,” as a society we need to demonstrate
to them that the rules work for them as well as
against them. Otherwise, the very rule of law itself
is threatened.
If “justice for all” is going to be more than an
empty phrase at the close of the Pledge of
Allegiance, we need the full-throated pro bono
commitment of Virginia’s lawyers. As comment 1
37
Correlation between Representation and Outcomes for Tenants in Landlord-Tenant Cases
Study #1: Court Study Group of the Junior League of Brooklyn, Report on a Study of the Brooklyn Landlord and Tenant Court 21 (1973).
Study #2: Steven Gunn, Note, Eviction Defense for Poor Tenants: Costly Compassion or Justice Served? 13 YALE L. & POL’Y REV. 385, 411 (1995).
Study #3: Lisa Parsons Chadha, Time to Move: The Denial of Tenants' Rights in Chicago Eviction Court, Chicago: Lawyers Committee for Better
Housing, Inc (1996).
Study #4: Rebecca Hall, Eviction Prevention as Homelessness Prevention: The Need for Access to Legal Representation for Low-Income Tenants
(1991).
Study #5: Carroll Seron, Greg Van Ryzin, Martin Frankel, and Jean Kovath, The Impact of Legal Counsel on Outcomes for Poor Tenants in New
York City's Housing Court: Results of a Randomized Experiment, LAW AND SOCIETY REVIEW 35(2): 419-34 (2001).
Study #6: Anthony J. Fusco, Jr. et al., Chicago’s Eviction Court: A Tenant’s Court of No Resort, 17 URB. L. ANN. 93, 114-16 (1979).
Study #7: Boston Bar Ass’n Task Force on Unrepresented Litigants, Report on Pro Se Litigation, 17 (1998), available at
http://www.bostonbar.org/prs/reports/unrepresented0898.pdf (last accessed Aug. 14, 2014).
Study #8: Mass. Law Reform Inst., Summary Process Survey, 14 (2005).
to Rule 6.1 of the Virginia State Bar Rules of
Professional Conduct notes, “Every lawyer,
regardless of professional prominence or professional work load, has a personal responsibility to
provide legal services to those unable to pay, and
personal involvement in the problems of the disadvantaged can be one of the most rewarding
experiences in the life of a lawyer.”
Whether we rise to the challenge and meet
this responsibility will clearly make a difference in
the outcomes of the civil cases of the less fortunate members of our community, affecting
whether they will be homeless — or not, whether
they will have court protection from domestic
violence — or not, whether the best interests of
their children will be served when their custody is
adjudicated — or not. Whatever their civil legal
problems are, the availability of your pro bono
assistance will affect whether those critical, lifechanging problems will be fairly decided on a
level playing field — or not.
38
Endnotes:
1
The Women’s Law Ctr. of Md., Inc., Families in
Transition: A Follow-up Study Exploring Family
Law Issues in Maryland (2006), available at
http://www.wlcmd.org/wp-content/uploads
/2013/06/Families-in-Transition.pdf (last accessed
Aug. 14, 2014).
2
Herbert M. Kritzer, Legal Advocacy: Lawyers and
Nonlawyers at Work 111-20 (1998).
John E. Whitfield has served as the executive director and
general counsel of Blue Ridge Legal Services since 1989.
Prior to becoming the executive director, he served as law
clerk, staff attorney, and supervising attorney since joining
the organization in 1980. He is co-chair of the Virginia
Access to Justice Commission. He was the 1998 recipient of
the Virginia State Bar’s Legal Aid Award and he was inducted
as a Fellow of the Virginia Law Foundation in 2009.
www.vsb.org
Getting a Pro Bono Case
A number of resources are available for Virginia lawyers who
are interested in providing legal assistance to low-income or
disadvantaged clients.
Virginia Legal Aid Offices. All of Virginia’s legal aid offices
have well established private attorney involvement programs
and have pro bono coordinators whose function is to administer their office’s pro bono program. Legal aid offices have
resources to assist pro bono lawyers including forms, pleadings
banks, brochures, pamphlets, handbooks, how-to guides, and
tutorials. Legal aid attorneys can provide guidance and mentorship. Most legal aid offices also provide malpractice coverage for
their volunteer lawyers. Moreover, if you are unable or prefer
not to directly represent a client, legal aid offices offer other
opportunities to volunteer including: conducting legal research;
assisting with clinics and help lines; doing transactional work
on behalf of the organization; updating their policies, employee
manuals, and brochures; and providing board service.
Please contact your local legal aid office for more
information:
• Blue Ridge Legal Services – (540) 433-1830 (main office in Harrisonburg,
offices in Winchester, Lexington, and Roanoke).
• Central Virginia Legal Aid Society – (804) 200-6049 (main office in Richmond,
offices in Petersburg, and Charlottesville).
• Legal Aid Justice Center – (434) 977-0553 (main office in Charlottesville, offices
in Richmond, Petersburg, and Falls Church).
• Legal Aid Society of Eastern Virginia – (757) 627-5423 (main office in Norfolk,
offices in Hampton, Virginia Beach, Belle Haven, and Williamsburg).
• Legal Aid Society of Roanoke Valley – (540) 344-2088 (Roanoke).
• Legal Services of Northern Virginia – (703) 778-6800 (main office in Falls
Church, offices in Arlington, Alexandria, Fairfax, Leesburg, and Manassas).
• Rappahannock Legal Services – (540) 371-1105 (main offices in
Fredericksburg, offices in Culpeper, and Tappahannock).
• Southwest Virginia Legal Aid – (276) 783-6576 (main office in Marion, offices
in Castlewood and Christiansburg).
• Virginia Legal Aid Society – (434) 528-4722 (main office in Lynchburg, offices
in Danville, Farmville, and Suffolk).
• Virginia Poverty Law Center – (804) 782-9430 (VPLC does not provide direct
representation but serves the legal aid system by providing advocacy, training,
and litigation support on civil access to justice issues).
Probono.net/va contains resources for pro bono and legal
services lawyers to assist in their representation of low income
or disadvantaged clients, including the Pro Bono Opportunities
Guide, which allows volunteer lawyers to find legal
opportunities tailored to their specific requirements.
http://www.probono.net/va/.
The Greater Richmond Bar Foundation (GRBF). GRBF’s
mission is to expand public access to the justice system in
central Virginia by facilitating the delivery of pro bono legal
services and service projects. Through its programs, GRBF
helps the Central Virginia region with its priority needs for
www.vsb.org
pro bono services and helps connect lawyers with pro bono
clients. (804) 780-2600.
Pro Bono Clearinghouse – a referral service linking volunteer attorneys with nonprofit organizations in need of legal representation on a variety of transactional
matters.
Pro Bono Promise – law firms and law departments are invited to join Pro Bono
Promise with a pledge to commit a percentage of time to the provision of pro bono
legal services to the disadvantaged and/or to include financial support to legal services organizations annually.
JusticeServer – an all-inclusive case management and referral system that enables
private attorneys to accept and work on pro bono cases from their own computers.
Attorneys are able to create a confidential profile, view pro bono opportunities
available in designated practice areas/jurisdictions, and find the resources to assist
with handling the legal matter.
Independent Pro Bono Legal Services Providers including:
• CAIR Coalition (Capital Area Immigrants’ Rights) provides legal assistance for
detained immigrants – adults and children – in the Washington, DC, area as well
as training and support for immigrant advocacy groups and service providers.
(202) 331-3320.
• Community Tax Law Project provides free legal help to low wage families and
individuals with tax issues – (804) 358-5855.
• Fairfax Law Foundation (Northern Virginia Pro Bono Law Center) conducts
direct intake for low income residents of Fairfax County only in contested family
law matters and non-profit organizations in Northern Virginia needing legal assistance.
• Good Samaritan Advocates is a faith-based legal aid organization providing no
cost legal assistance to low-income individuals in the greater Washington, DC,
area – (703) 534-5740, ext. 524 (Fairfax County) and (703) 404-5034 (Loudon
County).
• Legal Information Network for Cancer provides legal, financial, and community resources to individuals confronted with issues arising from the diagnosis and
treatment of cancer – (804) 272-5462 or (877) 644-5462 toll free.
• Virginia Bar Association Veterans Issues Task Force provides military veterans
and service members with greater access to legal assistance. Volunteer assistance
opportunities include: initial intake interviews, one-on-one counsel, speaking at
Yellow Ribbon or similar events, mentoring other attorneys, providing pro bono or
low-cost assistance, and supervising law students in legal clinics assisting
veterans. (804) 644-0052.
• Whitman-Walker Health provides free legal services to its clients, people living
with HIV/AIDS, and members of the LGBT community with public benefits, immigration, wills/powers of attorney/healthcare directives, and debt collection matters. (202) 939-7627.
Virginia State Bar. While the VSB does not provide direct legal
representation, the Pro Bono/Access to Legal Services pages on
the VSB website offers a listing of pro bono resources for attorneys, the public, and the media including pro bono opportunities, recordings of webinars covering issues of substantive law
frequently encountered by volunteer lawyers, and news about
the latest developments in access to justice.
http://www.vsb.org/site/pro_bono.
For more information, please contact Karl Doss, VSB
Director, Access to Legal Services, at doss@vsb.org or (804)
775-0522.
39
Pro Bono Assistance Sought for Clients Struggling to
Pay Court Debt
by Carolyn Kalantari and Richard DeMeglio
John Cook’s Virginia driver’s
license was suspended due to unpaid
court costs and fines1 for two non-driving
related convictions.2 He comes to your
office after trying unsuccessfully to reinstate his driver’s license on his own.
Cook was released from prison a few months ago
on a bad check conviction and worked hard to
secure a full-time fast food job. He found an
apartment that he shares with a roommate in a
rural county and commutes nearly thirty miles to
work. He relies on a friend to get to work, but
recently accumulated two write-ups for being
tardy when his friend ran late.
You help Cook collect his Compliance
Summary from the Virginia Department of
Motor Vehicles (DMV). This document indicates
he has unpaid court costs and fines in two
Virginia courts and owes the DMV a reinstatement fee.
Costs
Interest3
Court 1
Probation Violation
$1,900
$342
Court 2
Bad Check Conviction
$1,706
$17
DMV
Reinstatement Fee and Multiple Order Fee
Total cost of reinstatement
40
After contacting each court, you learn that
Cook needs to pay $4,115 to restore his driver’s
license:
Cook works full time and earns $7.25 per
hour. He is indigent, barely scraping by at 74 percent of the federal poverty level. He is unable to
pay these debts in full, but he has another option.
If he can establish a payment plan in each court
and pay the DMV reinstatement fee, his license
suspension will be lifted.4
You learn that Court 1 places a premium on
regular payments, however small. On his own,
Cook quickly obtains a $25 per month payment
plan from Court 1. He will be expected to make
these monthly payments until the year 2022.
With the establishment of this payment plan, two
very important things happen: Court 1 releases
its hold on Cook’s driver’s license with the DMV
and interest stops accruing on this debt.5
Court 2 proves to be a greater challenge. To
establish a payment plan in Court 2, Cook must
pay $50 per month for six months before the
court will recognize his
payments as a “payment
Subtotal
plan” within the meaning of Va. Code § 19.2$2,242
354. Until that time,
$1,723
Court 2 will not release
its hold on Cook’s dri$150
ver’s license and interest
$4,115
will continue to accrue.
www.vsb.org
PRO BONO ASSISTANCE SOUGHT FOR CLIENTS STRUGGLING TO PAY COURT DEBT
Cook does not have an additional $50 per
month, nor can he afford to wait six months to
get his driver’s license back. His employer enjoys a
steady stream of applicants looking for work.
Cook knows that he will be replaced if he is tardy
a third time.
