virginia lawyer june/july 2014 - virginia state bar · by jack w. burtch jr. ... 4 virginia lawyer...

Virginia LawyerVirginia LawyerVOL . 6 3 / NO. 1 • J UNE / J U LY 2 0 1 4VOL . 6 3 / NO. 1 • J UNE / J U LY 2 0 1 4

The Official Publication of the Virginia State BarThe Official Publication of the Virginia State Bar

VIRGINIA LAWYER REGISTERVIRGINIA LAWYER REGISTER

feature articles by theSenior Lawyers Conference

Highlights of the June Council Meeting and the 76th Annual Meeting

2014–15 VSB President Kevin E. Martingayle

Approved for 3 Ethics CLE Credit Hours Brought to you by the Virginia State Bar and ALPS, the Bar-endorsed

lawyers’ professional liability insurance carrier since 2000.

Trying To Stay On Top of It All

CalenCalen

ndaringndaring

CompeteCompete

encyency CybeCybe

bercrimbercrime

Co-cou Internet Driven Client RelationshipSocial

unse net D l Engi

File ation

Diligen

e Revi iewInternet Driven Client Relationship

Due Diligence

Client Con�i Succes Co cou

Client Communicationict of Intssion unse

unication terest Gho

Advertisingost Blogg

n�dentFile

AdvertisingGhost Blogging

tialityye Revi iew

Cl TCl Tient ient ryin ryin li Tr li TTTrying TClient C

Register through the new V

mmu S mmuo St t Com Tt Comng TApproved for 3 Ethics CLE Credit Hours

Brought to you by the Vlawyers’ professional liability insurance carrier since 2000.

o St m To m T ng T To Stay On Tt Commu

irginia Risk Management Portal at Register through the new VRegistration opens July 1, 2014

unication O T unication tay On T T O Approved for 3 Ethics CLE Credit Hours

irginia State Bar and ALPS, the BarBrought to you by the Vlawyers’ professional liability insurance carrier since 2000.

tay On T unication

irginia Risk Management Portal at Registration opens July 1, 2014

Advert I Advertop of It Approved for 3 Ethics CLE Credit Hours

-endorsed irginia State Bar and ALPS, the Barlawyers’ professional liability insurance carrier since 2000.

op of It Advert T T T Top of It All

irginia Risk Management Portal at vaportal.alpsnet.com/cle Registration opens July 1, 2014

tising Atising t All t Alltisingg

vaportal.alpsnet.com/cle

Roanoke AM

Richmond PM

Abingdon PM

Charlottesville PM

Richmond AM

CITY / SESSION

Registration opens July 1, 2014

Sept. 18

Sept. 16

Sept. 15

Roanoke Civic Center

Sept. 17

Richmond Convention Center

Sept. 16

Martha W

DATE

DoubleTree Charlottesville


ashington Inn

LOCATION


Roanoke Civic Center


ashington Inn

ree Charlottesville



Fairfax PM

AM Session Times:

Hampton PM

Chesapeake AM

Manassas AM

Fairfax AM

Sept. 30

imes: PM Session T

Oct. 2

Oct. 3

Hampton Roads Convention Center

Oct. 1

W

Sept. 30

Chesapeake Conference Center

GMU Prince William Campus

aterford at Fair Oaks

Waterford at Fair Oaks


PM Session Times:

Hampton Roads Convention Center

Chesapeake Conference Center

GMU Prince William Campus


8:30-11:45 am Program8-8:30 am Check-InAM Session Times:

8:30-11:45 am Program8-8:30 am Check-In

imes:

1:30-4:45 pm Program1-1:30 pm Check-InPM Session T

1:30-4:45 pm Program1-1:30 pm Check-InPM Session Times:

June/July 2014Volume 63/ Number 1

The Official Publication of the Virginia State Bar

Virginia Lawyer

Features

GENERAL INTEREST

17 A Tribute to Justice Lewis F. Powell Jr.by Clarence M. Dunnaville Jr.

20 Groundbreaking Rule 1A:8 Recognizes Military SpouseSacrificesby Elizabeth Jamison

22 The Game Has Changed for Management: The VirginiaFraud Against Taxpayers Act and Its Applicability toState Entitiesby R. Scott Oswald and Nicholas W. Woodfield

NoteworthyVSB NEWS

34 Highlights of the June 12, 2014,Virginia State Bar Council Meeting

34 Changes at Virginia Lawyer

34 NOTICE: Check Your MCLE HoursOnline Now

35 Edward L. Weiner Is President-electof the Virginia State Bar

35 VSB Dues Can Be Paid Online

36 First VSB TECHSHOW BringsNational Experts to Virginia

37 Law in Society Essay ContestWinner

38 Survey Finds Satisfaction andOffers Suggestions forImprovement

PEOPLE

39 In Memoriam

39 Local and Specialty Bar Elections

40 VSB Honors Attorneys

42 CLBA Honors Bar Associations

ET AL.

43 Presidents –Past, Present, andFuture

43 VSB Video Briefs Available Online

Departments6 Letters to the Editor

47 CLE Calendar

56 Professional Notices

57 Classified Ads

58 VSB 76th Annual MeetingHighlights

Columns12 President’s Message

15 Supreme Court of VirginiaRecognizes VSB’s 75thAnniversary

44 Law Libraries

SENIOR LAWYERS CONFERENCE

Cover: Virginia State Bar President Kevin E. Martingayle poses in his old lifeguard stand atVirginia Beach with his wife Elisabeth, daughter Doria, and sons Harrison and Jackson.

24 The Senior Lawyers Conference: Looking Back andLooking Forwardby Frank Overton Brown Jr.

30 Remembrance of Judge William Lee Wimbishby John M. Oakey Jr.

32 The Wise Lawyer Knows How and When to Cease and Desistby Jack W. Burtch Jr.

2014–15 VSB PRESIDENT10 New President Is Willing to Make Noise for the

Legal Profession

VIRGINIA LAWYER REGISTER

48 Disciplinary Proceedings49 Disciplinary Summaries53 Notices to Members53 Supreme Court of Virginia

Adopts Rule Changes andAmendments

53 Council Approves Amendmentand New Rule

53 Addition to VSB Bylaws53 Amendments to Rules of the

Supreme Court of Virginia

53 Proposal to Add E-mail andPhone Number to Address ofRecord

54 Proposed Amendment toCouncil Election Procedures

54 Legal Ethics Opinion 187354 COLD Seeks Comment

Concerning Insurance Rule55 COLD Seeks Comment on

Disclosure of Information Rule55 License Forfeitures

VIRGINIA LAWYER | June/July 2014 | Vol. 63 No. 14 www.vsb.org

Virginia State Bar Staff DirectoryFrequently requested bar contact

information is available online at

www.vsb.org/site/about/bar-staff.

http://www.vsb.org

Editor:Gordon Hickey ([email protected])

Advertising: Linda McElroy

([email protected])

Virginia Lawyer Graphic Design:Caryn B.Persinger ([email protected])

Virginia Lawyer Register Graphic Design:Madonna G. Dersch([email protected])

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

or services of the advertiser, unless explicitly stated

otherwise. Periodical postage paid at Richmond,

Virginia, and other offices.

POSTMASTER:

Send address changes to

VIRGINIA STATE BAR

MEMBERSHIP DEPARTMENT

1111 E MAIN ST STE 700

RICHMOND VA 23219-3565

Virginia LawyerThe Official Publication of the Virginia State Bar

2014–15 OFFICERS

Kevin E. Martingayle, Virginia Beach, PresidentEdward L. Weiner, Fairfax, President-electSharon D. Nelson, Fairfax, Immediate Past PresidentKaren A. Gould, Executive Director and ChiefOperating Officer

EXECUTIVE COMMITTEEKevin E. Martingayle, PresidentEdward L. Weiner, President-electSharon D. Nelson, Immediate Past PresidentAlan S. Anderson, AlexandriaDoris H. Causey, RichmondNancy C. Dickenson, AbingdonTracy A. Giles, RoanokeLeonard C. Heath, Jr., Newport NewsMichael W. Robinson, Tysons CornerMary M. Benzinger, Washington, DC, CLBA ChairEva N. Juncker, Silver Spring, MD, Diversity Conference ChairRenae R. Patrick, Winchester, SLC ChairMaureen E. Danker, Fairfax, YLC President

COUNCIL

1st CircuitNancy G. Parr, Chesapeake

2nd CircuitSteven G. Owen, Virginia BeachJudith L. Rosenblatt, Virginia BeachDaniel M. Schieble, Virginia Beach

3rd CircuitNicholas D. Renninger, Portsmouth

4th CircuitLisa A. Bertini, NorfolkI. Lionel Hancock, III, NorfolkDavid W. Lannetti, Norfolk

5th CircuitCarl Phillips “Phil” Ferguson, Suffolk

6th CircuitPeter D. Eliades, Hopewell

7th CircuitLeonard C. Heath, Jr., Newport News

8th CircuitLesa J. Yeatts, Hampton

9th CircuitW. Hunter Old, Williamsburg

10th CircuitCharles H. Crowder, Jr., South Hill

11th CircuitDale W. Pittman, Petersburg

12th CircuitGraham C. Daniels, Chester

13th CircuitPaula S. Beran, RichmondBrian L. Buniva, RichmondDoris Henderson Causey, RichmondChristy E. Kiely, RichmondGeorge W. Marget, III, RichmondEric M. Page, RichmondO. Randolph Rollins, Richmond

14th CircuitThomas A. Edmonds, RichmondJon A. Nichols, Jr., Glen AllenDaniel L. Rosenthal, Richmond

15th CircuitJennifer L. Parrish, Fredericksburg

16th CircuitBruce T. Clark, CulpeperJames M. Hingeley, Jr, Charlottesville

17th CircuitRaymond B. Benzinger, ArlingtonJohn H. Crouch, ArlingtonHarry A. Dennis, III, ArlingtonAdam D. Elfenbein, ArlingtonDavid A. Oblon, Arlington

18th CircuitAlan S. Anderson, AlexandriaFoster S. B. Friedman, AlexandriaCarolyn M. Grimes, Alexandria

19th CircuitJames F. Davis, FairfaxPeter D. Greenspun, FairfaxJoyce M. Henry-Schargorodski, FairfaxSean P. Kelly, FairfaxGary H. Moliken, FairfaxJay B. Myerson, RestonLuis A. Perez, Falls ChurchWilliam B. Porter, FairfaxDennis J. Quinn, ViennaCatherine M. Reese, FairfaxMichael W. Robinson, Tysons CornerMelinda L. VanLowe, FairfaxJames A. Watson, II, FairfaxMichael M. York, Reston

20th CircuitChristine H. Mougin-Boal, LeesburgT. Huntley Thorpe, III, Warrenton

21st CircuitJoan Ziglar, Martinsville

22nd CircuitLee H. Turpin, Chatham

23rd CircuitMark K. Cathey, RoanokeTracy A. Giles, Roanoke

24th CircuitDavid B. Neumeyer, Lynchburg

25th CircuitRoscoe B. Stephenson, III, Covington

26th CircuitW. Andrew Harding, Harrisonburg

27th CircuitRichard L. Chidester, Pearisburg

28th CircuitRoy F. Evans, Jr., Marion

29th CircuitJoseph M. Bowen, Tazewell

30th CircuitWilliam E. Bradshaw, Big Stone Gap

31st CircuitGifford R. Hampshire, Manassas

MEMBERS AT LARGENancy C. Dickenson, AbingdonWilliam E. Glover, FredericksburgMichael HuYoung, RichmondBeverly P. Leatherbury, EastvilleDarrel Tillar Mason, Manakin SabotTodd A. Pilot, AlexandriaSavalle C. Sims, Silver Spring, MDLorrie A. Sinclair, LeesburgA. Benjamin Spencer, Charlottesville

Conference of Local Bar Associations ChairMary M. Benzinger, Washington, DC

Diversity Conference ChairEva N. Juncker, Silver Spring, MD

Senior Lawyers Conference ChairRenae R. Patrick, Winchester

Young Lawyers Conference PresidentMaureen E. Danker, Fairfax

Virginia State Bar

DISTINCTIONDonna Dobson, Legal AdministratorSherrard & Roe, Nashville, Tennessee

When Sherrard & Roe began looking at options for their malpractice insurance, Donna Dobson remembers that they were looking for something different. They wanted a company that spoke their language and could respond to their needs quickly and directly. They wanted to partner with real people that understand the practice of law and the

wanted, a broker simply couldn’t provide. That’s why Sherrard & Roe chose ALPS.

associations than any other carrier, including yours.

www.alpsnet.com • 800-367-2577

When it comes time to appeal or to resist an appeal, call Steve Emmert at (757) 965-5021.

Appeals

L. STEVEN EMMERTwww.virginia-appeals.com

[email protected], BOURDON, AHERN& LEVY

VIRGINIA BEACH

Rated AV by Martindale

Hubbell

http://www.virginia-appeals.com/

https://www.alpsnet.com

VIRGINIA LAWYER | June/July 2014 | Vol. 636

VSB TechShow

Thank you for all your efforts in makingthe VSB TechShow a success. I appreci-ate it. The CLE seminar was truly enjoy-able with interesting topics and greatpresenters.

Richard A. KuenziLynchburg

Thanks to Sharon Nelson for taking therisk during your year as president tolaunch a new technology conference forVirginia lawyers. Paulette Davidson(VSB liaison) and everyone did a greatjob organizing and presenting the event.Kudos to all. As a Virginia lawyer, I ampleased this tradition has been started inthe Old Dominion, and hope that it con-tinues annually for many years!

Reid F. TrautzWashington, DC

I just wanted to say that the TechShowwas one of the best and most useful CLEclasses I have ever taken. Thank you forall that you did and please thank SharonNelson and anyone else for an outstand-ing program. It was worth the two hourdrive to attend!

Rhea MooreArlington

Physics and the Law

“The Laws of Physics and the Physics ofLaw” in the April 2014 issue of VirginiaLawyer is flat out one of the most extra-ordinary articles I’ve ever read in a barpublication. It is evident that this was alabor of love for Judge Kelsey, and I hopethat it is read by a broad audience in theVirginia Bar.

Congratulations on a wonderfularticle.

Paul B. TerpakFairfax

Congratulations on a well-written andthoughtful article “The Laws of Physicsand the Physics of Law” in the April2014 Virginia Lawyer, by the HonorableD. Arthur Kelsey. I look forward to read-ing the full law review article in theRegent University Law Review. I appreci-ate Judge Kelsey taking the time to sum-marize the longer version into a moreaccessible form so that many moreVirginia lawyers benefit from his thesisand conclusions.

My professional practice is exclu-sively facilitated dispute resolution and Ioften refer to discoveries in other disci-plines to deepen my client work. JudgeKelsey’s analogies to the laws of physicsare very aligned to my understanding ofconflict and dispute resolution generallyand very timely in a broader approach tointerdisciplinary connectedness.

In my research and writing, I havereferenced neuroscience research to elu-cidate how decisions are made and howlawyers can facilitate positive client inter-actions. I too rely on Heisenberg’sUncertainty Principle to educate lawyersabout their direct impact on the systemthey are entering and encourage self-awareness in all client interactions. I amstill pondering his discussion of the par-ticle-wave debate applied to law andequity. Since most of my client work is

in family law, I expect that this tension issignificant in understanding impasseand resolution. I am also considering thebroader application of his point thatprecedent is not the common law, butrather evidence of the common law. Theimplication that there is a fabric of jus-tice beyond the cases is both exciting andchallenging.

I also wanted to reference the writ-ings of Kenneth Cloke, a lawyer andmediator based in California. Cloke is avisionary and shaper of the facilitateddispute resolution movement and haswritten extensively about interdiscipli-nary connections to the legal justice sys-tem. In his book, The Crossroads ofConflict, Chapter 11 at page 293,“Toward a Unified Theory of ConflictResolution,” he too addresses principlesof physics as applied to our work.Thanks to Virginia Lawyer for sharingJudge Kelsey’s allegorical perspective. Iapplaud his persistent and focused effortto produce cogent writing and editing ofan article. Judge Kelsey, with the ableassistance of his law clerk, has made agreat contribution to the continuingconversation of how we understand jus-tice. It is inspiring for one of our judgesto remind practitioners of the art of jus-tice about our roots and continuingobligation to seek and discern.

Kimberly P. FaussRichmond

I write to thank you for Judge Kelsey’sexcellent article on “The Laws of Physicsand the Physics of Laws” in the Aprilissue of Virginia Lawyer. It’s certainly anengaging and charming thought to com-pare scientific axioms to some of thelegal doctrines that inform ourbusiness.

Judge Kelsey’s article, drawing as itdid on principles outside the law as illus-

Letters

www.vsb.org

Letters

Send your letter to the editor to:[email protected] or mail to:

Virginia State Bar, Virginia LawyerMagazine1111 E MAIN ST STE 700

RICHMOND VA 23219-3565

Letters published in Virginia Lawyermay be edited for length and clarity and are subject to guidelines available at

http://www.vsb.org/site/publications/valawyer/.

Letters continued on page 8

President’s Message

an affiliate of Digital Benefit Advisors endorsed by the Virginia State BarVIRGINIA STATE BAR MEMBERS’ INSURANCE CENTER

Are you ready for our changing health insurance environment?

» Health insurance

» Term-life insurance

» Disability insurance

» And more

Robert Spicknall, CEBS, President

P: 877.214.5239

E: [email protected]

www.vsbmic.com

According to legend, an ostrich will shove its head in the sand when

confronted with something unpleasant. I think you’ll agree - probably not the

best approach.

Employee benefits specialists dedicated to the needs of Virginia law firms.

http://vsbmic.com/


trative of legal questions, did some ofwhat we do too little in our profession.We’re often tempted to think of mostproblems as legal, or not, and to think oflegal solutions as springing from the law,as if the law evolved in a vacuum. But itdidn’t and it doesn’t. Our clients, and theconsumers of our system of justice, arenot much interested in the law as an endin and of itself. They are interested in thelaw as a way of making sense of theworld, and of their affairs. It stands toreason, then, that discussion betweenour profession and the people we’remeant to be serving ought to be a two-way street. We ought to know as much aswe can about the world around us. Inthat way, when we’re called upon toadminister some justice, in whatever rolewe play in that process, we do so with

some understanding of how the rest ofthe world thinks.

The rule of law is a fine idea towhich we’re all sworn, and most of us bydisposition and not just the oath of ouradmission to the bar. But there are othergood ideas out there. Judge Kelsey’s arti-cle was a fine example of analyzing howthe principles of our profession comparewith the principles of other disciplinesand how we might better understandour own work in light of the work otherpeople are doing. It was also a happyreminder that the law doesn’t exist in avacuum of our own creation, but is aproduct of the world around us.

Thank you again for the thoughtprovoking and interesting article. I’lllook forward to reading more like these.

Cullen D. SeltzerRichmond

Letters

www.vsb.org

Letters continued from page 6

Too busy? Need help?

First Choice ParalegalGroup, LLC

“Your first choice for experiencedparalegal support”

We can help you meet those deadlines withcompetent, professional expertise. We can

help you work more efficiently ANDincrease your profit at the same time.

Experienced Support With:• Bankruptcy• Family Law• Discovery• Document Drafting• Trial Prep and Support

Visit us on the web at:www.Firstchoiceparalegals.com

[email protected] 540.937.3331 | Fx 866.831.8922

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 �nd out how.

The Virginia Lawyer Referral Service. Connecting the public with lawyers for more than thirty years.

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 athttp://www.vsb.org/site/regulation/ethics/.

http://www.vsb.org/vlrs/

Security Clearance Lawyers

McAdoo Gordon & Associates, P.C.202-293-0534

www.mcadoolaw.com

Have You Moved?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

([email protected] or (804) 775-0530) with questions.

VSB.org: A Member Benefit

VSB.org—the Virginia State Bar’s website—helps youwith 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 practiceinformation;

• the Professional Guidelines that contain the Rules ofProfessional Conduct;

• Rule Changes, proposed and approved;• the Ethics Hotline; • Meetings and Events; and• Search Resources for locating Virginia attorneys andchecking their status with the state bar.

VSB.org will keep you current and connected.

http://www.appeals-va.com/

VIRGINIA LAWYER | June/July 2014 | Vol. 6310 www.vsb.org

KEVIN E. MARTINGAYLE is athoughtful person who prides himselfon preparation, but he has an impulsivestreak too.

He was nearly through with lawschool before he even made up hismind to be a lawyer, he said during arecent interview, but after thinking itover, he decided to follow in his stepfa-ther’s footsteps. It was in law school thathe came to another conclusion: “I waseither going to be a courtroom lawyer orI wasn’t going to be one at all.” Thosedecisions—to be a lawyer and, specifi-cally, a trial lawyer—were arrived atafter some serious thought.

On the other side of the Martingayleledger is the lifeguard story. He went toVirginia Beach on Memorial Day week-end in 1988 and was standing outsidethe Avamere Hotel on 26th Street whenhe “saw some guys running around onthe beach.” He didn’t know what theywere doing, but he wanted to find out.So he hopped over the railing—wearinga jacket, tie, and loafers—and ran acrossthe sand to ask them.

It was lifeguard tryouts and therewould be another in two weeks. So heand a friend “packed up our car assum-ing we’d get jobs,” and drove back to thebeach from Richmond.

The first thing they did was tryoutfor the lifeguard positions. They got thejobs and then went looking for a place tolive, which they also found the same day.That was a good thing, because they hadnowhere to live, no backup plan, andvery little money.

He spent the summer in the life-guard stand on 26th Street in front ofthe now-gone Avamere.

Martingayle went from the beach to

law school at the University of Virginia.

He spent the next summer as a clerk at

Kaufman and Canoles. The second

summer he split between a firm in New

Orleans, Williams Mullen in Richmond,

and back at Kaufman and Canoles.

“At the end of all that I wasn’t even sure

I wanted to be a lawyer. I enjoyed the

people but I wasn’t positive that I really

wanted to do it yet.”

“What reignited my interest, really,

was taking Trial Advocacy,” taught by

Thomas E. Albro. “I thought he was

great. … He had a very intellectual

approach,” Martingayle recalled. “He

seemed somewhat bookish and yet was

incredibly witty and incisive.” It was

Albro who ignited that goal of being a

courtroom lawyer.

He put off taking the bar exam in

the summer of 1991 for “one last hurrah

on the beach” as a lifeguard. He experi-enced “being rather poor” that summer.“I decided to get my act together. And Iknew I was going to get married. I’dmet the girl of my dreams.” He and hisfuture wife, Elisabeth, got engaged inNovember and he took the bar andpassed it in February 1992.

It was his stepfather, a lawyer, whotaught him the value of careful thoughtand clear writing.

His former law partner, Moody E.“Sonny” Stallings Jr., taught him to “haveguts, don’t be afraid of anybody.”

From his current partner, William C.Bischoff, “I learned the value of thoroughpreparation. When he walks in a court-room you can be guaranteed he’s moreready than whoever is on the other side.”

And from uncounted judges helearned “the value of listening and beingcalm, because my instinct was to be toofired up, too argumentative,” he said. “Istill have to remind myself of this.”

Martingayle joined the VirginiaTrial Lawyers Association early in hiscareer. He served a stint as chair of theEmployment and Civil Rights LawSection of the association.

He saw that there was an openingon the VSB Council, but, “I wasn’t sure Iwanted to be on the council.” As the filingdeadline neared he called the bar andfound out no one else was running so heput in his name. Just before the deadline,another candidate entered the race.Martingayle won.

He started serving on a number ofbar committees, including the StandingCommittee on Legal Ethics—“It goes tothe core of what we do.”

