COVID: Family Law and Real Property Law Issues
Employment Law’s Legislation Evolution
A High Flying Judge Discusses Judicial Demeanor
Lawyer Well-being in a Pandemic
e General Practice Issue
VOL. 69/NO. 1 • June 2020
VIRGINIA LAWYER REGISTER
Virginia Lawyer
Meet 2020–21 VSB President Brian L. Buniva
The Ofcial Publication of the Virginia State Bar
Virginia Lawyer
The Ofcial Publication of the Virginia State Bar
June 2020
Volume 69/Number 1
Features
VIRGINIA LAWYER REGISTER
55 Disciplinary Summaries
56 Disciplinary Proceedings
57 Notices: A Roundup of News from vsb.org
58 Clients Protection Fund Reimburses $30,659 to Clients
6 Forum
59 Professional Notices
61 Classied Ads
61 Advertiser’s Index
Noteworthy
VSB NEWS
38 Highlights of the June 9,
2020, Virginia State Bar
Executive Committee
Meeting
38 Dues Statements Mailed:
What’s New is Year?
39 Jay B. Myerson will
be VSB President for
2021–22
40 Bar Welcomes New
Council Members and
Conference Leadership
42 Of Cats, Dogs, and
Defense Attorneys:
e Indigent Criminal
Defense Seminar Goes
Virtual
43 2020 Edition of Senior
Virginians Handbook
Available
44 In Memoriam
45 Awards
Cover: VSB President Brian Buniva with his wife, Barbara Cochrane Buniva, and their families. Photo by Deirdre Norman. Post production by Sky Noir Photography.
Departments
10 President’s Message
12 Executive Director’s Message
14 Ethics Counsel’s Message
50 Law Libraries
51 Technology and the Future Practice
of Law
52 Risk Management
62 e Last Word
Columns
15 General Practice: COVID-19 Impacts our Clients, Committees, and Us
by Christopher C. Johnson
16 Family Law: From Mayhem to Mindfulness In (Almost) Post-Pandemic
Virginia
by Bretta Z. Lewis
18 Practice Points: ree Tips for Responding to a Subpoena Duces Tecum
by Lindsay Reimschussel
20 2020 Legislative Session Heralds a Sea Change in Virginia
Employment Law
by Jason Zuckerman and Dallas Hammer
24 Virginia Real Estate in the Time of COVID
by Benjamin D. Leigh
26 Behaving Judiciously: e Importance of
Judicial Demeanor
by the Honorable Steven C. Frucci
30 Taking the Law into Your Own Hands: Private Criminal Complaints in
Virginia
by Henry H. Perritt, Jr.
GENERAL PRACTICE
34 A ank You Note to All Virginia Lawyers
by Margaret Hannapel Ogden
35 A Lawyer’s Story of Recovery: First Step to Full Circle
by Asha Pandya
37 e Lawyers’ Lighthouse: e Growth of VJLAP
by Tim Carroll
WELLNESS
8 First You Have to Make the Team, en You Get to Change
the Game
by Deirdre Norman
2020–21 VSB PRESIDENT BRIAN L. BUNIVA
VIRGINIA LAWYER | June 2020 | Vol. 69
4
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Virginia State Bar Sta Directory
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-sta.
www.vsb.org
Editor:
Deirdre Norman
Creative Director:
Caryn B. Persinger
Assistant Editor:
Kaylin Bowen
Advertising: LLM Publications
Grandt Manseld
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is published six times a year by the Virginia State Bar,
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Virginia Lawyer
The Ofcial Publication of the Virginia State Bar
2020–21 OFFICERS
Brian L. Buniva, President
Jay B. Myerson, President-elect
Marni E. Byrum, Immediate Past President
Karen A. Gould, Executive Director and
Chief Operating Ocer
EXECUTIVE COMMITTEE
Brian L. Buniva, President
Jay B. Myerson, President-elect
Marni E. Byrum, Immediate Past President
Eugene M. Elliott, Roanoke
Stephanie E. Grana, Richmond
Chidi I. James, Fairfax
Eva N. Juncker, Falls Church
William M. Moet, Abingdon
Eric M. Page, Richmond
CONFERENCE CHAIRS AND PRESIDENT
Conference of Local and Specialty Bar
Associations – Susan N. G. Rager, Coles Point
Diversity – Sheila M. Costin, Alexandria
Senior Lawyers – Margaret A. Nelson,
Lynchburg
Young Lawyers – Melissa Y. York, Richmond
COUNCIL
1st Circuit
Damian J. (D.J.) Hansen, Chesapeake
2nd Circuit
Ryan G. Ferguson, Virginia Beach
Jerey B. Sodoma, Virginia Beach
Bretta Z. Lewis, Virginia Beach
3rd Circuit
Meredith B. Travers, Portsmouth
4th Circuit
Ann B. Brogan, Norfolk
Gary A. Bryant, Norfolk
Neil S. Lowenstein, Norfolk
5th Circuit
omas G. Shaia, Suolk
6th Circuit
J. Daniel Vinson, Emporia
7th Circuit
Benjamin M. Mason, Newport News
8th Circuit
Marqueta N. Tyson, Hampton
9th Circuit
Susan B. Tarley, Williamsburg
10th Circuit
E. M. Wright Jr., Buckingham
11th Circuit
Shaun R. Huband, Petersburg
12th Circuit
P. George Eliades II, Chester
13th Circuit
Dabney J. Carr IV, Richmond
Leah A. Darron, Richmond
Eric M. Page, Richmond
Cullen D. Seltzer, Richmond
Sushella Varky, Richmond
Neil S. Talegaonkar, Richmond
Henry I. Willett III, Richmond
14th Circuit
Craig B. Davis, Richmond
Stephanie E. Grana, Richmond
Marissa D. Mitchell, Henrico
15th Circuit
Allen F. Bareford, Fredericksburg
16th Circuit
R. Lee Livingston, Charlottesville
Palma E. Pustilnik, Charlottesville
17th Circuit
Adam D. Elfenbein, Arlington
Jennifer S. Golden, Arlington
Gregory T. Hunter, Arlington
Joshua D. Katcher, Arlington
William H. Miller, Arlington
18th Circuit
Barbara S. Anderson, Alexandria
Stacey Rose Harris, Alexandria
John K. Zwerling, Alexandria
19th Circuit
Susan M. Butler, Fairfax
Brian C. Drummond, Fairfax
David J. Gogal, Fairfax
Sandra L. Havrilak, Fairfax
Chidi I. James, Fairfax
Douglas R. Kay, Tysons Corner
Daniel B. Krisky, Fairfax
Christie A. Leary, Fairfax
David L. Marks, Fairfax
Nathan J. Olson, Fairfax
Luis A. Perez, Falls Church
Susan M. Pesner, Tysons Corner
Wayne G. Travell, Tysons
Michael M. York, Reston
20th Circuit
R. Penn Bain, Leesburg
Susan F. Pierce, Warrenton
21st Circuit
G. Andy Hall, Martinsville
22nd Circuit
Eric H. Ferguson, Rocky Mount
23rd Circuit
Eugene M. Elliott Jr., Roanoke
K. Brett Marston, Roanoke
24th Circuit
Eugene N. Butler, Lynchburg
25th Circuit
William T. Wilson, Covington
26th Circuit
Nancy M. Reed, Luray
27th Circuit
R. Cord Hall, Christiansburg
28th Circuit
William M. Moet, Abingdon
29th Circuit
D. Greg Baker, Clintwood
30th Circuit
Greg D. Edwards, Jonesville
31st Circuit
Maryse C. Allen, Prince William
MEMBERS AT LARGE
Denise W. Bland, Eastville
Atiqua Hashem, Richmond
Eva N. Juncker, Falls Church
B. Alan McGraw, Tazewell
Lenard T. Myers, Jr., Norfolk
Lonnie D. Nunley, III, Richmond
Patricia E. Smith, Abingdon
Lisa A. Wilson, Arlington
Vac ancy
Virginia State Bar
VIRGINIA LAWYER | April 2020 | Vol. 68
6
www.vsb.org
Forum
In response to “How to Succeed
as In-House Counsel” by Kelly C.
Scanlon:
Ms. Scanlon’s advice for in-house coun-
sel is spot-on. Although unspoken in
her article, each of those tips for success
is part of a larger theme: Strategy.
is theme is most clearly reect-
ed in her statement that “[i]n-house
lawyers are . . . one part of a much
bigger whole.” Just as in-house counsel
must understand their role in assisting
organizational strategy, they must view
their own legal duties through a strate-
gic lens. For the in-house practitioner,
mere tactics won’t suce, because each
piece of advice, each training delivered
(or not), each memorandum, and yes,
each settlement, creates organizational
precedent that will shape the behaviors
of each unit. ose behaviors either
contribute to or mitigate the aggregate
risk to the organization.
It takes time and eort to lay the
groundwork for this long-term ap-
proach but doing so can lend extra
credibility to in-house counsel’s advice,
even when unpopular. As organizations
make dicult choices to weather, and
recover from, the economic impact of
COVID-19, strategic guidance of in-
house counsel will be vital.
James omas Koebel
Associate General Counsel, University
of North Carolina Wilmington
Jest Is For All by Arnie Glick
Letters
Send your letter to the editor to:
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Virginia Lawyer Magazine
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Richmond, VA 23219-0026
Letters published in Virginia Lawyer
may be edited for length and clarity
and are subject to guidelines
available at www.vsb.org/site/
publications/valawyer/.
Got an Ethics Question?
e VSB Ethics Hotline is a condential consultation service for Virginia lawyers.
Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on
the “Email Your Ethics Question” link on the Ethics Questions and Opinions web page
at www.vsb.org/site/regulation/ethics/.
VIRGINIA LAWYER | June 2020 | Vol. 69
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2020–21 VSB President
“I expect to be great. I expect to do
what hasn’t been done. I expect to
provoke change.”