There are a lot of Cook’s in Virginia, and at
the Legal Aid Justice Center we routinely see
clients in similar situations. According to statistics
provided by the Virginia DMV, in fiscal year 2014,
145,243 (or 39 percent) of the orders of driver’s
license suspension issued by the Virginia DMV
were for failure to pay court costs and fines for
non-motor vehicle related convictions.6
A driver’s license suspension weighs heavily
on individuals who lack the ability to pay. Pro
bono counsel helped a client, in circumstances
similar to Cook’s get his life back on track. Pro
bono counsel petitioned the court to lower the
typical monthly payments from $50 to $25 and to
recognize the payment plan in advance of the
court’s typical six-month waiting period. For this
client, licensure offered more than just peace of
mind; it offered an opportunity to stay employed
and self-sufficient.
Court Collection Policies and Repayment Plans
In Virginia, each court is authorized to establish
its own mechanism to secure repayment of court
debt.7 In 2013, the Legal Aid Justice Center contacted sixty courts across the commonwealth to
inquire about their payment plan policies and
learned that the courts exercise this discretion in
myriad ways. Very few courts have written procedures or information available online to debtors
wishing to establish a payment plan. Some courts
require a 50 percent down payment to establish a
plan, while others refuse to establish a payment
plan after a single default.
Clients seeking driver’s license restoration
often owe in multiple jurisdictions and do not
know how to start to work towards licensure. The
Legal Aid Justice Center reviewed thirty-four drivers license cases opened in our Charlottesville
office in 2013. Of these thirty-four clients, twenty
owed in multiple jurisdictions and twelve owed in
three or more courts. At least half owed in excess
of $1,000 and all were indigent. A significant portion of this debt is uncollectible.8
There are practical reasons to extend realistic
payment plan policies to the many low-income
individuals who are obligated to pay costs and
fines. The Honorable Robert H. Downer Jr., who
presides in the Charlottesville General District
Court, explains the rationale for his policy: “By
setting up repayment plans with only a modest
www.vsb.org
Driver’s License Restoration:
What Can Pro Bono Attorneys Do to Help?
1. Identify barriers to license restoration (e.g. unpaid court costs or fines, delinquent child
support obligations, an unpaid motor vehicle judgment or uninsured motor vehicle violations).
2. Help a client prioritize among competing debts. What can the client realistically afford
to pay? Are there options available for the client to complete community service in lieu
of payment?
3. Negotiate with court clerks regarding payment plan terms. If necessary, petition the
court to alter typical payment plan requirements in compelling or unusual circumstances.
4. Determine if the client is eligible for a restricted driver’s license.
5. Evaluate other creative solutions available to the client.
down payment and a realistic payment schedule,
the court can provide an effective means for indigent people to succeed in paying off even a large
indebtedness. Setting repayment terms that are
too difficult to meet only results in the individual
giving up on trying to pay the indebtedness, or
failing to comply with the plan. When that happens, individuals drive anyway, especially if public
transportation is unavailable, risking incarceration for this criminal offense and resulting in
additional expense to taxpayers and the commonwealth.”
In 2007, O. Randolph Rollins, former
Virginia Secretary of Public Safety, founded
“Drive to Work,” a Virginia non-profit organization to tackle barriers to driver’s license reinstatement in Virginia. He founded this organization
after learning that hundreds of thousands of driver’s license suspension orders are issued in
Virginia each year because of unpaid court costs
and fines.
“It’s a public safety issue: Many of these people drive anyway — taking a chance so they can
get to work or take their kids to school. But they
have not passed the driving test, are not insured
and are looking over their shoulders for the blue
lights,” Rollins said. “These distracted drivers present a danger to the road. Drive-To-Work seeks to
break this unfortunate spiral, by assisting individuals with affordable pay plans that the courts will
accept.”
Would you like to volunteer?
JusticeServer is an online pro bono portal that
permits attorneys to browse a description of cases
Court Debt continued on page 48
41
Lawyering for a Cause: Do Good and Feel Great
by Crista Whitman Gantz
Doctors only attack a portion of
cancer’s sprawl. As if a diagnosis and the
related treatment regimen isn’t enough to
overwhelm a patient and her loved ones,
the surrounding non-medical challenges
can create significant barriers to health.
To achieve wellness, many patients need
effective advocates as much as they need
effective health care providers. One can’t
expect cancer patients to heal or respond
well to treatment if they don’t have
money to pay for food, transportation,
and a healthy and safe home in which to
rest and recover. Patients need insurance
to pay for necessary medicine and procedures, shelter from harassment on the
part of bill collectors, and employers who
work within the bounds of the law to
allow for medical leave or reasonable
accommodations so cancer patients can
continue to work if they are well enough
to do so. This is where the fight against
cancer requires a lawyer’s help.
42
Two lawyers in particular understood this need so
much they created a non-profit organization to
address it. The Legal Information Network for
Cancer (LINC) was created in 1996 by two
Richmond attorneys, Phyllis Katz and Ann
Hodges, who as cancer survivors had experienced
their own challenges with the business side of
cancer. They started LINC to ensure cancer
patients in the Richmond area had a trusted local
resource available to help address the multitude
of legal and financial issues that can become
significant obstacles on the path to wellness. The
LINC founders issued a call to service in the legal
community that can still be heard today and the
non-profit’s dedicated volunteer attorneys continue to answer that call with vigor. LINC pro
bono lawyers have helped low-income cancer
patients achieve the following:
• Unemployment, social security disability, and
other public-benefit awards to preserve income
after being wrongfully denied.
• Reasonable accommodations in the workplace
so they can continue to work and earn an
income in the face of a disability.
• Approval of short-term and long-term private
disability benefits so they have the financial stability to focus on healing while taking time off
work.
• Coverage of medical treatments and procedures
in response to unjust denials by private insurance companies.
www.vsb.org
LAWYERING FOR A CAUSE: DO GOOD AND FEEL GREAT
• Cessation of harassment from creditors in violation of the consumer protection laws such as the
Fair Debt Collection Practices Act.
• Avoidance of untimely eviction and related legal
judgments that make finding an affordable and
safe place to live and heal more difficult.
• Life planning documents to ensure their financial and health care needs are met and that their
last wishes are honored.
The impact of pro bono service on the individual cancer patients that LINC assists has been
sizeable, but so is the need, and it is growing faster
than our current network can handle. Our organization saw a 53 percent increase in the number
of clients served from fiscal year 2013 to 2014.
Our hope is to increase our volunteer attorney
network in response to the widening demand for
assistance. LINC needs new volunteer attorneys
and needs them now.
Rule 6.1 of the Virginia Rules of Professional
Conduct challenges attorneys to meet a goal of
dedicating 2 percent of their billable hours to pro
bono service. It is not an especially lofty goal.
One hopes, with the focus on service and equal
justice at the core of our great profession, that
giving of ourselves would be an innate priority
and not a demand placed upon us. Yet Virginia
attorneys are sadly falling short of our pro bono
goal according to the Access to Legal Services
Committee of the Virginia State Bar. An article
written by the committee’s chair, Joanna Suyes,
and legal aid attorney John Whitfield, noted that,
“There are 23,478 active Virginia Lawyers practicing in the commonwealth. If each of them met a
minimum aspirational goal established by Rule
6.1, Virginia lawyers would log a total of 939,120
hours of pro bono legal services annually.” 1
Unfortunately, data from the report generated by the committee suggests we are far from
hitting that mark. Only “4.3 percent of Virginia
attorneys are participating in pro bono activities
sponsored by the legal aid programs.” 2 Even bolstering the initial figures reported by formal legal
aid programs to account for hours being logged
for pro bono participation outside of legal aid, the
report suggests that VA lawyers are only 8 percent
to our overall goal.3 The bottom line: we need to
do better.
Aside from it being our professional responsibility as attorneys, it simply feels great to give
back. I’ve heard volunteers from my organization
say this again and again as the reason they do pro
bono work for LINC. The feel-good quality certainly comes from helping a person in need, but,
partially I think it also comes from a slightly more
selfish place. Being able to say, “I did a good thing
www.vsb.org
for another human being” to oneself, and, let’s
face it, out loud to others, can be extremely powerful. I know this from personal experience.
A few months after I started my job as the
client services attorney for LINC, I found myself
sitting and waiting for a pizza at a popular local
restaurant after returning from a late-night
fundraiser. I was alarmed out of my Style Weekly
crossword puzzle by the sound of three people in
the booth across from me bashing our noble legal
profession. I was appalled at the things they were
saying about lawyers. From what I could glean
from the conversation, one of the restaurant goers
had had a negative experience with an attorney
he had hired for a traffic case and as a result felt
justified to smear all attorneys everywhere with
the unflattering label of — and I’m generously
paraphrasing here —“no-good, sleazy, moneygrubbing, dishonest so-and-so’s.” Prior to this
point I had heard my fair share of lawyer jokes
and, as the only sister of four brothers, I was no
stranger to locker room language, but this declaration of hatred for attorneys felt different and
too zealous to be ignored. I felt compelled to
prove this naysayer wrong. I folded my paper into
my purse, straightened my back and walked over
to the table. They didn’t even notice my approach
until I interrupted their conversation with a cool,
“Excuse me. I was just sitting over there.” I
pointed to an empty chair next to the take-out
counter just a few feet away. “And I happened to
overhear your conversation about lawyers. I’m
sorry you had a bad experience, but, you see, I’m
an attorney. I work for a non-profit that helps
cancer patients with their legal and financial challenges. I have to disagree with what you’re saying
about attorneys. I know at least 180 of them in
the Richmond area alone who are generously
representing local cancer patients pro bono.”
Puzzled faces blinked back. “That means for free.
I thought it might make you feel better to know
that.” Dead silence. I nodded, returned to my seat
and unfolded my paper, but I held it up a little
higher to conceal my widening grin. It felt fantastic. The boost to my pride had a glorious second
wind when ten minutes later all three approached
me and extended an apology and a hand to take
my business card. Doing pro bono work and talking about this work gives attorneys a reason to
feel good. The other, undeniable result is that a
Virginia resident gets access to legal services that
they wouldn’t have had otherwise. So, for those of
you giving of your time and talents, go ahead, pat
yourself on the back and feel free to brag about it.
For those of you not yet convinced that volunteering will produce a warm, fuzzy feeling worPRO BONO | Vol. 63 | October 2014 | VIRGINIA LAWYER
43
thy of your time, consider the results of recent
studies showing that volunteering not only gives
those who volunteer a better sense of mental wellbeing, but also creates a healthier physical wellbeing. Giving of your time and energy just 2–4
hours per week can lower everything from stress
levels to blood pressure, thus increasing volunteers’ longevity and quality of life.4 The author of
one of these studies, Rodlescia Sneed, suggests the
key factor in volunteers’ improvement in health is
stress reduction, which is “very strongly linked to
health outcomes.” 5 UnitedHealthcare even recommends volunteering as a way to increase life
expectancy, touting the studies that suggest the
earlier you begin volunteering, the stronger the
possibility of having better health later in life as
well as having stronger functional ability over a
lifetime.6
And, states tend to see decreases in heart
disease and mortality rates when volunteer rates
rise.7 Imagine what could happen if more
lawyers chose to participate in pro bono work in
Richmond, already one of the happiest places in
the country.8
Virginia attorneys have plenty of reasons to
engage in pro bono work, but it takes a village to
answer the call to service. Law firms and legal
departments need to get behind the pro bono
initiative by encouraging and rewarding their
attorneys for doing this philanthropic work. The
benefits of volunteering can be extended to the
44
organizations that employ the volunteers.
UnitedHealth Group, a Minnesota-based nonprofit organization, focused on a different aspect
in their research than the typical volunteer benefits. In their survey, UnitedHealth found that
employers who support volunteer programs gain
appreciation from their employees and generate
goodwill within companies.9 Employers with
employees who volunteer also see decreased
health care costs and increased productivity,
largely due to the lower stress levels of those
employees who give back with support from
their companies.