2014–15 VSB President

New President Is Willing to Make Noise for the Legal Professionby Gordon Hickey

We have to continue to beat the drum publicly

and with the members of the general assembly

that we need to have a fully-funded judiciary.”“

Vol. 63 | June/July 2014 | VIRGINIA LAWYER 11www.vsb.org

“I was getting more and more inter-

ested in what we do at the bar,” he said.

He witnessed the battles over judicial

vacancies and budget issues that occu-

pied Irving Blank during his presidency

in 2010–11. He also noticed there was no

one on the Executive Committee from

east of Interstate 95, a situation he called

“geographically out of whack.” So he got

elected to the executive committee.

There also was the problem of no

judge at all on the Eastern Shore, which

is in Martingayle’s judicial district. “I

became one of the loud people talking

about that,” he said. “This was a call to

arms. Our branch of government was

under attack.” It looked to him as if the

legislative branch of government “was

under the impression they could just

ignore the judicial branch.”

He had thought of the presidency of

the bar as being mainly ceremonial. But

his experiences on the council presented

a very different picture of the job. He

thought about being a leader. And others

suggested he might be president.

Martingayle thinks of the bar president

as a fire extinguisher. “If we run into a

crisis, I think it falls to the president of

the state bar to take the lead,” he said.

The justices of the Supreme Court

of Virginia “have to be very careful about

getting in the rough and tumble of a

political fight, and the executive director

… similarly has to be careful. I don’t feel

those kinds of constraints.” However, he

said that it’s important for the president

to be on the same page as the Court and

the executive director.

Martingayle said support for the

judiciary will be a major priority. “We

have to continue to beat the drum pub-

licly and with the members of the gen-

eral assembly that we need to have a

fully-funded judiciary,” he said. He

knows that when it comes to politics,

those who make the most noise often get

funded, and the judiciary doesn’t make

the most noise. “Those of us who can

yell, should,” he said. “The worst thing

you can do is be silent.”

He is looking forward to some

vigorous debates as president. “I want

very much to get along, but I know

how to deal with it if you don’t want to

get along. We should always try to work

together for the common good of the

citizens. Sometimes that requires

action. … If we don’t do it, we can’t

count on our Supreme Court to make

political arguments. … It’s our job to

make the arguments necessary to pro-

tect our profession.”


Kevin E. MartingayleBischoff Martingayle PCOwner and partner

Education:Hampden-Sydney College, 1988

(cum laude, Phi Beta Kappa)

University of Virginia School of

Law, 1991

Virginia State Bar:2nd District Representative on

Council, two terms

Chair, Better Annual Meeting

Committee

Member, Budget and Finance

Committee

Member, Legal Ethics Committee

VSB Council and Executive

Committee

Other affiliations:Virginia Bar Association,

Employment Section Council

Virginia Beach Bar Association

Virginia Trial Lawyers Association,

former chair of the Employment

and Civil Rights Law Section

American Bar Association

Federal Bar Association

Community activities:Founder and event coordinator

of the Allen Stone Braveheart

Memorial Races, which raises

money for the Navy Seal

Foundation, Virginia Beach

Volunteer Rescue Squad, and

Virginia Beach Lifeguard

Association

Family:Elisabeth and Kevin Martingayle

have three children: Harrison, 16;

Doria, 14; and Jackson, 12.

Martingayle’s wife, Elisabeth, and their children, Harrison, Doria, and Jackson, looked on as he was sworn in aspresident of the VSB by Supreme Court Justice S. Bernard Goodwyn.

Martingayle continued on page 14


President’s Messageby Kevin E. Martingayle

This quote from the United States

Supreme Court in an opinion handed

down more than fifty years ago was

delivered in the context of a dispute

between a lawyer and a judge. In

reversing a summary contempt order

against a lawyer who had clearly irri-

tated a trial judge in the process of

“presenting his client’s case strenu-

ously and persistently,” the Court

determined that such conduct “cannot

amount to a contempt of court as

long as the lawyer does not in some

way create an obstruction which

blocks the judge in the performance

of his judicial duty.” Id.

Over the years, much has been

written and said regarding the duty to

provide clients with zealous represen-

tation while also doing so ethically

and with civility. To be sure, this is a

delicate balancing act that will always

be a hot topic in a system of justice

that must address, manage, and

resolve conflict.

However, I believe that the quote

from In Re: McConnell is actually quite

relevant to more recent challenges that

will require our individual and collec-

tive attention in the coming weeks,

months, and years.

During Irv Blank’s tenure as pres-

ident of the Virginia State Bar

(2010–11), he was forced to handle

two unexpected crises. Specifically, as

a money-saving measure, the General

Assembly decided not to fill judicial

vacancies as they occurred across the

commonwealth. Then there was a

budget proposal from the executive

branch that would have reallocated

millions of dollars from the state bar’s

reserves to address general state

financial problems that were not

caused by the judicial branch or bar.

Fortunately, we had a strong, energetic

state bar president who rallied sup-

port across Virginia, convinced the

legislators to fill many judicial vacan-

cies, and helped thwart the attempt to

reassign our funds.

These problems taught us several

valuable lessons.

First, not everyone in government

sees the judicial branch as being equal

to the other branches. Not everyone

understands how essential the judicial

branch is. When such misguided or

misinformed views surface, we have

to be ready to address them and edu-

cate those who do not understand the

critical role filled by each branch of

our government.

Second, when members of our

profession organize, unite, and work

to achieve a goal, a lot can be accom-

plished. Although there are fewer

lawyers in the General Assembly than

in times past, we still carry clout and

have influence, as we have proved in

addressing crises affecting what we do

for a living.

Third, these challenges are far

from over. There are still too many

judicial vacancies in Virginia, and our

branch of government remains under-

funded. The courts and clerks’ offices

need sufficient resources to operate

the way that the public deserves. The

state that gave birth to the Declaration

of Independence and United States

Constitution can and must do better.

When the Supreme Court said in

1962 that an “independent judiciary

and a vigorous, independent bar are

both indispensable parts of our system

of justice,” it was probably assumed

that everyone recognizes that our “sys-

tem of justice” itself is deemed to be

critical, fundamental, and “indispens-

able” in a civilized society. But as we

have come to learn in recent years, we

can take nothing for granted, and it is

up to those of us trained in words,

logic, and strategy to do what is neces-

sary to protect the judicial branch, our

profession, and those we serve.

Work Together for Our Profession and the Public

“An independent judiciary and a vigorous, independent

bar are both indispensable parts of our system of justice.”

In Re: McConnell, 370 U.S. 230, 236 (1962).


So how do we do it?

Communicating with government

leaders is a great place to start. We need

to make sure that our representatives

fully comprehend what we do and why

it matters.

More generally, lawyers should take

on positions of responsibility. Those

with the time and ability should con-

sider seeking elected office, appointed

positions, and other community leader-

ship positions at every level. Even if you

have only very limited time to offer,

your viewpoint is worth sharing and it

doesn’t take long to do it. In an era of

electronic mail communication and

social media, it is easier, faster, and

cheaper than ever to alert each other to

important issues, educate the public,

contact government officials, and argue

our positions.

We must not only remain vigilant,

but we must actually participate and

put forward constructive ideas in help-

ing our government and communities

be the best they can be. I firmly believe

that it is our duty to do these things.

As I begin my tenure as president

of the Virginia State Bar, protecting and

improving our judicial system and pro-

fession—and soliciting your help in

working with me—will be among my

top priorities. This won’t be about try-

ing to seek an advantage for anyone or

promoting a “political agenda.” This

will be about helping our system of jus-

tice operate smoothly, efficiently, fairly,

and promptly. When the system works,

society wins.

The bar will receive my best efforts.

But more importantly, the bar needs

yours. Please share your talents and get

engaged. You can do more than you

probably realize. Remember, you are

“indispensable” to “our system of jus-

tice.” This is an honor and a responsi-

bility. Remind yourself often and let’s

work together.

President’s Message

The new Senior Citizens Handbook is an invaluable resource updated with the latest information on a wide variety of subjects including an overview of just about everything a senior would want to know about the law. It also includes a list of community-service organizations that provide aid to senior services in a large variety of areas.

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

2013 EditionNow Available


Martingayle is a Richmond native.

He graduated from Collegiate High

School, the same school Seattle Seahawks

quarterback Russell Wilson attended.

“If you gave me three choices— that

Collegiate was going to produce a presi-

dent of the United States, a chief justice

of the Supreme Court, or a Superbowl

quarterback, I would have definitely

guessed one of the first two.”

Martingayle was born Kevin

Edward Martin. His father, Donald

Martin, a doctor, died of cancer when

Kevin was 5. His mother, Alice, married

John Gayle, a lawyer, when Kevin was

almost 7 and he died of cancer when

Kevin was almost 17 in 1983. “He was

the biggest male influence in my life,”

Martingayle said.

His mother married a third time

when Martingayle was in college, and

that man, like his father and stepfather,

died of cancer in 1986. His mother also

died of cancer in 1993.

“Those experiences are really terrible

to go through but I think they make you

more of what you already are, either

positive or negative,” Martingayle said.

They made him realize, “Time on this

earth is limited. … I want to do what I

can while I’m here, while I can, before

I’m just another footnote in history. I

think that being a lawyer is a great way

to do it.”

He said that if he could pick one

avenue for practicing law, it would be

litigating constitutional cases and then

arguing them on appeal.

After his mother married John

Gayle, she gave Kevin and his sister the

option of choosing a last name. They

settled on Martin-Gayle. Later, when he

and his wife were about to start having

children Kevin was out running one day

when, “I had this epiphany.” Martin-

Gayle was going to be too complicated

for those yet-to-be children, so he took

out the hyphen and made the G lower-

case. He’s been Martingayle ever since,

with the blessings of the Gayle side of

the family.

The Martingayle children are

Harrison, 16, and Doria, 14, both of

whom attend Princess Anne High School

in Virginia Beach; and Jackson, 12, who

attends Virginia Beach Middle School.

Martingayle’s “chief passion outside of

the law and family events” is the Allen

Stone Braveheart Memorial Races. It’s

an annual event held at Virginia Beach

to raise money for the Navy Seal

Foundation, the Virginia Beach

Volunteer Rescue Squad, and the

Virginia Beach Lifeguard Association.

Martingayle, who has competed in

triathlons and road races since the

1980s, was recruited by the American

Heart Association to organize a run-

swim-run fundraising event in 1999.

About eighty people entered. He took

first in his age group in the event and

Stone won his age group. But Stone

died later that year during a Seal train-

ing exercise.

Stone was described at his memorial

service as “a guy who would give you the

shirt off his back, literally.” When he

heard that, Martingayle thought it would

be a good idea to put Stone’s image on a

shirt and continue the race in his name.

He approached Stone’s brother with the

idea of making the race an annual event.

“We’ve been doing it ever since, and it

got more and more elaborate every year.”

After a few name changes, it settled on

its current name. There are three races: a

run-swim-run, a separate five-kilometer

run, and a kid’s mile. “It is a zero-over-

head group. Every check is made out to

whatever organization someone wants

to support.”

“I’m about as passionate about that,

outside of the law, as anything else. I love

coaching too; I’ve served many times as

a volunteer coach for my kids’ teams.”

His children are involved in wrestling

and running.

The next race, which is expected to

draw about 1,000 participants, is at the

beach a month after Martingayle’s

swearing in as the president of the bar.

And the Martingayle family will be out

in full force.


Martingayle continued from page 11

Martingayle poses with his daughter Doria after placing in the 2013 Run in the Sun 5k at Virginia Beach. His sons Harrison (shown in inset) and Jackson placed first and third in the 2014 Run in the Sun.


On June 4, Supreme Court of VirginiaChief Justice Cynthia D. Kinser deliveredremarks in recognition of the 75thanniversary of the Virginia State Bar. Herremarks from the bench were followedby a statement from VSB PresidentSharon D. Nelson.

Following are excerpts from their writtenremarks.

Chief Justice Kinser:

The bar was founded in 1938 . . . topromulgate codes of ethics and proce-dures for the disciplining of attorneys.Thirteen years earlier, the president ofthe Virginia Bar Association hadremarked on the need for an integratedbar and he said: “There are more goodlawyers today than ever before and thereis a grievous swarm of poor ones.” I amconfident that today there are still moregood lawyers than ever before but thereis no longer a swarm of poor ones. . . .

The first secretary/treasurer, RichardE. Booker, . . . was tasked to locate allthe lawyers in the commonwealth. Mr.Booker consulted with “every availablesource for the names of all lawyers prac-ticing in Virginia whose membership inthe bar was made compulsory by therules,” and of course he did not have thebenefit of Google and Facebook. Mr.Booker did so well that in the bar’s firstyear, 2,664 attorneys became membersof the bar, paying yearly dues in thegrand sum of $3.50. We have indeedcome a long way in many respects.Today, the Virginia State Bar hasapproximately 50,000 members acrossthe commonwealth and tracking downattorneys in that fashion is thankfullyno longer necessary.

Some of the highlights of the bar’sfirst seventy-five years include the fol-lowing: during World War II more than

700 members served, and eighteen gavetheir lives; in 1950, the bar recommendedthat state law require three years of lawschool; in 1973, the Young LawyersConference was organized; in 1990, thefirst Pro Bono Award was given toretired Justice Lewis Powell; in 1992,the first Conclave on Legal Educationtook place; in 1996, the bar created itsfirst website; and in 2006, the legalresearch product Fastcase® was addedto the bar as a member benefit— onethat I wish had been there when I wasa solo practitioner.

We are blessed with many excellentlegal organizations in the common-wealth and the Virginia State Bar hascertainly done its part throughout itshistory to ensure the high quality of thelegal profession in the commonwealth.The bar has accomplished this throughits focus on professionalism, legal ethics,civility, its continuing legal education,and through its many conferences andevents. . . . When I consider the responsi-bilities of the Virginia State Bar, its pro-grams, its committees, its conferences, itspartnerships in the community, andwhen I contemplate how the bar and itswork has helped all of us in our careers,I am exceedingly grateful for its hardwork. On behalf of all of the justices, Iextend our congratulations and appreci-ation to the Virginia State Bar and to allof the current and former officers, coun-cil members, and staff, all of whom haveserved the bar with distinction in its sev-enty-five year history. . . .

President Nelson:

Thank you very much, Chief JusticeKinser. Honorable justices and ladies andgentlemen, I wish to thank the Court forrecognizing the 75th Anniversary of theVirginia State Bar today. . . .

On behalf of the bar, I thank thisCourt for the wonderful relationshipthat the bar has had with all of you. Onmany fronts, we have collaborated inways that have helped the bar and pro-tected the public. We also thank the vol-untary bars who are our partners in somany endeavors. Our relationship withthose bars has deepened over the yearsto the benefit of all as they can advocatewhere we cannot. We are grateful to theVSB staff, all of whom understand thatthe VSB is first and foremost a memberorganization, dedicated to providingethics support to its members andopportunities for bar service, while pro-tecting the public. They do it all well,graciously, and always with a smile. . . .

The bar owes a debt of gratitude tomany of you for your service to our pro-fession. I would be here all day if I triedto recount all of your acts of service. ButI would be remiss if I didn’t personallythank Chief Justice Kinser, who was kindenough to swear me in as president. Sheconfers constantly with the bar on manyissues and we are so grateful that shecontinues to participate in the Bench BarConferences that were the hallmark ofDavid Harless’s presidency. She has con-sistently been an eloquent advocate forfilling our judicial vacancies and sheworks tirelessly on a host of other issues.

In closing, in spite of the many chal-lenges our profession faces, the collabo-ration between the bar and the SupremeCourt gives me hope that together wecan genuinely be, at least in part, archi-tects of the future of our profession.Speaking for all of the bar guests heretoday, we thank the Court for the oppor-tunity to celebrate the 75th Anniversaryof the Virginia State Bar in the common-wealth’s highest court. Thank you all forinviting us to be with you this morning.

VSB 75th Anniversary

Supreme Court of Virginia Recognizes VSB’s 75th Anniversary


Nominations Sought for Board and CommitteeVacancies

Volunteers are needed to serve the Virginia State Bar’s boards and committees. The Nominating Committee will refernominees to the VSB Council for consideration at its October meeting.

Vacancies in 2015 are listed below. All appointments or elections will be for the terms specified, beginning on July 1,2015.

Council Members at Large: 3 lawyer vacancies (of which 2 incumbents are not eligible for reappointment and 1 incum-bent is eligible for reappointment to a second term). May serve 2 consecutive 3-year terms.

Disciplinary Board: 5 lawyer vacancies and 1 lay member vacancy (of which 5 lawyer members are eligible for reappoint-ment to a second 3-year term, and 1 lay member is eligible for reappointment). District committee service is required. Mayserve 2 consecutive 3-year terms.

Mandatory Continuing Legal Education Board: 4 lawyer vacancies (of which 1 member is not eligible for reappointmentand 3 current members are eligible for reappointment to a second term). May serve 2 consecutive 3-year terms.

Nominations, along with a brief résumé, should be sent by September 5, 2014, toSharon D. Nelson, chair, VSB Nominating Committee, Virginia State Bar,

1111 E. Main St., Suite 700, Richmond, VA 23219-3565, or e-mailed to [email protected].

www.vsb.org

Virginia State BarHarry L. Carrico

Professionalism Course

July 17, 2014, Roanoke

August 27, 2014, Alexandria

September 18, 2014, Richmond

December 4, 2014, Richmond

February 18, 2015, Alexandria

See the most current dates and registration information at

http://www.vsb.org/site/members/new.

Virginia State Bar Mission

The Virginia State Bar (VSB) was created in 1938 by

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 avail-

ability 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.

GENERAL INTEREST FEATURES | Vol. 63 | June/July 2014 | VIRGINIA LAWYER 17www.vsb.org

GENERAL INTEREST

In this, the 50th anniversary of the Civil

Rights Act and the 60th year after the

landmark United States Supreme Court’s

Brown v. Board of Education1 decision

that struck down the requirement of seg-

regation in public schools based upon

race and caused the political leaders of

Virginia to propose the closing public

schools and “a 20th century revival of

nullification,”2 it is important to pay trib-

ute to Justice Lewis F. Powell Jr., the

champion of racial fairness.

Powell, who was the chairman of theRichmond School Board at the time of theBrown decision in 1954, prevented the closing ofRichmond schools and worked to secure compli-ance with the ruling. This was in spite of mem-bers of his own law firm representing the otherside as attorneys for Virginia and as counsel to thestate and local governments in related cases.

Two and a half decades later, as a member ofthe United States Supreme Court, Powell cast thedeciding vote in the “greatest civil rights case sinceBrown.”3 Were it not for his decision in thedivided court, the significant progress made bypeople of color towards equality in the UnitedStates over the past thirty-five years would beunlikely.4

The Powell family has been rooted in Virginiasince 1635. One of his ancestors served as actinggovernor during the colonial era. The familypatriarch was a Confederate soldier wounded atFredericksburg.

Lewis Powell was born in 1907, a decade afterthe Court decided Plessy v. Ferguson, the so-calledseparate but equal doctrine.5 That case held thatracial apartheid in the United States was constitu-tional. More than half a century of segregatedpublic toilets, water fountains, neighborhoods,

schools, hospitals, and all other public facilities,followed Plessy.

Non-white people were limited to menial,servile, and unskilled employment. They wereexcluded from grand juries and petit juries, andrestricted in voting. In the criminal justice field,where most often there was no justice, blackdefendants were unable to obtain legal counsel insome cases. In 1933, a black man charged with themurder of a white woman in Loudoun Countywas unable to obtain counsel. There were noblack lawyers admitted to practice locally, and nowhite lawyer would accept the case. Finally, a teamof lawyers from Howard University Law Schoolundertook the defense. The trial judge denied allmotions against the many procedural irregulari-ties, and also the motion opposing the exclusionof blacks from the jury. The out-of-state defenseteam was threatened and faced great danger. Thedefendant was convicted in an atmosphere ofgreat hostility.6 This was the climate faced by peo-ple of color in Virginia as young Lewis F. Powell

A Tribute to Justice Lewis F. Powell Jr.by Clarence M. Dunnaville Jr.

photo courtesy of Richmond Times-Dispatch

18 www.vsb.orgVIRGINIA LAWYER | June/July 2014 | Vol. 63 | GENERAL INTEREST FEATURES

GENERAL INTEREST

Jr. began his law practice in Richmond, with oneof Virginia’s most prestigious law firms, represent-ing major corporations and financial interests.

Oliver W. Hill, also born in 1907, graduatedfrom Howard Law School in 1933, and began hispractice in Virginia.7 Powell was a very conserva-tive white Virginia gentleman, a member of thecountry club set, a rising power in the Virginiaestablishment who was surrounded by servants inhis home. Hill was a man of color from the Negroside of town. He began his practice barely ekingout a living representing the downtrodden, whilepursuing the rights of black people.

Hill studied law for the express purpose ofchallenging Virginia’s segregation laws. His goalwas to have Plessy v. Ferguson declared unconsti-tutional.8

A small band of lawyers consisting of CharlesHamilton Houston, dean of Howard Law Schoolduring Hill’s attendance, Hill, Thurgood Marshall,Spottswood Robinson and several others fromHoward began in the 1930s to plan the attack toend racial segregation. In planning a strategy tobring down discrimination, they had to establisha body of law to support their position. Thistook more than twenty years; the first case waslaunched while Hill was still in law school.9

Over the years, Hill and his associates, whilebuilding the case law necessary to bring downPlessy, handled a number of civil rights casesinvolving voters’ rights, equal rights in employ-ment, criminal justice, and other areas, but alwayswith the objective of overturning Plessy. An exam-ple of this work during this early period was thecase involving the denial of blacks to vote in pri-mary elections.

For more than thirty years, Senator Harry F.Byrd dominated the Democratic Party to theextent that winning the party’s nomination in aprimary election was tantamount to winning theelection. Often blacks were excluded from votingin the Democratic primary. In 1939, Hill success-fully obtained relief against the County ElectionBoard of Greenville County, remedying theboard’s practice of denying blacks the right tovote in the Democratic primary.

Powell believed in education and the law, andhe had a strong sense of public duty. His charitywork and public service were exemplary. Hebecame involved in legal services for the poor andserved on numerous charity and public serviceboards. These activities earned him the reputationof being the leading free lawyer in Richmond.10

During the 1940s, the Richmond CitizensAssociation, the most prominent political organization in Richmond, organized a task forceheaded by Powell to seek a change in the form ofcity government. The Citizens Association advo-cated changing the form of government from astrong mayor with a weak city council to a strongcity council with a ceremonial mayor selected bythe council, and a city manager appointed by thecouncil to perform the administrative functionsof the city.11 Powell’s group worked with Hill,and the new government system was adopted bya large majority in November 1943. Hill at thesame time ran for city council with the backingof the association. He became the first blackelected to the Richmond city council.12 Hill hasstated that from that time forward, he consid-ered Powell a friend.

Hill continued for many years to pursueoverturning Plessy. He and his law partner,Spottswood Robinson, were the trial attorneys inDavis v. County School Board of Prince EdwardCounty, which was the Virginia case consolidatedin Brown v. Board of Education. Robinson andThurgood Marshall argued the case before theSupreme Court. The result, overturning Plessy,was the fulfillment of Hill’s goal.

Powell accepted the Court’s ruling and triedvery hard, working behind the scenes, to secure

compliance with the Court’s edict.

At that time, Powell could not havedreamed he would someday be sitting onthe Court, and would render the decidingvote, and write the controlling opinion,in a case equally important to Brownfrom the perspective of racial fairness.