— Deion Sanders
IN FOOTBALL, THE CORNERBACK
is oen described as the most athletic
player on the eld: they must be fast,
tough, able to read and react to what’s
happening in a split second. Yet, they
are rarely famous. With the exception
of Deion Sanders, these versatile defen-
sive players don’t get the attention that
quarterbacks and wide receivers receive.
Ironically, the new Virginia State Bar
President, Brian L. Buniva, of Richmond,
not only played cornerback for three of
his four years at Georgetown University,
but he was inducted into his new role
as president of the 50,000 member VSB
with zero fanfare: a small gathering in
the Supreme Court of Virginia court-
room instead of the traditional banquet
for 300 people at the Annual Meeting in
Virginia Beach. His induction celebra-
tion was a casualty, like so many things,
of the COVID-19 pandemic that has
gripped the country since mid-March.
Of his missed celebration Buniva
said graciously, “I feel more disappoint-
ment for my predecessor, Marni Byrum,
than myself. Marni deserves the fanfare
and appreciation of her colleagues for
her many years of service to our profes-
sion, including this last year as the 81st
President of the VSB.”
But back to football: Buniva, who
is sturdy, yet hardly football player size,
was so small as a child that he stued
his pockets with bar bell weights to
make the 80 lb. cut o for his rst foot-
ball team, placing him on the eld with
players up to 130 lbs. He started o
determined, and from that inglorious
beginning, Buniva went on to play for
his undefeated high school football team
in Tenay, New Jersey, which won the
state football championship of 1967.
As a result of his eorts, Buniva was
inducted into the Tenay High School
Athletic Hall of Fame in 2019, following
in the footsteps of his father, Edo “Bull”
Buniva, who was inducted posthumously
nearly 30 years earlier.
Both sets of Buniva’s grandparents
arrived in America through Ellis Island,
his mother’s family from Ireland and his
father’s from Italy. His story has some of
the hallmarks of many immigrant fam-
ilies: his grandparents came here in the
1900s seeking a better life, and Buniva is
the rst member of his nuclear family to
graduate from college and then become a
lawyer. Today, his son Nathan, Nathan’s
wife Sylvia O’Brien Buniva, and Buniva’s
stepdaughter-in-law, Amanda Weaver,
all have law degrees. He is equally proud
of his daughter, Emily Buniva Edelson,
a doctor of psychology at Children’s
Hospital of Philadelphia (CHOP), and
his son-in-law, Jonathan Edelson, a pedi-
atric cardiologist on the pediatric heart
transplant team at CHOP.
Buniva considered attending the
United States Military Academy at
West Point, where his family oen took
Sunday drives, and quickly adopted as
his own the West Point motto: “Duty,
Honor, Country.” His poor eyesight
prevented that, and he landed at
Georgetown where he not only played
football, but became interested in the
politics that infuse Washington, D.C.
Aer a few years working in the
political arena, Buniva made his way to
Richmond and eventually attended the
University of Richmond Law School.
He said he chose the law because, “I
knew I wanted to be of service and
at the end of my life, to know that it
mattered that I had spent time on this
earth. Ultimately, I decided upon a
life in the law which has allowed me to
advance the West Point ideals of Duty
(Commitment to Principle); Honor
(Integrity); and Country (with Justice
for All).”
Buniva chose environmental law,
largely because of the environmental
movement that came of age in the 1970s
and 1980s with the passage of numer-
ous federal and state laws designed to
protect and preserve the environment.
His rst position as a lawyer was in
the Virginia government, serving as
Assistant Attorney General assigned to
the Health and Environmental Sections
in the Attorney General’s Oce. He later
transitioned to private practice, but has
remained focused on environmental and
First You Have to Make the Team, en You Get to
Change the Game
by Deirdre Norman
Vol. 69 | June 2020 | VIRGINIA LAWYER
9
www.vsb.org
2020–21 VSB President
land use issues for the span of his 40+
year legal career.
Buniva’s bar service is not surpris-
ing, in light of his commitment to duty,
and over the years he has volunteered
extensively for the Virginia State Bar, the
American Bar Association, the Virginia
Bar Association, and the Richmond
Bar Association, eventually chairing
the VSB, VBA, and RBA sections of
Administrative and Environmental Law.
He was one of the earliest volunteers
for Lawyers Helping Lawyers (now the
Judges and Lawyers Assistance Program)
and chaired the Central Virginia com-
mittee. He has also been elected to VSB
Council, serving from 2007 to 2013 and
again from 2015 to the present.
In his free time, Buniva unwinds
by boating on the James River, mak-
ing homemade ravioli, and by spoiling
the nine grandchildren who call him
“Papi.” In 2015, Buniva married his wife,
Barbara Cochrane Buniva, aer propos-
ing to her on the Jumbotron at Fenway
Park in Boston. Today, they enjoy a
Buniva continued on page 11
1: Brian as a child on his rst football team in New Jersey.
2: Brian asking his wife, Barbara Cochrane, to marry him
on the jumbotron at Fenway Park.
3: Aboard his boat,
Never Look Back
, with one of his
grandchildren.
4: The Bunivas at their 2015 wedding.
5: With nine grandchildren, Brian Buniva knows how to
hold a baby.
1
2
3 4
5
VIRGINIA LAWYER | June 2020 | Vol. 69
10
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President’s Message
by Brian L. Buniva
I ,
my rst as the 82nd President of the
Virginia State Bar, on Good Friday,
two days aer Passover, and two weeks
before the beginning of Ramadan.
ese three major observances of the
Christian, Jewish, and Muslim faiths
all have in common the belief that we
are here on this earth to be of service
to our individual communities and to
the world. Our noble profession shares
these values. Indeed, the preamble
to our Virginia Rules of Professional
Conduct states in relevant part:
As a public citizen, a lawyer
should seek improvement of the
law, the administration of justice
and the quality of service rendered
by the legal profession. . . . A law-
yer should be mindful of decien-
cies in the administration of justice
and of the fact that the poor, and
sometimes persons who are not
poor, cannot aord adequate legal
assistance, and should therefore
devote professional time and civic
inuence in their behalf. A lawyer
should aid the legal profession
in pursuing these objectives and
should help the bar regulate itself
in the public interest.
How do we lawyers meet the aspira-
tional goals of our profession?
By the time this column is pub-
lished we will either still be under the
Governor’s Executive Orders to com-
bat the spread of the Covid-19 virus,
or we will have begun to emerge from
such restrictions in our pre-pandemic
routines. We will emerge painfully
aware of what we have lost. Many of
us have suered economic loss, loss of
social interactions, loss of family activ-
ities, loss of professional opportunities,
loss of the VSB Annual Meeting, and
most sadly some of us have lost one
or more loved ones to this pandemic
scourge.
But as Virginia Supreme Court
Justice Mims recently wrote in the May
26th edition of the Richmond Times
Dispatch, we might not just ponder
what the Covid-19 pandemic has taken
from us, but perhaps more importantly
we might reect on what the pandemic
has given to us?
My answer is that the pandemic
has given me the gi of time. Time to
enable me to focus on what is truly
important in my life as an individual
and as a lawyer. It has given me the
time to reect upon the life and loss of
my mother, a probable victim of this
pandemic. It has given me the oppor-
tunity to reect upon and cherish my
wife, and the ability to simply hug fam-
ily and friends. But the pandemic has
also given me the unique opportunity
to reect upon priorities and reorder
what is important and what is less
important as I embark on this year as
VSB President.
We all know that the mission
of the VSB is to protect the public,
regulate the legal profession, assist in
improving the legal profession and the
judicial system, and to advance access
to legal services. e Bar is blessed with
an impressive cadre of sta and self-
less volunteers focusing on all four of
these missions, but if we can rally the
members of the Bar around the goal
of advancing access to legal services
for the poor and Virginians of modest
means, we will indeed have used the
gi of time and reection wisely. e
predominant theme and focus of my
year as president will be to do just that.
Shortly you will receive your VSB
dues statement for Bar year 2020 to
2021. Included with your statement
will be a form asking you to voluntarily
report the number of pro bono hours
and/or nancial contributions you
have made consistent with Rule 6.1 of
the Rules of Professional Conduct. Rule
6.1 establishes the aspirational goal that
every lawyer should render at least two
percent per year of the lawyer’s profes-
sional time to pro bono legal services.
By voluntarily reporting your service
you will provide the bar with the infor-
mation necessary to measure our col-
lective performance in achieving this
aspirational goal and provide informa-
tion to the Supreme Court’s Access to
Justice Commission in support of its
work promoting equal access to justice
for all Virginians.
Last year, the rst year the vol-
untary reporting rule was in eect,
13.5% of the active members of the
VSB reported nearly 369,000 hours
of pro bono service and nearly $1
million in nancial contributions
to legal aid societies throughout our
Commonwealth. I believe that these
numbers at a minimum can be doubled
by the end of my term in June 2021.
Please support this eort and complete
the voluntary report. Please aspire
to achieve the goals of Rule 6.1. And
nally, please use your position as law-
yers and community leaders to assist
those less fortunate among us in clos-
ing the justice gap and receiving their
rightful opportunity for equal access to
justice.
God bless all of you for your service.
Compassionate Service in a Time of
Human Suering
Vol. 69 | June 2020 | VIRGINIA LAWYER
11
www.vsb.org
large, blended family, spending their
free time at their beach house in Corolla,
North Carolina, and travelling together.