If you are serious about answering the Rule
6.1 charge to engage in pro bono service, why not
do so for an organization that helps you do it as
efficiently and effectively as possible. LINC understands that attorneys have professional and personal limits that might make signing up for pro
bono work seem daunting. In response, LINC has
a customizable referral process tailored to meet
the specific needs of our volunteers. Our small
staff makes personal referrals after a thorough
screening process to determine income eligibility
and the exact legal needs of the client. We keep
detailed profiles of our volunteer attorneys and
know their preferences in terms of practice area
and pro bono work load. We’re happy to accommodate requests such as, “I only want to draft
simple life planning documents for clients in
non-urgent situations who can come to my
www.vsb.org
office,” or, “I want to help but I don’t like going to
hospitals. I’m happy to help cancer patients who
aren’t admitted to healthcare facilities,” or, “I can
only commit to providing occasional consult
calls,” or, “Please don’t send me more than four
clients a year,” or even, “I’m crazy busy, please
don’t call me for six months.” Bring us your time
and talent and we’ll help you deliver needed support to cancer patients in a way that works for
you, your schedule, and your practice. We’ll also
get you the training you need if you can’t leverage
your current practice as a source of pro bono for
our clients. Annually, LINC offers a free CLE
training course on drafting simple life planning
documents, and this year we launched a partnership with the Virginia State Bar to host a webinar
CLE series of free “nuts and bolts” training for
attorneys that we hope to continue each year.
Above all, at LINC we want our volunteers to
feel valued. We say “thank you,” and we’re always
quick to provide positive feedback from our staff
and clients. Such feedback is never in short supply
because members of our organization and the
cancer patients we help are extremely grateful for
the assistance. I recently received a call from a
client wanting to provide an update on the outcome of a reasonable accommodation request she
had placed with her employer. She had originally
come to LINC at the end of her rope because her
requests for a transfer to a smaller facility closer
to her home with an open position in her field of
expertise had gone unanswered. She came to
LINC feeling hopeless and frustrated with the
process. Her voice wasn’t being heard. The stress
of the larger facility coupled with the long commute to work was leaving her exhausted and weak
as she worked through her treatment and recovery from breast cancer. Despite multiple attempts
to notify and work with her employer to improve
her job conditions, she still had not gained
ground. LINC referred her to a volunteer attorney
the week before, hoping that, with legal representation, her transfer request would be heard and
approved. On the day she called to give me an
update, I answered the phone to find her in tears
of joy. Within a week of receiving a reasonable
accommodation request from her attorney, her
employer had approved the transfer. Her words to
me were simple yet powerful and full of hope:
“Cris, we did it! Thank God for my attorney. He
sent one letter and I got the transfer. We really did
it. I’m going to be okay.”
One letter changed a cancer patient’s life.
Imagine what your forty hours of pro bono could
do for your community. Imagine what 939,120
hours could do.
www.vsb.org
Endnotes:
1
Joanna L. Suyes & John E. Whitfield, Is there a Pro
Bono Gap in Virginia?, VA. LAWYER, Feb. 2014, at
46, http://www.vsb.org/docs/valawyermagazine
/vl0214-pro-bono.pdf.
2
Id.
3
Id.
4
Compare Corp. for Nat’l & Community Service,
Off. of Res. & Policy Dev., The Health Benefits of
Volunteering: A Review of Recent Research (2007),
at http://www.nationalservice.gov/pdf/07_0506
_hbr.pdf at 10 (last visited Aug. 27, 2014) (finding
an annual 100 hours as a “volunteering threshold”
before which one does not experience the marked
benefits of meeting that threshold, and after which
there is no substantial benefit to volunteering
more) with Rodlescia S. Sneed & Sheldon Cohen,
A prospective study of volunteerism and hypertension risk in older adults. 28 PSYCHOL.& AGING 6
(2013), http://psycnet.apa.org/journals/pag/28
/2/578 (suggesting that one must volunteer 200 or
more hours in a calendar year to experience a
decreased likelihood of developing hypertension).
5
Stephanie Watson, Volunteering may be good for
body and mind, HARVARD HEALTH BLOG (June 26,
2013), at http://www.health.harvard.edu/blog/volunteering-may-be-good-for-body-and-mind201306266428.
6
UnitedHealthcare. Invest in Your Health: Discover
the Healthy Benefits of Helping Others,
Dogoodlivewell.org (2013), at
http://www.dogoodlivewell.org/healthybenefits.html.
7
Corp. for Nat’l & Community Service, Off. of Res.
& Policy Dev., The Health Benefits of Volunteering:
A Review of Recent Research (2007), at
http://www.nationalservice.gov/pdf/07_0506_hbr.
pdf at 11 (last visited Aug. 27, 2014).
8
Phil Riggan, Volunteering Makes Richmond
Happier, Richmond.com (Aug. 26, 2014) at
http://www.richmond.com/city-life/article
_d2ec630e-2311-11e4-baa0-001a4bcf6878.html.
9
UnitedHealth Group, Doing Good is Good for You:
2013 Health and Volunteering Study, (2013), at
http://www.unitedhealthgroup.com/~/media/UH
G/PDF/2013/UNH-Health-VolunteeringStudy.ashx at 6.
Crista Whitman Gantz joined LeClairRyan’s Discovery
Solutions practice group in 2007 where she most recently
worked as an associate before making the decision to
change career paths and pursue non-profit legal work. She
joined the Legal Information Network for Cancer in August
2013 and currently works as client services attorney representing and assisting cancer patients with their legal and
financial needs.
45
Pro Bono Challenges:
Time, Distance, Money, Culture
The Challenges of Rural Pro Bono
by Larry T. Harley
Let me make one thing perfectly clear, we in southwestern
Virginia hold Richmond’s Firms in Service in high regard.
Still, I wonder, wouldn’t more of us rural attorneys have been
drawn to pro bono work if they’d named that initiative Farms
in Service?
OK. I get it. Organized pro bono work in the commonwealth is largely an urban, or at least small city, phenomenon.
Whether it’s the work of Virginia’s urban bar foundations,
Harrisonburg’s national award-winning pro bono program,
projects arising out of large corporate counsel offices, or Firms
in Service, Virginia’s privately-organized pro bono projects have
arisen primarily in our cities.
Recognizing that there are special challenges in rural pro
bono is not “rocket surgery.” Professionally speaking, the social
structure for rural attorneys discourages the development of
organized pro bono. This is partly because rural bar associations are less active than their city counterparts. In fact, there
are rural bars that do not even meet once a year, and there are
few that engage in significant programmatic activities.
Another factor in the professional lives of rural attorneys is
that the vast majority of those in private practice are solo practitioners, or in firms of two-to-four attorneys. There aren’t any
large law firms that bring in classes of associates who might
spend a year or two getting their litigation feet wet through the
handling of pro bono cases. There are not any firms large
enough to have a “pro bono partner” who rallies the troops to
respond to the need for greater access to justice. Instead, these
rural lawyers hit the street running, dashing from one county
courthouse to another, frequently double or triple booked, in
an effort to make ends meet.
Even where rural attorneys do attempt to undertake organized pro bono activities there are significant challenges. One of
the greatest of these is the lack of critical mass. Southwestern
Virginia, for example, is home to 12 percent of Virginia’s poor
— more than 100,000 low-income people — but these folks are
dispersed over a mountainous area the size of New Jersey.
Further, with 722 licensed attorneys, our region is home to only
46
2.4 percent of Virginia’s active bar. Even those with the best
intentions frequently find that they are too few, spread too thin,
to sustain an organized pro bono effort.
Rural attorneys, however, are just as smart, just as driven,
just as fearless, and just as filled with hope and pride as their
city counterparts. The notion that “we take care of our own”
has more than just a kernel of truth in it. I know many attorneys who have gone beyond the “pro bono call of duty” in
unsung service. These folks inspire me.
There are also rural bars rising to the challenge of pro
bono. Just this year the small Smyth County Bar Association
unanimously approved a pro bono project in partnership with
our legal aid program. And even though technology is not
always the strong suit for rural attorneys, the Tazewell County
Bar Association held its own “Jazz for Justice” fundraiser and
donated the proceeds to our legal aid for the purchase of pro
bono portal software. We now have the capacity for attorneys
anywhere in Virginia to log onto our case management system
to “shop” for prescreened cases appropriate for pro bono representation and distance lawyering.
The challenges of rural pro bono are real, as real as the
land that any self-respecting rural attorney loves. But the challenges aren’t our excuse for inaction or failure; they are signposts inviting creativity in the journey towards one justice for
all Virginians.
Does One Person Matter? Can I Afford
to Help?
by Erin E. Layman
As a solo practitioner, I understand that income is a priority. An
attorney must be able to keep a roof overhead, keep the electricity on, and inventory basic supplies. The perception that it is
easier for large firms to pay overhead affects the decisions of
solo practitioners on whether to accept pro bono cases, which
generate no revenue, deplete office supplies, and eat potential
billable hours.
www.vsb.org
ISSUES IN PRO BONO
Having worked at a large firm, it was not until I became a
solo practitioner that I was able to truly appreciate the effects of
my work for my client. The difference, for me, was the quality
of the work I could offer. I can now meet with clients one-onone and really make them feel as appreciated as paying clients.
I am a team leader for the local pro bono organization,
which means I help place cases with attorneys after the cases are
screened by Blue Ridge Legal Services Inc. and deemed meritorious. I attend a meeting every few months for cases to be
pitched to me so that I can then refer the cases to fellow attorneys. It takes time to attend the meeting, to contact attorneys,
and to place the cases. However, the overall benefit is worth the
effort. In 2012, our local bar closed 120 pro bono cases, donating more than 773 hours of time. At least 85 percent of the
local bar’s solo practitioners donated their time.
How valuable is the time donated? Many of us bill by the
hour, so time in precious. Given overhead costs, how can we
give time away and still make it?
Honestly, pro bono work has helped further my career. I
have received thank-you cards from pro bono clients and, even,
referrals. A client down on his luck may still have friends or
family who are able to pay for legal assistance. But, more
importantly, nothing feels better than knowing that you have
made a difference.
Creating a Culture of Pro Bono
Commitment
by Kimberly Emery
Virginia School of Law are exposed to the value of pro bono
as soon as they arrive for their first week of classes. The law
school’s voluntary pro bono program with a seventy-five-hour
challenge, administratively developed projects, and annual volunteer recognition instills the pro bono ethic in our law students.
Law school pro bono programs help students develop
their skills as legal professionals and simultaneously to understand their responsibility to provide free legal services to those
in need. Students quickly understand that the benefits of pro
bono service are not limited to the individuals or organizations that they serve. Students learn that pro bono allows
them to enhance their marketability to potential employers,
build professional relationships and mentoring networks, gain
practical experience, and explore alternative career opportunities. Pro bono activities, unlike community service work, give
students the opportunity to use the skills they are learning in
the classroom.
The key to instilling a culture of pro bono in a law school
is generating awareness of the acute need for free legal services
and the availability of quality projects. Law school pro bono
programs teach students about the access to justice gap and
need for their pro bono efforts to help fill that gap. Students,
made aware of the need, adapt to the idea that they should
commit a certain number of hours each year to pro bono and
the law school’s pro bono program allows them easy access to a
project. Doing pro bono while in law school inculcates a norm
that helps to ensure young lawyers’ future involvement in pro
bono while in practice.
1
Deborah L. Rhode, Creating Cultures of Commitment: Pro Bono
Activities in Law Schools, http://www.aals.org/presidentsmessages
/culcom.html.
“A central mission of legal education should be to create cultures of commitment to pro bono involvement, an involvement
that should persist throughout practitioners’ legal careers.”1
Pro bono is a Latin phrase meaning “for the public good.” An
active and well-developed law student pro bono program is the
essential ingredient in creating a culture of service and “doing
good” within a law school. Students at the University of
Larry T. Harley is a member of the
Supreme Court of Virginia’s Access
to Justice Commission. He has
served as executive director of
Southwest Virginia Legal Aid
Society since 1993 and received the
VSB’s Legal Aid Award in 2011.
www.vsb.org
Erin E. Layman is a sole practitioner in
Harrisonburg. Her practice is primarily in
the areas of estate planning and administration, and guardianships. She is a team leader
for Blue Ridge Legal Services Inc. and secretary of the Harrisonburg-Rockingham
County Bar Association.
Kimberly Emery has been the assistant
dean for pro bono at the University of
Virginia School of Law since 2004.