Powell did not seek appointment to the SupremeCourt and he actually wrote to the U.S. attorneygeneral that he was unavailable. But he reluctantlyagreed to accept the appointment after PresidentNixon’s first two choices failed to receive confir-mation. Powell was opposed by many civil rightsactivists because of his membership in the all-white Country Club of Virginia, and other orga-nizations, and because his law firm then hired noblack attorneys. It was also alleged that he had

Powell believed in education and the law,

and he had a strong sense of public duty.“


GENERAL INTEREST

actually subverted the law and obstructed theSupreme Court decision in Brown.

Powell’s friend, Hill, stepped forward to hisdefense. Hill privately told Marshall that Powellwas “all right,” and testified on his behalf at theconfirmation hearing. Powell was confirmed.

While Brown v. Board of Education held thatracial segregation was unconstitutional, it didnothing to bring black people into the main-stream, to make the nation a fully integrated soci-ety. A quarter of a century after Brown, people ofcolor had virtually no positions of influence,affluence, prestige, or power in America.

Universities had begun after Brown toattempt to alleviate the situation. They activelyrecruited black students and established specialprograms, including quotas for blacks. Withouteducation, it was impossible to achieve any mea-sure of success. Education was the point of entryto an integrated society. Universities, recognizingthat racial preferences were necessary to obtain adiverse population of students, admitted someblack students over white students with equal aca-demic qualifications. There were great outcries ofreverse discrimination. Alan Bakke, seekingadmission, brought suit against the University ofCalifornia asserting that the quotas established forblack students were unconstitutional. In late 1977,the case reached the Supreme Court.

The court was evenly divided, with justicesBurger, Stewart, Rehnquist, and Stevens, firmlyopposing racial preferences, and Brennan,Marshall, White, and Blackmun favoring the uni-versity’s quota plan. Powell stood alone, with thepower to decide. He conceived of the principle ofaffirmative action, holding that racial quotas wereunconstitutional, but that race could be consid-ered in admissions policies to obtain diversity. Hisdecisive vote framing his limited form of racialpreferences, coupled with the determinations ofBrennan, Marshall, White, and Blackmun, ush-ered in the national policy of affirmative actionand the beginning of the period during which asubstantial number of people of color could gainthe educational background needed to aspire topositions of influence, affluence, prestige, andpower. Affirmative action is more favorable thanquotas, in that quotas are limited to a specificnumber, whereas there is no limitation on thenumber of students accepted under the principlesof affirmative action. The affirmative action pol-icy further allows great flexibility to the university.Over time, Powell’s plan resulted in far moreblacks becoming qualified for high levels in gov-ernment, corporate positions, and the professions.

Powell and his friend Oliver Hill were fromopposite poles of society, but they had the com-mon goal of always doing the right thing. Bothmen made a tremendous contribution to theprogress of black people in America. Both had asense of decency and fairness, and the belief inthe law as a vehicle for change. Both were fearlessand willing to stand up and fight for the princi-ples they believed in, irrespective of the personalrisk. Powell’s character put him on the side of thestruggle of people of color because it was fair,right, and just.

At the 60th anniversary of Brown and the50th anniversary of the Civil Rights Act, it isimportant to pay tribute Justice Lewis F. PowellJr. for his role in the struggle for racial fairnessin the nation.

Endnotes:1 Brown v. Board of Education of Topeka Kansas 347

U.S. 483 (1954).2 Jeffries, John C. Jr., Justice Lewis F. Powell, Jr.,

Charles Scribner’s Sons, 1994, p. 163 US 527 18963 Id, p. 488.4 Regents of the University of California v. Bakke, 438

U.S. 265 (1978).5 Plessy v. Ferguson6 Smith, J. Clay, Emancipation, the Making of the

Black Lawyer, 1844-1914, University ofPennsylvania Press, 1993, p. 234.

7 There were no law schools in Virginia that admit-ted non-white students.

8 See Hill, Oliver W., the Big Bang, Brown v. Boardof Education and Beyond, Four G Publishers, Inc.,2000, p76, 154.

9 Hill, Id. p. 152.10 Jeffries, Jr., Id. p. 123.11 Hill, Id., p. 225.12 Jeffries, Jr. Id., p. 124.

Clarence M. Dunnaville Jr. of Richmond has worked incivil rights matters throughout his career, most recently wasa member of the Virginia State Bar Diversity Task Force andhead of the foundation that preserves the boyhood home ofOliver W. Hill Sr. in Roanoke. He is the recipient of the 2009Lewis F. Powell Jr. Pro Bono Award from the VSB SpecialCommittee on Access to Legal Services and was the firstrecipient of the VSB Diversity Conference’s AchievementAward, which was then named in his honor.


GENERAL INTEREST

Ten moves to different states or other countries.Three or more bar exams passed. Annual duesand CLE requirements in multiple jurisdictions.Balancing deployments and the instability of themilitary lifestyle with parenting and a legal career.These are the common issues discussed on themessage boards at the Military Spouse JDNetwork (MSJDN), an organization seeking tochange the laws in all fifty states to accommodatemilitary spouse licensing hurdles. On May 16, theSupreme Court of Virginia did just that when itissued an order adopting Rule 1A:8, which isaimed at easing the burden on military spouseattorneys seeking to practice law while accompa-nying their service member spouse to militaryinstallations in Virginia.

Lawyer and military spouse Elizabeth Boonemoved more than ten times to follow her hus-band, a submariner in the U.S. Navy. She alsospent her law school years geographically sepa-rated from her husband, and worked hard tobecome licensed in multiple jurisdictions. Booneclerked for Judge Diane Kroupa at the U.S. TaxCourt in Washington, DC, while her husbandwas stationed in Norfolk, again enduring separa-tion to advance their careers. But over time, theconstant moves of the military lifestyle madelicensing requirements seem insurmountable.She devoted herself to her family and volun-teered as a support and liaison for the families in her husband’s command.

Lisa Villacis, a recent law school graduate,worked hard to gain admission to practice inAlabama in 2012. But soon afterward, her hus-band was relocated to the Pentagon and thefamily moved to Virginia where all of the time,money, and energy she invested toward a licensebecame irrelevant.

The unemployment rate for military spousesis three times that of their civilian counterparts.High unemployment and underemployment ofmilitary spouses impacts the entire family and are

primarily the result of the frequent transfers.Because of the recognized impact on retentionand readiness of the force, military spouse licens-ing and employment are a current priority for theDepartment of Defense (DOD). Rule 1A:8 sup-ports this goal and allows military families toremain together while both spouses pursuemeaningful careers.

Boone, whose husband was recently orderedto Virginia, is thrilled with the passage of the newrule because it allows her job search to includeemployers in the community where she lives, aluxury that she has rarely enjoyed. Likewise,Villacis is appreciative of Virginia’s leadership,saying, “It really shows their support for the chal-lenges facing military spouse attorneys.” Shehopes other states will follow Virginia’s lead byopening doors for military spouse employment.

Rule 1A:8, the “Military Spouse ProvisionalAdmission Rule,” grants admission on motion tomilitary spouse attorneys who meet the rule’s cri-teria, including previous admission and practicein another jurisdiction. It allows a military spouseattorney to practice law in Virginia for the dura-tion of the service member spouse’s militaryassignment here, as long as he or she is associatedwith an attorney licensed in Virginia. Rule 1A:8went into effect on July 1, 2014.

Virginia is the seventh state to adopt such alicensing rule proposed by the Military Spouse JDNetwork to recognize the unique challenges facedby military spouses in the practice of law. Otherstates to pass comparable rules include Idaho,Arizona, Texas, North Carolina, Illinois, andSouth Dakota. Similar rules are under considera-tion in Alabama, Alaska, California, Delaware,Florida, Georgia, New Jersey, New York, Ohio,Maryland, South Carolina, and Washington.

While many professions allow employees toprovide input concerning job location, militarymembers are under orders to go wherever is inthe national interest for the duration of their

Groundbreaking Rule 1A:8 RecognizesMilitary Spouse Sacrificesby Elizabeth Jamison


GENERAL INTEREST

commitment. Although some families decide notto move with the service member, the resultingseparations only compound the hardship on fam-ilies already subject to lengthy separations due totraining and overseas deployments. Forty-onepercent of MSJDN members have taken two ormore bar exams and four out of five membersreport that their spouse’s military service has neg-atively affected their legal career. Half have livedapart from their spouse in order to maintain alegal career. The DOD has conducted studiesindicating there are significant force benefits tokeeping families together, which is important fornational security.

“We’re so proud of this outcome in a pivotalmilitary state like Virginia. The impact of thisrule will be profound,” said Military Spouse JDNetwork President Rachel Winkler, who overseesthe organization’s efforts to propose militaryspouse licensing accommodations. “Now continu-ing a legal career while following a service mem-ber will be viable for the many military spousesfacing moves to over twenty-five military installa-tions in Virginia.”

Bar exams are hardly the only challenges thatmilitary spouse attorneys face. Constant movestest their job-seeking skills. A patchwork of priorpositions and gaps in employment limits theirpossibilities for firm promotion. Their knowledgethat another move is around the corner inhibitslong-term client building. Deployments makethem temporarily single parents in need ofchildcare in areas where they have few contacts.Eliminating the need for an additional bar examwill relieve a significant portion of these stresses

for military spouse attorneys in Virginia andexpedite their job search efforts, allowing themto contribute to supporting their families.

MSJDN member Samantha Musso and herteam worked on the effort to bring the rule tofruition, gathering assistance from the Virginialegal community and ushering the proposed rulethrough the approval process. Their hard work,along with the support of Virginia attorneys andlegal professionals, led to the implementation ofthe new rule.

Rule 1A:8 demonstrates Virginia’s supportfor military families while still maintaining thehigh standards required of the legal profession.Accommodating the unique needs of militaryspouse attorneys comes at little cost but makes asignificant difference to military families. Whilethe number of military spouse attorneys in thestate may not be large, this new rule sends amessage of support to the entire Virginia mili-tary community.

Elizabeth Jamison is the deputy communicationsdirector for the Military Spouse JD Network. Shemanages a virtual law practice and serves as ofcounsel to the law office of Thomas Carter. Shelives in Jacksonville, Florida, with her husband, aNavy helicopter pilot.

Above: Elizabeth Boone and her husband, Commander Michael Boone.Right: Lisa Villacis and her husband, Major Mark Villacis.


GENERAL INTEREST

In the wake of the tumultuous conclusion of for-mer Governor Bob McDonnell’s tenure, Virginiahas a newfound focus on fraud and corruptionamong its state employees. However, efforts toroot out fraud in state institutions go back furtherthan the McDonnell controversies. One suchexample is the 2011 amendment to the VirginiaFraud Against Taxpayers Act (VFATA) that cre-ated a cause of action for whistleblower retalia-tion for state employees.

While in most cases, a state False Claims Actwill allow an individual to bring suits against pri-vate individuals and organizations either for fraudagainst the state or retaliation for reporting it, it isnot always clear how or whether a state FalseClaims Act applies to the state itself. It creates asort of legal conundrum for an individual to suean arm of the state on behalf of the state, but it isnot an impossible theory, particularly as to retali-ation. In the case of the Virginia Fraud AgainstTaxpayers Act (VFATA), however, the situation isclear. The state clearly waived its immunity to suitin VFATA retaliation cases. Va. Code Ann. § 8.01-216.8 (West) states:

This paragraph shall constitute a waiver ofsovereign immunity and creates a cause ofaction by an employee against theCommonwealth if the Commonwealth is theemployer responsible for the adverse employ-ment action that would entitle the employeeto the relief set forth in this paragraph.

It initially sounds odd to think that a stateemployee could sue for retaliation based on a dis-closure that could not have been a legally viableaction. However, consider the situation of a stateuniversity employee who discovers that the uni-versity is wasting taxpayer dollars by taking fundsintended for research or teaching and spendingthem in other ways. When the employee raises theissue with his supervisor, he begins to suffer retal-iatory actions. This results in a poor performanceevaluation, a performance improvement plan, andultimately a termination. The question is whether

a state False Claims Act would protect this indi-vidual and provide a legal remedy. Virginia’sFraud Against Taxpayers Act would protect thisindividual. Even though the individual could nothave brought a fraud claim against the university,he is protected from retaliation.

Beyond intra-state government matters, stategovernment employees may also be in a goodposition to know when contractors are engagingin fraud against the state. Contractors and theircontracting officers within the state governmentoften work very closely, and these close ties createopportunities for fraud. A subordinate govern-ment employee who notices that his supervisor isa beneficiary of or otherwise complicit in a con-tractor’s fraud is, under the VFATA, protectedfrom retaliation for exposing it, thanks to anamendment.

The Case for ChangeThe 2011 amendment legislatively overruled theexisting case of Ligon v. County of Goochland.1 Inthis case, Ligon, an employee of the County ofGoochland, discovered that his supervisor, CecilYoungblood, was using county property for per-sonal gain, was liberally allowing employees totake care of personal errands during work hours,and was having his employees take care of hispersonal projects during working hours. Ligonreported the activity to the office of the sheriff,and later conducted an interview pursuant to thesheriff ’s investigation. As often happens followingsuch investigations, the employer, the County ofGoochland, began documenting Ligon’s “bad atti-tude” in performance evaluations. The day afterthe sheriff ’s office interviewed Ligon, the countyterminated him for “disruptive behavior andinsubordination.”2

The case was never heard on the merits,because the county filed a demurrer alleging thatthe suit was barred by the Commonwealth ofVirginia’s sovereign immunity. Ligon appealed theissue to the Supreme Court of Virginia, which

The Game Has Changed for Management: The Virginia Fraud Against Taxpayers Act and ItsApplicability to State Entitiesby R. Scott Oswald and Nicholas W. Woodfield


GENERAL INTEREST

found in the county’s favor, since the VFATA con-tained no explicit waiver of sovereign immunity.3

Legislative response to LigonFollowing the Ligon decision in 2010, the Virginialegislature took action. The legislature amendedthe VFATA in 2011 to include the statutory lan-guage waiving sovereign immunity for retaliationclaims.5 Indeed, the legislative history of theamendment explicitly explains that the bill waspassed in response to the Ligon decision.

Fraud Against Taxpayers Act; waiver of sover-eign immunity. Provides that the VirginiaFraud Against Taxpayers Act creates a causeof action for an employee of theCommonwealth, its agencies, or any politicalsubdivision against such entity if an adverseemployment action is taken against theemployee by his employer because theemployee has opposed any practice by hisemployer prohibited by the Act or partici-pated in an investigation, action, or hearingunder the Act. This bill is in response to theVirginia Supreme Court’s decision in Ligonv. Goochland, 279 Va. 312 (2010).5

This amendment opened the entire universeof employees of the state of Virginia as potentialplaintiffs in a VFATA retaliation action. Just asimportantly, it subjects all arms of the state—from the state capitol in Richmond, to the countysheriff in Roanoke, to a dean’s office at William &Mary—to liability for retaliating against thosewho report what they reasonably believe to befraudulent use of Virginia taxpayer funds.

The limits of the amendmentAfter the amendment, Virginia Attorney GeneralKen Cuccinelli sought to test its limits in the caseof Cuccinelli v. Rector, Visitors of Univ. of Virginia.6

In this case, Cuccinelli sought to bring not a retal-iation claim, but rather a substantive VirginiaFraud Against Taxpayers Act claim against theUniversity of Virginia. The Supreme Court ofVirginia held that the waiver of sovereign immu-nity as to retaliation did not apply to the otherportions of VFATA.

There is an express waiver of sovereignimmunity in FATA in Code § 8.01–216.8, inthe context of discrimination protectionfrom retaliation for employees of theCommonwealth who report violations ofFATA. The express waiver there only serves tohighlight the absence of such a waiver inother parts of the Act. In its 2011 amend-

ment, the General Assembly specificallychose to attach the sovereign immunitywaiver only to the retaliatory discharge por-tion of Code § 8.01–216.8, and not to theother portions of the statute.7

In applying the doctrine of sovereign immu-nity to strike down a VFATA suit, the Court fur-ther affirmed its vitality with regard to retaliationclaims. The Court also appears to leave open theopportunity for the legislature to further amendthe VFATA to actually make state agencies liableto the state for violations.

ConclusionThe state of Virginia employs more than 160,000people directly.8 Those providing managementservices within the Virginia government, as well asanyone who insures those managers and organi-zations, must be aware that this cause of actionnow exists in Virginia as it had not prior to 2011.Journalistic and voter focus on fraud in theVirginia state government will only sharpen fol-lowing McDonnell’s tumultuous tenure as gover-nor and the persistent scandal accusations thatdominated the 2013 governor’s race. Employeesof the state with knowledge of potential fraud cannow freely report that fraud while maintaining adefense against the specter of retaliation.

Endnotes:1 279 Va. 312, 318 (2010).2 Id. at 315 (2010).3 Id. at 318 (2010).4 2011 Virginia Laws Ch. 651 (H.B. 1399).5 Virginia Bill Summary, 2011 H.B. 1399 (emphasis

added).6 283 Va. 420, 429 (2012)7 Id. at 430-31. (emphasis added).8 2012 Census of Governments: Employment,

Virginia, http://www2.census.gov/govs/apes/12stva.txt.

R. Scott Oswald is managing principal ofThe Employment Law Group PC and theimmediate past president of theMetropolitan Washington EmploymentLawyers Association.

Nicholas W. Woodfield is a principal atThe Employment Law Group PC andpresident of the Virginia EmploymentLawyers Association.

24 www.vsb.orgVIRGINIA LAWYER | June/July 2014 | Vol. 63 | SENIOR LAWYERS CONFERENCE

SThe Senior Lawyers Conference

Looking Back and Looking Forward

by Frank Overton Brown Jr.

SENIOR LAWYERS CONFERENCE | Vol. 63 | June/July 2014 | VIRGINIA LAWYER 25www.vsb.org

Almost a decade ago, one hundred senior citizens sat in the CovingtonCourthouse and listened as seven lawyers and one judge took turns dis-cussing various legal topics, using the Senior Citizens Handbook as a basisfor their presentations. Each of the senior citizens received a copy of thehandbook to keep as a personal resource. It was Virginia’s first Senior LawDay program, and it was sponsored by the Alleghany-Bath-Highland BarAssociation in cooperation with the League of Older Americans. It wasmoderated by William T. Wilson of Covington, chair-elect of the SeniorLawyers Conference.

Since then, tens of thousands of Virginia’s seniorcitizens have benefitted from Senior Law Day(sometimes called Senior Citizens Law Day) pro-grams. They are truly a classic example of probono in action, and they are but one illustrationof the many good things that the Virginia StateBar Council anticipated when, on June 14, 2001,it established the Senior Lawyers Conference(SLC) as the third conference of the Virginia StateBar, joining the Young Lawyers Conference andthe Conference of Local Bar Associations. At thetime of its establishment, the conference had6,500 members; as of April 1, 2014, the confer-ence had 16,829 members. This dramatic andanticipated increase in the membership of theconference reflects the aging of the United Statespopulation in general. Today, more than fortymillion people in the United States are 65 andolder, and that figure is projected to increase tomore than eighty-nine million by 2050, withmost of that increase taking place by 2030 (whennearly 20 percent of the U.S. population will be65 and older). According to projections by theVirginia Department for Aging and RehabilitativeServices, by 2025 the population of Virginians 60and over will be almost 25 percent (more thantwo million people) of the commonwealth’s totalpopulation. This continuing increase has had amajor impact on and underscores the impor-tance of the conference.

There are more senior lawyers who can help,but, by the same token, there are more senior citi-zens who need help.

The SLC bylaws provide that “[t]he purposeof The SLC shall be to uphold the honor ofthe profession of law, to apply the knowledgeand experience of the profession to the pro-motion of the public good, to encouragecordial discourse and interaction among themembers of the Virginia State Bar (VSB),and to pursue its Mission and Goals as fol-lows: The SLC shall serve the particularinterests of senior lawyers and promote thewelfare of seniors generally. In serving theinterests of senior lawyers the SLC will planand present programs and activities andproduce publications of interest to seniorlawyers, and coordinate activities for seniorlawyers by, for, and with state and local barassociations. To promote the welfare ofseniors generally, the SLC will study issuesof concern to seniors, prepare and presentprograms and publications designed toexplore and develop such issues, advocateappropriately on behalf of such issues andcooperate with other entities interested insuch matters.”

The conference bylaws also provide that themembership will consist of members of the VSBin good standing who are 55 years old or older,that no application for or acceptance of member-ship is necessary, as all persons who meet themembership qualifications are automaticallymembers, and that no dues other than those forVSB membership will be required. The confer-


THE SENIOR LAWYERS CONFERENCE

ence is governed by a twenty-four member boardof governors.

Under the Rules of the Supreme Court ofVirginia, Part 6, § IV, ¶ 5, the conference chair isan ex-officio member of the VSB Council. Underthe VSB Council bylaws, Article VI, Section 1, theconference chair is also an ex-officio member ofthe VSB Council Executive Committee. The2014–15 conference chair is Renae Reed Patrick,of Winchester.

The late Chief Justices Carrico and Hassellserved as honorary board members of the con-ference, as does Chief Justice Cynthia D. Kinser.The many women and men senior lawyers whohave served, and continue to serve, on the confer-ence board of governors have provided leader-ship in a variety of activities, publications, andprograms in furtherance of the conference’s purposes, mission, and goals. Some of those arediscussed below. In most cases, articles refer-enced below can be accessed by going to the VSB website at www.vsb.org and searching forthe title of the article.

The Senior Citizens Handbook is produced andperiodically updated by the conference and is theVSB’s most requested publication. It is a resourcefor seniors, their families, and their caregivers thatprovides an overview of and contact informationfor opportunities and choices facing senior citi-zens. It summarizes how specific laws affectVirginia’s older citizens and offers practicaladvice on issues such as Social Security, pensions,the Supplemental Nutrition Assistance Program,Federal income taxes, Medicaid, Medicare,Alzheimer’s disease, long term care, nursinghomes, assisted living facilities, adult day care,home care, continuing care retirement communi-ties, housing, reverse mortgages, divorce and theelderly, real estate transfers, estate planning, pro-bate and estate administration, advance directivesand powers of attorney, guardianship and conser-vatorship, funeral services, protection of legalrights, landlord/tenant issues, selecting and work-ing with a lawyer, consumer protection, discrimi-nation, grandparent rights, personal safety andsecurity, elder abuse, alternative dispute resolu-tion, Virginia’s court system, and more. It alsoincludes a list of governmental and communityservice organizations that details the various ser-vices available to senior citizens. If you are inter-ested in obtaining single copies of the SeniorCitizens Handbook for personal use, or in obtain-ing multiple copies for use in a Senior Law Day

program, please call Stephanie Blanton, VSB SLCliaison, at (804) 775-0576.

Senior Law Day programs, using the formatdeveloped by senior lawyer William T. Wilson ofCovington and a core program of the SLC, areconducted by local and specialty bar associationsand individual lawyers as a public service inreaching out to senior citizens in our communi-ties and providing them with education abouttheir rights and responsibilities under the law.Usually, copies of the Senior Citizens Handbookand other materials are provided to the senior citizens who attend the programs, which may beheld in a local courthouse, school, restaurant,library, or other available public space. Sometimesthe programs are conducted in collaboration withother organizations that are also interested in thewelfare of seniors. Presenters are typically lawyers,judges, and others who have expertise in variousareas of interest. A senior citizen who attended aSenior Law Day program wrote: “What a wonder-ful afternoon yesterday. I feel like I was given$10,000 worth of advice for free! Great speakers,information, sharing (and) practical advice, and Ilearned many new things. I appreciate so much allof the hard work that went into getting suchexcellent presenters. So much practical informa-tion that will be so useful to everyone and theirfamilies. Today, I am making a summary that Ican hand out to family and friends. This will befar-reaching.” Senior lawyer F. Warren Haynie Jr.,of Lottsburg, is the current Senior Law Day chair.He has probably been personally involved in theplanning and presentation of more Senior LawDay programs than any other lawyer in the com-monwealth, and he generously shares his knowl-edge with others who wish to present Senior LawDays in their communities. For more information,please call conference liaison Stephanie Blanton at(804) 775-0576, who can provide a blueprint forplanning and conducting a Senior Law Day pro-gram. One of the many beauties of the program isthat it can be adapted to the needs and interestsof the senior citizens in a community.