Raised as a Catholic, Buniva
has been an active member of the
Midlothian Friends Meeting of the
Religious Society of Friends (Quakers)
for nearly 30 years. ough a relatively
small religious group, the Quakers are
known for their activism, their opposi-
tion to war, and their dedicated ght to
end slavery, starting as early as the late
1600s. Susan B. Anthony, who devoted
her life to ghting for women’s rights
was a Quaker, as was President Herbert
Hoover, who earned global acclaim
for the “Hoover Lunch” program that
sent food and supplies to war ravaged
Europe aer World War I, prior to his
presidency.
ough he oen has a twinkle in
his eye when at VSB meetings, aer
a childhood spent in the rigors of
Catholic school, Buniva comes prepared
to buckle down and be serious as the
2020–21 VSB president. His objectives
are broad and begin with narrowing
the justice gap. He said he will focus his
year as president on:
• encouraging a substantial increase
in the number of pro bono and
low bono hours volunteered by
our colleagues;
• partnering with the Supreme
Court’s Access to Justice
Commission to improve access to
the courts;
• being a voice for the independence
of the judiciary; and
• being of service to local bar asso-
ciations, lawyers, and the public
throughout the Commonwealth.
ough the goals are challenging, and
the obstacles obvious, there is little doubt
Buniva has the mind for the game. From
the 75 lb. weakling who forced his way
onto the local peewee football team, to
the cornerback at Georgetown, to the
rst member of his family to graduate
from college and then law school, to
environmental advocate, to president
of the Virginia State Bar: Buniva has
proven over and over again that if you
want to change the game, the rst step is
getting on the team. q
Buniva continued from page 9
Brian L. Buniva
B. L. Buniva Strategic Advisor, PLLC
Virginia State Bar:
Executive Committee
Bar Council
Administrative Law Section
Environmental Law Section
Budget and Finance
Better Annual Meeting Committee
Bench-Bar Relations
Nominating Committee
Study Committee on the Future of Law Practice
ABA Delegate
President-Elect, Virginia State Bar 2019–2020
Other Bar Admissions and Activities:
Supreme Court of Virginia
United States Court of Appeals for the
Fourth Circuit
United States District Court for the Western and
Eastern Districts of Virginia
United States Supreme Court
Lawyers Helping Lawyers (now Virginia Judges
and Lawyers Assistance Program)
Midlothian Friends Meeting
Boys to Men Mentoring Network
Ten Thousand Villages Fair Trade Store
Former President of Maggie Walker Governors
School Athletic Boosters Club.
Education:
Georgetown University, A.B. Government
The American University, Graduate Studies
in Public Administration
University of Richmond, T.C. Williams School
of Law, (Highest Grade in Criminal Law,
Constitutional Law and Advanced
Constitutional Law)
Family:
Brian is married to Barbara Cochrane and has two
adult children, three adult stepchildren, and nine
(with one on the way) grandchildren.
Left: Brian making homemade ravioli, a skill learned from
his Italian aunt. Right: Brian Buniva in his earlier days as
an environmental lawyer.
VIRGINIA LAWYER | June 2020 | Vol. 69
12
www.vsb.org
Executive Director’s Message
by Karen A. Gould
L- have
been uprooted by the disruptions
caused by the coronavirus pandemic,
and innovation has occurred. One of
our immediate focuses in mid-March
was cancellation of meetings and
events through May. In early April,
the decision was made to cancel the
Annual Meeting set for June 17–20,
2020, in Virginia Beach. is was the
rst time the Annual Meeting has been
canceled since World War II in 1945.
Many other VSB events have been
canceled, including most meetings and
events through August and some in
the fall. Please check the VSB website
for an up-to-date status of an event or
meeting.
At the request of the VSB, the
Supreme Court of Virginia entered
orders extending the dues compli-
ance period from July 31, 2020, to
September 30, 2020. As a public health
precaution, the VSB oce is closed
to the public. Please be advised if you
intend to mail or deliver renewals/
payments to the Virginia State Bar,
deliveries are only accepted from the
following services:USPS, UPS, Fed Ex,
DHL, and Richmond Express. Please
use a trackable express delivery method
if you are sending your renewals/pay-
ments close to the September 30 dead-
line. All renewals must be received by
4:45 p.m. September 30, 2020.
e Supreme Court of Virginia
has also extended the MCLE compli-
ance period until December 31, 2020.
On May 1, 2020, the Supreme
Court of Virginia approved amend-
ments to Part 6, Section IV, Paragraph
3 of the Rules of Court regarding the
organization and government of the
Virginia State Bar. Most notably,
these Rule changes: (1) impose an
email address of record requirement
for all members; (2) create separate
membership classes for retired and
disabled members (with corollary
changes to Paragraph 13-23.K.); (3)
remove the requirement for active
members to be “engaged in the
practice of law;” (4) revise some pro-
cedures for electing dierent mem-
bership classes; and (5) update the
Rule’s language to eliminate ambig-
uous terminology. ese rule changes
were eective June 30, 2020 and were
implemented as part of the 2020–2021
dues renewal.
On the gubernatorial front,
Governor Ralph Northam proposed
and the General Assembly passed at
its Special Session on April 22, 2020,
an amendment to the Freedom of
Information Act to allow public bodies
to meet electronically during the time
of a declared emergency “when it is
impracticable or unsafe to assemble
a quorum in a single location.” is
FOIA amendment will not help lawyers
and law rms in private settings, but
it will certainly assist the lawyers who
serve on VSB committees and boards,
so long as the declaration of an emer-
gency continues.
e Leroy R. Hassell Sr. Indigent
Criminal Defense Live Webinar, pre-
viously done as a live presentation in
Richmond and simulcast to two other
locations, was successfully telecast to
over 1,000 Virginia lawyers on May 1,
2020. e program was a huge success
for several reasons: (1) the vendor,
Yorktel Information Technology &
Service, was facile in switching from a
televised simulcast program to a tele-
cast program in a matter of weeks; (2)
well-regarded speakers from across the
country, who had canceled because
of the coronavirus, were able to give
their presentations safely via this new
modality); and (3) the changes saved
$77,596.
Because of the cancellation of
the usual Admission and Orientation
Ceremony at the Richmond
Convention Ceremony, the Supreme
Court of Virginia conducted its June
swearing-in ceremony of new law-
yers through videoconferencing.
Approximately 200 lawyers were sworn
in by Chief Justice Donald Lemons.
e VSB was unable to give
President Marni E. Byrum a celebra-
tory send-o at the end of her year
as president at the Annual Meeting,
unlike other presidents. e Virginia
State Bar and its 50,000 members owe
her a huge debt of gratitude for the
leadership she has shown this year as
president. As stated in the resolution
honoring her service, Byrum’s leader-
ship as president of the Virginia State
Bar was exemplied by her unwavering
commitment to improving the profes-
sion, to protecting and informing the
public, to service to the VSB’s members
and its committees, and by supporting
the Virginia State Bar sta.
Be sure and read the article
about incoming VSB President Brian
Buniva in this magazine, as well as
his rst column. He would normally
have been sworn in at the President’s
Banquet at the Annual Meeting, but
it was canceled due to the pandemic.
Instead, Buniva was sworn in by Justice
William C. Mims on June 30, 2020, at
the Supreme Court of Virginia.
I hope you, your families, and
your colleagues are healthy and doing
well. As always, I can be reached at
Coronavirus Brings Change to VSB
“Every adversity, every failure and every heartache carries with it the seed of an
equivalent or a greater benet.”
— Napoleon Hill
Vol. 69 | June 2020 | VIRGINIA LAWYER
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VIRGINIA LAWYER | June 2020 | Vol. 69
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Ethics Counsel
by James M. McCauley
I HBO e Sopranos,
mobster Tony Soprano got ugly with
his estranged wife, Carmela, hold-
ing a consultation with every high-
enddivorce lawyer in northern New
Jersey so that the lawyers would be
conicted in representing her. While
the Soprano story is ction, in LEO
1794, the Ethics Committee was asked
to address an insidious practice called
“blocking” in which one spouse, pre-
paring to divorce the other spouse,
consults successively with several law-
yers in a geographical area not to hire
them, but to rather disqualify the law-
yer from representing the other spouse.
When a prospective client and a
lawyer communicate about possible
representation, there is a “reasonable
expectation of condentiality” even if
no attorney-client relationship ensues.
e lawyer faces disqualication if
hired by a person adverse to the pro-
spective client in the same matter,
i.e., a divorce case. LEO 1546 (1993);
LEO 1642 (1995); Gay v. Luihn Food
Systems, Inc., 5 Cir. CL00121, 54 Va.
Cir. 468, 2001 Va. Cir. LEXIS 24, at
*7 (Va. Cir. Ct. Feb. 7, 2001); Joslyn v.
Joslyn, 23 Cir. CH03596 (December 5,
2003).
In Joslyn, the wife sought to dis-
qualify the husband’s lawyer because
she had an initial interview with that
lawyer but chose to hire a dierent
lawyer before the divorce proceedings
commenced. e husband’s lawyer
argued no attorney-client relationship
had ensued aer the initial consulta-
tion and the wife acknowledged that in
a signed writing before the consult. e
court disqualied the husband’s coun-
sel nding that the written acknowl-
edgment was insucient as it did not
waive the prospective client’s expecta-
tion of condentiality nor did the wife
consent to the lawyer representing the
adverse spouse.
Lawyers have avoided disquali-
cation caused by initial consults by,
among other things, charging a hey
consultation fee, and other measures
such as:
1) Running a conicts check before the
initial consultation;
2) Warning the potential client not to
provide condential information at
that point;
3) Asking whether the potential client
has met with other attorneys;
4) Sending a “non-engagement” letter
if declining the representation; and
5) Anticipating a motion to disqualify
should the opposing party become
a client.
In 2002, the ABA adopted Model
Rule 1.18 to address duties owed to
and conicts created by prospective
clients. Virginia adopted a nearly iden-
tical rule, but not until June 21, 2011.
Before the adoption of Rule 1.18, the
Rules of Professional Conduct did not
address the duties owed to prospective
clients. However, legal ethics opinions
addressed these issues, either treating
the prospective client as analogous to a
former client or holding that the duty
of condentiality applied even if there
was never an attorney-client relation-
ship. In family law cases, the prospec-
tive client typically would not waive
the conict and the consulted lawyer
would be disqualied, even when only
limited information was imparted
during the initial consult.