Formerly, she was the assistant dean for
public service and founder and director of
the Mortimer Caplin Public Service Center.
47
PRO BONO ASSISTANCE SOUGHT FOR CLIENTS STRUGGLING TO PAY COURT DEBT
Joseph Platania,
Assistant Commonwealth’s Attorney, City of Charlottesville:
“We take a proactive approach to assist indigent individuals trying to
reintegrate themselves back into society and comply with the law. If a
defendant charged with driving on a suspended license because of
unpaid court costs is able to get his or her license back before the trial
date, we routinely resolve the case with a conviction that allows them to
stay licensed. It benefits the entire community when folks on the roadways are validly licensed and insured.”
Court Debt continued from page 41
in need of pro bono representation. If you would
like to volunteer, please take five minutes to register with JusticeServer at www.justiceserver.org.
You may select any areas of interest, including
Driver’s License Restoration, from the “special
projects” menu. If you would like additional
information on pro bono opportunities, or on
JusticeServer, please contact Carolyn Kalantari
directly at carolyn@justice4all.org. You may also
volunteer on driver’s license cases with Drive to
Work in Richmond, by contacting O. Randolph
Rollins at rrollins@drivetowork.org.
The Legal Aid Justice Center is available to
train attorneys who wish to volunteer on driver’s
license restoration cases. Together, we can provide
a valuable service to low income Virginians seeking to restore their drivers’ licenses and get their
lives back on track.
The authors thank law students Hanya Liu
and Kiya Jones for contributing their time and
energy to the Legal Aid Justice Center’s driver’s
license restoration project.
Carolyn Kalantari is the pro bono director and managing
attorney at the Legal Aid Justice Center in Charlottesville.
48
Endnotes:
1
In Virginia, when an individual is assessed court
costs and fines for traffic or criminal offenses, he
has thirty days to pay in full or establish a payment plan with his local court. A debtor who fails
to comply is subject to driver’s license suspension.
Va. Code § 46.2-395(C).
2
Cook represents a hypothetical case that demonstrates several of the issues pro bono counsel
should expect to confront in driver’s license
restoration matters.
3
Interest accrues at a rate of 6 percent and continues to accrue until the individual establishes a
payment plan or pays in full. In some cases, interest continues to accrue during a period of incarceration. Va. Code §§ 19.2-353.5, 6.2-302.
4
Va. Code § 19.2-354.
5
Va. Code § 19.2-353.5.
6
Data provided to the Legal Aid Justice Center on
July 21, 2014, pursuant to a Freedom of
Information Act request. The DMV further noted
that any one individual may be subject to more
than one order of suspension and some of the
orders were issued to individuals who had contact
with the Virginia roads, but who do not reside in
Virginia.
7
Va. Code § 19.2-354.
8 “[I]t is important to note that some percentage of
accounts will always be uncollectible. As an example, we estimate incarcerated individuals owe
approximately 10 percent or an average of $16.8
million each year relating to the cases for which
they were incarcerated. We believe this figure is
conservative because incarcerated individuals typically also owe fines and costs relating to charges
for which they were not incarcerated.”
Commonwealth of Virginia Auditor of Public
Accounts, Commonwealth Court Collections
Review 2 (April 2013).
Richard DiMeglio, a recently retired army judge advocate, is
a program attorney for Virginia Continuing Legal
Education, and a pro bono attorney for the Legal Aid Justice
Center.
www.vsb.org
Advocates for Cancer Patients, Founders of Pro Bono
Referral Program Recognized for Service
The Lewis F. Powell Jr. Pro Bono Award this year will be shared
by the Legal Information Network for Cancer and two lawyers,
M. Steven Weaver and Glenn M. Hodge, who helped start what
has been called one of the most successful pro bono programs
in the nation.
The Legal Network for Cancer, or LINC, is dedicated to
helping cancer patients and their loved ones with non-medical
needs. It operates in the Richmond area and has helped
uncounted people with assistance and referral to legal, financial, and community resources.
Weaver and Hodge are members of the HarrisonburgRockingham Bar Association and helped start the association’s
Pro Bono Referral Program in 1982. They have served continuously as leaders of the program for thirty-two years.
In her letter nominating LINC, Alexandra D. Bowen
noted that the organization provides a long list of services to
cancer patients, survivors, and their families. Those services
include securing insurance coverage, securing disability
income, preparing powers of attorney, preparing advance
medical directives, and assisting with estate planning. LINC
recruits volunteer attorneys and assists in training them in
such areas as drafting life planning documents, handling
Social Security appeals, debtor’s rights, landlord tenant law,
and the Affordable Care Act.
“LINC provides an embrace to frightened people during
their most difficult times and gives them peace of mind,”
Bowen wrote. “The legal and financial services that LINC
provides enable cancer patients and their families to have
dignity and a better quality of life in their time of need.”
Weaver, of Clark & Bradshaw, and Hodge, of Wharton,
Aldhizer & Weaver, were nominated by John E. Whitfield,
executive director of Blue Ridge Legal Services Inc. (BRLS).
He noted that “at least every other month for the last
thirty-two years, Steve Weaver and Glenn Hodge have come to
the BRLS legal aid office in Harrisonburg and met with BRLS’s
legal staff to review and discuss potential pro bono referrals to
the bar association teams.” He wrote that they have contributed
hundreds of hours to meeting with the legal aid staff and have
mentored many staff attorneys.
Thanks in part to the leadership of Weaver and Hodge,
the organization has received a number of state and national
awards. It has closed about 3,000 cases with more than 23,000
hours of donated legal services during the years Weaver and
Hodge have served as leaders.
www.vsb.org
Staff members at LINC include Lindsey Leach, development, special events, and volunteer coordinator; Cris Whitman Gantz, LINC clients services director and attorney;
Denise Kranich, executive director; Karen Miller, client services assistant; and Heather
Bland, client services assistant.
“These two leaders
have continued — quietly,
effectively, faithfully,
without fanfare — to
make sure the Pro Bono
Referral Program they
helped to create thirtytwo years ago continues
to fulfill its mission of
helping to ensure equal
justice to all regardless of
their ability to pay,”
Whitfield wrote.
The Powell award
Sharing in this year’s Lewis F. Powell Jr. Award
was established by the
are M. Steven Weaver (left) and Glenn M.
Hodge who helped start the HarrisonburgSpecial Committee on
Rockingham Bar Association’s Pro Bono
Access to Legal Services of Referral Program in 1982.
the Virginia State Bar to
honor attorneys and attorney groups that have made outstanding pro bono contributions. The award will be presented
October 22 during the Virginia State Bar Pro Bono Conference
and Celebration in Portsmouth.
49
Noteworthy
> VSB NEWS
Voting for President-Elect will be Online
This year for the first time the election
for president-elect of the Virginia State
Bar will be conducted online rather
than with paper ballots. Balloting will
begin on October 31 and continue until
the close of business on December 1.
The change is being made to cut
down on paperwork, save money and
staff time, and ensure accuracy.
The VSB has partnered with Survey
& Ballot Systems (SBS) to administer
the 2014 election. Voting members will
receive an e-mail from SBS with instructions on how to register their vote.
To ensure e-mail with voting information arrives safely in your inbox on
or around October 31, add the following e-mail address as a safe sender:
noreply@directvote.net. These settings
can be made in your e-mail account
SPAM/Junk filters or by contacting
your IT department. This process is
often referred to as “whitelisting.”
Please note that the subject of the
online voting instructions e-mail will be
“Virginia State Bar 2014 President-elect
Election Login Information.”
Members who have not already
done so should add their e-mail
addresses to VSB records to ensure that
the information arrives.
SBS will begin sending e-mails to all
members on October 31 but because of
the high volume, some may take more
than a day to arrive.
Members without e-mail addresses
will receive an instruction letter. Those
voters who prefer to vote by paper ballot
will have to request the ballot by
November 24.
Join a VSB Section
Got an Ethics
Question?
The VSB Ethics Hotline is a
confidential consultation service
for members of the Virginia
State Bar. Non-lawyers may
There are twenty sections of the Virginia State Bar. Each is a separate group
devoted to improving the practice of law in a particular substantive area or
specialty practice. The sections operate under bylaws and policies approved by
the Virginia State Bar Council. They elect their own officers and choose their
own activities within the limits established by the Council. Section membership is open to all members in good standing of the Virginia State Bar. Many
sections also have law student and associate memberships.
See more information at http://www.vsb.org/site/members/sections.
submit only unauthorized practice of law questions. Questions
can be submitted to the hotline
by calling (804) 775-0564
or by clicking on the blue
“E-mail Your Ethics Question”
box on the Ethics Questions
and Opinions web page at
Support the Virginia State Bar Diversity Conference.
http://www.vsb.org/site
/regulation/ethics/.
50
Anyone can join, it’s free, and takes only about two minutes. Demonstrate
your support for the Diversity Conference by becoming a member today.
http://www.dcvsb.org/
www.vsb.org
VSB NEWS <
Noteworthy
The VSB E-News
Notice to Members:
MCLE Compliance Deadline Is October 31
Have you been receiving the
REMINDER — The MCLE requirement is 12.0 CLE hours of which 2.0
must be ethics and 4.0 must be from live interactive programs. See FAQs
about the new requirement and other MCLE compliance information at
http://www.vsb.org/site/members/mcle-courses/.
Your compliance deadline for mandatory continuing legal education
is October 31. Go to https://member.vsb.org/vsbportal/ and log in to
review your MCLE record and certify your course attendance.
The MCLE End of Year Report (Form 1) will be mailed in early
November. Please review the report and, if incomplete, amend as
instructed. Amended reports must be received by the bar no later than 4:45
PM on December 15.
Make application now for any non-approved courses. Beginning
November 1, a $50 application fee will be required for applications
received more than 90 days following the date of attendance.
Questions: Please contact the MCLE office at (804) 775-0577 or email MCLE@vsb.org.
Virginia State Bar E-News? The
E-News is a brief monthly summary of deadlines, programs, rule
changes, and news about your
regulatory bar. The E-News is
emailed to all VSB members. If
your Virginia State Bar E-News is
being blocked by your spam filter,
contact your email administrator
and ask to have the VSB.org
domain added to your permissions list.
Diversity Conference Events Scheduled
by Eva N. Juncker, Diversity Conference chair
Did you know that on February 25,
2011, the Virginia Senate issued a formal
resolution commending the Virginia
State Bar’s Diversity Conference? The
Virginia Senate found that “…the legal
needs of our citizens are themselves
ever-changing, and that the legal profession and the Virginia State Bar have a
steadfast duty to be appropriately anticipatory and responsive to these changing
legal needs, and that the Diversity
Conference is a critical component of
this duty.” (A copy of Senate Resolution
31 can be found on our web page:
www.dcvsb.org.)
So how is your Diversity Conference
working to help the legal profession be
responsive to these changing legal needs?
We had two events this fall. First, we presented “Jazz 4 Justice” at James Madison
University on October 4. All proceeds
www.vsb.org
from the event go towards scholarships
for the musicians, the ongoing work of
the Diversity Conference, and to Blue
Ridge Legal Services, the legal aid society
that provides free civil legal assistance to
low-income residents of the Shenandoah
Valley and Roanoke Valley of Virginia.
For our second fall event, we leapt
at the opportunity to co-present, along
with the Center for Teaching the Rule of
Law, a panel at the Virginia Women
Attorney Association biennial legal conference, “Law: The Ultimate Power Tool.”
Our presentation, “Forging in the
Foundry of Justice, The Rule of Law for
We the People,” was scheduled for
October 18. Building on the collective
legal experiences of the audience, the
presentation explored and discussed the
rule of law and its role in the creation
and evolution of our democracy. As the
Senate resolution noted, “the Virginia
State Bar’s wisdom, foresight, humanity,
and commitment to equal justice, access
to justice, and the rule of law are worthy
and profoundly important traditions of
leadership in the history of this
Commonwealth.” We continued that tradition this fall.