Virginia Healthcare Decisions Day was estab-lished by proclamation signed by GovernorTimothy M. Kaine on April 14, 2006. Under thecapable direction of Nathan A. Kottkamp ofRichmond, and with the support of the confer-ence, the first Virginia Advance Directives Daywas observed on April 18, 2006, and has beenobserved each year since. Members of the confer-



ence also participated in the development of theCommonwealth of Virginia Advance Health CareDirective Registry, which can be accessed atwww.virginiaregistry.org.

Remembrances of deceased, distinguishedVirginia senior lawyers and judges are publishedperiodically in the Senior Lawyers Conferencededicated issue of Virginia Lawyer and in theSenior Lawyer News. Senior lawyer Francis Nelson(Frank) Crenshaw of Norfolk, when he was thenewsletter editor of the Senior Lawyer News beganpublishing remembrances as a way of remindingus of those senior lawyers and judges whose per-sonal and professional qualities were inspira-tional. By mentioning some of their names here,we remember them and their qualities once againand reflect on and discuss their ongoing influ-ences: Hon. E. Ballard Baker; Hon. Armistead L.Boothe; Hon. Christian A. Compton; DouglasWayne Conner; Francis Nelson (Frank)Crenshaw; James E. (Jimmy) Edmunds; OliverWhite Hill; Roby Greene Janney; Charles L.Kaufman; James Clopton Knibb; Norvell A.Lapsley; Francis V. (Frank) Lowden Jr.; Hon. C.Hardaway Marks; Carolyn O’Neal Marsh; Hon.Elliott D. Marshall; Hon. Walter T. McCarthy;Hon. Robert R. Merhige Jr.; Russell V. Palmore Jr.;Hon. William F. Parkerson Jr.; Neal J. Patten;Frank W. Rogers Jr.; William Rosenberger Jr.; KenMcFarlane Smith; Hon. Roscoe B. Stephenson Jr.;Hon. John H. Tate Jr.; Hon. George M. Warren Jr.;and Hon. William L. Wimbish.

Protecting Lawyers’ and Clients’ Interests in theEvent of the Lawyers’ Disability, Death or OtherDisaster. The website at http://www.vsb.org/site/conferences/slc/ contains the following docu-ments under attorney resources to assist lawyersin their planning: Durable Special Power ofAttorney Regarding Law Practice; AgreementRegarding Law Practice; and Last Will andTestament provisions with appropriate powers toExecutor. The checklist on closing a law practice is also available on the website. In addition, foryears, I have presented CLE ethics programs tolocal bar associations on this topic. These are pre-sented as a one-hour, one- and one-half-hour, ortwo-hour programs, with full ethics credit and atno charge to the attendees, to the local bar associ-ations or to the VSB. The CLE program materialsare contained in a 116-page binder that eachattendee receives. The program materials containforms to assist lawyers in meeting their ethical

obligations by doing their own planning, to pro-tect client interests and to help to avoid the neces-sity of receiverships. If a local bar association isinterested in having this ethics program presentedat no charge, please call Stephanie Blanton at(804) 775-0576.

Pro Bonomatters are handled by seniors in twobasic ways, both with the active encouragement ofthe conference. The first method is by providingthe pro bono services as a routine part of thelawyers’ everyday law practices; these services arenot provided through any legal services organiza-tions, and there is no formal reporting of the

C. Glasgow Butts was a Senior Lawyers Conference leader in promoting civility and collegiality in theprofession. He died in 2012 at age 95. Pictured here in 2004, he shares a collegial moment with FrankO. Brown, Jr. at the SLC Board meeting in Charlottesville. Photo courtesy of Susan V. Brown.



extent or nature of the services that are provided.The second method is through an establishedlegal services organization. These two methodsare complementary and not exclusive of eachother. Please contact senior lawyer John M. OakeyJr. of Richmond (a recipient of the VSB Lewis F.Powell Pro Bono Award), at (804) 775-4336, formore information about how to serve. ConductingSenior Law Day programs is a form of pro bonoin action on a wider scale, reaching many seniorcitizens at the same time.

Civility and Professionalism are continuouslyemphasized by the conference by way of personalexamples and through messages to the professionin Virginia Lawyermagazine and the SeniorLawyer News. The SLC’s initial leader in encour-aging civility and professionalism was the latesenior lawyer C. Glasgow Butts of South Hill, whowith co-author senior lawyer G. Marshall Mundyof Roanoke, wrote “In Furtherance of Civility,”and “Our Charge Is This—Civility.” Some of theother articles written by SLC members aboutcivility and professionalism are: “The Roles ofLaw Schools and the Judiciary in Promoting andMaintaining Civility, Ethics and Professionalism”;“Civility and Professionalism: A ModestProposal”; “Civility and the Law”; “Civility—ItsUrgent Necessity for a Civilized Future”; “TheGolden Rule”; “Keepers of the Flame: The Duty of Judges to Promote, and Preserve Civility andProfessionalism”; and “Civility in the Law, Society,Politics and Government: Civic Virtue and theRule of Law.” In addition, articles dealing withmatters of historical and legal importance tolawyers have been written by SLC members andhave appeared in Virginia Lawyer. Some of thoseare “Jacob L. Morewitz, Eleanor Roosevelt, andthe Steamship Quanza”; “Thomas Jefferson,Religious Freedom, Monticello, and the LevyFamily”; and, “Three Generations.”

Mentoring and Advice to Senior Lawyers andYoung Lawyers have been encouraged by theSLC and have been emphasized in articles bysenior lawyer Jack W. (JB) Burtch Jr. ofRichmond, a noted expert in mentoring, includ-ing “The Mentor Challenge in Changing Times”;“Mentoring: A Two-Way Street”; “Jump StartYour Career: Tips for New Lawyers”; “SlowingDown The Process”; “What the New AssociateWants to Tell the Senior Partner”; “Meeting theMidcareer Challenge Head-On”; “Retire orRefresh: One Lawyer’s Perspective”; “The Lawyer

as Counselor”; “Stay Tuned”; “Still Practicing toGet It Right”; and “Difficult Clients Sharpen OurGame.” In this issue of Virginia Lawyer, Burtchwrites about the challenges and questions facingthe profession as senior lawyers continue topractice law longer, with some of them havingdiminishing capacities. His article emphasizesthe importance of the Lawyers Helping Lawyersorganization.

VSB Annual Meeting CLE Workshops andPrograms have been sponsored or co-spon-sored by the SLC on: “Planning for a Lawyer’sDisability or Death”; “Retirement Planning forLawyers”; “Tax Reform and Estate Planning”;“Talking with Clients about Charitable Giving”;“Do Your Know Where Your Parents Are? Qualityof Care Litigation Involving Nursing Homes andHospitals”; “Current Developments in Trust andEstate Law”; “So You’re Going to a NursingHome/Assisted Living Facility”; “When to UseMediation in Cases Involving Elderly Clients:Nursing Home Issues, Estate Settlement and TrustDisputes, Powers of Attorney, Conservatorships,Guardianship Matters and More”; “Stop TalkingLike A Lawyer: The Lost Art Of CommunicationIn Mediation, Negotiation and Litigation”;“Basic Estate Administration for the GeneralPractitioner”; “The Devil Wore Green: Basics ofAttorney Trust Accounts”; “Making Sense of the Numbers in Accounting and Finance: AnAccounting and Finance Primer for Attorneys”;“Alzheimers and the Practicing Lawyer”; “LawyersServing Senior Citizens Using the Senior CitizensHandbook”; and “Cocktail Party Advice—HowTo Handle Questions From Friends, Neighbors,and Partners.”

Senior Lawyer News and the SLC Website areboth valuable resources for members of the VSB.Articles include: “The Promise of Inclusion—Oliver W. Hill, Sr.”; “The Health InsurancePortability Accountability Act of 1996 andAdvance Medical Directives”; “Risks in InformalConsultations”; “Educating the Public AboutHealth Care Decision-Making”; “Professionalism/Civility from the Judicial Point of View”;Medicare Prescription Drug Improvement andModernization Act of 2003— What Does It MeanFor You?”; “The Citizen/Lawyer of the Past,Present and Hopefully, the Future”; “AdvanceMedical Directives”; “The Virginia Uniform TrustCode: Selected Issues”; “Medicare Part D—Prescription Drug Coverage”; “Preventing Elder



Abuse”; “Virginia Uniform Trust Code”; “TheComing Tsunami: Aging in the Commonwealthof Virginia”; “The United States Senate HonorsOliver White Hill On His 100th Birthday”;“Living Greatly In The Law: Excellence, Civility,Professionalism, and Civic Engagement”; “WhenTo Say No—Ten Ways To Select And Reject AClient”; “Have You Used A Judicial SettlementConference?”; “Never Again—HolocaustRemembrance Day”; “Emerging ServiceOpportunities For Seasoned Lawyers”; “TRIADand Senior Law Day Programs”; “GrandparentVisitation Rights”; “Reverse Mortgages”; “FreeAnnual Credit Report Availability Under FederalTrade Commission Rule”; and “2012Recodification And Revision Of Title 64.1 OfThe Code Of Virginia.”

Brunch and Ceremony Honoring 50 Year VSBMembers is held each year at the VSB AnnualMeeting, continuing the tradition begun by seniorlawyer Bill Smith of Virginia Beach. The SLChosts this special event in honor of the individu-als who have completed fifty years of service asmembers of the VSB. A special certificate is pre-sented to these senior lawyers to commemoratethis milestone in their professional lives, and aphotograph is taken of each presentation and acopy sent to the honoree. It is by special invitationto the honored guests.

The Honor Tree in Capitol Square in Memory ofChief Justice Hassell and the Lawyers TreePlanting Initiative (Trees for Virginia) were pro-jects instituted by senior lawyer John H. Tate Jr. ofMarion. Tate worked tirelessly to have an honortree planted in Capitol Square in memory of thelate Chief Justice Hassell. All of the funds to payfor the honor tree and its maintenance and/orreplacement in perpetuity were privately donated.On April 24, 2012, with the members of theSupreme Court of Virginia and other dignitariespresent, Chief Justice Kinser dedicated the honortree. Within eight months after the dedication ofthe tree, John H. Tate Jr. died unexpectedly aftera brief illness. John, who loved trees, had alsorecognized the community service aspects of theplanting and encouraging the planting of trees inour communities throughout Virginia to improveour environment. He saw that the good willgenerated by senior lawyers’ involvement in thateffort would redound to the benefit of the pro-fession. No public funds or VSB funds are usedto buy the seedling trees from the Virginia

Department of Forestry or to deliver themthroughout the commonwealth. The deliveries aredone by members of the SLC. John’s work hasbeen carried on by senior lawyer Bruce Robinsonof South Hill, whose telephone number and e-mail address are: (434) 917-0061, and [email protected]. The campaign is anannual one, with orders taken and trees deliveredearly every year. More than 10,000 trees have beenand planted so far. This year, among others, 500seedling trees were donated to the Town ofWoodstock and its Tree Board. The Woodstocktown manager and the Woodstock Tree Boardchairwoman wrote a letter of thanks to Robinson,and wrote in its concluding paragraph: “We verymuch appreciate the generosity of the VSB SeniorLawyers Conference to make our 2014 Arbor Daya great success—the seedlings were terrific speci-mens and we are hopeful that many of them willgrow to provide future shade and beauty to ourtown. Please extend our appreciation to all yourmembers who helped make this possible!” Pleasewatch for the announcement of the 2015 cam-paign toward the end of this year.

The Senior Lawyers Conference board ofgovernors seeks and welcomes ideas, sugges-tions, and efforts from all members of the VSBin general, and from senior lawyers in particu-lar, regarding how we can continue to meet theneeds of the commonwealth’s senior lawyersand senior citizens now and as we ride this bigwave into the future.

Frank Overton Brown Jr.’s private Richmond practice con-centrates on wills, trusts, estate planning, estate and trustadministration, and related tax matters. He is a fellow ofthe Virginia Law Foundation and is a fellow of theAmerican College of Trust and Estate Counsel. He is pastchair of the Senior Lawyers Conference of the Virginia StateBar, and is a past member of the Virginia State Bar Council.He is co-founder of the University of Richmond AnnualEstate Planning Seminar, which has been held annually atthe University of Richmond for forty years. He is author ofthe Virginia Probate Handbook and holds bachelors, mas-ters, and juris doctor degrees from the University ofRichmond.


REMEMBRANCE OFJUDGEWILLIAM LEEWIMBISH

by John M. Oakey Jr.


ON MARCH 12, Virginia lost a dedicated publicservant who passed away after an extended periodof declining health. For more than three decades,William L. Wimbish served the commonwealthand the City of Richmond in several differentcapacities. His motto was, “Do it right!” Thisprinciple benefitted his family, Richmond, allthose who appeared in his courtroom, the legalprofession, and all who knew him.

Judge Wimbish was born on July 27, 1930, inMartinsville. After living in several localities inWestern Virginia, his family moved to Richmondwhere he graduated from Thomas Jefferson HighSchool in 1949. He entered the University ofRichmond the following year, but his studieswere interrupted by four years of service in theUnited States Air Force. He was fortunate enoughto be stationed in Germany, where one of hisfriends and a member of his unit turned out tobe none other than the later-to-become famousmusician, Johnny Cash. They developed a friend-ship that was renewed when the singer per-formed many years later in Richmond. Bill hadmany talents, but needless to say, none of theminvolved singing.

Bill graduated from the T.C. Williams Schoolof Law in 1958 and began working for Traveler’sInsurance Companies, as did many of his lawschool friends. He remained there for nine years.Although offered several opportunities for pro-motion, Bill did not accept them so that he couldremain in Richmond.

Bill then made a significant career changeby joining the Richmond City Attorney’s officeas an assistant city attorney in 1967. At the time,Richmond was facing many challenges, the areawas growing rapidly, and he was able to make asignificant contribution in many different pro-jects that have been very beneficial to the citizensof the city. His service and insurance backgroundserved him well. Probably his biggest venture wasto assist in establishing the Greater RichmondTransit Company, now known as The GRTCTransit System, for Richmond and the surround-ing area. He served as the agency’s general coun-sel for many years. He also was involved in theconstruction of the Richmond Coliseum and wasthe attorney who signed the contract on behalf ofthe city. He was involved in the efforts to estab-lish the Port of Richmond and also in the consol-

idation of most of Richmond’s courts into theJohn Marshall Courts Building at Ninth andMarshall streets.

Bill was extremely hardworking and meticu-lous, and he was the person people would go towhen they had a problem with the city. He servedas the acting city attorney for well over a year.

In 1985, the legislature added an additionalcivil court judgeship to the Richmond GeneralDistrict Court, and Bill was elected to that judge-ship. He was a strong supporter of what he calledthe “people’s court” and took great pains andspent a lot of time to ensure that people whorarely went to court realized they were respectedwhen they were before him. Although this wasnot a court of record, he probably wrote moredecisions than any other district judge in thearea. He wanted to make sure that everyone hadtheir day in court and that the rules of law wereproperly applied to all of the litigants. Althoughit may have bothered the attorneys to have towait for the decision, Judge Wimbish made surethat every litigant received justice under the law.He was also a strong advocate of the small claimscourt, where litigants could resolve their disputeswithout any attorneys.

When he turned 70, Judge Wimbish did notreally want to retire, but under the judicial ruleshe was required to do so. He had served as thechief judge of the Richmond General DistrictCourt for the last two years of his tenure.

Though Judge Wimbish was a great cityattorney and judge, he was not all work and noplay. Three of his best friends went with him toPinehurst once a year to play golf and most oftheir stories would fill an entirely separateremembrance. Although his golf skills may havedeclined slightly with age, he always remained thebest putter of the group. But, his greatest accom-plishment was that he could beat just about any-body in checkers—most of his friends wouldn’teven play him.

Judge Wimbish loved the law, loved writingopinions, and was a true public servant to theCity of Richmond. His accomplishments in thecity attorney’s office were numerous and he cer-tainly set an example for the judges in the GeneralDistrict Court. He is greatly missed.

Judge Wimbish is survived by his wife Judy,three children, and eight grandchildren.


In 2007, the National Organization ofBar Counsel and the Association of

Professional Responsibility issued a

report that predicted a “senior tsunami”

of “age-impaired lawyers” that would be

generating a disproportionate number of

complaints and disciplinary proceedings.1

Today, while the growth of our Senior

Lawyers Conference has not yet reached

flood-level stage, it is true that Virginia’s

legal population continues to age. While

older lawyers do seem to have more prac-

tice challenges, we have been able to help

prevent many of the predicted complaints

and disciplinary proceedings, thanks to

Lawyers Helping Lawyers.

Perils of Aging

Clearly, Virginia’s reputation for professionalism

is enhanced by the increasing number of senior

lawyers who model civility and pass on their

tradition to the newest members of the bar.

Unfortunately, some lawyers continue to practice

while their facilities deteriorate. Not all senior

lawyers face mental challenges, but some suffer

from memory loss, communication problems,

disorientation, and inflexibility. Studies indicate 8

percent to 19 percent of all people between the

ages of 75 and 84 suffer from Alzheimer’s disease,

and that percentage rises to 29 percent to 42 per-

cent in those older than 85.2

In the past, lawyers who experienced these

problems were already at a generally accepted

retirement age, so most left their practices grace-

fully. But today, a confluence of pressures is forc-

ing some older lawyers to practice longer than

they intended—and longer than they should.

Baby boomers (born between 1946 and 1960)

constitute the largest single demographic among

lawyers; in 2011, the first of them turned 65.

Hardships of Aging Today

As these seniors enter the traditional retirement

years, they face new challenges. Life expectancy

continues to increase, so there may be more years

ahead to finance than the previous generation

had to consider. Some lawyers started families

later, so many now have children heading to

college or adult children they still support finan-

cially. The economic collapse of 2008 dealt a blow

to already-insufficient retirement accounts, while

the recession that followed tightened client bud-

gets. Even the word “retirement” has become

unpopular, as boomers defiantly proclaim, “60 is

the new 40.” Thus, for many in this generation,

continuing to work has become either a financial

or a psychological necessity.

Issues of Impairment

Age, of course, is not the only cause of cognitive

impairment. Drug or alcohol use, serious depres-

sion, or chronic disease can also affect mental

acuity. Since lawyers experience problems with

The Wise Lawyer KnowsHow and When to Cease and Desistby Jack W. Burtch Jr.


drugs and alcohol at twice the rate of the general

population, substance abuse contributes dispro-

portionately to lawyer impairment. Yet the

Virginia Rules for Professional Conduct requires

lawyers to provide competent and diligent service

to clients (Rule 1.1;1.3), withdrawing when “the

lawyer’s physical or mental condition materially

impairs the lawyer’s ability to represent the

client.” (Rule 1.16(a)(2)).

So, when one lawyer is aware that a col-

league’s conduct “raises a substantial question”

about that lawyer’s fitness to practice law, there is

a duty to report the conduct to “the appropriate

professional authority.” (Rule 8.3(a)). But disclo-

sure is not required when the information is

obtained by, or in cooperation with, a member of

an approved lawyer’s assistance program” (Rule

8.3(d)). Enter Lawyers Helping Lawyers.

Solutions with Compassion

Confronting the problem of the impaired senior

lawyer is never easy. Although it is essential to

maintain the dignity of a professional who may

have served the community ably for many years,

the public has a right to expect competent help

from a licensed attorney.

If the impairment issue is raised through a

disciplinary complaint to the Virginia State Bar,

the bar’s options are limited to the processes of

the disciplinary system. But if a referral is first

made to a lawyer assistance program such as

Lawyers Helping Lawyers, the senior lawyer can

be referred for professional evaluation, counsel-

ing, and treatment. If the best course of action

is to cease law practice, then that lawyer can

make an exit with greater dignity and compas-

sion than would be possible under the discipli-

nary alternative.

Senior lawyers provide experience, wisdom,

mentoring, and models of civility for younger

generations. But when the time comes to leave,

the wise lawyer—perhaps with the help of com-

passionate colleagues—knows how to make a

graceful exit.

Endnotes:

1 http://www.aprl.net/publications/downloads/

NOBC-APRL.pdf.

2 ABA Commn. on L. & Aging & Am. Psychological

Assn., Assessment of Older Adults with Diminished

Capacity: A Handbook for Lawyers (2005) at 67.

Jack W. Burtch Jr. is a founding partner of the

Richmond law firm Macaulay & Burtch PC.

He practices labor relations and employment

law, representing management, executives, and

professionals. He was recently elected a fellow

of the Virginia Law Foundation and also serves

as adjunct professor of law at the University of

Richmond School of Law.

”Confronting the problem of the impairedsenior lawyer is never easy.


Noteworthy > VSB NEWS

www.vsb.org

At its meeting on June 12, 2014, inVirginia Beach, the Virginia State BarCouncil heard the following significantreports and took the following actions:

Amendment to Rule 1.10Council unanimously approved anamendment to Rule 1.10: ImputedDisqualification: General Rule. This pro-posed rule amendment is intended toavoid a situation in which a lawyeravoids the imputation of a conflict ofinterest by avoiding the knowledge thatanother lawyer in the firm has a conflictas to the representation.

Rule 5.8By a vote of 64-1, council approved newRule 5.8: Procedures for Lawyers Leaving

Law Firms and Dissolution of Law Firm.

The proposed rule codifies a number of

the suggestions from LEOs on departing

lawyers’ obligations into more concrete

steps to follow.

Addition to VSB Bylaws

Council unanimously approved an addi-

tion to VSB and Council Bylaws, adding

a new Part III regarding amendments:

Upon motion of a council member, the

bylaws contained in either Part I or Part

II may be amended at any regular meet-

ing of the bar council provided there has

been at least thirty days’ notice of the

proposed amendment to all Virginia

State Bar members. Amendment of the

bylaws must be by a two-thirds vote of

the council members present and voting

at that regular meeting.

Budget

The council approved a $14.6 million

budget for 2014–15.

Hiring freeze and spending reduction

Executive Director Karen A. Gould

announced a freeze on hiring and imple-

mentation of a 5 percent reduction in

spending for the fiscal year.

Highlights of the June 12, 2014, Virginia State BarCouncil Meeting

Changes atVirginia LawyerGordon Hickey has been named com-

munications director and editor of

Virginia Lawyer and Virginia Lawyer

Register, replacing Rodney A. Coggin,

who has retired after serving the

Virginia State Bar for sixteen years.

Also, beginning with this issue,

Virginia Lawyer Register is included in

the magazine and will no longer appear

as a separate publication.

Hickey joined the bar as public

information coordinator in 2011. He

has more than thirty years of experi-

ence as a writer and editor. He previ-

ously worked as press secretary for

Governor Timothy M. Kaine and as an

editor and reporter for the Richmond

Times-Dispatch and The Richmond

News Leader.

NOTICE: Check Your MCLE Hours

Online NowThe Mandatory Continuing Legal Education compliance deadline is

October 31, 2014. Go to https://member.vsb.org/vsbportal/ to review your

MCLE record.