MR 1.18 and Va. Rule 1.18 are
nearly identical. New guidance from
ABA Formal Opinion 492 (June 9.
2020), is particularly helpful and
important:
1. A “prospective client” is one who
consults or discusses with a lawyer
the possibility of forming an attor-
ney-client relationship.
2. Not every communication a person
interested in obtaining legal services
has with a lawyer makes that person
a prospective client. Formal Op. 492
at 2. See also Comment [2] to Va.
Rule 1.18 (A person who commu-
nicates information unilaterally to
a lawyer, without any reasonable
expectation that the lawyer is willing
to discuss the possibility of forming
a client-lawyer relationship, is not a
“prospective client.”) and LEO 1842
(2008) (lawyer has no duty of con-
dentiality to person who unilaterally
transmits unsolicited information in
voice mail or email).
3. A person who communicates with a
lawyer to disqualify that lawyer is not
a “prospective client.” Bernacki v.
Bernacki, 1 N.Y.S.3d 761, 764 (Sup.
Ct. 2015) (husband in a divorce sent
an email to his wife titled “Attorneys
Which [sic] Whom I Have Sought
Legal Advice” and then listed “twelve
of the most experienced matrimonial
attorneys in the county,” each of
whom the husband asserted “would
conict themselves out” or be sub-
ject to disqualication); Restatement
(3d) of the Law Governing Lawyers
§15 cmt. c (“a tribunal may con-
sider whether the prospective client
disclosed condential information
to the lawyer for the purpose of pre-
venting the lawyer or the lawyer’s
Rule 1.18: You Didn’t Hire Me But Your
Adversary Just Did!
Ethics continued on page 53
GENERAL PRACTICE | Vol. 69 | June 2020 | VIRGINIA LAWYER
15
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From this time last year, the General Practice
Section of the Virginia State Bar was on track
to have one of its best years in recent times
leading up to the COVID-19 pandemic. e
section successfully put on a fantastic CLE
called “A Day in General Practice,” which was
held October 16, 2019, at the University of
Richmond. e section was set to co-sponsor a
CLE at the Annual Meeting in Virginia Beach
prior to its cancellation. e current state
of the section is that there are a total of 839
section members, which is broken down as
follows: 726 Active/Associate, 97 Judicial, and
16 Other (includes corporate counsel, judicial
retired).
As with many other areas of practice,
general practitioners have felt varying eects
fromthe COVID-19 pandemic, and it is our
hope that we as a board, a section, and a state-
wide bar can be of assistance to those strug-
gling through these hard times. One of the
greatest joys I have felt in the general practice
of law is the ability to provide assistance to
those of all walks of life during dicult times.
is is certainly a dicult time, and
we have seen lawyers stepping up, oen for
no monetary compensation, to help people
with issues ranging from potential evic-
tions to navigating the potential benets of
the CARES Act and other similar stimulus
related programs.
On behalf of the General Practice Section
Board of Governors, I wish everyone the very
best of health and continued security and
prosperity as we move into the second half of
2020. Despite all of the jokes about lawyers,
when times get tough, it is our profession
that is relied on by so many to get them
through. Given the caliber of lawyers we have
in Virginia, as practitioners and as people in
general, I am condent we will overcome this
most recent challenge.
Christopher C. Johnson is a partner in the law rm
ofJohnson&JohnsonAttorneys at Law, P.C., in
Hanover County. A graduate of Virginia Tech and the
Charleston School of Law, Johnson has been a lifelong
resident of Hanover County. He is chair of the VSB
General Practice Section, an active member of his local
community, and president of the Hanover County Bar
Association.
General Practice:
COVID-19 Impacts our Clients,
Committees, and Us
by Christopher C. Johnson
VIRGINIA LAWYER | June 2020 | Vol. 69 | GENERAL PRACTICE
16
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T COVID- “” with
respect to family law is akin to calling what
happened on the Titanic “a vacation mishap.”
Although not all Virginia lawyers practice
family law, it seems that all of us are, directly
or indirectly, impacted by divorce. Whether it
is your loved one, a neighbor, friend, or your-
self, every person who has been privy to the
turmoil caused by divorce turns to someone
for advice.
Lawyers and mental health profession-
als are the obvious sources for guidance,
and sometimes the line between legal advice
and counseling is blurry (hence the tra-
ditional title “Attorney and Counsellor at
Law). Unfortunately, all Virginia attorneys,
including those who practice family law, are
currently facing a massive breakdown of the
typical way we assist clients due to court clo-
sures and other pandemic response measures.
Although we always aspire to advance our cli-
ents’ interests swily and eciently, this goal
seems all but impossible since the pandemic
closures and restrictions have been enacted.
ere is no way to provide solid advice to cli-
ents without adding the caveat, “Nobody really
knows what is going to happen … I mean,
literally, nobody.” is is new turf for even the
most seasoned professionals and is unprece-
dented in the Commonwealth’s court system.
Ethical rules forbid us from guaranteeing
outcomes to clients, however, in pre-COVID
Virginia, we could at least tell clients when
and where to appear for hearings and advise
them of the possible outcomes. Now, we have
no idea what matters will proceed, what the
timetable will be, or what format to expect.
We have no way to ease our clients’ fears
about their nancial futures or make any reli-
able assessment about the long-term ramica-
tions of the litigation. With each order, each
edict, and each publication from the Executive
and Judicial branches, interpretations of which
seem to dier in each jurisdiction and judi-
cial district, the waters become increasingly
murky.
In the family law realm, not only is uncer-
tainty frustrating and disconcerting, but it can
also be emotionally devastating and, in some
cases, dangerous. Mental health professionals
are concerned about the “layering” eect of
the lack of closure on families. Dr. Robert
Archer, a leading national expert in forensic
psychology and adolescent development,
emphasizes that “Stress is viewed by psychol-
ogists as a cumulative experience,” and that
“e pandemic is making additional demands
on the coping resources of family members.”
e pandemic has multiplied already
existing issues including domestic violence
Family Law: From Mayhem to Mindfulness In
(Almost) Post-Pandemic Virginia
by Bretta Z. Lewis
GENERAL PRACTICE | Vol. 69 | June 2020 | VIRGINIA LAWYER
17
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FAMILY LAW
and substance abuse, during a time when in-person services
are oen suspended. e pressure cooker created by social iso-
lation, nancial strain, and unprecedented unemployment is
taking an insurmountable toll on families. Some husbands and
wives feel that there is no choice but to separate. is requires
them to divide the remaining resources, including dividing time
with oen stressed-out children.
As responsible, compassionate practitioners, Virginia fam-
ily law attorneys can help. Aer serving as a Guardian Ad Litem
since 2005, I believe that we must rst protect the most vulner-
able participants, the children. We have to nd a way to reach
into the whirlpool and pull them out before they drown in their
parents’ stress. We also need to give our adult clients as much
guidance as possible in solving their problems without waiting
for the overwhelmed courts to provide answers.
With creative, empathetic representation, parties can avoid
the stress of waiting and preparing for trial. Forward-thinking
family lawyers can use new methods to change the norms in
resolving conicts and focus our energy into providing solu-
tions in a revolutionary way. In short, we can become helpers.
is article seeks to shed some light for Virginia lawyers,
both from a place of ideology and practicality. Family lawyers
are facing some tricky questions that are as of yet, unanswer-
able.
(1) How can parents who are separating, divorcing, or already
divorced eectively co-parent and deal with delays, litigation
and indenite continuances?
(2) How can parents eectively implement “distance learning”
and support educational development when they are sepa-
rated, divorced and at odds with the other parent?
(3) How do we best manage child support cases when the
courts are overwhelmed, and parties are facing unemploy-
ment, furloughs, or other loss of income stability?
Generally, for all of these unknowns, it seems that keeping
parties out of court and nding an amicable, exible solution
that can be implemented immediately may be the best practice.
Below are some insights gained in discussions with experts who
deal regularly with families in crisis:
(1) Custody, Visitation and Co-parenting: Parents in the
process of separation and divorce may be feeling hopeless
because pending matters have been continued, nances are
uncertain, they are reeling from the long, stressful litigation
process, and/or because health concerns are exacerbating the
situation. Families may be experiencing new ris in previously
quasi-functional family dynamics due to suocating mandatory
togetherness, while families already in crisis may nd that the
pandemic has created an unbearable tension.
Statistics from crisis hotlines indicate that substance abuse
and domestic violence are escalating as anxiety and frustrations
are fueled by isolation and despair. In some cases, one parent
may be refusing to communicate or cooperate with the other
and the courts are not able to respond quickly. ere are, how-
ever, methods available to assist families to move toward a solu-
tion, even without court intervention.
Instead of waiting for a trial in a divorce or custody case,
attorneys should hold settlement conferences on a exible
schedule, accommodating childcare and other contributing
stressors. Using platforms such as Zoom, WebEx, Microso
Teams, and Google Meetings, responsible and compassionate
attorneys and the Guardian Ad Litem, working together, can
assist parents to move past emotion and encourage them to nd
practical ways to preserve precious resources and protect their
children. Agreements incorporated into court orders can pro-
vide closure without the stress of making litigants recount all of
their interpersonal dierences in open court and having rulings
imposed aer a long day of angry testimony. I have already par-
ticipated in several remote settlement conferences with oppos-
ing counsel, parties, and, in some cases, the Guardian Ad Litem
appearing by telephone or video. Even in seemingly impossible
cases involving adultery, protective orders, and domestic
violence allegations, the matters have settled. Literal sighs
of relief echoed among all involved knowing that the matters
would simply be removed from the docket by submission of
agreed orders rather than playing the waiting game and endur-
ing several more months of litigation.