Would you like to collaborate on a
legal event that will foster and encourage
diversity in admission to the bar, in
advancement in the profession, in the
judiciary, in professional leadership
opportunities, or in ways that ensure
that Virginians’ changing legal needs are
met? Please reach out to the Diversity
Conference. We welcome the opportunity to work with all law schools, sections, conferences, and voluntary bar
associations in the commonwealth.
51
Noteworthy
> PEOPLE
In Memoriam
David Frank Belkowitz
Richmond
October 1946 – July 2014
Martin V. Bostetter Jr.
Alexandria
March 1926 – August 2014
Duane Conan Ellison
Germantown, Maryland
February 1936 – June 2014
The Honorable V. Thomas Forehand Jr.
Chesapeake
August 1947 – August 2014
William F. Gieg
Deltaville
May 1940 – November 2013
Peter A. Greenburg
Gaithersburg, Maryland
April 1939 – March 2014
Phyllis Willene Harden
Institute, West Virginia
October 1948 – January 2014
John Henry Herbig
Richmond
June 1948 – August 2014
Victoria Jo Hoffman
Roswell, Georgia
June 1958 – May 2014
Richard George Jacobus
South Riding
October 1955 – December 2013
John F. Kay Jr.
Richmond
November 1929 – August 2014
Brian B. Kent
Dana Point, California
November 1929 – May 2014
William T. Lehner
Williamsburg
February 1942 – May 2014
52
The Honorable William Park
Lemmond Jr.
Petersburg
December 1932 – July 2014
James S. Maffitt IV
Easton, Maryland
October 1942 – July 2014
Mary Marcelin McKie
Charlottesville
February 1945 – May 2014
James Dale Morefield
Abingdon
April 1949 – July 2014
John W. Price Jr.
Daytona Beach, Florida
August 1923 – July 2014
David W. Tibbott
Phillipsburg, New Jersey
October 1925 – May 2014
Clyde M. Weaver
Newport News
January 1928 – July 2014
Local and
Specialty Bar
Elections
The Alexandria Bar Association
*CORRECTION*
Sarah Elizabeth McElveen, President
Nicholas John Gehrig, President-elect
Dipti Pidikiti-Smith, Secretary
David Andrew Lord, Treasurer
Christina Margaret Brown, Director
Joseph John DiPietro III, Director
Jessica Lynn Leischner, Director
George Christopher Wright, Director
Arlington County Bar Association
Jason Sverre Rucker, President
George Webb Dodge, President-elect
Rachelle Elizabeth Hill, Secretary
Donna MCL Murphy, Treasurer
Charlottesville-Albemarle Bar
Association
James Page Williams, President
Lewis Ashby Martin III, President-elect
Rachel Danielle Grodner Horvath,
Secretary
Seth James Ragosta, Treasurer
Greater Peninsula Women’s Bar
Association
Christine Marie Andreoli, President
Regenea Alychia Hurte, Vice President
Sarah Marshall Saville, Secretary
Kristina Marse Beavers, Treasurer
The Honorable Stephen Ashton
Hudgins, At-Large Board Member
Harrisonburg-Rockingham Bar
Association
Matthew Clarke Sunderlin, President
Tracy James Evans II, President-elect
Erin Elizabeth Layman, Secretary
Beth Carole Driver, Treasurer
Local Government Attorneys
of Virginia
G. Carl Boggess, President
Roderick Ramsey Ingram, Vice President
George Arthur McAndrews, Secretary
Wesley Clarke Whitfield Jr., Treasurer
www.vsb.org
Law Libraries
Public Policy Research & Drafting:
A Pro Bono and Law Library Collaboration
by Tara L. Casey and Suzanne B. Corriell
As the Carrico Center for Pro Bono
Service at the University of Richmond
School of Law continued to grow its
programs, forays into the areas of public
policy and advanced legal research grew
as well. For a number of years, our law
students volunteered with nonprofit
organizations during the General
Assembly session, learning firsthand
how issues develop into policy, which
sometimes then develops into law.
This experience required our students
to expand their legal research and
writing skills beyond the traditional
case law and brief writing methods.
Furthermore, a growing number of
students were interested in pursuing
legislative or public policy careers, and
were looking to take advantage of
opportunities that would hone their
skills in these areas and increase their
postgraduate employment potential.
Because of the strong history of
collaboration between the Carrico
Center and the law school’s library faculty through these programs, the idea
was hatched to create a course that
would provide students with an exposure to the legal work performed in the
public policy field. Situated in Virginia’s
capital, the law school is well positioned
to prepare students for careers in legislative and public policy. Indeed, many
statewide policy-oriented organizations
are based in Richmond, and Virginia
houses national policy research institutes. The plan was for this course to
serve as good preparation for those students whose interests lie outside of the
litigation or transactional arenas — connecting students with and showcasing
their work to nonprofit organizations
and government agencies.
In the fall of 2012 we launched this
course, titled “Public Policy Research
and Drafting,” as an elective upper-level
www.vsb.org
class that combined both advanced legal
research and writing instruction with a
community-based experience. This
workshop-oriented course provides
students with an opportunity to explore
advanced legal research in the public
policy field, develop their writing skills
in the context of creating an issue paper,
and engage in community relations
with nonprofit organizations in greater
Richmond. Furthermore, through the
Richmond Promise the University
expressed its determination “to engage
as a meaningful part of the Richmond
community, of the nation, and of the
world.” This course addresses this goal,
as it provides a valuable resource to
nonprofit organizations that are otherwise unable to dedicate the resources
needed to engage in such in-depth
policy research and review.
The course has expanded the law
school curriculum by allowing students
to focus on the process of research and
writing while working for a real organization with a real research need, while
exposing students to the legal work traditionally performed in the public policy
field. This course serves as good preparation for those students whose interests
lie outside of the litigation or transactional arenas.
In addition to regular class meetings
that focus on public policy law, each student project addresses a specific social
justice issue as requested by partner
organizations. Students are grouped into
teams to meet weekly throughout the
semester to discuss their progress and
work on their research projects. Students
are engaged in developing advanced
research skills, using both legal and
social science related materials. In moving beyond the traditional sources of
legal research, students have wider exposure to conducting informational inter-
views, interpreting statistics, and keeping
current with news and reports. Students
submit their research plan, outline, and
memo to the class and to the partner
organization so that feedback can be
incorporated into their revisions. In the
weekly class, students receive intensive
instruction and feedback on their
research and writing, while also learning how to provide critical feedback
themselves. At the end of the course,
students present their research memoranda to the organization.
This classroom-community experience provides students with the opportunity to sharpen their writing and
analytical skills, expand further their
research skills, work with partners on a
real-time project, improve their communication skills, and engage in critical
proofreading and editing. In addition,
we have recruited several outside speakers to talk to the students, including
Amy L. Woolard, senior policy attorney
at Voices for Virginia’s Children, and
Margaret L. Sanner, Virginia senior
attorney at the Chesapeake Bay
Foundation.
The inaugural class engaged in high
level issues of statewide and national
importance: the issue of criminal justice
debt and its effects upon persistent
poverty and recidivism; domestic violence laws in the context of Second
Amendment rights; how health outcomes are affected by poverty and housing choice; and a survey of behavior
modification policies used in juvenile
detention. One student in the fall 2013
class continued his predecessor’s
research into criminal justice debt and
repayment plans, while other students
researched the intersections between
poverty and education as well as poverty
Research continued on page 55
53
Technology and the Practice of Law
Electronic Communications:
Special Legal Requirements for Public Records and Meetings
by Lisa Robertson
Some of us remember when pushbutton telephones and fax machines
were new technology. Today’s technologies offer an unprecedented number
of means by which people may discuss
and follow the operations of local government. In this article, I offer information regarding the relationship of
electronic communications technology
to the means by which the conduct of
public business must be recorded.
The Virginia Public Records Act
(VPRA).1
All attorneys struggle to determine
whether, and for how long, client records
should be preserved and stored. Should
tangible files be eliminated if they are
converted into electronic files? Should
electronic files be moved to external
devices or “the cloud”? Legal counsel for
public bodies must assist clients with
consideration of these questions in
accordance with the VPRA. Lack of
familiarity with VPRA can lead to public
embarrassment or even criminal consequences.2 Every elected and appointed
public official must be given a copy of
the VPRA by legal counsel or a locality’s
administrator within two weeks of election or appointment, and must become
familiar with its requirements.3
The definition of “public record”
under the VPRA encompasses e-mail,
text messages, voice messages, and any
other form of technology that records
the discussion or transaction of public
business.4 VPRA prohibits a public
record from being deleted or destroyed
prior to expiration of a specifically-designated “retention period.”5 Retention
periods are assigned by the Library of
Virginia, according to “schedules.”6 Each
retention schedule covers multiple categories of records. During a retention
period, no particular means of storage is
54
prescribed; however, each public record
must remain accessible, in one form or
another, throughout its life-cycle. If electronic storage is chosen, records must be
converted and migrated as often as necessary so that information is not lost due
to hardware, software, or media obsolescence or deterioration.7 Even a public
body’s computer system must be documented: one schedule covers retention of
“information technology,” including network diagrams, system access records,
and system maintenance records.8
Public officials with only a passing
familiarity with VPRA may make
improper choices regarding deletion
of e-mails and other electronic records.
There persists an incorrect assumption
that records created or stored on personal devices, even if such records discuss public business, aren’t subject to
VPRA.9 VPRA requires certain correspondence of city councils and boards
of supervisors, and of local administrators, to be permanently maintained —
regardless of where created or stored.10
At the expiration of their terms, public
officials must deliver public records in
their possession to successors.11 Thus,
legal counsel for public bodies should
be prepared to discuss with clients the
answers to questions such as: are officials
preserving e-mail and other electronic
correspondence as required? If a board
member and county administrator correspond with each other via e-mail,
which copy will be maintained as the
permanent record, and where? Is the
public body’s IT staff cognizant of
VPRA’s requirements? Are backup copies
of electronically stored records maintained to protect against computer
crashes and other disasters?12 (Consider
IRS official Lois Lerner, criticized for
claiming to have lost e-mails due to a
computer crash).
The Virginia Freedom of Information
Act (FOIA).13
The FOIA requires public records and
public meetings to be open for public
viewing.
Electronic Records. When a citizen
seeks electronically-stored records, public bodies must produce them in any
tangible medium requested.14 Because
of this, regardless of whether stored on
public officials’ personal or public
devices, public records must be maintained in a format that can be accessed,
read, converted to other formats, and
e-mailed to others throughout VPRA
retention periods. When assisting public
clients in responding to a FOIA request,
before responding on behalf of a client
that “the requested records could not be
found or do not exist,”15 legal counsel
may want to verify that clients have
searched personal and public devices
and relevant external storage locations
— particularly if the requested records’
VPRA retention periods have not
expired. If public records are in the
custody of a third party for storage,
maintenance, or archiving, the public
body remains the legal “custodian”
under FOIA.16
Electronic Meetings. FOIA allows any
local public body to implement interactive audio and visual means to expand
public participation in meetings;17 however, during those meetings the members of the local public body must
themselves be physically assembled.18
Generally, local public bodies remain
prohibited from conducting electronic
meetings, except: (1) in limited circumstances, during a state of emergency
declared by the governor, an electronic
meeting may be conducted without
assembling a quorum in one location;19
Communications continued on page 55
www.vsb.org
Research continued from page 53
and health, the interaction between
federal and state highway safety regulations, and grand larceny thresholds.
The course has been a success.
Students have received enthusiastic
reviews from their respective organizations, including invitations to present
their findings and papers to larger
meetings and audiences even after the
semester had concluded. Students also
had the opportunity to engage with
their nonprofit organizations’ broader
collaborations. Several students have
created long-lasting networking connections, resulting in summer fellowships as well as permanent
employment.
Tara L. Casey is director of the Carrico
Center for Pro Bono Service.
Suzanne B. Corriell is associate director for
reference, research, and instructional services at the University of Richmond’s Muse
Law Library. She is past president of the
Virginia Association of Law Libraries.