An Interim Report will be mailed to all active members in July. Please

apply for any non-approved courses now to avoid a new late application

fee for applications received over 90 days after course attendance.

Reminder: Of the 12.0 CLE hours required each year, 2.0 must be in

ethics and 4.0 must be from live, interactive programs. If you have any

questions, please contact the MCLE Department at (804) 775-0577 or

[email protected].

Vol. 63 | June/July 2014 | VIRGINIA LAWYER 35

VSB NEWS < Noteworthy

www.vsb.org

Edward L. Weiner, of Fairfax, is the

Virginia State Bar’s new president-elect.

He will serve in that position for one

year and then succeed Kevin E.

Martingayle for the 2015–16 term.

Weiner took office June 13 during

the VSB’s Annual Meeting in Virginia

Beach.

Weiner, founder and senior partner

at Weiner Spivey & Miller PLC, is a for-

mer chair of the bar’s Conference of

Local Bar Associations. He is president

of the Fairfax Bar Association and a

past president of the Fairfax Law

Foundation. He also served on the VSB

Council of Local Bar Leaders and serves

on the Supreme Court of Virginia pro-

fessionalism faculty.

Weiner is a member of the board of

directors of the George Mason

University Center for the Performing

Arts and host of an annual Law Day

celebration that benefits the Fairfax Law

Foundation’s pro bono programs.

Weiner is the founder of Jazz 4 Justice, a

fund-raising model that partners local

bar associations with university music

departments to raise money for legal

aid and pro bono programs as well as

music scholarships.

Weiner graduated from the State

University of New York at Binghamton.

He received his law degree from the

University of Richmond and his LL.M

in international law from the

Georgetown University Law Center.

He and his wife, Maura, have two

daughters, Maurissa and Brianna.

Edward L. Weiner Is President-electof the Virginia State Bar

VSB Dues Can Be Paid OnlineLawyers can now renew their Virginia

State Bar memberships and pay their

dues online. Beginning this year

Corporate Counsel Registrants may

also use this service.

Online Membership Renewal is

available to members in good standing

with active, active/Virginia corporate

counsel, and associate memberships.

Members also still have the option of

renewing by postal mail. Dues state-

ments were mailed June 18.

The online service accepts individ-

ual attorney renewals only.

Access is provided through the

secure “Member Login” area of VSB.org.

As with the paper statements, members

who choose “Online Membership

Renewal” certify whether they are cov-

ered by a professional liability insurance

policy, select what voluntary sections

they wish to join, and pay their manda-

tory annual dues (including the manda-

tory $25 Clients’ Protection Fund fee),

plus any section dues, by credit card.

The site accepts MasterCard and

Visa, which can be applied to dues-

related payments only. These include late

fees that accrue after the membership

compliance deadline of July 31. The

membership renewal, insurance certifi-

cation, and dues payment are processed

immediately, and a receipt is issued.

Access to the Online Membership

Renewal option is available until early

October, when attorneys are administra-

tively suspended for membership non-

compliance.

The VSB E-News

Have you been receiving the

Virginia State Bar E-News? The

E-News is a brief monthly sum-

mary 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 permis-

sions list.



www.vsb.org

First VSB TECHSHOW Brings National Experts to VirginiaExploring the ever-evolving use of tech-

nology in the legal field, the Virginia

State Bar hosted its first TECHSHOW at

the Richmond Convention Center on

May 19. A sell-out crowd of about 370

Virginia lawyers – with a waiting list of

about 150—attended the event, pat-

terned after a similar, annual event

hosted by the American Bar Association.

The VSB TECHSHOW faculty

members were nationally known veteran

ABA TECHSHOW speakers who offered

a full day of legal technology CLEs.

Programs during the day included

answers to many of the questions facing

lawyers as technology continues to

advance and change the practice of law.

Featured courses began with “The MAC

Lawyer” and “Preventing Law Firm Data

Breaches,” presented by Brett Burney, of

Chagrin Falls, OH; Reid Trautz of

Fairfax; and VSB President Sharon D.

Nelson, who conceived the idea for the

VSB TECHSHOW.

Additional topics were: “Moving

Your Practice to the Cloud,” “Taking

Your Law Firm Paperless,” “Time/

Billing/Accounting/Case Management

Software for Layers,” “The Future of

Law,” “The iPad for Litigators,”

“Microsoft Office Tips for Lawyers,”

“The Virtual Lawyer,” “The Mobile

Lawyer,” “Ethical and Effective

Alternative Billing,” and “Technology

for the Small Law Office.”

Welcoming the attendees were

Justice Cleo E. Powell of the Supreme

Court of Virginia; Eugene M. Elliott Jr.,

chair of the Conference of Local Bar

Associations, which sponsored the

event; and VSB President Nelson. For a

complete list of speakers and topics go

to http://www.vsb.org/docs/conferences/

clba/VSB-techshow-form.pdf.


VSB NEWS < Noteworthy

www.vsb.org

When Timothy Park received his award

for the winning essay in this year’s Law

in Society essay contest, one of the peo-

ple looking on proudly was his father,

Major Sean Park, who returned in

October from a year-long tour of duty

in Afghanistan.

Tim Park, a freshman at Trinity

Christian School in Fairfax, won first

place in the 2014 Law in Society Contest

sponsored by the Virginia State Bar and

its Litigation Section.

Tim won for his essay “Sammy

Senior’s Legal Woes in the Age of Social

Media.” He received $2,300.

This year’s essay contest asked stu-

dents to address a hypothetical situation

where an 18-year-old male student was

filmed drinking at a party. An older

student recorded the scene on video,

e-mailed it to the younger student’s

school principal, and posted the video

and pictures to social media websites.

The student was then suspended from

school based on the information seen

on the websites. The essay is available

at http://www.vsb.org/site/public/2014

-winning-essay.

Tim received his award at the

Virginia State Bar’s Annual Meeting in

Virginia Beach on June 13. “I’m very

excited to come to Virginia Beach,” he

said. “And I am happy to bring my dad

who just came back from deployment

to Afghanistan.”

Tim said he heard about the Law

in Society Award Contest from his

teacher, R. Cody Phillips. Tim did his

research by reading the VSB website,

last year’s winning essay, and the hypo-

thetical case. He said it took about

three weeks from the time he learned

about the award until he finished the

essay during his Christmas break.

His teacher found him in the school

hallway one day and told him he had

won. “At first, I couldn’t believe it,” Tim

said. “I was at a loss for words.”

He plans to use the money to attend

the Georgetown International Relations

Institute at Georgetown University. High

school students in the program learn

about international relations and politics

and visit a number of embassies in

Washington DC.

Tim has an A average at Trinity

Christian, is on the varsity cross country

and baseball teams, and plays cello in the

advanced string orchestra. He is a chief

master sergeant in the school’s auxiliary

club, Civil Air Patrol, and also is certified

to teach snowboarding.

The Law in Society award was

developed to increase awareness of and

appreciation for the U.S. Constitution

and legal system. Park’s essay was among

dozens submitted by public, private, and

homeschooled students in the equivalentof high school.

Mara Reichle, a junior at York HighSchool in Yorktown, and Laura Cross, asenior at Douglas Freeman High Schoolin Richmond, placed second and third,respectively. Reichle will receive $1,850and Cross $1,350.

Five honorable mentions wereawarded to: Lydia Cawley ofWashington-Lee High School inArlington, DoñaMaria Reed ofLandstown High School in VirginiaBeach, Bailey Holland of James RiverHigh School in Midlothian, ChristianaJohnson of Glen Allen High School inHenrico, and Grace Baggett ofMountain View Christian Academy inWinchester.

Each honorable mention wasawarded $250. All winners receivedplaques commemorating their win andthe newest edition of Strunk andWhite’s Elements of Style.

Law in Society Essay Contest Winner

Law in Society Essay Contest Winner, Timothy Park of Trinity Christian School, poses for a photo following his awardpresentation at the Annual Meeting with his mother, Jenny; sister, Gabrielle; and father, Sean.



www.vsb.org

What’s the most important thing theVirginia State Bar does for its members?According to a survey done in February,the bar “Fosters a positive reputation forthe legal profession.”

And how well is the bar doing ataccomplishing this most important goal?The survey respondents said it is thebar’s greatest accomplishment.

Those were two of the many resultsof the survey. About 40,000 memberswere asked to participate electronically.Responses were received from 6,161members, a rate of 15.4 percent.

The survey was designed by theVSB and the American Bar AssociationDivision for Bar Services, which collectedand analyzed the data.

“We are always looking for ways toimprove the services we offer to ourmembers,” said Karen A. Gould, execu-tive director of the VSB. “We will look tothese survey results and comments as wemove forward.”

The survey was done at the sugges-tion of VSB President Sharon D. Nelson.“It’s always useful to survey the member-ship every few years,” she said. “Personally,I was struck by the positive tone of theresults and pleased that members believewe are helping to create a positive imageof the legal profession.”

People were asked to rate their satis-faction with specific VSB services on ascale of 1–5, with 5 being the highest.The five highest rated services were:• Ethics hotline (3.98)• VSB Website (3.91)• VSB E-News (3.71)• Virginia Lawyermagazine (3.61)• Virginia Lawyer Register (3.54)

As is often the case when a largenumber of people are asked a question,the responses were often mixed and evencontradictory. For example, 23 percentsaid the practice of law had become lessrewarding over time and 24 percent saidmore rewarding.

However, there were some areas ofnear unanimity. Ninety percent said theyfeel the frequency of VSB communica-tions was “just right.” A majority also feele-mail is the most effective way to com-municate, followed by bar publications.“More e-mail” was a common refrain.

Almost half of respondents saidthey rarely visit the VSB website, butthose who do said the most frequentlyvisited pages offer member resources,with 41 percent saying they often visitthose. Next are publications, with 21percent visiting often.

Only 18 percent access VirginiaLawyer online, and only 38 percent saidthey would prefer to get publicationsonline only. While a number of respon-dents said “go paperless,” about 61 per-cent said they would like publicationsavailable both in print and online (37percent) or in print only (24 percent).

Social media was not popular, with57 percent saying their firm does not usesocial media platforms. While Facebookand Twitter were not popular, a numberof respondents wanted the bar to“improve legal research tools for attor-neys,” as one respondent wrote.

CLEs drew a lot of comments.People are taking their CLEs from a vari-ety of sources including VACLE men-tioned by 54 percent and a state (otherthan VSB) or local bar association by 43percent. Twenty-five percent have takena VSB-sponsored CLE program. Manyrespondents mentioned that they wantedmore CLE programs offered online.

Respondents were asked to indicatehow concerned they were about theimpact of several issues on the profes-sion, rating those concerns on a 1–5scale. The issues were:• Public understanding and confidencein the judicial system (4.02)

• Public perception of the profession(3.80)

• Legal employment market (3.65)

They were also asked about howconcerned they were about several issuesand the impact on them and their prac-tice. Those concerns were:• Keeping current in the law (3.98)• Balancing work and personal life/fam-ily (3.93)

• Providing good service to my clientswith limited time (3.86)

Respondents rated their overall sat-isfaction with the VSB at 3.82, on a scaleof 1–5. They were asked what they likedmost and least about the VSB. Onlineresources were highly regarded, particu-larly the legal research benefit and theonline CLE reporting. The efficiency ofthe VSB staff was also mentioned. Theethics hotline and a commitment to pro-fessionalism were both mentioned fre-quently.

“The drift to preferring digital com-munications was expected—but it wasimportant to get affirmation that this iswhat the members want,” Nelson said.“And a round of applause goes to theethics hotline— the folks who answerthose phones are obviously doing a terrific job.”

The full survey is available on theVSB website at http://www.vsb.org/docs/2014-member-survey.pdf.

Survey Finds Satisfaction and Offers Suggestions for Improvement

The five highest ratedservices were:

• Ethics hotline

• VSB Website

• VSB E-News

• Virginia Lawyermagazine

• Virginia Lawyer Register


PEOPLE < Noteworthy

www.vsb.org

William E. AndersonLynchburg

November 1929 – June 2013

Robert Britton ArmstrongLexington

February 1938 – March 2014

Richard H. BarrickCharlottesville

March 1930 – December 2013

Wendell Douglas CallStafford, New York

March 1940 – April 2013

William C. ConnorJamestown, North CarolinaJune 1954 – April 2014

Charles D. Fox IIIHonolulu, Hawaii

August 1929 – February 2014

Stana Lea GarveyWashington, D.C.

January 1947 – January 2013

Irwin A. HellerRichmond

May 1942 – May 2014

Peter James KennyCharlottesville

July 1934 – April 2014

Allyson K. L. McCarronMechanicsville

April 1964 – January 2014

John F. McGinley Jr.Alexandria

July 1952 – February 2014

Peter F. McGeeSpringfield

October 1955 – March 2014

William R. MurphyMerry Point

May 1925 – September 2008

Anthony Aldon NisichLanexa

February 1970 – May 2014

David L. RaineKilmarnock

February 1922 – April 2012

George T. RitaAlexandria

December 1923 – July 2012

Joseph L. Savage Jr.Fredericksburg

May 1917 – March 2014

Michael Ray Talbert Sr.Richmond

October 1950 – March 2014

Courtland L. TraverWilliamsburg

September 1935 – March 2014

Charles E. Sizemore Jr.Virginia Beach

March 1947 – March 2014

In Memoriam Local andSpecialty BarElectionsNorfolk & Portsmouth BarAssociationThomas Wayne Williams Jr., PresidentMary Teresa Morgan, President-electJames Richard Harvey III, SecretaryRobert Vaughan Timms Jr., Treasurer

Old Dominion Bar AssociationHelivi Lue Holland, PresidentJane Maria Reynolds, President-electStacy Elizabeth Lee, SecretaryClarence Howard Brooks, Treasurer

Roanoke Bar AssociationRichard Clifford Maxwell, PresidentJoseph W. H. Mott, President-electHugh Butler Wellons, Secretary-Treasurer

The Alexandria Bar AssociationSarah Elizabeth McElveen, PresidentNicholas John Gehrig, President-electDipti Pidikiti-Smith, SecretaryDavid Andrew Lord, TreasurerChristina Margaret Brown, DirectorJoseph John DiPietro III, DirectorChristopher Mory Wright, Director

Virginia Trial Lawyers AssociationThomas Joseph Curcio, PresidentJohn Eric Lichtenstein, President-electStephanie Elaine Grana, Vice PresidentRonald Lee Livingston, Vice PresidentJason Wade Konvicka, Vice PresidentMichael Bryan Slaughter, Vice PresidentElliott Matthew Buckner, TreasurerCraig Brian Davis, Parlimentarian

Virginia Women Attorneys AssociationKyung Nam Dickerson, PresidentBetsy Sue Scott, President-electJoan McKenna, SecretaryAmanda Jean Foster, Treasurer


Noteworthy > PEOPLE

www.vsb.org

The Virginia State Bar presented awardsto the following lawyers during itsannual meeting:

WILLIAM R. RAKES LEADERSHIPIN EDUCATION AWARDPresented by the Section on the Educationof Lawyers in Virginia.

Elizabeth B. Lacy,senior justice,Supreme Court ofVirginia

Elizabeth B. Lacy,senior justice ofthe Supreme Courtof Virginia, hasbeen named the recipient of the WilliamR. Rakes Leadership in Education Awardfrom the Virginia State Bar Section onthe Education of Lawyers in Virginia.Anita O. Poston, partner in VandeventerBlack LLP, wrote that, “Justice Lacy’sprofessional career is stellar by anymeasure. Her accomplishments as alawyer and a jurist are exceptional, andit is difficult to segregate her leadershipin the field of legal education from hermany contributions to the justice systemgenerally. … She has been an extraordi-nary force for good and has providedleadership at both the state andnational levels to improve the qualityof legal education.”

TRADITION OF EXCELLENCEAWARDPresented by the General Practice Section.

Stephen M.Quillen,Lebanon

Stephen M.Quillen, a third-generation solopractitioner inRussell County,has been named the 2014 recipient of

the Tradition of Excellence Award by theVirginia State Bar’s General PracticeSection. He was nominated for theaward by Joseph M. Bowen, an attorneyin Tazewell, and Nancy C. Dickenson,assistant federal public defender inAbingdon. “For almost sixty years,Stephen M. Quillen has exemplified thehighest level of legal ethics, scholarship,civility and advocacy as counsel for thecitizens, businesses, Army Reserve andlocal government agencies of ruralRussell County and the surroundingarea in southwestern Virginia,” theywrote. They also cited his ability, insight,judgment, and common sense whilepraising the “assistance and guidancethat he has given hundreds of law schoolstudents and newly licensed lawyers. . . .He has devoted his life to the practice oflaw, to his family and to his community.”Their nomination was followed by morethan two dozen letters of support.

VIRGINIA LEGAL AID AWARDPresented by the Special Committee onAccess to Legal Services.

Christine E. Marra,Virginia PovertyLaw Center,Richmond

Christine E.(Christie) Marra isa family and hous-ing law attorneywith the Virginia Poverty Law Center,which provides legal aid training andpublic policy advocacy. A nominatingletter signed by seven members of thecenter noted that Marra “has provideddirect representation and legislative andregulatory advocacy on issues such asfoster care, adoption, domestic violence,divorce, child support, public benefitsand low-income housing. Her vigilanceand persistence have led to reforms thatmake a measurable difference in the livesof Virginians who face hard times.”

OLIVER WHITE HILL STUDENTPRO BONO AWARDPresented by the Special Committee onAccess to Legal Services.

Kathleen Dwyer,University ofRichmond

Kathleen Dwyer isa 2014 graduate ofthe University ofRichmond Schoolof Law and aVirginia Tech graduate. During her lawschool career, Dwyer volunteered withan intensive writing project through thelaw school’s Pro Bono Veterans AppealsProgram and served as part of the writ-ing team that prepared a veterans lawupdate for the Federal Circuit BarAssociation (FCBA) that was publishedin the FCBA Journal. Dwyer also partici-pated in the Criminal Appeals programat the Harry L. Carrico Center for ProBono Service, where she worked withattorney Cullen D. Seltzer of SandsAnderson in the representation of anindigent defendant. Dwyer wrote theappellate briefs and argued the casebefore the Virginia Court of Appeals.“(Dwyer’s) work on behalf of an unpop-ular indigent, accused of the most seri-ous crimes, which work (she) hasundertaken without compensation ofany sort, is consistent with the highestideals of the bar and our profession,”Seltzer wrote.

VSB Honors Attorneys


PEOPLE < Noteworthy

www.vsb.org

CLARENCE M. DUNNAVILLE, JR.ACHIEVEMENT AWARDPresented by the Diversity Conference.

Martha JPMcQuade,McQuade ByrumPLC, Alexandria

McQuade is apartner withMcQuade ByrumPLLC inAlexandria. She has practiced family lawfor twenty years. She has served on theFairfax Bar CLE Committee, the VirginiaState Bar Bench-Bar Committee, and theVirginia Supreme Court JudicialEducation Committee. She is a pastpresident of the Virginia Commission onWomen and Minorities in the LegalSystem and the Women’s Bar Associationof the District of Columbia. She isimmediate past chair of the District ofColumbia Bar Rules/Regulations/BoardProcedures Committee, and is first vicechair of the Virginia State Bar LawyerDisciplinary Board. In her letter nomi-nating McQuade, last year’s recipient,Darrel Tillar Mason, wrote: “Equality isthe very foundation of Martha’s charac-ter. Whether it be arguing for equallocker room facilities as a college studentat the University of Texas, calling atten-tion to the inequities among the gendersin her first career as a journalist, oradvocating for equal pay for women andthe advancement of women to the benchin her current legal vocation, she is aconstant advocate for equal rights andgender equality in all aspects of her life.”

R. EDWIN BURNETTE, JR.YOUNG LAWYER OF THE YEARAWARDPresented by the Young LawyersConference.

Edwin J. Wu,assistant publicdefender,Portsmouth

Edwin J. Wu hasbeen a member ofthe PortsmouthPublic DefendersOffice since September 2013. He is alsoan adjunct professor at Norfolk StateUniversity where he teaches business lawand federal income taxation to under-graduate students. In his nominating let-ter, Christopher R. Fortier described Wuas “a true community servant and amentor for the profession’s next genera-tion. His impact on this profession hasalready been large as he has opened newavenues for minority law students to getthe education they need to serve theircommunities without leaving home.”

LOCAL BAR LEADER OF THEYEAR AWARDPresented by theConference of LocalBar Associations.

Kathleen M. Uston,assistant bar coun-sel, Virginia StateBar, Alexandria

Kathleen M. (Katie)Uston has been an active member of theAlexandria bar since she graduated fromGeorge Mason University School of Lawin 1991. Her contributions to the localand state bars, and to the Alexandriacommunity have been extensive. DiptiPidikiti-Smith wrote that, “Katie con-tributes a sense of integrity in the legalprofession, promotes collegial relation-ships among the association’s membersand involvement in the bar and respondsto the legal needs within the community.

Katie has inspired and motivated meand her peers to service through herleadership.”

BAR ASSOCIATION OF THE YEARAWARDPresented by the Conference of Local BarAssociations.

Roanoke Bar Association

The Roanoke Bar Association has anextensive record of providing services tothe community, performing charitableworks, and offering pro bono services.Members of the Roanoke Bar have par-ticipated in Barrister Book Buddieswith the Roanoke City Public Schoolsfor fourteen years. They have workedwith the Salem/Roanoke County BarAssociation to offer Rule of Law classesin middle schools since 2009 and thisyear held classes in twelve schools.Members have offered You and the Laweducational seminars to the public since2009. In addition, members offer freewills, powers of attorney, advance med-ical directives, and estate planning tofirst responders; participate in the RedCross blood drive; financially supportthe Roanoke Law Library; and share inthe Oliver Hill Mentoring Program.


Noteworthy > PEOPLE

www.vsb.org

The following bar associations receivedawards from the Conference of Local BarAssociations during the Virginia StateBar Annual Meeting. The awards recog-nize projects that serve the bench, thebar, and the people of Virginia.

The CLBA makes information onwinning projects available to othergroups that want to consider similarprograms. For information, contactPaulette J. Davidson at [email protected] or (804) 775-0521.

AWARDS OF MERITFor excellence in bar projects

First-time Awardees:

Newport News Bar AssociationThe association held its first “Jazz for Justice”event in March 2014, with proceeds going tothe Legal Aid Society of Eastern Virginia,Christopher Newport University’s musicscholarship program, and the Virginia StateBar Diversity Conference. The event raised$9,000 for the beneficiaries.

The Prince William County BarAssociation Inc.The association collaborated with the PrinceWilliam County Public Library AdultEducation Department to develop theLibrary Learning Series. The program offersmonthly presentations on law-related topicsled by volunteer members of the bar. Theprograms are open to the public and free.

Roanoke Bar AssociationThe association combined its yearly “You andthe Law” event with a Senior Citizens LawDay program to create “You and the Law:Aging with Dignity.” Seminars included“Long Term Care,” “Paying for Long TermCare,” “Employing Caregivers,” “Gifts,”“Safeguarding Resources,” and “Medicare.”

Virginia Association of Defense AttorneysThe first two-day Deposition Workshopprovided lawyers with skills needed to facedown a bullying opponent, handle a lyingdeponent, pull the information needed out

of a reticent deponent, ensure that what isdiscovered in depositions is admissible incourt, use the latest technology to build acase, depose an expert witness, and handle asympathetic or minor deponent.