If the matter is too complex or controversial for a simple
settlement conference, or if the attorneys reach an impasse,
mediation is an excellent option for accessing neutral assistance
without the stress of a trial. e Hon. Winship Tower (ret.), an
experienced mediator specializing in complex divorces, prac-
ticed family law before joining the Virginia Beach Juvenile and
Domestic Bench in 2000. Judge Tower reports a high level of
success with remote mediation noting that she has concluded
multiple remote mediations and enthusiastically recommends
the process.
“It has proven to be a exible, viable alternative to resolving
family law matters creatively and constructively,” Judge Tower
added. “Clients have expressed relief and gratitude for the
opportunity to bring certainty and closure.”
Once families put litigation behind them, they can begin
the work of healing and restoring their children’s security
and condence, which also requires a new approach. Archer
reminds us that even though parents have dierences, it is
critical to nd common ground, particularly now, stating, “It is
already apparent that combining the eects of COVID-19 and
domestic litigation…can have debilitating eects on the mental
health” of family members. Archer urges parents to “maintain
positive and close relationships with their children,” adding,
“the quality of the parent – child relationship is the single best
predictor of the child’s emotional development.”
When parents struggle to communicate about parenting
issues, it may be wise for them to consider remote mental
health services. Due to the pandemic, many insurance providers
are waiving copayments and authorizing insurance payments
for “telehealth” or video therapy. Remote family or co-parent-
ing sessions may be easier than traditional sessions for post-di-
vorce couples who nd it dicult to be in the same room.
Having professional guidance during sensitive conversations
Family Law continued on page 23
VIRGINIA LAWYER | June 2020 | Vol. 69 | GENERAL PRACTICE
18
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Y who is not a party
to a lawsuit, but suddenly receives a subpoena
demanding the production of thousands of
documents on a tight timeframe. Your client
wants to either delay production or substan-
tially limit the documents it must hunt down
and produce.
Below are some practice pointers to
keep in mind when advising your client and
responding to a subpoena.
Check for subpoena validity
ird parties are only legally required to pro-
duce documents when production requests
are accompanied by a valid subpoena.
1
Issuing a valid subpoena can be surprisingly
complicated, and many attorneys and the
vendors they hire fail to follow the necessary
steps. Even if you know you’ll eventually pro-
duce documents, it can be helpful to use sub-
poena validity as a negotiating tool. Here are
some common mistakes in attorney-issued
subpoenas:
e subpoena is from a state court and was
not properly domesticated
A state court’s jurisdiction does not extend
into another state, and subpoenas are not
enforceable across state lines. Many attor-
neys fail to take the necessary, simple steps to
domesticate their state court subpoenas before
serving them across state lines. If the subpoena
was issued by a court in State A and served in
State B, it’s generally not valid.
Moreover, a non-party’s “minimum con-
tacts” are not automatically sucient to grant
subpoena power to state courts even when
service was eected within the same state.
For example, parties to a Virginia state court
lawsuit served a subpoena on Yelp’s regis-
tered agent in Virginia. Yelp had no physical
presence in Virginia and the documents were
in California. e Supreme Court of Virginia
refused to enforce the subpoena, nding
that merely registering to do business in the
state and designating a registered agent was
not enough to give Virginia courts subpoena
power when Yelp was not a party to the law-
suit.
2
e subpoena seeks pre-hearing discovery in
an arbitration
Most arbitration is subject to the Federal
Arbitration Act (“FAA”). e FAA permits
arbitrators to issue a summons for third par-
ties to “appear before” the arbitrator and bring
Practice Points: Three Tips for Responding to a
Subpoena Duces Tecum
by Lindsay Reimschussel
GENERAL PRACTICE | Vol. 69 | June 2020 | VIRGINIA LAWYER
19
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PRACTICE POINTS
documents “which may be deemed material as evidence in the
case.”
3
e majority view is that an arbitrator can only summon
documents to be brought to a hearing, and cannot compel
pre-hearing discovery from third parties.
4
Only one circuit has
denitively stated that arbitrators can compel third parties to
produce documents prior to the hearing.
5
e subpoena fails to check all the boxes.
Most states have a statute setting out the required elements of
an attorney-issued subpoena. Many attorneys and the vendors
they engage oen fail to include all of them. For example, many
states also require the requesting party to notify the other par-
ties before issuing a subpoena.
6
We’ve also seen cases where an
attorney signs paperwork authorizing a vendor to issue a sub-
poena, but the vendor fails to sign or date the actual subpoena.
For arbitration-related summons, the FAA states that the sum-
mons must come from the arbitrator,
7
but many attorneys try
to issue arbitration-related summons themselves.
Check for deadlines and procedures to preserve
objections
You also need to ensure you haven’t waived your ability to seek
court relief by failing to le or serve timely objections.
If the subpoena is federal, the non-party has the earlier of
the date of compliance or 14 days to serve objections on the
requesting party.
8
If the subpoena was validly domesticated
under the Uniform Interstate Depositions and Discovery Act
(“UIDDA”),
9
the discovery rules of the state where the sub-
poena is domesticated normally apply.
10
But state court proce-
dures vary widely. For example, Maryland requires objections
to be led with the court.
11
Virginia, on the other hand, requires
objections to be served on the requesting party.
12
Similarly,
check the corresponding state statutes for deadlines to ensure
you haven’t waived your objections.
Negotiate, negotiate, negotiate
You can start negotiating while also preserving your objec-
tions. Even while exchanging formal objections and responses,
it is oen helpful to engage in informal discussions with the
requesting counsel.
Parties to lawsuits generally would prefer to avoid both-
ering the court with motions to compel and other discovery
disputes, and courts are hesitant to impose undue burdens,
especially on non-parties. Another potential negotiating tool
is that some states require the requesting party to pay the
non-party’s reasonably incurred costs of production, which can
include time spent locating documents as well as photocopying
costs.
13
When faced with the costs of retrieving and producing
thousands of documents, a requesting party may be willing to
reduce the scope of the request.
In my experience, you can almost always negotiate the scope of
a subpoena to something that is more manageable before pro-
ceeding to costly motions practice.
Endnotes
1 See, e.g., F.R.C.P. 34(c); Virginia Supreme Court Rule 4:9A; Texas Rule of
Civil Procedure 205.1.
2 Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440, 446 (2015)
(“Because the underlying concepts of personal jurisdiction and subpoena
power are not the same, the question of whether Yelp would be subject to
personal jurisdiction by Virginia courts as a party defendant is irrelevant.”).
e Virginia Supreme Court explicitly distinguished Yelp’s situation from
one where a foreign corporation has a physical presence in Virginia. Id. at
n. 17 (“[O]ur holding does not mean that a Virginia court could not com-
pel in-state discovery from a non-party foreign corporation that maintains
an oce in Virginia.”).
3 9 U.S.C. § 7.
4 CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir. 2017) (not-
ing that its decision was in agreement with the Second, ird, and Fourth
Circuits). See also Managed Care Advisory Grp., LLC v. CIGNA Healthcare,
Inc., 939 F.3d 1145, 1159-60 (11th Cir. 2019) (adopting the majority
approach).
5 Sec. Life Ins. Co. of Am. v. Duncanson & Holt (in Re Sec. Life Ins. Co. of
Am.), 228 F.3d 865, 870-71 (8th Cir. 2000) (“[I]mplicit in an arbitration
panel’s power to subpoena relevant documents for production at a hearing
is the power to order the production of relevant documents for review
by a party prior to the hearing.”). In the Fourth Circuit, the arbitrator
lacks power to compel pre-hearing discovery from non-parties, but the
district court can compel pre-hearing discovery “upon a showing of ‘spe-
cial needor hardship.’” Deiulemar Compagnia di Navigazione S.P.A. v.
M/V Allegra, 198 F.3d 473, 479 (4th Cir. 1999). e Sixth Circuit has not
denitively stated a position on the issue. See, e.g., Westlake Vinyls, Inc. v.
Lamorak Ins. Co., No. 3:18-MC-00012-JHM-LLK, 2018 U.S. Dist. LEXIS
220196, at *14 (W.D. Ky. 2018) (discussing Sixth Circuit precedent).
6 See, e.g., Delaware Chancery Court Rule 45(b) (“Prior notice of any com-
manded production of documents, electronically stored information, and
tangible things or inspection of premises before trial shall be served on
each party . . . .”).
7 9 U.S.C. § 7.
8 FRCP 45.
9 e UIDDA permits parties from out of state to easily domesticate non-
party subpoenas. Aer receiving the correct paperwork under the UIDDA,
the state court where the non-party is located will issue a subpoena that
is binding on the resident non-party. A current list of all states who have
ratied the UIDDA is available on the website for the Uniform Law
Commission at https://www.uniformlaws.org/committees/communi-
ty-home?CommunityKey=181202a2-172d-46a1-8dcc-cdb495621d35.
10 See, Model UIDDA § 5, Comment (“[T]he discovery procedure must be
the same as it would be if the case had originally been led in the discovery
state.”).
11 Maryland Rule of Civil Procedure 510.1(g).
12 Virginia Code § 16.1-265; Virginia Supreme Court Rule 4:9A(c).
13 See, e.g., Fl. Statute 92.153(2)(a) (“In any proceeding, a disinterested wit-
ness shall be paid for any costs the witness reasonably incurs either directly
or indirectly in producing, searching for, reproducing, or transporting doc-
uments pursuant to a summons . . . .”).
Lindsay Reimschussel is an attorney at Zobrist Law Group, PLLC, where
her practice focuses on business and commercial dispute resolution.
Reimschussel regularly assists a Fortune 500 company with responses to
third-party subpoenas.
VIRGINIA LAWYER | June 2020 | Vol. 69 | GENERAL PRACTICE
20
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T signicantly
transformed workers’ rights, producing more
than 50 employment-related bills that became
eective July 1. Some bills make minor adjust-
ments, while others are signicant, including
strong protections to remedy wage the and
inequality, combat discrimination, and pro-
hibit whistleblower retaliation. is article
summarizes the new worker protections and
the implications for employees, employers,
and the Commonwealth.