Communications continued from page 54
or (2) when a formal written policy is
in place, subject to strict procedural
requirements,20 an individual member
may participate remotely, when attendance is not possible due to an emergency personal matter, disability, or
medical condition.21 If remote participation is authorized for an individual,
a quorum must be physically assembled at a central location, and arrangements must be made for the voice of
the remote participant to be heard by
everyone at the central location.22
9
Endnotes:
1
Va. Code § 42.1-76 et seq.
2
See Va. Code § 42.1-88
3
Va, Code § 42.1-76.1 (legal counsel or
a public body’s administrator must
provide the copies)
4
Va. Code § 42.1-77.
5
Va. Code § 42.1-86.1(A)
6
See Va. Code § 42.1-82(B) and see
http://www.lva.virginia.gov/agencies
/records/
7
Va. Code § 42.1-85(B)
8
See General Schedule 33 (County
and Municipal Governments),
Information Technology (eff. March
19, 2009)
11
12
13
14
15
16
17
18
19
20
21
22
www.vsb.org
10
See Va. Code § 42.1-77, definition of
“public record” (noting that, regardless of physical form or characteristic,
recorded information is a public
record if it is produced, collected,
received or retained in pursuance of
law or in connection with the transaction of public business. The medium
upon which such information is
recorded has no bearing on the determination).
See General Schedule GS-19 (County
and Municipal Governments),
Administrative Records (eff.
8/21/2014)
Va. Code § 42.1-88
See Va. Code § 42.1-86
Va. Code § 2.2-3700 et seq.
Va. Code § 2.2-3704(G)
See Va. Code § 2.2-3704(B)(3)
Va. Code § 2.2-3704(J)
Va. Code § 2.2-3708(A)
Id.
Va. Code § 2.2-3708(G)
Va. Code § 2.2-3708.1(B)
Va. Code § 2.2-3708.1
Va. Code § 2.2-3708.1(B)(2) and
(B)(3)
Lisa Robertson is the chief deputy city
attorney for Charlottesville. She is a member of the Technology and the Practice of
Law Committee of the VSB, and her practice includes all aspects of local government operations and administration,
including VPRA and FOIA.
55
CLE Calendar
Introduction to Virginia’s Sentencing
Guidelines
Six-hour seminars approved for six CLE
credits, December 1 through December
17 at several locations. Sponsored by the
Virginia Criminal Sentencing
Commission. Details at
http://www.vcsc.virginia.gov/training.ht
ml. The introduction seminar is
designed for the attorney or criminal
justice professional who is new to
Virginia’s sentencing guidelines. The
seminar will begin with general background information and progress to
detailed information on scoring each of
the guidelines factors to include changes
beginning July 1, 2013. Register by completing the form and submit to the commission. Space may be limited. Purchase
manual separately. $125 fee waived for
judges, commonwealth’s attorneys, P&P,
public defenders, and staff.
Virginia Lawyer publishes at no charge notices of continuing legal education programs
sponsored by nonprofit bar associations and government agencies. The next issue will cover
December 19 through February 20. Send information by October 24 to hickey@vsb.org.
For other CLE opportunities, see Virginia CLE calendar and “Current Virginia Approved
Courses” at http://www.vsb.org/site/members/mcle-courses/ or the websites of commercial
providers.
Virginia CLE Calendar
Virginia CLE will sponsor the following continuing legal education courses. For details,
see http://www.vacle.org/seminars.htm.
October 16
33rd Annual Family Law Seminar:
Negotiating, Drafting, Attacking, and
Defending Marital Agreements
Live — Norfolk
9 AM –4:15 PM
October 16
The Federal Food Safety Modernization
Act (FSMA): Its Impact on Your Clients
Telephone
NOON –2 PM
October 17
Ethics Update for Virginia Lawyers
2014
Webcast/Telephone
NOON –2 PM
October 21
Writing to Win
Live — Fairfax
9 AM –4:15 PM
October 21
Live — Richmond
9 AM –4:15 PM
October 21
Secrets of Bulletproof Contract
Drafting
Video — Abingdon, Alexandria,
Charlottesville, Danville, Fredericksburg,
Hampton
9 AM –4:30 PM
October 20
Establishing a Business Litigation
Practice in Virginia
Webcast/Telephone
NOON –2 PM
October 22
Writing to Win
Live — Richmond
9 AM –4:15 PM
October 21
33rd Annual Trusts and Estates Seminar
Live — Williamsburg
9 AM –4:15 PM
October 22
The Shifting Ground in Land Use Law
Live — Fredericksburg/Telephone
9 AM –1:15 PM
56
October 22
Drafting
Video — Norfolk, Richmond, Roanoke,
Tysons Corner, Warrenton
9 AM –4:30 PM
October 23
33rd Annual Trusts and Estates
Seminar
Live — Lexington
9 AM –4:15 PM
October 23
Drafting
Video — Winchester
9 AM –4:30 PM
October 23
DUI Defense in Virginia
Video — Alexandria
9 AM –4:30 PM
www.vsb.org
CLE Calendar
October 23
What’s New at the Virginia Supreme
Court? An Overview of Recent Civil
Decisions 2014
Telephone
5–6:30 PM
October 23
Tom Spahn on Confidentiality: The
Scope and Strength of the Duty
Webcast/Telephone
7–9 PM
October 24
9 AM –4:15 PM
October 24
Video — Tysons Corner, Warrenton
9 AM –4:30 PM
October 24
Best Practices Before Your Local
Commissioner of Accounts 2014
Telephone
1–4:15 PM
October 27
Courtroom Survival Guide
Video — Tysons Corner, Warrenton
9 AM –12:15 PM
October 27
What Can Lawyers Learn from
Actors?SM Control in the Courtroom
9 AM –4:15 PM
October 27
Video — Charlottesville, Fredericksburg,
Norfolk, Richmond, Wytheville
9 AM –4:15 PM
October 27
Planning for Same-Sex Couples in the
Wake of Windsor and Perry
Telephone
NOON –1:30 PM
www.vsb.org
October 27
Practice in the Juvenile and Domestic
Relations District Court
Webcast/Telephone
3–5 PM
October 28
Barron Henley’s Skills Training
Live — Fairfax
7:45 AM –4:15 PM
October 29
Video — Harrisonburg
9 AM –4:15 PM
October 29
Video — Norfolk
9 AM –4:30 PM
October 28
15th Annual Virginia Information
Technology Legal Institute 2014
Video — Alexandria, Charlottesville,
Norfolk, Richmond, Roanoke
8 AM –4:25 PM (RICHMOND VIDEO
BEGINS AT 9 AM)
October 29
2014
Webcast/Telephone
NOON –2 PM
October 28
Video — Hampton, Harrisonburg,
Tysons Corner, Warrenton
9 AM –4:15 PM
October 28
Video — Abingdon
9 AM –4:15 PM
October 28
Webcast/Telephone
NOON –2 PM
October 30
Trials of the Century III
Live — Richmond
8:25 AM –3:45 PM
October 30
Charlottesville, Norfolk, Richmond,
Roanoke
9 AM –12:15 PM
October 30
Video — Tysons Corner
9 AM –4:15 PM
October 30
9 AM –4:30 PM
October 29
15th Annual Virginia Information
Technology Legal Institute 2014
Video — Tysons Corner
8 AM –4:25 PM
October 30
Covenants Not to Compete and the
Duty of Loyalty in Virginia 2014
Webcast/Telephone
NOON –3:15 PM
October 29
Seminar
Live — Fairfax
9 AM –4:15 PM
October 29
Video — Abingdon, Charlottesville,
Richmond, Roanoke
9 AM –4:15 PM
October 31
Live — Fairfax
8:25 AM –3:45 PM
October 31
Video — Dulles, Winchester
9 AM –12:15 PM
57
CLE Calendar
October 31
Real Estate — Keep Current with
Updates and Ethics
Telephone
9 AM –1:15 PM
November 20
Norfolk, Richmond, Roanoke
9 AM –4:15 PM
December 9
Webcast/Telephone
NOON –2 PM
October 31
Video — Norfolk
9 AM –4:15 PM
November 20
Seminar
9 AM –4:15 PM
December 10
The Rocket Docket: Trying Cases in the
Eastern District of Virginia
Live — Alexandria/Telephone
8:55 AM –1:25 PM
October 31
Danville, Fredericksburg, Hampton,
Richmond, Roanoke
9 AM –4:30 PM
December 2
Writing to Win
Danville, Dulles, Norfolk, Richmond,
Roanoke
9 AM –4:15 PM
December 10
Video — Dulles, Harrisonburg,
Richmond, Roanoke
8:25 AM –3:45 PM (RICHMOND VIDEO
BEGINS AT 9 AM)
November 7–8
35th Annual Construction and Public
Contracts Law Seminar
Live — Charlottesville
FRIDAY: 8:15 AM –5:25 PM;
SATURDAY: 8 AM –12:20 PM
December 3
Writing to Win
Video — Harrisonburg, Tysons Corner
9 AM –4:15 PM
December 10
2014
Webcast/Telephone
NOON –2 PM
November 12
Backpack to Briefcase: The New
Virginia Lawyer 2014
8:30 AM –5:30 PM
November 14
Representation of Incapacitated
Persons as a Guardian ad Litem — 2014
Qualifying Course
9 AM –4:05 PM
November 18
Seminar
Video — Alexandria, Charlottesville,
Fredericksburg, Leesburg, Norfolk,
Roanoke
9 AM –4:15 PM
November 19
Backpack to Briefcase: The New
Virginia Lawyer 2014
Live — Fairfax
8:30 AM –5:30 PM
November 19
Seminar
Video — Richmond, Tysons Corner,
Warrenton
9 AM –4:15 PM
58
December 4
Video — Tysons Corner, Winchester
9 AM –4:15 PM
December 4
How to Develop an Entertainment
Law Practice
Live — Charlottesville/Webcast
/Telephone
NOON –2 PM
December 5
Residential Landlord-Tenant Law in
Virginia
Live — Charlottesville/Webcast
/Telephone
9 AM –4:15 PM
December 9
The Rocket Docket: Trying Cases in the
Eastern District of Virginia
Live — Richmond/Telephone
8:55 AM –1:25 PM
December 9
Charlottesville, Danville, Norfolk
8:25 AM –3:45 PM
December 11
Video — Charlottesville
9 AM –4:15 PM
December 12
40th Annual Recent Developments in
the Law: News from the Courts and
General Assembly
Video — Charlottesville
9 AM –4:25 PM
December 12
40th Annual Recent Developments in
the Law: News from the Courts and
General Assembly
Video — Fairfax
9 AM –4:25 PM
December 15
How to Develop an Entertainment Law
Practice
Webcast/Telephone
2–4 PM
December 16
Residential Landlord-Tenant Law in
Virginia
Webcast/Telephone
9 AM –4:15 PM
www.vsb.org
C A L L F O R N O M I N AT I O N S
HARRY L. CARRICO PROFESSIONALISM AWARD
VSB Section on Criminal Law
The Harry L. Carrico Professionalism Award was established in
1991 by the Section on Criminal Law of the Virginia State Bar to
recognize an individual (judge, defense attorney, prosecutor, clerk,
or other citizen) who has made a singular and unique contribution to the improvement of the criminal justice system in the
Commonwealth of Virginia.
The award is made in memory of the Honorable Harry L.
Carrico, former Chief Justice of the Supreme Court of Virginia,
who exemplified the highest ideals and aspirations of professionalism in the administration of justice in Virginia. Chief Justice
Carrico was the first recipient of the award, which was instituted
at the 22nd Annual Criminal Law Seminar in February 1992.
Although the award will only be made from time to time at the
discretion of the Board of Governors of the Criminal Law Section,
the Board will invite nominations annually. Nominations will be
reviewed by a selection committee consisting of former chairs of the
section and Chief Justice Carrico.