Warren County Bar Inc.The annual Shenandoah Valley Barrister’sBall was started in 2009 to aid the Blue RidgeLegal Services. The bar association begansponsoring the ball after members noticedthe BRLS was facing federal cuts and that col-leagues were losing their jobs. The ball hashelped save jobs and allowed Blue Ridge tocontinue to provide legal services to indigentclients. It has raised more than $5,000 a year.

Sustained Projects:

Metropolitan Richmond Women’s Bar AssociationThe association has published its“Understanding Your Domestic RelationsRights in Virginia” pamphlet for more thantwenty years. The pamphlet is designed tohelp members of the public understand thegeneral legal circumstances they may face indomestic relations problems. More than15,000 are provided for free to courts andorganizations each time it is updated.

Virginia Beach Bar AssociationThe Seatack Elementary School MentoringProgram was founded by Virginia BeachCircuit Court Judge Thomas S. Shadrick in1999 to support third graders who live in adisadvantaged area of the city. The programis jointly sponsored by Judge Shadrick andthe association and serves all sixty-six thirdgraders at the school.

CERTIFICATES OF ACHIEVEMENTFor high achievement in bar projects

Henrico County Bar AssociationThe association’s Rule of Law Program atGodwin High School involved three guestspeakers, twenty attorney volunteers, fifteenlaw enforcement officials, the school admin-istration and teachers. The program, pre-sented by the Center for the Teaching of theRule of Law, provides students with thechance to interact with members of the three

branches of government as well as the legalprofession.

The Prince William County BarAssociation Inc.After noting that many pro se litigants inJuvenile and Domestic Relations DistrictCourt lacked fundamental understanding ofhow the court works, where to file cases,what evidence to bring to court, how tobehave, and how to present a case, the associ-ation developed a brochure titled “What YouNeed to Know about Prince William CountyJuvenile Court.” The association has distrib-uted copies to clerk’s offices, probationsdesks, and intake offices.

The Prince William County BarAssociation Inc.The association received its second certificatethis year for publishing the brochure“Appearing in Court Without a Lawyer: A Guide for Pro Se Litigants.”

Roanoke Bar AssociationThe Peace of Mind Project matched associa-tion members who specialize in estate plan-ning with first responders, using theattorney’s own forms and procedures withthe object of providing free estate planningdocuments for those who put their lives onthe line every day for citizens. When the factsallow, the first responder’s spouse’s plan isincluded at no charge.

Virginia Women Attorneys Associationand Virginia State Bar DiversityConferenceThe two organizations presented the paneldiscussion “Diversity and the Rule of Law:Complementary or Contradictory” at theAnnual Meeting in 2013. The panelists spokeon affirmative actions in college admissions.

CLBA Honors Bar Associations

A little more than a year ago the Virginia

State Bar posted the first of its informa-

tional videos on YouTube. It was about

the Virginia Lawyer Referral Service.

Today, all nineteen of the planned

videos have been recorded and posted

online. The last were “About the Bar,”

which discusses why the bar exists,

“Helping the Public,” which speaks to

the many things Virginia lawyers do to

serve the public, and “Minors, Alcohol

and the Law,” which points out the penal-

ties associated with underage drinking.

The videos are the brainchild of

VSP President Sharon D. Nelson.

“So many people seek information

through videos—it was critical that a

modern bar be able to deliver funda-

mental information about the Bar via

video,” Nelson said. “I am especially

pleased that the technology allows us to

caption the videos in Spanish. This was

an extraordinary team effort and the

results are terrific!”

The other fourteen videos discuss

“The VSB Senior Citizens Handbook,”

“So You’re 18,” “Fee Dispute,” “Clients’

Protection Fund,” “Marriage in Virginia,”

“Divorce in Virginia,” “Filing an

Inquiry,” “Wills in Virginia,” “Selecting a

Lawyer,” “Bankruptcy,” “Lawyers Helping

Lawyers,” “Intellectual Property,”

“Opening Your First Office,” and

“Immigration Fraud.”

All of the videos, which were

approved by the bar’s Communications

Committee, include closed captioning in

English and Spanish.

The video scripts are based on pam-

phlets and brochures available on the

VSB website. Most are aimed at provid-

ing help to the public; a few are aimed

specifically at assisting lawyers. To view

the videos, go to the website at VSB.org

and click on the Video Briefs shortcut

The scripts were written by the

Publications Department staff and

recorded at the Virginia Information

Technology Agency headquarters in

Chester.


ET AL. < Noteworthy

www.vsb.org

The fourth annual Past President’s Dinner was held May 15 at the University of Richmond. Attending were (left to right) President-elect Kevin E. Martingayle, Hon. Joseph E. Spruill Jr., President-elect Designee Edward L. Weiner, Irving M. Blank, Michael W.Smith, Walter H. Horsley, John A.C. Keith, Jeannie Dahnk, Karen A. Gould, Jon D. Huddleston, Howard W. Martin Jr., KathleenO’Brien, W. David Harless, President Sharon D. Nelson, George Warren Shanks, Phillip V. Anderson, Michael A. Glasser, and PhilipB. Morris.

Presidents – Past, Present, and Future

VSB Video Briefs Available Online


Law Libraries

www.vsb.org

Williamsburg was Virginia’s colonialcapital from 1699 to 1780 and site ofAmerica’s first law school. Visitinglawyers will find a rich legal history inWilliamsburg. Here are some of thehighlights.

William & Mary Law SchoolIn 1779, the College of William & Maryestablished the first professorship in lawin the United States.1 George Wythe,high chancellor of Virginia, was the firstprofessor appointed to the position.2

His students included future presidentsThomas Jefferson and James Monroe,Chief Justice of the United States JohnMarshall, and prominent CongressmanHenry Clay.3 Wythe’s law classes werewell received and attracted up to fortystudents at a time.4 He was the firstscholar to offer regular instruction inAmerican constitutional law,5 a subjectthat continues to be a focus of the lawschool’s scholarship.

In 1789, Wythe was succeeded bySt. George Tucker, another legal scholarwho had a national reputation in histime. Tucker held the professorship inlaw until 1804.6 The college’s reputationat the time depended heavily on the lawprofessorship and the first two scholarswho occupied the post, Wythe andTucker.7 After Tucker’s departure, the lawprogram at William & Mary graduallylost prominence, but it continued on asmall scale until the Civil War. In 1861,the college closed and the law degreeprogram was not revived until 1920.8

The homes of Wythe and Tuckerhave been preserved and restored andare now part of the historic area knownas Colonial Williamsburg. The college’soriginal buildings have also beenrestored to their colonial appearance,and are within walking distance of

America’s Legal History Started in Williamsburgby Paul Hellyer

Statues of John Marshall and George Wythe stand in front of the law school’s main entrance.

George Wythe, America’s first law professor, lived in an elegant Georgian-style home in Williamsburg facing thePalace Green. It was completed in 1754 by Wythe’s father-in-law and was occupied by Wythe from 1755 to 1791.The house was restored to its original appearance in 1940. The Wythe house and garden are part of ColonialWilliamsburg and are open to visitors.


Law Libraries

www.vsb.org

Colonial Williamsburg and the down-town shopping area. A reconstructionof the main building (known as the Wrenbuilding, after architect ChristopherWren) is open to the public.9 There, youcan see a reconstruction of the college’soriginal lecture hall.

In 1980, the law school moved fromthe main campus to its present locationon South Henry Street, two blocks southof Colonial Williamsburg.10 Statues ofGeorge Wythe and John Marshall standin front of the law school’s mainentrance. The law library features a rarebook room that includes legal booksfrom the colonial period and an origi-nal portrait of John Marshall. Work isunder way to create a “George WytheRoom” to display a recreation ofWythe’s book collection. The lawlibrary is open to the public.

Colonial CapitolAfter the capital of colonial Virginiarelocated from Jamestown toWilliamsburg in 1699, a state house wasbuilt on the east side of Williamsburg.The colonists called their new statehouse the Capitol, the first time thisword was applied to a building in theAmerican colonies. One side of the H-shaped brick structure was used by thelegislature, the other side by the generalcourt. The building was completed in1705 and destroyed by fire in 1747. Asecond capitol building was constructedin 1751–53, and that building wasdestroyed by fire in the 19th century. 11

A reconstruction of the original1705 Capitol is now part of ColonialWilliamsburg.12 Visitors can see areconstruction of the room used by the General Court (also known as theQuarter Court), which was composedof the governor and his council.13 Thecourt handled civil and criminal cases,and sat as a court of law and a court ofchancery. It heard appeals from thecounty courts, and could also exerciseoriginal jurisdiction.14 Tour guides from

Colonial Williamsburg explain to visitorshow the court functioned.

After the state capital moved toRichmond in 1779, Wythe used the for-mer capitol building as the setting for hismoot courts and moot legislature, wherehis law students received much of theirtraining. Moot courts had once been apart of legal education in England, butin Wythe’s time the practice had beenabandoned for the previous 150 years.15

Wythe’s moot courts were a great suc-cess, and the tradition continues at thelaw school today.16

Wythe HouseWythe, America’s first law professor,lived in an elegant Georgian-style homein Williamsburg facing the Palace Green.It was completed in 1754 by Wythe’sfather-in-law and was occupied byWythe from 1755 to 1791. At the time, itwas considered the finest private homein Williamsburg. After Wythe’s depar-ture, the house remained standing inWilliamsburg and was restored to itsoriginal appearance in 1940. It is nowpart of Colonial Williamsburg.17

Wythe’s reputation extendedbeyond his work as a law professor. Herepresented Virginia at the ContinentalCongress, served as speaker of Virginia’sHouse of Delegates during theRevolution, and became a judge onVirginia’s High Court of Chancery.18

Thomas Jefferson held him in the high-est esteem and described him as his ear-liest and best friend.19

The Wythe house and garden areopen to visitors. The house was the set-ting for much of Wythe’s work as aneducator. He taught and boarded manystudents there.20

St. George Tucker HouseSt. George Tucker studied law withGeorge Wythe and in 1789 he succeededWythe as professor of law at William &Mary, a post he held until 1804.21 Asidefrom his strong reputation as an educa-tor, Tucker was famous for his edition of

Blackstone’s Commentaries on the Lawsof England. Blackstone’s Commentarieswas one of the leading legal treatises ofthe time, and law students were expectedto study it closely. Tucker improved thetreatise by including his own commen-tary on areas where American law dif-fered from English law.22 Tuckerpublished his edition of Blackstone’s in 1803 and it (known as “Tucker’sBlackstone”) became standard readingfor lawyers and law students throughoutthe country. In the early 19th century,Tucker was the most frequently-citedscholar in U.S. Supreme Courtopinions.23

Tucker’s house is preserved as a partof Colonial Williamsburg and is locatedonly a short walk from Wythe’s house.Tucker purchased the house in 1788 andit was occupied by several generations ofhis descendants. First constructed in1718–19, the house was renovated andexpanded several times before beingrestored to its colonial appearance in1930–31.24 The house, located onNicholson Street near the center oftown, is now used as a reception centerfor Colonial Williamsburg’s donors.25

Like his predecessor Wythe, Tuckeroften held classes at his home so that hecould have his library at his fingertips.26

CourthouseIn 1715, Williamsburg’s first courthousewas constructed at the corner ofEngland and Francis Streets, but it doesnot survive and little is known about itsfeatures. In 1770, a new courthouse wasbuilt in the center of Williamsburg andremained functional for more than 150years.27 This courthouse served as the hustings court for the City ofWilliamsburg as well as the county courtfor James City County. It handled civiland criminal matters.28

After the courthouse closed forofficial business in 1932, ColonialWilliamsburg used the building as amuseum until 1989. After this, the inte-rior was restored to its original appear-


Law Libraries

www.vsb.org

ance as a colonial courtroom. Today,costumed re-enactors from ColonialWilliamsburg hold mock trials basedon historical records, with visitorsinvited to participate. Recreations ofthe public stocks, a favorite photo spotfor tourists, can be found adjacent tothe courthouse. 29

Public GaolThe public gaol offers a glimpse ofVirginia’s early criminal justice system.Located just north of the capitol onNicholson Street, the public gaol wascompleted in 1704. Modified over theyears, it continued to function as a jailuntil 1910. It eventually became part ofColonial Williamsburg and was restoredto its colonial appearance in 1936.30

The gaol housed a wide variety ofinmates—criminals awaiting trial, run-away slaves, debtors, and those whofound themselves on the wrong side ofthe Revolutionary War. One of its mostnotorious inmates was the pirateBlackbeard, who was caught in 1718.31

The gaol consists of severalsparsely-furnished cells, a small enclosedyard for the prisoners, and the jailer’squarters. The cells were often over-crowded, outbreaks of disease occurredfrom time to time, and sanitation wasprimitive by today’s standards. Becauseof its limitations, the gaol was notintended for long-term incarceration.After trial, sentences were carried out byother means, such as fines, corporalpunishment, branding, or hanging.32

ConclusionWilliamsburg and the surrounding area(including Jamestown and Yorktown)offer some of the most interesting historical sites in the country. Formore information, explore the websitesfrom Colonial Williamsburg (http://www.history.org), theJamestown Settlement & YorktownVictory Center (http://historyisfun.org), and Historic Jamestowne(http://www.nps.gov/jame/index.htm).

Endnotes:1 ALONZO THOMAS DILL, GEORGEWYTHE:

TEACHER OF LIBERTY 41-42 (1979);SUSAN H. GODSON ET AL, THE COLLEGE

OF WILLIAM AND MARY: A HISTORY 170(1993).

2 Id.3 ROBERT BEVIER KIRTLAND, GEORGE

WYTHE: LAWYER, REVOLUTIONARY,JUDGE 126 (1983).

4 Dill, supra note 1, at 43-44, 515 Id. at 43.6 Godson, supra note 1, at 170.7 Id. at 192.8 Id. at 289-290, 570-71.9 College of William & Mary, Wren

Building, at http://www.wm.edu/about/history/historiccampus/wrenbuilding/(last visited April 17, 2014), archived athttp://perma.cc/9AKC-72K8.

10 Godson, supra note 1, at 841.11 OLIVER PERRY CHITWOOD, JUSTICE IN

COLONIAL VIRGINIA 38 (1905); ColonialWilliamsburg, Capitol, at http://www.history.org/almanack/places/hb/hbcap.cfm (last visited April 17, 2014),archived at http://perma.cc/CE2H-2RVU.

12 Visitors must purchase tickets to enterbuildings operated by ColonialWilliamsburg. For details, visithttp://www.colonialwilliamsburg.com/.

13 Chitwood, supra note 11, at 38, 45.14 Id. at 44-48.15 W. HAMILTON BRYSON, LEGAL

EDUCATION IN VIRGINIA, 1779-1979: ABIOGRAPHICAL APPROACH 752-53(1982); Dill, supra note 1, at 44.

16 Godson, supra note 1, at 843-844.17 HUGH HOWARD, COLONIAL HOUSES:

THE HISTORIC HOMES OF

WILLIAMSBURG 45-47 (2004); ColonialWilliamsburg, George Wythe House, athttp://www.history.org/almanack/places/hb/hbwythe.cfm (last visited April 18,2014), archived athttp://perma.cc/L6U3-36AW.

18 Bryson, supra note 15, at 751.19 Letter from Thomas Jefferson to

William DuVal, June 14, 1806.20 Godson, supra note 1, at 193; Dill, supra

note 1, at 55-56.21 Godson, supra note 1, at 170.22 Id. at 194; Bryson, supra note 15, at 662.23 Bryson, supra note 15, at 680-682.24 Godson, supra note 1, at 113-115.25 Colonial Williamsburg, The St. George

Tucker House, at http://www.history.org/foundation/development/tucker.cfm

(last visited April 17, 2014), archived athttp://perma.cc/NR67-E8BB.

26 Godson, supra note 1, at 174.27 Carl Lounsbury, Ornaments of Civic

Aspiration: The Public Buildings ofWilliamsburg, in WILLIAMSBURG,VIRGINIA: A CITY BEFORE THE STATE,1699-1999 37 (Robert P. Maccubbin, ed.2000).

28 Colonial Williamsburg, Courthouse, athttp://www.history.org/almanack/places/hb/hbcourt.cfm (last visited April 18,2014), archived athttp://perma.cc/6MYL-Y7WJ.

29 Id.30 Colonial Williamsburg, Public Gaol, at

http://www.history.org/almanack/places/hb/hbgaol.cfm (last visited April 24,2014), archived athttp://perma.cc/YH3K-4RTQ;Lounsbury, supra note 27, at 32.

31 Colonial Williamsburg, Public Gaol,supra note 30.

32 Id.

Paul Hellyer is a reference librarian at William& Mary Law School.

CLE Calendar


July 2240th Annual Recent Developments inthe Law: News from the Courts andGeneral AssemblyVideo—Abingdon, Charlottesville,Danville, Fairfax, Hampton, Richmond,Roanoke9 AM–4:25 PM

July 2340th Annual Recent Developments inthe Law: News from the Courts andGeneral AssemblyVideo—Fredericksburg, Harrisonburg,Leesburg, Lynchburg9 AM–4:25 PM

July 24Courtroom Survival GuideLive—Bristol9 AM–12:15 PM

July 2440th Annual Recent Developments inthe Law: News from the Courts andGeneral AssemblyVideo—Norfolk, Tysons Corner,Winchester9 AM–4:25 PM

July 2940th Annual Recent Developments inthe Law: News from the Courts andGeneral AssemblyVideo—Warrenton9 AM–4:25 PM

July 30Chapter 12: The Bankruptcy Code’sBest Kept SecretLive—Charlottesville/Webcast/TelephoneNOON–2 PM

July 30Recent Developments in CivilLitigation 2014Telephone3–5 PM

August 19Fundamentals of Probate Practice 2014:The Life of an EstateVideo—Abingdon, Alexandria,Charlottesville, Hampton, Richmond,Roanoke9 AM–4:15 PM

August 20Fundamentals of Probate Practice 2014:The Life of an EstateVideo—Norfolk, Tysons Corner,Warrenton9 AM–4:15 PM

August 20Recent Developments in CivilLitigation 2014Telephone3–5 PM

August 21Fundamentals of Probate Practice 2014:The Life of an EstateVideo—Winchester9 AM–4:15 PM

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

Introduction to Virginia’s SentencingGuidelinesSix-hour seminars approved for six CLEcredits, July 8 through December 17 atseveral locations. Sponsored by theVirginia Criminal SentencingCommission. Details at http://www.vcsc.virginia.gov/training.html. The intro-duction seminar is designed for theattorney or criminal justice professionalwho is new to Virginia’s sentencingguidelines. The seminar will begin with

general background information andprogress to detailed information onscoring each of the guidelines factors toinclude changes beginning July 1, 2013.Register by completing the form andsubmit to the commission. Space may belimited. Purchase manual separately.$125 fee waived for judges, common-wealth’s attorneys, P&P, public defend-ers, and staff.

Virginia Lawyer publishes at no charge notices of continuing legal education programssponsored by nonprofit bar associations and government agencies. The next issue will coverAugust 20 through October 18. Send information by July 15 to [email protected]. For otherCLE opportunities, see Virginia CLE calendar and “Current Virginia Approved Courses” athttp://www.vsb.org/site/members/mcle-courses/ or the websites of commercial providers.

http://www.nlrg.com/


Virginia Lawyer Register

www.vsb.org

DISCIPLINARY PROCEEDINGS Respondent’s Name Address of Record Action E�ective Date

CIRCUIT COURTS

*John Wesley Bonney Norfolk, VA Revocation February 26, 2014William Stephen Coleman Mechanicsville, VA Suspension w/Terms—6 months April 30, 2014Benjamin �omas Reed Norfolk, VA Suspension w/Terms—2 years March 31, 2014

DISCIPLINARY BOARD

James Pearce Brice Jr. Virginia Beach, VA Suspension—30 Days February 28, 2014David Peter Buehler New Orleans, LA Suspension—6 Months December 13, 2013Dale Eugene Duncan McLean, VA Revocation February 21, 2014Jane Karen Eshagpoor Richmond, VA Suspension—90 Days May 16, 2014Diane Baily Fenton Virginia Beach, VA Suspension—120 Days May 1, 2014David Raymond Flynn Virginia Beach, VA Revocation May 1, 2014

*John F. Kane Norfolk, VA Suspension—1 year and 1 Day March 28, 2014Douglas Edward Mataconis Warrenton, VA Suspension—9 Months March 14, 2014William Magruder McKee Norfolk, VA Suspension—6 Months February 21, 2014Marcus Noah Perdue III Covington, VA Revocation April 25, 2014Duane Timothy Phillips Linwood, NJ Suspension—3 Months April 25, 2014Jorge Antonio Rodriguez Mundelein, IL Suspension—30 Days April 25, 2014Jason Christopher Roper Mars, PA Suspension—6 Months February 17, 2015Michael Bruce Stone Las Vegas, NV Suspension w/Terms—2 years January 6, 2014 All but 90 days stayed upon compliance with terms.Douglas Paul Wachholz Reno, NV Revocation May 1, 2014

DISTRICT COMMITTEES

Vivien J. Cockburn Washington, DC Public Admonition May 19, 2014Robert Monroe Cooper Jr. Manassas, VA Public Reprimand February 19, 2014Lorie Ellen O’Donnell Leesburg, VA Public Reprimand February 21, 2014Douglass Hayden Fisher Richmond, VA Public Reprimand w/Terms January 30, 2014Richard Scott Gordon Newport News, VA Public Reprimand May 1, 2014Phillip Stone Gri�n II Winchester, VA Public Reprimand April 18, 2014Brent Alan Jackson Richmond, VA Public Reprimand w/Terms April 23, 2014Vaughan Christopher Jones Richmond, VA Public Reprimand February 10, 2014Robert Adam May Jr. Burke, VA Public Reprimand March 26, 2014Darryl Arthur Parker Richmond, VA Public Admonition w/Terms March 27, 2014John Douglas Primeau Manassas, VA Public Reprimand w/Terms March 24, 2014William L. Stables Jr. Harrisonburg, VA Public Reprimand April 1, 2014

*Respondent has noted an appeal with the Supreme Court of Virginia.



www.vsb.org

SUSPENSION—FAILURE TO PAY DISCIPLINARY COSTS

Respondent’s Name Address of Record E�ective Date Li�edWilliam Scott Bradbury Falls Church, VA May 22, 2014 ***David Peter Buehler New Orleans, LA May 28, 2014 ***Sara Elizabeth Chase Henrico, VA February 11, 2014 *** February 26, 2014 ***Kyle Mars Courtnall Fairfax, VA March 7, 2014 ***Reuben Voll Greene Richmond, VA January 4, 2014 ***Clive Allen O’Leary Fredericksburg, VA April 30, 2014 ***David Garrett Mullins Virginia Beach, VA February 18, 2014 ***

SUSPENSION—FAILURE TO COMPLY WITH SUBPOENA

Respondent’s Name Address of Record E�ective Date Li�edDavid Richards Dubose Richmond, VA March 24, 2014 March 27, 2014William Shawn McDaniel Bristol, VA March 11, 2014 ***

DISCIPLINARY SUMMARIES�e 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, e�. 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 O�ce at (804) 775-0539 or [email protected]. VSB docket numbers are provided.