1
Private Right of Action for Wage e and
Extensive Changes to Other Wage Laws
Prior to 2020, Virginia wage law lacked any
private right of action for wage the, and in
contrast to Maryland and Washington, D.C.,
employers were subject only to the federal
minimum wage. Nearly a dozen bills amend
Virginia’s wage law by establishing a mini-
mum wage, creating a private right of action
for wage the, expanding the authority of the
Department of Labor and Industry (DOLI) to
remedy wage the, and prohibiting retaliation
against employees who disclose wage the and
other violations of the wage laws.
Virginia’s minimum wage will increase
from the federal minimum to $9.50 per hour,
eective May 1, 2021.
2
It will increase gradu-
ally to $15 an hour by January 2026, though
the legislature will have to reenact the provi-
sion by July 1, 2024 for the full increase to take
eect.
3
And eective July 1, 2020, piece-rate
and domestic workers must be paid the mini-
mum wage, ending existing exceptions.
4
As of July 1, 2020, employees will have
a statutory cause of action to recover unpaid
wages.
5
And employees will be able to bring
wage the claims jointly or as a collective
action.
6
Employees need not exhaust adminis-
trative remedies before ling suit.
7
A prevail-
ing wage the plainti can recover any owed
wages, liquidated damages in an amount equal
to the wages owed, prejudgment interest at
an annual rate of 8% from when the wages
were due, and reasonable attorneys’ fees and
costs.
8
Where an employer has knowingly
withheld wages, a prevailing employee can
recover treble damages.
9
e statute denes
“knowingly” as having “actual knowledge
of the information … act[ing] in deliberate
ignorance of the truth or falsity of the infor-
mation, or … act[ing] in reckless disregard of
the truth or falsity of the information” – there
is no requirement to prove specic intent to
defraud.
10
2020 Legislative Session Heralds a Sea Change
in Virginia Employment Law
by Jason Zuckerman and Dallas Hammer
GENERAL PRACTICE | Vol. 69 | June 2020 | VIRGINIA LAWYER
21
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EMPLOYMENT LAW
Previously, Virginia’s DOLI could investigate wage the
only when an employee led a complaint.
11
But now DOLI can
conduct a broader investigation of an employer’s wage practices
where it develops information in the course of an investigation
indicating that the employer has failed to pay wages to other
employees.
12
As lower-income workers disproportionately experience
wage the, protection against retaliation is especially vital. As of
July 1, 2020, Virginia employers are prohibited from retaliating
against any employee for ling a complaint or commencing or
testifying in a wage the proceeding.
13
Retaliation complaints
will be led with DOLI, and the commissioner may institute
proceedings on behalf of the employee for reinstatement, recov-
ery of lost wages, and liquidated damages in the amount of the
lost wages.
14
e amendments to Virginia’s wage laws also prohibit
retaliation against employees for asking about or discussing
compensation or for reporting a violation of the provision.
15
A
violation will subject an employer to a civil penalty of $100, and
DOLI is authorized to obtain injunctive relief.
16
Virginia Values Act and Other Legislation Combatting
Discrimination
e Virginia Values Act
17
amends the Virginia Human Rights
Act (HRA)
18
by adding sexual orientation and gender iden-
tity as protected classes.
19
Virginia now joins 20 states and
Washington, D.C., in going a step further than Title VII and
explicitly prohibiting employment discrimination based on
sexual orientation and gender identity.
20
e Values Act also
expands employer coverage, the range of actionable personnel
actions, and the remedies available under the law.
Previously, the HRA covered employers with more than
ve and fewer than 15 employees. Now, for most unlawful dis-
crimination claims the HRA covers employers with 15 or more
employees, and for most unlawful termination claims it covers
employers with more than ve employees.
21
Employers are
also prohibited from retaliating against employees for oppos-
ing an unlawful employment practice or for ling a charge or
otherwise participating in an investigation of discrimination.
22
Further, employees now have a private right of action under the
HRA to challenge any unlawful, discriminatory employment
practice.
23
Prior to these amendments, the HRA provided a pri-
vate cause of action only for unlawful termination.
e Values Act expands the remedies available under the
HRA. Formerly, a prevailing plaintiff under the HRA could
receive only up to 12 months of backpay and attorneys’ fees
not to exceed 25% of the backpay award. Now, a prevailing
employee may receive uncapped economic and compensa-
tory damages, punitive damages of up to $350,000,
24
and
reasonable attorneys’ fees and costs.
25
Additional legislation amends the HRA to strengthen and
expand rights and remedies for employees who are pregnant or
postpartum.
26
Whereas employees alleging discrimination on
other bases must still exhaust administrative remedies through
the Division of Human Rights before suing in court,
27
an
employee alleging discrimination or refusal to accommodate on
the basis of pregnancy, childbirth, or related conditions may le
directly in court.
28
Further, the HRA now requires employers to
provide reasonable accommodations for pregnant or postpar-
tum employees.
29
ese provisions apply to employers with ve
or more employees for all claims, making employer coverage
for pregnancy and related discrimination broader than that for
other causes of action under the HRA.
30
Under the pregnancy accommodation provision, rea-
sonable accommodation includes a modied work schedule,
assistance with heavy liing, provision of a private location
other than a bathroom for expression of breastmilk, and leave
to recover from childbirth.
31
A covered employer is required
to provide reasonable accommodation unless they can prove
that the accommodation would cause an undue hardship.
32
e employer providing or being required to provide simi-
lar accommodation to other employees creates a rebuttable
presumption against hardship.
33
Aer an employee requests
accommodation, the parties should engage in an interactive
process to determine if the request is reasonable, and if not, to
pursue other options.
34
Other legislation strengthens the prohibition against race
discrimination by covering traits historically associated with
race, including hair texture, type, and protective styles such as
braids, locks, and twists.
35
New Legislation Prohibiting Whistleblower Retaliation
Prior to 2020, Virginia recognized a very narrow public policy
exception to employment-at-will. Eective July 1, 2020, how-
ever, whistleblowers in Virginia will have robust protection
against retaliation. Protected conduct includes reporting in
good faith a violation of law to a supervisor, governmental
body, or law enforcement ocial; refusing to engage in a crim-
inal act that would subject the employee to criminal liability;
refusing an employer’s order to perform an unlawful act; or
providing information to or testifying before any enforcement
body or ocial conducting an investigation, hearing, or inquiry
into any alleged violation of law by the employer.
36
e statute
does not protect employees disclosing data protected by law or
legal privilege, making statements or disclosures that are false
or made in reckless disregard of the truth, or making disclo-
sures that would violate the law or deprive another or others of
condential communications as guaranteed by law.
37
A retaliation claim can be brought within one year of the
retaliatory action,
38
and a prevailing whistleblower can secure
an injunction to stop a continuing violation, reinstatement,
compensation including lost wages and benets plus interest,
and attorneys’ fees and costs.
39
Implications of e New Virginia Employment Laws
ese new employment laws represent a sea change for work-
ers’ rights in Virginia, and employers will act at their peril when
they discriminate or retaliate against employees. Additional
implications include:
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EMPLOYMENT LAW
• e Values Act will likely foster more diverse and tol-
erant workplaces, which could make Virginia business
more protable and competitive as it seeks to attract busi-
nesses and workers that will thrive in the digital age. e
benets of diversity in the workplace include increased
innovation and employee engagement, lower turnover,
and superior decision-making.
• A robust whistleblower protection law will encourage
employees to report unlawful conduct internally, thereby
beneting employers by giving them an opportunity to
investigate and rectify misconduct.
• As Virginia civil procedure respects the important right
to a jury trial by making it dicult to obtain summary
judgment,
40
there will likely be a mass migration of
employment litigation from federal court to Virginia
circuit court. More employment cases will go to trial, and
jury verdicts could encourage employers to comply with
these laws. In addition, employment litigation will likely
become a much larger portion of circuit court dockets.
• Employers will need to take steps to comply with these
new laws and mitigate against the risk of employees
bringing claims. For example, employers should consider
training managers and supervisors about discrimination
and retaliation. In addition, employers should update
their policies prohibiting discrimination and retaliation.
Some employment law practitioners have criticized
Virginia’s new employment laws as rendering the
Commonwealth the “new California,” a state known for
its strong employment and consumer protection laws.
California also has the world’s h largest economy, surpass-
ing the United Kingdom, and is a worldwide hub of innova-
tion, attracting top engineers from around the world to create
products and services that have fundamentally changed how
we communicate and transact business. Strong employment
legislation should not be viewed as a burden, and instead could
hasten Virginia becoming the “Silicon Valley of the East.”
e authors thank Katherine Krems, an associate at Zuckerman
Law, for her contributions to the article. q
Endnotes
1 At the time of writing, these bills have not yet been entered into the state
code. Code sections as cited are subject to change. All sections cited for
new provisions are where the bills as written list them, but there is some
overlap and disagreement that the code commission will reconcile.
2 See Va. Code § 40.1-28.10(B); H.B. 395/S.B. 7, Gen. Assemb., 2020
Reconvened Sess. (Va. 2020) (amended bills reenrolled Apr. 22, 2020).
ough originally set for January 1, 2021, the legislature delayed the
rst increase at Gov. Ralph Northam’s suggestion to support businesses
in response to the Covid-19 pandemic. See Press Release, Oce of the
Governor, Governor Northam Hails General Assembly Session at
Propels Virginia Forward (Apr. 22, 2020), https://www.governor.virginia
.gov/newsroom/all-releases/2020/april/headline-856287-en.html (“I am
grateful that lawmakers supported my proposals to help ease the impacts of
the COVID-19 pandemic on Virginians, on our economy, and on our state
budget.”).