Prior Recipients
The Honorable Harry L. Carrico
1992
Prof. Robert E. Shepherd
2003
James C. Roberts, Esquire
1993
Richard Brydges, Esquire
2004
Oliver W. Hill, Esquire
1995
Overton P. Pollard, Esquire
2005
The Honorable Robert F. Horan
1996
The Honorable Paul B. Ebert
2006
Reno S. Harp III, Esquire
1997
Rodney G. Leffler
2007
The Honorable Richard H. Poff
1998
Prof. Ronald J. Bacigal
2008
The Honorable Dennis W. Dohnal 1999
The Honorable Jere M.H. Willis Jr. 2010
The Honorable Paul F. Sheridan
2000
Melinda Douglas
2012
The Honorable Donald H. Kent
2001
Claire G. Cardwell
2013
Craig S. Cooley, Esquire
2002
Gerald T. Zerkin
2014
Criteria
The award will recognize an individual who meets the following
criteria:
◆ Demonstrates a deep commitment and dedication to the highest
ideals of professionalism in the practice of law and the administration of justice in the Commonwealth of Virginia;
◆ Has made a singular and unique contribution to the improvement
of the criminal justice system in Virginia, emphasizing professionalism as the basic tenet in the administration of justice;
◆ Represents dedication to excellence in the profession and “performs with competence and ability and conducts himself/herself
with unquestionable integrity, with consummate fairness and courtesy, and with an abiding sense of responsibility.” (Remarks of Chief
Justice Carrico, December 1990, Course on Professionalism.)
Submission of Nomination
Please submit your nomination on the form below, describing specifically the manner in which your nominee meets the criteria established
for the award. If you prefer, nominations may be made by letter.
Nominations should be addressed to Joel R. Branscom, Chair,
Criminal Law Section, and mailed to the Virginia State Bar Office:
1111 East Main Street, Suite 700, Richmond, VA 23219-3565.
Nominations must be received no later than December 5, 2014.
Please be sure to include your name and the full name, address, and
phone number of the nominee.
If you have questions about the nomination process, please call
Elizabeth L. Keller, Assistant Executive Director for Bar Services,
Virginia State Bar, at (804) 775-0516.
HARRY L. CARRICO PROFESSIONALISM AWARD
N O M I N AT I O N F O R M
Please complete this form and return it to the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 232193565. Nominations must be received no later than December 5, 2014.
Name of Nominee: __________________________________________________________________________________
Profession: _________________________________________________________________________________________
Employer/Firm/Affiliation: ____________________________________________________________________________
Address of Nominee: _________________________________________________________________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
City _____________________________________
State _____________
Zip ____________________________
Name of person making nomination ______________________________________________
Telephone ____________________
(Please print)
E-mail _______________________________________
Signature _____________________________________________________
(Please attach an additional sheet explaining how the nominee meets the criteria for the Harry L. Carrico Professionalism Award.)
www.vsb.org
59
Virginia Lawyer Register
DISCIPLINARY PROCEEDINGS
DISCIPLINARY BOARD
Respondent’s Name
Address of Record
Action
Effective Date
James Pearce Brice Jr.
Virginia Beach, VA
Suspension—1 year and 1 day
June 27, 2014
Kelly Ralston Dennis
McLean, VA
Revocation
September 1, 2014
John F. Kane
Norfolk, VA
Suspension—6 Months
March 29, 2015
James Gordon Kincheloe Jr. Fairfax, VA
Revocation
August 21, 2014
Neal Orion Reid
Suspension—6 Months w/Terms
August 29, 2014
Richmond, VA
at 5:00 p.m.
Duncan Robertson St. Clair III Norfolk, VA
Suspension—18 Months w/Terms
September 9, 2014
Address of Record
Richmond, VA
Richmond, VA
Action
Public Reprimand w/Terms
Public Reprimand w/Terms
Effective Date
August 18, 2014
August 27, 2014
Address of Record
Onancock, VA
Christiansburg, VA
Fairfax, VA
Effective Date
August 5, 2014
August 15, 2014
July 2, 2014
DISTRICT COMMITTEES
Respondent’s Name
David Richards DuBose
George William Sadler Jr.
IMPAIRMENT
Respondent’s Name
Roger Kent Grillo
Henry A. Whitehurst
Beverly Gray Stephenson
Disciplinary Summaries
The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC)
(Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules.
Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State
Bar Clerk’s Office at (804) 775-0539 or clerk@vsb.org. VSB docket numbers are provided.
DISCIPLINARY BOARD
Kelly Ralston Dennis
James Pearce Brice Jr.
McLean, Virginia
13-051-095075, 14-041-099075
Effective September 1, 2014, the Virginia State Bar
Disciplinary Board revoked Kelly Ralston Dennis’s license
to practice. In consenting to the revocation, Mr. Dennis
acknowledged that the disciplinary charges against him are
true and that he could not successfully defend against them.
Rules Part 6, § IV, ¶ 13-28
Virginia Beach, Virginia
14-000-099439
On June 27, 2014, the Virginia State Bar Disciplinary Board
suspended James Pearce Brice Jr.’s license to practice law for
one year and one day for failing to comply with the duties
of a suspended lawyer. Part 6, § IV, ¶ 13-29
www.vsb.org/docs/Brice-092514.pdf
www.vsb.org/docs/Dennis-092514.pdf
60
www.vsb.org
Disciplinary Summaries
DISCIPLINARY BOARD
John F. Kane
Duncan Robertson St. Clair III
Norfolk, Virginia
15-000-099895
Effective March 29, 2015, the Virginia State Bar
Disciplinary Board suspended John F. Kane’s license to
practice law six months for failing to comply with the
duties of a suspended lawyer. Mr. Kane’s license suspension
will run consecutively to the suspension that was effective
on March 28, 2014. Part 6, § IV, ¶ 13-29
Norfolk, Virginia
13-021-094129, 13-021-094595, 13-021-094637, 13-021095356, 14-021-097215, 14-021-098924
On September 9, 2014, the Virginia State Bar Disciplinary
Board suspended Duncan Robertson St. Clair III’s
license to practice law for eighteen months, with terms,
for violating professional rules that govern competence,
diligence, communication, safekeeping property, declining
or terminating representation, candor toward the tribunal,
impartiality and decorum of the tribunal, responsibilities
regarding nonlawyer assistants, and misconduct. This was
an agreed disposition of misconduct charges. RPC 1.1,
1.3(a), 1.4(a)(b)(c), 1.15(a)(1)(2)(3)(i,ii)(b)(4)(5), 1.16(d),
3.3(a)(1), 3.5(e)(1-4), 5.3(c)(1,2), 8.4(b)(c)(d)
www.vsb.org/docs/Kane-092514.pdf
James Gordon Kincheloe Jr.
Fairfax, Virginia
12-051-091587, 15-000-100089
On August 21, 2014, the Virginia State Bar Disciplinary
Board revoked James Gordon Kincheloe Jr.’s license
to practice law based on his affidavit consenting to
revocation and his conviction of a felony. In consenting
to the revocation, Mr. Kincheloe acknowledged that the
disciplinary charges against him are true and that he
could not successfully defend against them. Rules Part 6,
§ IV, ¶ 13-28
www.vsb.org/docs/Kincheloe-092514.pdf
Neal Orion Reid
Richmond, Virginia
13-033-093292
Effective August 29, 2014, the Virginia State Bar
Disciplinary Board suspended Neal Orion Reid’s license
to practice law for six months, with terms, for violating
professional rules that govern fees, safekeeping property,
and misconduct. RPC 1.5(b)(c), 1.15(a)(1,2), (c)(3), (e)(1)
(i-v), (f)(2)(3)(4)(i,ii)(5)(i-iii)(6), 8.4(b)
www.vsb.org/docs/Reid-092514.pdf
www.vsb.org/docs/StClair-092914.pdf
DISTRICT COMMITTEES
David Richard DuBose
Richmond, Virginia
14-032-099034, 14-032-097904, 14-032-099869, 14-033098816
On August 18, 2014, the Virginia State Bar Third District
Subcommittee issued a public reprimand with terms to
David Richard DuBose for violating professional rules
that govern diligence, communication, and declining or
terminating representation. This was an agreed disposition
of misconduct charges. RPC 1.3(a), 1.4(a), 1.16(c-e)
www.vsb.org/docs/DuBose-092514.pdf
George William Sadler Jr.
Richmond, Virginia
14-033-096930
On August 27, 2014, the Virginia State Bar Third District
Subcommittee issued a public reprimand with terms to
George William Sadler Jr. for violating professional rules
that govern competence and diligence. This was an agreed
disposition of misconduct charges. RPC 1.1, 1.3(a)
www.vsb.org/docs/Sadler-092514.pdf
www.vsb.org
61
Notices to Members
DEADLINE EXTENDED FOR COMMENTS ON
PROPOSED AMENDMENTS TO RULES ON
COMPETENCE AND CONFIDENTIALITY
The VSB’s Standing Committee on Legal Ethics has
extended the deadline for public comment on proposed
amendments to Rules 1.1 (Competence) and 1.6
(Confidentiality) of the Virginia Rules of Professional
Conduct. Comments are due by November 3, 2014, to the
VSB offices or publiccomment@vsb.org.
COMMENTS SOUGHT ON AMENDMENT TO
RULE REGARDING WHERE TO FILE PETITIONS
FOR REINSTATEMENT
The Committee on Lawyer Discipline is seeking public
comment on proposed amendments to Part Six, Section
IV, Paragraph 13-25 of the Rules of the Supreme Court of
Virginia: Board Proceedings for Reinstatement. Comments
are due by October 30, 2014, to the VSB offices or
publiccomment@vsb.org.
Details:
Details:
www.vsb.org/docs/prop-1_1-1_6-091814.pdf
www.vsb.org/pro-guidelines/index.php/rule_changes/
item/prop_13_25_reinstatement_proceedings
COMMENTS SOUGHT ON RULE CONCERNING
DISTRICT COMMITTEE MEMBERS’ ADDRESS
OF RECORD
comment on proposed amendments to Part Six, Section
IV, Paragraph 13-4.C of the Rules of the Supreme Court
of Virginia: Regarding Geographic Criteria For District
Committee Members. Comments are due by October 30,
2014, to the VSB offices or publiccomment@vsb.org.
PRO BONO CONFERENCE AND CELEBRATION
The Special Committee on Access to Legal Services will
hold its annual Pro Bono Conference and Celebration on
October 22 in Portsmouth.
Details:
www.vsb.org/site/news/item/registration_open_for_
annual_pro_bono_conference_and_celebration
Details:
item/prop_13_regarding_geographic_criteria
COMMENTS SOUGHT ON AMENDMENT TO RULE
REQUIRING EX-OFFICIAL COUNCIL MEMBERS TO
RESIGN FROM DISTRICT COMMITTEES
comment on proposed amendment to Part Six, Section
IV, Paragraph 13-4.E of the Rules of the Supreme Court of
Virginia: Establishment of District Committees. Comments
are due by October 30, 2014, to the VSB offices or
publiccomment@vsb.org.
Details:
item/prop_13_4e_service_ex-officio
62
MANDATORY CONTINUING LEGAL EDUCATION
Virginia State Bar members who have been administratively
suspended for failure to comply with the Mandatory
Continuing Legal Education requirements for 2013 are
listed at www.vsb.org/site/members/administrativesuspensions#MCLE. The requirements are described in
Part 6, Section IV, Paragraphs 17, 13.2, and 19 of the Rules
of the Virginia Supreme Court. The VSB has been unable
to contact some of these attorneys. The bar requests that
members report the location and practice status of any
person on the list by contacting the MCLE Department
at (804) 775-0577 or MCLE@vsb.org. The list was current
as of September 19, 2014. To determine whether a listed
attorney has fulfilled MCLE obligations after that date,
contact the MCLE Department.
www.vsb.org
Nominations Sought for 2015–2016 District Committee Vacancies
Deadline for Nominations: February 28, 2015
The Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be filled by
Council in June. Note that there are vacancies which may not become available because some members are eligible for
reappointment.
To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 –
Establishment of District Committees, specifically 13-4.E (Qualifications of Members) and 13-4.F (Persons Ineligible for
Appointment).
FIRST DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy (current member is eligible for
reappointment). The vacancies are to be filled by members from the 1st, 3rd, 5th, 7th or 8th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (both current members are eligible for
reappointment). The vacancies are to be filled by members from the 2nd or 4th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy (current member is eligible for reappointment).