CIRCUIT COURTJohn Wesley BonneyNorfolk, Virginia12-021-086444, 12-021-091597

*On April 30, 2014, Mr. Bonney �led an appeal with the Supreme Court of Virginia.On February 26, 2014, a three-judge panel of the Circuit Court of the City of Norfolk revoked John Wesley Bonney’s license to practice law for violating professional rules that govern competence, safekeeping property, candor toward the tribunal, and misconduct. RPC 1.1, 1.15(a), 3.3(a)(1), 8.4(c)http://www.vsb.org/docs/Bonney-060414.pdf

William Stephen ColemanMechanicsville, Virginia12-060-091523E�ective April 30, 2014, a three-judge panel of the Circuit Court of the City of Richmond suspended William Stephen Coleman’s license to practice law for six months with terms for violating professional rules that govern safekeeping property. �is was an agreed disposition of misconduct charges. RPC 1.15(a)(3)(i,ii), (b)(3), 1.15(b)(5), (c)(1), (c)(2)(i,ii), (c)(3,4), (d)(2), (d)(3)(i-iv), (d)(4) http://www.vsb.org/docs/Coleman-060414.pdf

Benjamin �omas ReedNorfolk, Virginia13-021-093607E�ective March 31, 2014, the Circuit Court of the City of Norfolk suspended Benjamin �omas Reed’s license to practice law for two years with terms for violating professional rules that govern safekeeping property and misconduct. RPC 1.15(a)(1)(3)(c)(1-3)(d)(3), 8.4(b,c)http://www.vsb.org/docs/Reed-060414.pdf

DISCIPLINARY BOARDJames Pearce Brice Jr.Virginia Beach, Virginia13-022-093126E�ective February 28, 2014, the Virginia State Bar Disciplinary Board suspended James Pearce Brice Jr.’s license to practice law for thirty days for violating professional rules that govern safekeeping property and bar admission and disciplinary matters. �is was an agreed disposition of misconduct charges. RPC 1.15(a)(3)(i,ii),(b)(3)(5),(c)(1)(2)(i,ii),(d)(3)(i-iv)(4); 8.1(a),(c) http://www.vsb.org/docs/Brice-040114.pdf



www.vsb.org

DISCIPLINARY BOARDDavid Peter BuehlerNew Orleans, Louisiana12-021-090634On December 13, 2013, the Virginia State Bar Disciplinary Board suspended David Peter Buehler’s license to practice law for six months for violating professional rules that govern diligence, meritorious claims and contentions, candor toward the tribunal, fairness to opposing party and counsel, respect for rights of third persons, and misconduct. RPC 1.3(a), 3.1, 3.3(a)(1), 3.4(g), 4.4, 8.4(c)http://www.vsb.org/docs/Buehler-040114.pdf

Dale Eugene DuncanMcLean, Virginia10-042-082497On February 21, 2014, the Virginia State Bar Disciplinary Board revoked Dale Eugene Duncan’s license to practice law for violating professional rules that govern competence; communication; con�ict of interest: general rule; declining or terminating representation; and misconduct. RPC 1.1, 1.4(b), 1.7(a)(1),(a)(2),(b)(4), 1.16(a)(1), 8.4(a),(c) http://www.vsb.org/docs/Duncan-040114.pdf Jane Karen EshagpoorRichmond, Virginia13-032-094660, 14-032-096051, 14-032-096820, 14-032-097550, and 14-032-097766E�ective May 16, 2014, the Virginia State Bar Disciplinary Board suspended Jane Karen Eshagpoor’s license to practice law for ninety days for violating professional rules that govern communication, safekeeping property, declining or terminating representation, unauthorized practice of law; multijurisdictional practice of law, bar admission and disciplinary matters, and misconduct. �is was an agreed disposition of misconduct charges. RPC 1.4(a), 1.15(a)(1)(b)(3-5)(c)(2)(i,ii), 1.16(d), 5.5(c), 8.1(c), 8.4(c)http://www.vsb.org/docs/Eshagpoor-060414.pdf

Diane Baily FentonVirginia Beach, Virginia13-022-094878E�ective May 1, 2014, the Virginia State Bar Disciplinary Board suspended Diane Baily Fenton’s license to practice law for 120 days for violating professional rules that govern diligence, communication, and declining or terminating representation. �is was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a), 1.16(a)(1)(c)http://www.vsb.org/docs/Fenton-051614.pdf

David Raymond FlynnVirginia Beach, Virginia14-021-097890, 14-021-097891, 14-021-097940, 14-021-097942, 14-021-097971On May 1, 2014, the Virginia State Bar Disciplinary Board revoked David Raymond Flynn’s license to practice law. In consenting to the revocation, Mr. Flynn acknowledged that if the disciplinary proceedings based on his alleged misconduct were brought to a conclusion he could not successfully defend them. Rules Part 6, § IV, ¶ 13-28http://www.vsb.org/docs/Flynn-051514.pdf

John F. KaneNorfolk, Virginia13-022-093947

*On April 7, 2014, Mr. Kane �led an appeal with the Supreme Court of Virginia

On March 28, 2014, the Virginia State Bar Disciplinary Board suspended John F. Kane’s license to practice law for one year and one day for violating professional rules that govern misconduct and unauthorized practice of law; multijurisdictional practice of law. RPC 5.5(c), 8.4(b)http://www.vsb.org/docs/Kane-051614.pdf

Douglas Edward MataconisWarrenton, Virginia13-053-094175E�ective March 14, 2014, the Virginia State Bar Disciplinary Board suspended Douglas Edward Mataconis’s license to practice law for nine months for violating professional rules that govern competence, scope of representation, diligence, communication, fees, and bar admission and disciplinary matters. �is was an agreed disposition of misconduct charges. RPC 1.1, 1.2(a), 1.3(a)(b), 1.4(a), 1.5(b)(c), 8.1(c)http://www.vsb.org/docs/Mataconis-051614.pdf

William Magruder McKeeNorfolk, Virginia14-000-098116On February 21, 2014, the Virginia State Bar summarily suspended William Magruder McKee’s license to practice law for six months for failing to comply with the duties of a suspended attorney. Rules Part 6 § IV, ¶ 13-29http://www.vsb.org/docs/McKee-060414.pdf



www.vsb.org

DISCIPLINARY BOARD Marcus Noah Perdue IIICovington, Virginia14-000-098235On April 25, 2014, the Virginia State Bar Disciplinary Board revoked Marcus Noah Perdue III’s license to practice law for failing to comply with requirements imposed on him by the board’s one-year suspension order issued August 23, 2013. Rules Part 6, § IV ¶ 13-29http://www.vsb.org/docs/Perdue-060414.pdf

Duane Timothy PhillipsLinwood, New Jersey14-000-098945E�ective April 25, 2014, the Virginia State Bar Disciplinary Board suspended Duane Timothy Phillips’s license to practice law for three months based on his three-month suspension by the Supreme Court of the State of New Jersey. Mr. Phillips’s Virginia license had been summarily suspended on April 7, 2014. Rules Part 6, § IV, ¶ 13-24(G)http://www.vsb.org/docs/Phillips-051614.pdf Jorge Antonio RodriquezMundelein, Illinois14-000-098810On April 25, 2014, the Virginia State Bar Disciplinary Board suspended Jorge Antonio Rodriguez’s license to practice law for thirty days based on his thirty-day suspension by the Supreme Court of the State of Illinois. Mr. Rodriguez’s license was summarily suspended on April 7, 2014, and he was ordered to show cause why the same discipline that was imposed in Illinois should not be imposed in Virginia. Rules Part 6, § IV, ¶ 13-24.Ghttp://www.vsb.org/docs/Rodriguez-060414.pdf

Jason Christopher RoperMars, Pennsylvania14-000-098401On March 28, 2014, the Virginia State Bar Disciplinary Board suspended Jason Christopher Roper’s license to practice law for six months for failing to ful�ll terms of a public reprimand ordered June 25, 2013. �e six-month suspension will begin at the conclusion of a current three-year suspension imposed February 17, 2012. RPC 1.6; 1.7; 1.9; 1.16; 3.1; 3.3; 3.4(i); 3.4(j); 4.2; 4.4; 8.1(a); 8.4(a)(b)(c)http://www.vsb.org/docs/Roper-051514.pdf

Michael Bruce StoneLas Vegas, Nevada14-000-097780E�ective January 6, 2014, the Virginia State Bar Disciplinary Board suspended Michael Bruce Stone’s license to practice law for two years, with all but ninety days stayed conditioned upon his compliance with terms. �e Virginia ruling is based on the actions taken by the Supreme Court of California. Part Six, § IV, ¶ 13-24http://www.vsb.org/docs/Stone-040114.pdf

Douglas Paul WachholzReno, Nevada12-033-090763, 14-000-099307

On May 1, 2014, the Virginia State Bar revoked Douglas Paul Wachholz’s license to practice law. In consenting to the revocation, he acknowledged that the material facts upon which the allegations are predicated are true and that he could not successfully defend against them.http://www.vsb.org/docs/Wachholz-060914.pdf

DISTRICT COMMITTEESVivien J. CockburnWashington, D.C.14-041-096801On May 14, 2014, the Virginia State Bar Fourth District Subcommittee issued a public admonition to Vivien J. Cockburn for violating Washington, D.C., professional rules that govern special responsibilities of a prosecutor and misconduct. �is was an agreed disposition of misconduct charges. Rules Part 6, § IV, ¶ 13-15.B.4; Washington, D.C., RPC 3.8(e), 8.4(d)http://www.vsb.org/docs/Cockburn-060414.pdf

Robert Monroe Cooper Jr.Manassas, Virginia12-053-090380On February 19, 2014, the Virginia State Bar Fi�h District

– Section III Subcommittee issued a public reprimand to Robert Monroe Cooper Jr. for violating professional rules that govern diligence and communication. �is was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a)http://www.vsb.org/docs/Cooper-040114.pdf



www.vsb.org

Lorie Ellen O’DonnellLeesburg, Virginia12-070-091544On February 21, 2014, the Virginia State Bar Seventh District Subcommittee issued a public reprimand to Lorie Ellen O’Donnell for violating professional rules that govern misconduct. �is was an agreed disposition of misconduct charges. RPC 8.4(b)http://www.vsb.org/docs/O’Donnell-040114.pdf

Douglass Hayden FisherRichmond, Virginia13-032-094098On January 30, 2014, the Virginia State Bar �ird District Subcommittee, Section II, issued a public reprimand with terms to Douglass Hayden Fisher for violating professional rules that govern diligence, communication, safekeeping property, and declining or terminating representation. �is was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(b), 1.15(b)(3)(4), 1.16(c)(d)http://www.vsb.org/docs/Fisher-040114.pdf

Richard Scott GordonNewport News, Virginia13-010-092947 and 13-010-093626On May 1, 2014, the Virginia State Bar First District Subcommittee issued a public reprimand to Richard Scott Gordon for violating professional rules that govern diligence, fairness to opposing party and counsel, and bar admission and disciplinary matters. �is was an agreed disposition of misconduct charges. RPC 1.3(a), 3.4(d), 8.1(c) http://www.vsb.org/docs/Gordon-051514.pdf

Phillip Stone Gri�n IIWinchester, Virginia12-070-090760 On April 18, 2014, the Virginia State Bar Seventh District Subcommittee issued a public reprimand to Phillip Stone Gri�n II for violating a professional rule that governs communication with persons represented by counsel. �is was an agreed disposition of misconduct charges. RPC 4.2http://www.vsb.org/docs/Grif�n-051514.pdf

Brent Alan JacksonRichmond, Virginia14-032-096787On April 23, 2014, the Virginia State Bar �ird District Subcommittee, Section II issued a public reprimand with terms to Brent Alan Jackson for violating professional rules

that govern safekeeping property and con�ict of interest: general rule. �is was an agreed disposition of misconduct charges. RPC 1.7(a)(1,2)(b)(1-4), pre-June 15, 2011 1.15(e)(1)(iii), post June 15, 2011 1.15(c)(2)(i-ii)http://www.vsb.org/docs/Jackson-051514.pdf

Vaughan Christopher JonesRichmond, Virginia13-033-093486On February 10, 2014, the Virginia State Bar �ird District Subcommittee issued a public reprimand to Vaughan Christopher Jones for violating a professional rule that governs safekeeping property. �is was an agreed disposition of misconduct charges. RPC 1.15(b)(5),(d)(3)(ii)http://www.vsb.org/docs/Jones-060414.pdf

Robert Adam May Jr.Burke, Virginia13-053-095250, 13-053-095585On March 26, 2014, the Virginia State Bar Fi�h District

– Section III Subcommittee issued a public reprimand to Robert Adam May Jr. for violating professional rules that govern bar admission and disciplinary matters. �is was an agreed disposition of misconduct matters. RPC 8.1(c)http://www.vsb.org/docs/MAY-051614.pdf

John Douglas PrimeauManassas, Virginia13-053-094029On March 24, 2014, the Virginia State Bar Fi�h District – Section III Subcommittee issued a public reprimand with terms to John Douglas Primeau for violating professional rules that govern scope of representation, diligence, and communication. �is was an agreed disposition of misconduct charges. RPC 1.2(a), 1.3(a-c), 1.4(a,b) http://www.vsb.org/docs/Primeau-051614.pdf

William L. Stables Jr.Harrisonburg, Virginia14-070-098677On April 1, 2014, the Virginia State Bar Seventh District Committee issued a public reprimand to William L. Stables Jr. for failing to comply with the terms of a public admonition issued by the Seventh District Subcommittee on June 3, 2013. Mr. Stables was found to have violated professional rules that govern diligence, communication, and bar admission and disciplinary matters. Part 6, § IV, ¶ 13-16.Z, RPC 1.3(a), 1.4(a), 8.1(c)http://www.vsb.org/docs/Stables-051614.pdf



www.vsb.org

NOTICES TO MEMBERSSUPREME COURT OF VIRGINIA ADOPTS RULE CHANGES AND AMENDMENTSOn May 1, 2014, the Supreme Court of Virginia adopted amendments to Paragraph 17, e�ective immediately: Mandatory Continuing Legal Education.

Details: http://www.vsb.org/docs/SCV-order-para17-050114.pdf

E�ective May 16, 2014, the Court amended rules 5:1A, 5:17, and 5A:12, and added rule 5A:1A. All concern Penalties for Non-compliance; Show Cause; Dismissal, and Petitions for Appeal.

Details: http://www.courts.state.va.us/courts/scv/amendments/2014_05_16_rule_5_1a_rule_5_17_rule_5a_1A_rule%205a_12.pdf

E�ective July 1, 2014, the Court added Rule 1A:8: Military Spouse Provisional Admission.

Details: http://www.courts.state.va.us/courts/scv/amendments/2014_05_16_rule_1a_8.pdf

COUNCIL APPROVES AMENDMENT AND NEW RULEOn June 12, the council unanimously approved and forwarded to the Supreme Court of Virginia an amendment to Rule 1.10: Imputed Disquali�cation: General Rule

Details: http://www.vsb.org/docs/prop-rule1-10-032414.pdf

Also on June 12, by a vote of 64-1, the council approved and forwarded to the Court new Rule 5.8: Procedures for Lawyers Leaving Law Firms and Dissolution of Law Firm.

Details: http://www.vsb.org/docs/prop-rule-5-8_112513.pdf

ADDITION TO VSB BYLAWSOn June 12, the council unanimously approved an addition to VSB and Council Bylaws, adding a new Part III regarding amendments: Upon motion of a council member, the bylaws contained in either Part I or Part II may be amended at any regular meeting of the bar council provided there has been at least thirty days’ notice of the proposed amendment to all Virginia State Bar members.

Amendment of the bylaws must be by a two-thirds vote of the council members present and voting at that regular meeting.

COMMENTS SOUGHT ON AMENDMENTS TO RULES OF THE SUPREME COURT OF VIRGINIA�e Advisory Committee on Rules of Practice and Procedure, a subcommittee of Judicial Council, seeks comments on proposed amendments to Rule 2:803, Business Records Rule Reformatting,

Details: http://www.courts.state.va.us/courts/scv/business_records_rule_reformatting.pdf

�e committee also seeks comments on proposed Rule 4:11, Numerical Limit on Requests for Admissions,

Details: http://www.courts.state.va.us/courts/scv/numerical_limit_requests_for_admissions.pdf

Comments on the desirability of this reformatting of Rule 2:803(6) into this outline format – with the intention of keeping the standards and doctrines of business records law in Virginia unchanged – may be sent by August 15 to Steven Dalle Mura, Director of Research, Supreme Court of Virginia, 100 North Ninth Street, Richmond, VA 23219, or by e-mail, with the subject line “Rule 2:803(6),” to [email protected].

Comments on dra� Rule 4:11 may be sent by August 15 to Steven Dalle Mura, Director of Research, Supreme Court of Virginia, 100 North Ninth Street, Richmond, VA 23219, or by e-mail, with the subject line: “Rule 4:11(e),” to [email protected].

EXECUTIVE COMMITTEE SEEKS COMMENTS ON PROPOSAL TO ADD E-MAIL AND PHONE NUMBER TO ADDRESS OF RECORD�e Virginia State Bar Executive Committee is seeking public comment on proposed changes to Rules of the Supreme Court of Virginia Part 6, § IV, Organization & Government of the Virginia State Bar, Paragraph 3. Comments should be submitted to Karen A. Gould, Executive Director, Virginia State Bar, 1111 E. Main St., Suite 700, Richmond, VA 23219-3565, no later than the end of the business day on August 15, 2014. Comments may be submitted via e-mail to [email protected].



www.vsb.org

3. Classes of Membership—Members of the Virginia State Bar shall be divided into �ve 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 o�cial mailings and notices of disciplinary proceedings. �e address of record shall include a current street address, e-mail address (if any), telephone number, and any post o�ce 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. �e 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 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 e�ective 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 o�cial purposes.

COMMENTS SOUGHT ON PROPOSED AMENDMENT TO COUNCIL ELECTION PROCEDURES�e Bylaw Amendment Committee, consisting of Howard W. Martin, Jr., Jon D. Huddleston, and Adam D. Elfenbein, has proposed the following amendment to the council bylaws, Article II, Sec. 2, in order to prevent the elimination of ballots when the voter fails to vote for precisely the number of positions to be �lled on council from his or her circuit. By adding the language “or fewer person(s),” this permits the voter to cast a ballot for fewer persons than positions to be �lled, but does not permit them to write-in and vote for more candidates than there are positions to be �lled. It also eliminates the disquali�cation of ballots when the ballot has been cast for just one candidate, even though more than one position is to be �lled.

Comments should be submitted to Karen A. Gould, executive director, Virginia State Bar, 1111 E. Main St., Suite 700, Richmond, VA 23219-3565, no later than the end of the business day on August 15, 2014. Comments may be submitted via e-mail to [email protected].

PROPOSED AMENDMENTArticle II Election of CouncilSec. 2 Ballot * * * Write-in votes shall be permitted, but the executive director may exclude illegible write-in votes and shall exclude write-in votes for any candidate ineligible to serve pursuant to these bylaws, if elected. In those instances where there are more candidates for Council positions than there are positions to be �lled from the circuit, the ballot will contain instructions to vote only for the same number of persons or fewer person(s) as there are positions to be �lled; ballots which do not conform to this requirement will not be counted.

LEGAL ETHICS OPINION 1873On March 20, 2014, the Virginia State Bar’s Standing Committee on Legal Ethics issued Legal Ethics Opinion 1873 as �nal:

Continued Use of Former Firm Name in URL a�er Firm Name Has Changed.

Details: http://www.vsb.org/docs/LEO/1873.pdf

COMMITTEE ON LAWYER DISCIPLINE SEEKS PUBLIC COMMENT CONCERNING INSURANCE RULEOn May 7, 2014, the Committee on Lawyer Discipline (COLD) voted unanimously to approve the proposed Paragraph 13.4 to be included in Part Six, Section IV of the Rules of the Supreme Court of Virginia. �is paragraph is in response to changes to Virginia Code Section 54.1-3935(D) which charge the bar with setting standards for minimum malpractice coverage when disciplinary charges heard by a three-judge panel result in a �nding of criminal conduct involving loss of client property. Comments or questions should be submitted in writing to Executive Director, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, no later than August 15, 2014. �e Virginia State Bar Council will consider the proposed amendments when it meets on October 24, 2014.



www.vsb.org

PART SIX, SECTION IV, RULES OF THE SUPREME COURT OF VIRGINIA13.4 Insurance coverage requirement for respondents under Va. Code § 54.1-3935(D)

Pursuant to Va. Code § 54.1-3935(D), when an attorney who has been found guilty of engaging in criminal activity that violates the Rules of Professional Conduct and results in the loss of property of one or more of the attorney’s clients and has been required by a three-judge court to maintain professional malpractice insurance during the time he or she is licensed to practice law in the Commonwealth of Virginia, that attorney shall carry such coverage in the minimum amount of $500,000 per claim and $1 million in the aggregate with a maximum $10,000 deductible, with a Virginia licensed insurer, eligible surplus line insurer or registered risk retention group. �e coverage provider must have an A.M. Best minimum rating of A-.

�e attorney shall require the insurer to include language in the policy specifying that the VSB be given notice of cancellation or nonrenewal. �e attorney shall certify such coverage and the notice requirement to the VSB on a yearly basis with a certi�cate of insurance provided to the VSB by an agent or broker licensed in Virginia. �is certi�cate must be received initially within 10 days a�er inception or reinstatement of the policy.

COMMITTEE ON LAWYER DISCIPLINE SEEKS PUBLIC COMMENT ON DISCLOSURE OF INFORMATION RULEOn May 7, 2014, the Committee on Lawyer Discipline (COLD) approved amendments to Part Six, § IV, ¶ 13 of the Rules of the Supreme Court of Virginia. �e proposed Paragraph 13-30.M clari�es bar counsel’s obligation to disclose certain information notwithstanding rules that proscribe such disclosure on the basis that the information is con�dential. Paragraph 13-12.H addresses the notice required when information is disclosed as anticipated in proposed Paragraph 13-30.M. Comments or questions should be submitted in writing to Executive Director, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, no later than August 15, 2014. �e Virginia State Bar Council will consider the proposed amendments when it meets on October 24, 2014.

13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

13-12 SUBSTANTIAL COMPLIANCE, NOTICE AND EVIDENTIARY RULINGS, AND ADDRESS NOTIFICATION * * * H. Notice. 1. Whenever any notice or other writing to be directed

to an Attorney is required or permitted under this Rule, such notice or other writing shall be deemed e�ective when mailed by �rst class mail to the Attorney at the Attorney’s last address on record for membership purposes with the Bar or, if the Attorney is a Foreign Lawyer, a lawyer engaged pro hac vice in the practice of law in Virginia, or a lawyer not admitted in Virginia, when mailed by �rst class mail to the last known address on record with the Bar or, if no such address is on record, then to the Clerk of the Supreme Court of Virginia.

2. Whenever any notice or other writing is to be directed to a Complainant is required or permitted under this Rule, such notice or other writing shall be deemed e�ective when mailed by �rst class mail to the Complainant at the Complainant’s last known address with the Bar.

* * *13-30 CONFIDENTIALITY OF DISCIPLINARY RECORDS AND PROCEEDINGS * * * M. Disclosure of Exculpatory Evidence. Bar Counsel

shall comply with the duty to disclose exculpatory evidence under these rules regardless of whether the information is considered con�dential under Paragraph 13-30. �e Attorney or Complainant who is the subject of the disclosure shall be noti�ed whenever this information is transmitted pursuant to this subparagraph unless Bar Counsel decides that giving this notice will prejudice a disciplinary investigation.

LICENSE FORFEITURES�e licenses of the members of the Virginia State Bar who have forfeited their licenses to practice law for failure to pay annual membership fees are posted at: http://www.vsb.org/site/members/license-forfeitures.

Forfeiture is governed by Section 54.1-3914, Code of Virginia, Title 54.1, Professions and Occupations. �e list is current as of June, 16, 2014.