3 Va. Code §§ 40.1-28.10(F), (3); H.B. 395/S.B. 7.
4 Va. Code § 40.1-28.9(A); S.B. 78, Gen. Assemb., 2020 Reg. Sess. (Va. 2020);
S.B. 804, Gen. Assemb., 2020 Reg. Sess. (Va. 2020).
5 Va. Code § 40.1-29(J); H.B. 123/S.B. 838, Gen. Assemb., 2020 Reg. Sess.
(Va. 2020).
6 Id.
7 Id.
8 Id.
9 Id.
10 Va. Code § 40.1-29 (K); H.B. 123/S.B. 838.
11 Va. Code § 40.1-29 (F).
12 Id. at § 40.1-29.1; H.B. 336/S.B. 49, Gen. Assemb., 2020 Reg. Sess. (Va.
2020).
13 Va. Code § 40.1-33.1(A); H.B. 337/S.B. 48, Gen. Assemb., 2020 Reg. Sess.
(Va. 2020).
14 Va. Code § 40.1-33.1(B); H.B. 337/S.B. 48.
15 Va. Code § 40.1-28.7:7(A); H.B. 622, Gen. Assemb., 2020 Reg. Sess. (Va.
2020). is code section may change, as H.B. 330/S.B. 480 as written add a
separate, unrelated stipulation to the same section.
16 Va. Code §§ 40.1-28.7:7(B), (C); H.B. 622.
17 S.B. 868, Gen. Assemb., 2020 Reg. Sess. (Va. 2020).
18 Va. Code §§ 2.2-3900 et. seq.
19 Id. at §§ 2.2-3901(B), (C); 2.2-3905(B)(1)(a); S.B. 868.
20 See 42 U.S.C. § 2000e-2.
21 Va. Code § 2.2-3905(A); S.B. 868. Coverage for unlawful termination based
on age remains unchanged, with the HRA covering employers with more
than ve and fewer than 20 employees. Id.
22 Va. Code § 2.2-3905(7); S.B. 868.
23 Va. Code § 2.2-3908(A); S.B. 868.
Jason Zuckerman is a principal at Zuckerman Law, where he focuses
on representing workers in employment-related disputes, includ-
ing whistleblower retaliation and rewards claims. During the Obama
Administration, he served as senior legal advisor to the special counsel
at theU.S. Oce of Special Counsel, the agency charged withprotecting
whistleblowers in the federal government. In 2012, the secretary of labor
appointed Zuckerman to OSHA’s Whistleblower Protection Advisory
Committee. He is a graduate of the University of Virginia School of Law.
Dallas Hammer is a principal at Zuckerman Law, where he represents
employees in whistleblower, discrimination, and other employment-related
litigation. Hammer leads the rm’s cybersecurity whistleblower practice and
has represented whistleblowers at several of the largest technology compa-
nies. He has written extensively about whistleblowing related to cybersecu-
rity and data privacy. Hammer is a graduate of the Georgetown University
Law Center.
GENERAL PRACTICE | Vol. 69 | June 2020 | VIRGINIA LAWYER
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may lead to greater success in resolving disputes over parenting
issues such as when it is safe to resume socializing or travel,
whether to alter summer visitation, or how to deal with cancel-
lations or lack of childcare. It seems apparent that the Courts
will not be addressing these micro-disputes for quite some time,
so parents must nd a way to come to an agreement and spare
their children months of upheaval.
(2) e Challenge of Remote Learning in Family Law Cases:
In addition to the nancial and interpersonal challenges of
divorce, parents are now dealing with supporting their children
academically without a traditional school structure. Teachers,
friends, and counselors who usually create a support system for
children experiencing the breakdown of the traditional family
unit are suddenly missing from their lives. Exhausted parents,
desperate to assist their children to cope, now have to
gure out how to help educate them while working across
differing households.
School guidance Counselors at Norfolk Academy, an
independent school in Norfolk, Virginia oering education for
grades 1–12, have uniformly voiced an educational perspective
similar to Archer’s, regardless of the age of the student. “First
and foremost, children need to know that their parents are
supporting them and their relationships with both parents in a
divorce situation.” Counselors hope that parents can remember
that the stressors of this situation are not borne by adults alone.
“ey need to know that their parents are good, responsible
and loving people, even if they are not together, and that both
of them are there to support them.”
With respect to the challenges of the “distance learning”
programs that have been implemented with varying degrees of
success across the Commonwealth, the counselors at Norfolk
Academy and schools across Virginia are urging parents to
keep routines in both homes that support heathy habits, which,
in turn, support learning. “Children need daily consistency,
including sleep schedules.” Archer adds that even if children
are not enrolled in schools that are well-equipped for distance
learning, parents should encourage educational activities. Even
when the parents are not together, these goals can be achieved
consistently in both homes with communication and cooper-
ation. Parents should consider that even simple activities can
create an educationally valuable experience as well as comfort
for children who are moving between homes. Counselors uni-
formly suggest that these activities might involve “simply read-
ing, journaling their thoughts, and sharing those thoughts with
their parents and siblings,” or perhaps sharing articles from the
same periodical with each parent to create a common experi-
ence. e Norfolk Academy guidance oce specically recom-
mends National Geographic, for example, due to its breadth of
subject matter, availability, and low cost.
Across the board, school counselors and mental health
professionals encourage parents to engage in recreational and
athletic activities with their children, particularly when domes-
tic issues and isolation have taken a toll. Educators also echo
Archer’s opinions about the importance of children’s positive
relationships with both parents aer a separation or divorce.
Norfolk Academy’s professionals uniformly remind us that
“students whose parents have separated and/or divorced” need
to understand that that in the long run, things will be much
better if they can have a good relationship with both parents.
If separated or divorced parents could keep that in mind when
talking with their children about each other, it could save them
from a world of pain and disillusionment.”
In the aermath of COVID, this advice seems more
important than ever. We as family lawyers owe it to those we
serve to encourage novel, amicable approaches to preserve
their resources and ability to survive the crisis and thrive in the
future. q
Family Law
continued from page 17
Bretta Z. Lewis is a family law attorney with 20 years of litigation expe-
rience. She has specialized knowledge in matters involving special needs
children, domestic and substance abuse, mental health issues, and non-tra-
ditional family structures. She is an adjunct professor at William and Mary
Law School, a frequent lecturer in ethics and family law, served on the
Virginia State Bar Disciplinary Board, and is a current member of Virginia
State Bar Council.
24 See Va. Code § 8.01-420, placing a $350,000 cap on punitive damages gen-
erally.
25 Va. Code § 2.2-3908(B); S.B. 868.
26 H.B. 827/S.B. 712, Gen. Assemb., 2020 Reg. Sess. (Va. 2020).
27 Va. Code § 2.2-3907; S.B. 868.
28 Va. Code § 2.2-3904(E); H.B. 827/S.B. 712. e HRA’s administrative pro-
cess is still available to such employees, but it is optional. Id.
29 Va. Code § 2.2-3904(B)(2); H.R. 878/ S.B. 712.
30 Va. Code § 2.2-3904(A); H.R. 878/ S.B. 712.
31 Id.
32 Va. Code § 2.2-3904(B)(2); H.B. 878/S.B. 712.
33 Va. Code § 2.2-3904(B)(2)(b); H.B. 878/S.B. 712.
34 Va. Code § 2.2-3904(C); H.B. 878/S.B. 712.
35 Va. Code § 2.2-3901(C); H.B. 1514/S.B. 50, Gen. Assemb., 2020 Reg. Sess.
(Va. 2020).
36 Va. Code § 40.1-27.3(A); H.B. 798, Gen. Assemb., 2020 Reg. Sess. (Va.
2020).
37 Va. Code § 40.1-27.3(B); H.B. 798.
38 Va. Code § 40.1-27.3(C); H.B. 798.
39 Id.
40 See Va. Code § 8.01-420, widely disallowing basing motions for summary
judgment on discovery depositions.
EMPLOYMENT LAW
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H , but it does
oen rhyme, so said Mark Twain. is is writ-
ten in May 2020, weeks into the COVID-19
intrusion. While disruption abounds, we nd
ways forward. Daniel Defoe in his “Journal
of a Plague Year,”
1
detailing virus-threatened
London life in 1665, wrote that “[t]his was the
beginning of May, yet the weather was tem-
perate, variable, and cool enough, and people
had still some hopes.”
Disrupting the Work and Revealing the
Digital Divide
All lawyers faced atypical problems these past
few months. Before solving client problems,
many lawyers re-located to home oces, sep-
arating from legal assistants, paralegals and
colleagues. Hypothetical technology debates
became action-items. CLE programs on
remote access technology, remote conferences,
and e-everything were the hot ticket. It felt like
drinking from a rehose.
Aer managing forced change on “how to
work,” next up were the client problems. Do
we meet in person? Mask and gloves? Sanitize
the room aerwards? For acknowledgments,
is my notary comfortable sitting six feet away?
Did the client just touch that pen? ey just
returned from what country?
e challenges were just beginning.
Perhaps three weeks into this contagion, I
joined a conference call for the Real Estate
Council of the Virginia Bar Association.
is is a group of smart lawyers across the
Commonwealth, sharing their views on
issues, case-law, legislation and regulation.
Kay Creasman, the immediate past-Chair
of the Real Property Section of the Virginia
State Bar, reported a shocking reality — some
smaller Clerk’s Oces were open for record-
ing, but land records research was unavailable.
If online land records only went back a few
years, no full title examination could be had.
is stymied sales and nancing. A digital
divide was made apparent. Some jurisdictions
had full remote access and comprehensive dig-
itized land records.
Having to Learn New E-tricks
e digital divide also exists amongst lawyers.