The vacancies are to be filled by members from the 2nd or 4th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney vacancies (2 current members are eligible for reappointment).
The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION II: 2 attorney vacancies (1 current member is eligible for reappointment);
1 non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from
the 6th, 11th, 12th, 13th or 14th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION III: 3 attorney vacancies (2 current members are eligible for
reappointment); 1 non-attorney vacancy. The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th
judicial circuits.
FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (both current members are eligible for
reappointment); 1 non-attorney vacancy. The vacancies are to be filled by members from the 17th or 18th judicial circuits.
FOURTH DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy; 1 non-attorney vacancy. The vacancies are to be
filled by members from the 17th or 18th judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION I: 3 attorney vacancies (current members are eligible for reappointment); 1
non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the
19th or 31st judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney vacancies (1 current member is eligible for reappointment).
The vacancies are to be filled by members from the 19th or 31st judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION III: 2 attorney vacancies (both current members are eligible for
reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). The vacancies are to be filled by
members from the 19th or 31st judicial circuits.
SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. The vacancies are to be filled by
members from the 9th or 15th judicial circuits.
www.vsb.org
63
SEVENTH DISTRICT COMMITTEE: 1 attorney vacancy (current member is eligible for reappointment); 1 non-attorney
vacancy (current member is eligible for reappointment). The vacancies are to be filled by members from the 16th, 20th or
26th judicial circuits.
EIGHTH DISTRICT COMMITTEE: 4 attorney vacancies (3 current members are eligible for reappointment). The
vacancies are to be filled by members from the 23rd or 25th judicial circuits.
NINTH DISTRICT COMMITTEE: 4 attorney vacancies (current members are eligible for reappointment). The vacancies
are to be filled by members from the 10th, 21st, 22nd or 24th judicial circuits.
TENTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (both current members are eligible for
reappointment); 2 non-attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filled
by members from the 27th, 28th, 29th or 30th judicial circuits.
TENTH DISTRICT COMMITTEE, SECTION II: 3 attorney vacancies (1 current member is eligible for reappointment).
The vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits.
Nominations, along with a brief resume, should be sent by February 28, 2015, to
Stephanie Blanton, Virginia State Bar,
1111 East Main Street, Suite 700, Richmond, VA 23219-3565
Blanton@vsb.org
ELEVENTH ANNUAL
INDIGENT CRIMINAL DEFENSE
ADVANCED SKILLS FOR THE EXPERIENCED PRACTITIONER
SAVE THE DATE
FRIDAY, MAY 1, 2015
A DAY-LONG ADVANCED TRIAL SKILLS CLE
Registration information and details will be available in early January at http://www.vsb.org/site/events.
64
www.vsb.org
C
th ha
e W ng
e
or
Learn How. ld.
October 22, 2014, Portsmouth
The Virginia State Bar
Special Committee on
Access to Legal Services
Annual
Pro Bono Conference
& Celebration
Details at
vsb.org/site/pro_bono
Held in conjunction with the Virginia Legal Aid Conference
Renaissance Portsmouth-Norfolk Waterfront Hotel 425 Water St, Portsmouth, VA 23704
CALL FOR NOMINATIONS
William R. Rakes Leadership in Education Award
The Section on the Education of Lawyers in Virginia
Virginia State Bar
The Section on the Education of Lawyers in Virginia has established an award to honor William R. Rakes, of Gentry Locke
Rakes & Moore LLP, for his longstanding and dedicated efforts in the field of legal education, both in Virginia and nationally. The inaugural award was presented to Mr. Rakes in conjunction with the 20th Anniversary Conclave on the Education
of Lawyers in Virginia sponsored by the Virginia State Bar’s Section on the Education of Lawyers in April 2012.
2014 Recipient — Hon. Elizabeth B. Lacy
2013 Recipient — W. Taylor Reveley III
2012 Inaugural Recipient — William R. Rakes
Criteria
This award recognizes an individual from the bench, the practicing bar, or the academy who has:
(1) demonstrated exceptional leadership and vision in developing and implementing innovative concepts to improve
and enhance the state of legal education, and in enhancing relationships and professionalism among members of the academy, the bench, and the bar within the legal profession in Virginia.
(2) made a significant contribution (a) to improving the state of legal education in Virginia, both in law school and
throughout a lawyer’s career; and (b) to enhancing communication, cooperation, and meaningful collaboration among the
three constituencies of the legal profession.
Nomination Process
Nominations will be invited annually by the board of governors of the Section on the Education of Lawyers, although the
award may only be made from time to time at the discretion of the selection committee appointed by the section’s board
of governors. The selection committee will include five members: at least three members of the Section on the Education
of Lawyers, with one each from the bench, the practicing bar, and the academy, including the chair of the section; and at
least one former award winner.
When a nominee is selected, the award will be presented at a special event to include a reception for the honoree and
his/her family, friends and colleagues; past award recipients; and special guests. The law firm of Gentry Locke Rakes &
Moore LLP has agreed to underwrite the award and the special event to honor award recipients on an ongoing basis.
Please submit the nomination form below, together with a letter describing specifically the manner in which your nominee
meets the criteria established for the award. Nominations should be addressed to Professor James E. Moliterno, chair,
Section on the Education of Lawyers, and submitted with your nomination letter to the Virginia State Bar: 1111 East Main
Street, Suite 700, Richmond, VA 23219-3565. Nominations must be received no later than December 5, 2014.
For questions about the nomination process, please contact Elizabeth L. Keller, assistant executive director for bar
services: keller@vsb.org (804) 775-0516.
WILLIAM R. RAKES LEADERSHIP IN EDUCATION AWARD
NOMINATION FORM
Please complete this form and return it with your nomination letter to the Virginia State Bar: 1111 East Main Street, Suite
700, Richmond, VA 23219-3565. Nominations must be received no later than December 5, 2014.
Name of Nominee: _____________________________________________________________________________________________
Profession: ____________________________________________________________________________________________________
Employer/Affiliation (Law Firm, Law School, Court): __________________________________________________________________
Address of Nominee: ____________________________________________________________________________________________
City: ______________________________________________ State: _________________ Zip: _______________________________
Name of Nominator: _________________________________________ Telephone: _________________________________________
Email: ________________________________________ Signature: _______________________________________________________
66
www.vsb.org
Professional Notices
Mark W. Graybeal has been elected to
the Board of Governors for the Real
Property Section of the VSB as well as
named chair of the Technology
Committee of that same section.
Nina Ginsberg, a partner at DiMuro
Ginsberg PC in Alexandria, was sworn
in as parliamentarian of the National
Association of Criminal Defense
Lawyers at the association’s fiftyseventh annual meeting in Philadelphia
on August 2.
E. Stanley Murphy has joined Dunton,
Simmons & Dunton LLP, of White
Stone, as head of the civil litigation and
appellate practice areas.
Steven B. Wiley has relocated his practice, Wiley Law Offices PLLC, to
Norfolk. He returns to Hampton
Roads full time after practicing several
years in Charleston, West Virginia,
where he founded his solo litigation
practice in 2007.
Professional
Notices
E-mail your news to
hickey@vsb.org for
publication in Virginia Lawyer.
All professional notices are free to
VSB members and may be edited
for length and clarity.
Got an Ethics Question?
The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may
submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564
or by clicking on the blue “E-mail Your Ethics Question” box on the Ethics Questions and Opinions web page at
http://www.vsb.org/site/regulation/ethics/.
What Seniors
Need to Know.
The Senior Citizens Handbook is
an invaluable resource with just
about everything a senior would
want to know about the law and
a compendium of communityservice organizations that provide
senior services.
For more information, or to order
copies of the Senior Citizens
Handbook, please e-mail Stephanie
Blanton at blanton@vsb.org or call
(804) 775-0576.
www.vsb.org
67
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ONLINE
Virginia Lawyer classifieds
are now available online!
Print & Online and Online Only rates available:
http://www.vsb.org/site/publications/rates/#class
contact: Linda McElroy – mcelroy@vsb.org
Advertisements and Classified Ads
Published six times a year, Virginia Lawyer is distributed to all
members of the Virginia State Bar, judges, law libraries, other state bar
associations, the media, and general subscribers.
More information and complete media kits are available online at
http://www.vsb.org/site/publications/valawyer, or you can contact
Linda McElroy at (804) 775-0594 or mcelroy@vsb.org.
For confidential, free consultation
available to all Virginia attorneys on questions related to legal malpractice
avoidance, claims repair, professional liability insurance issues, and law office
management, call McLean lawyer, John J. Brandt, who acts under the
auspices of the Virginia State Bar at
(703) 852-7867 (direct dial)
(703) 345-9300 (general number)
68
www.vsb.org
Classified Ads
“Not in Good Standing” Search Available at VSB.org
The Virginia State Bar offers the ability to search active Virginia lawyers’ names
to see if they are not eligible to practice because their licenses are suspended or
revoked using the online Attorney Records Search at http://www.vsb.org
/attorney/attSearch.asp.
The “Attorneys Not in Good Standing” search function was designed in
conjunction with the VSB’s permanent bar cards.
Lawyers are put on not-in-good-standing (NGS) status for administrative
reasons — such as not paying dues or fulfilling continuing legal education
requirements — and when their licenses are suspended or revoked for violating
professional rules.
The NGS search can be used by the public with other attorney records
searches — “Disciplined Attorneys” and “Attorneys without Malpractice
Insurance” — to check on the status and disciplinary history of a lawyer.
Have You Moved?
VSB Staff
Directory
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-staff.
To check or change your address of
record with the Virginia State Bar, go
to the VSB Member Login at
https://member.vsb.org/vsbportal/.
Go to “Membership Information,”
where your current address of record
is listed. To change, go to “Edit Official
Address of Record,” click the appropriate box, then click “next.” You can type
your new address, phone numbers,
and email address on the form.
Contact the VSB Membership
Department (membership@vsb.org or
(804) 775-0530) with questions.
ADVERTISER’S INDEX
ALPS Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . inside front cover and 5
Charles Harvey Bayar, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Geronimo Development Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . back cover
L. Steven Emmert. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
McAdoo Gordon & Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
National Legal Research Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Jeffrey M. Summers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Virginia State Bar Members’ Insurance Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
www.vsb.org
69
Number of Documents
Scanned for
Paperless Archives
100,000
Average Length of Website Sessions
17minutes
Archiving
VSB Website
Most Used Platforms to Access Website:
Windows, 64%
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Others, 25%
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65 Su
Training
370
TECHSHOW attendees
FIRST DAY in PRACTICE
and Beyond
Tuesday, December 2, 2014
Greater Richmond Convention Center
8:30 a.m.–4:00 p.m.
6 MCLE HOURS PENDING (2 ethics)
5VJUJPOJODMVEFTMVODIBøBTIESJWFXJUINBOZTVCTUBOUJWFPVUMJOFTBTXFMMBTB'3&&POFZFBSNFNCFSTIJQJOUIF(FOFSBM1SBDUJDF
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FIRST DAY IN PRACTICE & BEYOND REGISTRATION FORM
Enclosed is my registration fee of $85.00 to attend the seminar on December 2, 2014.
LEARN THE BASICS FROM THE BEST
/BNF@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
Experienced judges and lawyers will
provide attendees with practice tips
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and real-life essentials.
"EESFTT@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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Break-Out Sessions
(Select your preference. Break-out sessions will be assigned on a first-come, first-served basis.)
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8:45 a.m.–12:30 p.m.
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1:00–4:00 p.m.
BNoQN@@@&NQMPZNFOU-BX03@@@1FSTPOBM*OKVSZ
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***A LINK TO MATERIALS WILL BE SENT OUT VIA E-MAIL PRIOR TO THE PROGRAM***
ONLY FLASH DRIVES WILL BE HANDED OUT ON SITE
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Virginia State Bar
1111 East Main Street
Suite 700
Richmond, VA 23219-3565
(804) 775-0500
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complete magazine

Transcription

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