Professional Notices

www.vsb.org

William H. Archambault, ofCharlottesville, and Edward B.McMahon Jr., of Middleburg, havebeen inducted as fellows in theAmerican College of Trial Lawyers.

Michael J. Elston, a former assistantU.S. attorney in the Eastern District ofVirginia, has been appointed by thepostmaster general to the position ofassociate general counsel and chiefethics and compliance officer at theU.S. Postal Service.

The Hunter Law Firm opened its fourthoffice, in Portsmouth, on June 2.

Matthew B. Kirsner has been appointedto the board of directors at EckertSeamans Cherin & Mellott LLC for athree-year term.

Steven P. Letourneau, partner at Inman& Strickler PLC, has been named to theboard of management for the ArmedService YMCA.

Lawyers Helping Lawyers has appointedfive new members to its board ofdirectors. They will serve a two-yearterm beginning June 2014. They areClaire G. Cardwell with Stone, Cardwell& Dinkin PLC, Andrew Lucchettiwith Halperin Law Center, James M.McCauley with the Virginia State Bar,Kenneth Dennis Sisk with McGuireWoods, and Asha S. Pandya, who is inprivate practice.

The Local Government Attorneys ofVirginia Inc. elected new officers andmembers of the board of directors atits spring conference in Charlottesville.The following officers and directorswill lead the LGA for the 2014–15year: President G. Carl Boggess,Vice�President Roderick R. Ingram,Treasurer W. Clarke Whitfield Jr.,Secretary George A. McAndrews;directors Haskell C. Brown III,Deborah C. Icenhour, Michelle R.Robl, and Roderick B. Williams.

K. Lorraine Lord has been appointedchief staff attorney for the SupremeCourt of Virginia. She was senior coun-sel in the Complex CommercialLitigation Practice Group at McGuireWoods LLP in Richmond.

Mark J. Maier, a partner in McGuireWoods LLP’s Tysons Corner office, hasbeen promoted to full colonel in the U.S.Army Reserves and will take over as theU.S. Army’s emergency preparednessofficer for Maryland in June.

Letha Sgritta McDowell has joinedInterActive Legal of Melbourne, FL, asspecial advisor on elder law planning.

Peckar & Abramson PC (P&A) hasexpanded its Washington, DC, officewith the addition of seven attorneysfrom Seeger PC.

Sands Anderson PC was honored asthe LINC Volunteer Law Firm of theYear on May 16 at the Legal InformationNetwork of Cancer Spring AwardsLuncheon.

Stephen A. Saltzburg, the Wallace andBeverley Woodbury university professorof law and co-director of the Litigationand Dispute Resolution Program at TheGeorge Washington University LawSchool, received the American BarAssociation Grassroots Advocacy Awardon April 8 for his outstanding efforts insupport of some of the association’smost important policy positions as theyrelate to criminal justice.

Jennifer O. Schiffer has joined Bean,Kinney & Korman as an attorney.Schiffer represents local businesses intheir corporate structuring, civil litiga-tion, and commercial leasing.

Gerard M. Stegmaier has joinedGoodwin Procter’s Privacy & DataSecurity Practice as a partner in itsWashington, DC, office. He comes to

Goodwin from Wilson SonsiniGoodrich & Rosati.

Robert M. Tata has been appointedmanaging partner of the Hunton &Williams Norfolk office. He has assumedresponsibilities from Gregory N.Stillman, who managed the office sinceits opening in 1979. Tata has been withthe firm since September 1989.

P. David Tarter has been elected mayorof Falls Church. He is founder and prin-cipal of Tarter NoVa Law in Arlington,where he specializes in real estate andbusiness law.

Norman A. Thomas has opened thefirm of Norman A. Thomas PLLC inRichmond, focusing on appellate litiga-tion. He recently retired from the Officeof the Attorney General of Virginia

J.T. “Tom” Tokarz, Henrico Countydeputy county attorney, was honored bythe Local Government Attorneys ofVirginia Inc. with the 2014 CherinAward for Outstanding Deputy orAssistant Local Government Attorney atthe association’s spring conference inCharlottesville.

Varela, Lee, Metz & Guarino LLP hasopened a construction and engineeringlaw firm in Tysons Corner.

Professional Notices

E-mail your news to

[email protected] for

publication inVirginia Lawyer.

All professional notices are free to

VSB members and may be edited

for length and clarity.


Classified Ads

www.vsb.org

RENTALS

ENJOIX ST. CROIX—15% LAWYERS DISCOUNT!! U.S. Virgin Islands.Completely Renovated Fully AirConditioned Villa! Our agent will greetyou at the airport and take you to ourspectacular villa, “The Islander,” withbreathtaking Caribbean views, located in most desirable and prestigious eastisland location. Our unique architec-turally designed home now includes fourMBR suites—the most recent also has akitchen, office area, TV viewing area andpatio. Villa has private pool, all ameni-ties. Walk to gorgeous sandy beach, snor-keling and two restaurants. Tennis, golf,sport fishing and scuba dive five minutesaway. Our on island agent will provideeverything to make your vacation per-fect. Owner gives lawyers 15% discount!Call Terese Colling, (202) 347-9060 or e-mail [email protected] out the website for the villa atstcroixvacations.com, andenjoystcroix.com and go to You Tube – The Islander St. Croix to watch new video.

ADVERTISER’S INDEX

ALPS Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . inside front cover and 5

First Choice Paralegal Group, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Geronimo Development Corporation . . . . . . . . . . . . . . . . . . . . . back cover

L. Steven Emmert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

McAdoo Gordon & Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

National Legal Research Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Jeffrey M. Summers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Virginia State Bar Members’ Insurance Center . . . . . . . . . . . . . . . . . . . . . 7

Advertisements and Classified Ads

Published five 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 [email protected].

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)

classified @dsONLINE

Virginia Lawyer classifiedsare now available online!

Print & Online and Online Only rates available:http://www.vsb.org/site/publications/rates/#class

contact: Linda McElroy – [email protected]

VSB Staff Directory

Frequently requested bar contact

information is available online at

www.vsb.org/site/about/bar-staff.

VIRGINIA STATE BAR • 76TH ANNUAL MEETING


ANNUAL MEETING

VIRGINIA STATE BAR

76JUNE 12-15 2014V I R G I N I A B E A C H

The 76th Annual Meeting of the VirginiaState Bar was billed as a “Rediscovery,”and those who came to Virginia BeachJune 12–15 found a treasure trove ofnew meeting formats and new venues.

The events that in previous yearswere held at the Cavalier Hotel were allmoved this year because the old site is inthe throes of demolition and reconstruc-tion. That meant the bar services staff atthe VSB spent a year reorganizing themeeting and developing a new mobileapp (VSB Events) for smartphone users,which provided attendees with a sched-ule of all events at their fingertips.

Staff members Bet Keller, TerryPatrick, Maureen Stengel, CatherineHuband, and Dolly Shaffner madeuncounted phone calls and trips to thebeach from Richmond to arrange fornew meeting locations and lodgingagreements at the Holiday Inn NorthBeach, Sheraton Oceanfront, and HiltonVirginia Beach Oceanfront. Membersalso stayed at the Hilton Garden InnOceanfront and Marriott CourtyardOceanfront North. The scattered sitesled to a little more hiking betweenevents, though the city provided a freeshuttle service for those less inclinedtoward the extra exercise.

About 600 members, plus theirguests, attended, an increase from lastyear. While the events were a little

more difficult to get to, they were wellworth the trip.

The Council reception and dinneron Wednesday night at the Sheraton fea-tured the traditional presentation of acaricature of the outgoing president,Sharon D. Nelson. Executive DirectorKaren A. Gould handed over the draw-ing and said, “You have been a delightto work with. Every time I’ve neededSharon, she has been there for me.”

Among the many awards presentedduring the meeting was the William R.Rakes Leadership in Education Award.Supreme Court of Virginia Senior JusticeElizabeth B. Lacy received the award atthe Hilton on Thursday. Legal education“is the bedrock of our successful conceptof the rule of law,” she said in acceptingthe award.

On Friday, members attended fourshowcase CLEs at the Hilton andSheraton hotels during the day.Sandwiched between them was theYoung Lawyers Conference Membershipand Fellows Luncheon, honoring YoungLawyer of the Year Winner Edwin J. Wuof Virginia Beach, and the Legal Aid andOliver Hill Pro Bono Awards Luncheon.The Legal Aid/Pro Bono event includedthe presentation of the legal aid awardto Christine E. “Christie” Marra, of theVirginia Poverty Law Center; and theOliver White Hill Law Student Pro BonoAward to Kathleen Dwyer, a third year

law student at the University ofRichmond. The keynote speaker, James J.Sandman, president of the Legal ServicesCorporation, gave an impassionedspeech in which he noted that our sys-tem of justice “is a system that workspretty well if you have a lawyer, not wellat all if you don’t.”

The annual banquet and installa-tion of the new president, Kevin E.Martingayle, was also held Fridayevening. In his installation address to acrowded group of spectators, includingVirginia Attorney General Mark R.Herring, Martingayle noted that thejudicial system has had major fundingproblems in recent years. He encouragedhis fellow lawyers to “take action . . .work with the other two branches ofgovernment. . . speak publicly and frequently.”

Saturday was another event-packedmorning that included the law schoolalumni breakfast, the Diversity andTradition of Excellence awards, the gen-eral session of the bar and installation ofEdward L. Weiner as president-elect, andthe raffle and closing reception.

The day also included the last, andmost heavily attended CLE, featuringAttorney General Herring and a paneldiscussing “Marriage in Virginia: theChanging Status of Same-Sex Couplesand Their Families.”

Annual Meeting ‘Rediscovered’ inVirginia Beach

JUNE 12–15, 2014 • VIRGINIA BEACH, VIRGINIA


76th Annual Meeting

1. Twenty-nine of the nearly 180 lawyers eligible for the 50-Year Award attended the annual brunch at the SheratonOceanfront Saturday morning. The lawyers were admitted between July 1, 1963, and June 30, 1964.2. President-elect Edward L. Weiner, Past President Sharon D. Nelson, and President Kevin E. Martingayle posed togetherbefore the Friday night Presidents Reception.3. Martingayle was sworn in on Friday night by Supreme Court Justice S. Bernard Goodwyn.4. Nelson received the traditional caricature from Executive Director Karen A. Gould during the Wednesday night CouncilReception and Dinner.5. Martha JP McQuade received the Clarence M. Dunnaville Jr. Diversity Achievement Award from Rupen R. Shah, chair ofthe Diversity Conference.6. Stephen M. Quillen received the Tradition of Excellence Award from Mary Louise C. Daniel, chair of the General PracticeSection.7. Senior Justice Elizabeth B. Lacy received the Rakes Leadership in Education Award from A. Benjamin Spencer, chair ofthe Section on Education of Lawyers in Virginia.8. Edwin J. Wu received the R. Edwin Burnette Jr. Young Lawyer of the Year Award from Judge Burnette during the YoungLawyers Conference reception.

1

2

56

43

7

8


76th Annual Meeting


1

4

5

32

1. Attorney General Mark R. Herring spoke to a full house about his posi-tion on same-sex marriage in Virginia before the Saturday morning CLE.2. Attorney Phillip J. Hirschkop, who argued the 1967 Loving v. Virginiacase before the United State Supreme Court, spoke from the audience atthe CLE.The five CLEs covered a variety of topics and were all well attended. They were:3. “Marriage in Virginia: The Changing Status of Same-Sex Couples andTheir Families”4. “Public-Private Partnerships: Smooth Sailing or Choppy Waters in theWake of Elizabeth River Crossings and VDOT v. Meeks?”5. “‘Friending’ Electronic Evidence: How to Subpoena, Obtain andPresent Electronic Evidence at Trial”6. “Sex and Labor Slaves: The Scourge of Human Trafficking”7. “Family Feuds, Shareholders Oppression and Judicial Remedies”

6

7



76th Annual Meeting

The CLE seminars offered at this year’sAnnual Meeting focused on a variety oftopics and were all heavily attended, butthe big draw was Saturday morning’s“Marriage in Virginia” event andkeynote address by Attorney GeneralMark R. Herring.

This was the second year in a rowthat Herring was center stage onSaturday morning. Last year he debated Senator Mark D. Obenshain,the Republican candidate for attorneygeneral whom he defeated in the gen-eral election.

This year Herring was alone in thespotlight, offering his explanations forwhy he decided Virginia’s ban on same-sex marriage is unconstitutional. Hisreasoning, presented to more than 300Virginia lawyers, was both legalisticand clearly heartfelt. Whatever theaudience members thought or feltabout Herring’s presentation, they satsilently in rapt attention.

Herring noted that the UnitedStates Supreme Court had reaffirmedmany times that “marriage is a funda-mental right,” and that because of that,he had come to the “inescapable conclu-sion” that Virginia’s ban on same-sexmarriage violated the 14th Amendment.He said there is a longstanding traditionof attorneys general not defending lawsthat are unconstitutional, and that whenthe Virginia Constitution comes intoconflict with the U.S. Constitution, theU.S. Constitution prevails.

He said it is “because of my com-mitment to the rule of law” that hisoffice continues to abide by the Virginialaw while it remains on the books. Hesaid that whatever happens, it is impor-tant that a court ultimately rules on the matter.

Herring cited cases in whichVirginia was on the wrong side—Loving, Brown v Board of Education, andVMI admissions. “I was determined to

show that Virginia has moved forwardand the injustices (of those cases) werenot being repeated,” he said.

“Marriage in Virginia: The ChangingStatus of Same-Sex Couples and Their Families”The Saturday morning CLE followingHerring’s presentation was sponsored bythe Diversity Conference and the FamilyLaw Section. It was moderated by for-mer bar President Manuel A. Capsalis ofCapsalis, Fitzgerald PLC in Leesburg.

Panelists were Steven W. Fitschen,president of the National LegalFoundation in Virginia Beach; Rena M.Lindevaldsen, associate dean of acade-mic affairs at Liberty University Schoolof Law in Lynchburg; Charles B. Lustig,of Shuttleworth, Ruloff, Swain, Haddad& Morecock PC in Virginia Beach;Malcolm P. “Mic” McConnell III, ofAllen, Allen, Allen and Allen inRichmond; Shannon Price Minter, legal director of the National Centerfor Lesbian Rights in San Francisco;and Joseph P. Price, associate professor,Department of Economics, BrighamYoung University.

The panelists and members of theaudience discussed many of the familiarissues including whether the attorneygeneral has a duty to defend the Virginialaw, whether banning same-sex marriagewas equally as discriminatory as banninginterracial marriage, and whether mar-riage is primarily a religious exerciseeven when performed outside of a reli-gious setting.

“Public-Private Partnerships: SmoothSailing or Choppy Waters in the Wakeof Elizabeth River Crossings and VDOTv. Meeks?”The Friday morning CLE seminar wassponsored by the Construction Law &Public Contracts, Local GovernmentLaw, Real Property, Administrative Law,

and Environmental Law sections andmoderated by Christopher S. Boynton,Virginia Beach city attorney. Panelistswere Senator Thomas K. Norment Jr. ofWilliamsburg; Cynthia E. Hudson, chiefdeputy, Office of the Attorney General inRichmond; Patrick M. McSweeney, ofMcSweeney, Cynkar & Kachouroff PLLCin Powhatan; and Charles E. Wall, ofTroutman Sanders LLP in Richmond.

Panelists discussed the law andpolicy of Public-Private Partnerships inVirginia, emphasizing the Elizabeth CityCrossing v. Meeks case in Portsmouth,special purpose authorities such as theFort Monroe Authority, and failedregional taxing authorities. They notedthat P3 projects, as they are commonlycalled, are neither private nor govern-mental; that they involve unusual policyissues; that they often cause tensionsbetween the General Assembly, whichpasses the laws, and the administration,which administers the projects; and canchange dramatically when the stateadministration changes hands.

“‘Friending’ Electronic Evidence: How to Subpoena, Obtain and PresentElectronic Evidence at Trial”A second Friday morning CLE was co-sponsored by the Litigation, Criminaland Corporate Counsel sections, andmoderated by Kristan B. Burch of

Attorney General Remarks andShowcase CLEs Draw Crowds

CLEs continued on page 62

VIRGINIA STATE BARANNUALMEETINGJUNE 12-15 2014


76th Annual Meeting


Kaufman and Canoles in Norfolk.Panelists were the Honorable John M.Tran, circuit court judge in FairfaxCounty; Michael E. Barnsback of LeClairRyan PC in Alexandria; and Alfred L.Carr, Virginia State Bar assistant barcounsel, based in Fairfax.

With the ever-evolving, technologi-cal developments surrounding electronicevidentiary materials, panelists sharedtheir experiences and knowledge relatedto such issues as the Privacy Act, dealingwith anonymous speech when the lan-guage is tortious or illegal, and the mosteffective methods in garnering electronicevidence from the top service providers.The trio also touched on the ethicalramifications of attorneys utilizing socialmedia for promotion, pretexting to gar-ner information from litigants or jurors,discussing pending legal matters onTwitter and Facebook, and neglecting touse encryption in attorney/client com-munications.

While a majority of the discussionscentered on civil proceedings, the panelalso discussed roadblocks in gatheringelectronic evidence in criminal hearings.

“Family Feuds, Shareholder Oppressionand Judicial Remedies”The seminar was sponsored by theBusiness Law and Trusts and Estatessections and moderated by NicholasConte, of Woods Rogers PLLC inRoanoke, and Nathan R. Olansen, ofRack & Olansen PC in Virginia Beach.Panelists were Lyman Johnson, theRobert O. Bentley Professor of Law,School of Law, Washington and LeeUniversity; Yama A. Shansab, ofFerguson Walton & Shansab PLLC inReston; Martha L. Sotelo, of Vaughan,Fincher & Sotelo PC in Vienna, andBruce C. Stockburger, of Gentry LockeRakes & Moore LLP in Roanoke.

The panel’s focus was close to homefor VSB members attending the AnnualMeeting—The Disthene Group Inc.,the company that for generations hasowned and operated the Cavalier Hotel

in Virginia Beach. The company alsoowns a mineral mining company andmore than 28,000 acres in BuckinghamCounty. Also discussed was the family-owned company that operates LurayCaverns in Page County.

The main advice the panelistsoffered was distilled early in the discus-sion by Johnson, who strongly recom-mended that family businesses hire legalcounsel to plan in advance to preventtrouble when the company breaks up.

“Sex and Labor Slaves: The Scourge ofHuman Trafficking”Five legal organizations teamed up topresent the second afternoon CLE onhuman trafficking: the Virginia WomenAttorneys Association, the Asian PacificAmerican Bar Association of Virginia,the Hispanic Bar Association of Virginia,the Old Dominion Bar Association ofVirginia, and the Young LawyersConference of the Virginia State Bar.

The keynote speaker was VivianHuelgo, the American Bar Association’schief counsel to the Commission onDomestic and Sexual Violence, who hasbeen involved in the ABA’s efforts inrepresenting victims of human traffick-ing. Additional speakers included ErinM. Kulpa, assistant attorney general andthe anti-trafficking coordinator in spe-cial prosecutions and organized crimein Richmond; Daniel Werner of theSouthern Poverty Law Center inMontgomery, Alabama.; Renu Brennan,Virginia State Bar assistant bar counselin Richmond; and Rose Estes, programdirector of The Gray Haven Project inRichmond. The panel was moderated bythe Honorable Gerald Bruce Lee.

Panelists participating in this CLEsought to dispel common myths abouthuman (sex and labor) trafficking, andto provide attorneys with the tools torepresent victims of this modern dayslavery, which has entrapped nearlytwenty million people worldwide.

CLEs continued from page 61

1. Among the many activities scattered between theCLEs, lunches, dinners, receptions, and award cere-monies, was the annual Bingo game. Players includedJudge Gary A. Hicks and his family.2. 2014 marked the 17th year for the annual SandCastle Contest, this year outside the SheratonOceanfront.3. Magician Bob Westcott entertained during theChildren’s Dinner while parents attended the annualbanquet and installation of the president on Fridaynight.

3

2

1



76th Annual Meeting

1. Kathleen M. Uston, assistant bar counsel at theVirginia State Bar, was presented with the Local BarLeader of the Year Award by Mary M. Benzinger, chair-elect of the Conference of Local Bar Associations,Sharon D. Nelson, and Eugene M. Elliott Jr., chair of the CLBA.2. The Oliver White Hill Student Pro Bono Award waspresented to Kathleen Dwyer by University ofRichmond Professor Tara Casey.3. James J. Sandman, president of the Legal ServicesCorporation, was the keynote speaker at the VirginiaLegal Aid and Oliver White Hill Student Pro Bonoawards luncheon on Friday.4. The first Bar Association of the Year Award was pre-sented to the Roanoke Bar Association’s Stephen W.Lemon, president, and Cathy Caddy, executive director,by Mary M. Benzinger, Sharon D. Nelson, and EugeneM. Elliott Jr.5. The Saturday raffles and closing reception arealways a big hit, especially when you’re lucky enoughto win a couple of giant floats.6. A comfortable Friday morning brought out the par-ticipants in the 33rd annual 5K Run in the Sun.7. Among the sporting events was the 30th AnnualDavid T. Stitt Memorial Volleyball Tournament on thebeach outside the Sheraton Oceanfront.

1 2

4 5

6

7

3

�+��#'��*1 ��

(*� �+��#'��*1 ��

��#'��#'� "(#��

�+��#'��*��,��+�+�#'�%-��"��-)*�&�� (-*,�( ��#*!#'#��/�'%-$! ��*'�� 3�'�.!-.�-'%+�*+%)%*)-�)+/�'%-$! ��, !,-��3�+,!-!).�/'!-��/,,!).

�"�� (-*,�( ��))��%+�( ��#*!#'#��/�'%-$! ��*'�� 3�'�.!-.�-'%+�*+%)%*)-�)+/�'%-$! ��2��3�'�.!-.�*+%)%*)-

�#*!#'#��,,(*'�/��'�*�%�+%)%*)-��3�+,!-!).�*)"'%�.�*"��).!,!-.��+%)%*)-��3�+,!-!).

�#*!#'#�� #*�-#,� (-*,��%,�/%.-��0�,%*/-� �.!-

��!�%��,"#�+��'�-,"(*#0��*��,#��*(+'!.!��) ��/,,!).

�(*$�*+3� (&)�'+�,#('� (&&#++#('�/�'%-$! ��*'�� 3�'�.!-.�0*'/(!��)+/�'%-$! ��3�'�.!-.�*+%)%*)-

�#*!#'#�� ('+,#,-,#('�*(+'!.!

�#*!#'#�� (��*(+'!.!��) ��/,,!).

�#*!#'#�� (��*�"#.��/''�.!1.�*"�!�,'%!,�0!,-%*)-��&�.*��(!) (!).-��&�.*��

�'#,��,�,�+��-)*�&�� (-*,�*'�� 3�'�.!-.�-'%+�*+%)%*)-

��(-*,"� #*�-#,� (-*,�( ��))��%+�� 3�'�.!-.�*+%)%*)-

��+,�*'��'��+,�*'��#+,*#�,�( ��/++��3�'�.!-.�*+%)%*)-

�� ('+,#,-,#('�*(+'!.!

�� (��/,,!).�.$,*/#$��!�!(�!,��

��*�%��-%�+�( � #.#%��*(��-*��*(+'!.!��) ��/,,!).

��2��''-�%��-�+�*#),#('��2��''-�%� ��-�+�*#),#('��2��/��*#�%�#'!%��(',"��*#�#'!��.�#%��%�

http://www.casefinder.com/

virginia lawyer june/july 2014 - virginia state bar · by jack w. burtch jr. ... 4 virginia lawyer...

Documents