Some Virginia lawyers have avoided dealing
with e-signatures, e-notaries and e-recording,
citing some rule about old dogs. e dog is
Virginia Real Estate in the Time Of COVID
by Benjamin D. Leigh
Sean Pollock, Unsplash
GENERAL PRACTICE | Vol. 69 | June 2020 | VIRGINIA LAWYER
25
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now barking at us. We can all admit to resisting change, if not
hating it.
Change came fast. When a corporate client needs a land-
use document executed and acknowledged to build a new
phase of one of the more important commercial projects in
a Virginia locality, and has a corporate policy of e-signatures
during COVID-19, the time is now. Easy enough in theory, but
real life shows us where lawyers must swim with the tide. Read
Virginia’s version of the “Uniform Electronic Transactions Act”
and specically Virginia Code section 59.1-485, entitled “legal
recognition of electronic records, electronic signatures and elec-
tronic contracts.” en read the rest of the Act — it helps with
insomnia during these times. is appears promising, a way to
get things done electronically.
That optimism is crushed by lenders who report “we
do not accept e-signatures as a matter of policy.” So too
with governmental planning and engineering departments,
even those mandating e-ling. They may demand a “wet”
signature.
Even with an executed and acknowledged document in
hand, what now? e digital divide resurfaces. Some Clerk’s
oces allow for e-recording — yet not all records qualify to
be handled electronically. If e-recording is not an option, we
decide again who goes to the Clerk’s Oce to record. If you
have a sta member with special health considerations or a
resistance to going to a public courthouse, employment law
questions arise (at which you shudder, “I just want to be a
real estate lawyer”). Arriving at the record room, the record-
ing clerk nds a box. No access to the prior day’s recording.
Just leave the documents in the box and the Clerk will record.
Examination and negotiation of the “gap indemnity” more than
we used to, and title insurers are trying to work through an
acceptable risk.
e estate planning and probate processes, facing their
own unique challenges, hit home where these documents form
part of the chain of title and empower sales by estate represen-
tatives. Some Circuit Court Clerk’s oces are reportedly mail-
ing back probate records proered for ling. An executrix may
not want to appear to qualify in one of the Commonwealth’s
busiest probate oces, given health concerns. ere are no
quick xes to these problems but it does make one re-examine
the benets of probate avoidance.
Ripples and Ruptures in Real Estate
All of this disrupted productivity from “stay-at-home” orders,
workforce furloughs, or other ripples in the economy beget
work that piles up on the real estate lawyer’s desk. An event
facility faces a season of cancelled weddings — are refunds
due? National commercial tenants sent out letters (not formal
notices) stating they will not be paying rent for a specied
period of time. Mortgages, residential or commercial, some-
where behind all this may not be timely paid.
Real estate lawyers are going to be busy. Who else will read
that business interruption insurance policy and requirement
for “physical loss or damage” or the boilerplate exclusions for
viral or airborne illness? Who else even thought about ways
to dra force majeure clauses (and admit it, not many of you
thought about these circumstances). What class in law school
prepared you for the medical practice tenant that wants to
set up a COVID-testing facility in a parking lot of the land-
lord’s mixed-use center?
ese problems surface at a time when many remedies
are temporarily barred by federal responses under the CARES
Act
2
(providing for stays of certain federally-nanced resi-
dential foreclosures and evictions, forbearance for residential
and multi-family loans). Or Virginia’s response in House Bill
340 adopted in April. HB 340 became eective immediately as
part of Title 44 of the Code of Virginia. Title 44? at covers
“Military and Emergency Laws” — not a volume of the Code
oen touched. Piling on further, most remedies are stayed by
the Supreme Court of Virginia’s “judicial emergency” orders.
3
Blessed are the Problem-Solvers
While we may not be in court, the real estate lawyers are on
the front lines of this. Many had to become the “PPP Loan
guy.” My rm calculates processing loans with some 4,000 jobs
associated with them — and I hope many of you greatly surpass
those numbers.
In between the PPP loans, you might have had a client buy
an oce building — or try. At the end of March, we had the
gut-wrenching phone call with a particular bank, telling the
client--“we won’t be closing loans for the next 90 days.” e
seller under something called a “contract” with a “closing dead-
line” of mid-April (and an internal intra-seller ght brewing for
years) was not pleased. en the Phase 1 environmental report
came back with “hits” mandating further investigation. Was
DEQ even open? Can I still hoard Excedrin along with the toi-
let paper? at sale closed before the end of April, thanks to a
lot of blood, sweat and good counsel representing seller, lender
and buyer.
e work will continue. ere will be bona de rent for-
bearance to consider for aected Virginia families and busi-
nesses. When the landlord wants to work with the pizza tenant,
who set records for takeout during the pandemic but still may
want three months of rent deferred into next year, you have the
job of reminding the landlord we have to get the lender to sign
o, in order to avoid triggering the “bad acts” guaranty provi-
sions. en there will be the “asks.” Such as when the commer-
cial tenant asks for a 6-month rent abatement. e landlord’s
lawyer points out the lease requires nancials — only to see that
the tenant principal is paying himself $100,000 a month (and
then you wonder about your vocational choice).
ere will also be the brazen — national tenants who
have millions or even a billion in cash — making blanket pro-
nouncements they will not pay rent. If the lease permits such
remedies, what will the nance accountant at headquarters do if
REAL ESTATE
Real Estate continued on page 29
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I standing before the Courts of Justice Committee in Richmond and
nervously awaiting the lawmakers’ questions about my desire and tness for a position in the judi-
ciary. Sure, they had my resume and judicial questionnaire, the high marks from my evaluation
by two local committees, and the kind words from my local delegation, but there’s never, EVER, a
lock on this job and you could be made or broken in that committee if you said the wrong thing.
I had prepared for a variety of questions, but two in particular seemed to be at the top of any
list, to-wit: 1) Why do you want to be a judge? and, 2) What qualities do you possess that would
warrant your selection by the General Assembly? With some careful introspection, both are not
terribly dicult questions. e latter, however, has always been near and dear to my heart because
repetition of that question, and my answer, have always driven me to improve as a judge.
So, what is the answer to the second question? e real question found within that query is:
“What makes anyone a good judge?” e answer to that question, in my opinion, has not changed
since the rst time I stepped foot in a courtroom at the beginning of my litigation career. Right
o the bat, two qualities are absolute pre-requisites for a sitting judge. First, intelligent knowledge
of the law (rather than rote knowledge) and, second, litigation experience. But, there is a third. I
spent 18 years in various courtrooms around Virginia and North Carolina in both criminal and
Behaving Judiciously:
e Importance of Judicial Demeanor
by the Honorable Steven C. Frucci
Outside the courtroom, the Hon. Steven C. Frucci has been known to look before he leaps, and then leap anyway.
GENERAL INTEREST FEATURES | Vol. 69 | June 2020 | VIRGINIA LAWYER
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GENERAL INTEREST
civil cases before I took the bench. As a litigator, especially in
the area of criminal defense, I developed thick skin for a variety
of reasons, including the fact that losing is commonplace for a
criminal defense attorney.
Despite the thick skin, losing never feels good. However,
the opportunity to be treated with respect and have a fair “day
in court” for my client oen buttressed the sting of a loss and,
for the most part (in 99% of the cases), my client and I received
that fair day in court. at being said, on occasion I ran into
judicial intemperance in both civil and criminal cases. On a
very rare occasion, an ill-tempered judge could prevent my cli-
ent and me from attaining that fair day in court, even when the
outcome was judicially reasonable. I learned early on that “win-
ning” sometimes simply meant being heard and treated fairly,
regardless of the outcome. So, in my humble opinion, a third
prerequisite for sitting in judgment of our fellow man is a pro-
fessional and attentive demeanor, and, all things being equal, it
is the most important of the three. Let me explain why.
Virginia Beach Circuit Court has a docent program and so
I am oen confronted with 20 to 30 inquisitive high school stu-
dents just waiting for a chance to ask me a question. When we
get past the rst couple of questions about the “worst” or “fun-
niest” cases I have seen in my courtroom, I oen get the “qual-
ication” question. I give them my answer of the three qualities
with an emphasis on demeanor and I try, as best I can, to relay
that when I was in private practice my experience was that in
our Commonwealth the overwhelming majority of judges were
fair and possessed impeccable judicial demeanor. I tell them
that I believe this is still the case, even more so today. But, as in
any other profession, there exists outliers, and that when I prac-
ticed law, I would sometimes encounter a judge who was impa-
tient and rude and that those very rare experiences aected me
greatly. Was the outcome within reasonable boundaries of the
law and facts in that particular case? Sure, most of the time.
en who cares? In my opinion, we all should.
I started as a judge in General District Court. GDC is the
equivalent to a welcome center for the Virginia Judicial System;
it is the gateway to our court system for most citizens. Most
people who have contact with our court system will do so in
GDC, whether it is a parking ticket, small claims, landlord/
tenant dispute, a speeding infraction, or the like. e same can
be said for Circuit Court and Juvenile and Domestic Relations
District Court to a lesser extent, but oen with higher stakes.
One judge, in one courtroom, who happens to have a bad
day and exhibits poor demeanor can affect the perception
of a great number of citizens who happen to be in court
that day, and many others they touch outside the court-
room. ese citizens are sometimes witnesses and litigants who
might not ever step foot in a courtroom again, but they leave
the courthouse thinking that this particular judicial behavior is
“just the way it is” in Virginia courts. Reinforcing stereotypes
found in mainstream media, social media and cinema, they
probably pass along their experience to countless other friends
and relatives like that old shampoo commercial where you tell
two friends, who tell two friends and so on. So, it matters quite
a bit how a judge treats people in court, regardless of the outcome.
Perhaps it is human nature that the moments I remember
most vividly of my litigation career were the very rare times
my client and I were treated badly by a judge. Not the wins or
successes that reinforced why I became an attorney; it was the
judicial bad behavior that I remembered the most. Similarly, I
would oen explain to my client that this was a very rare excep-
tion to our judiciary and not the norm, but it usually fell on
deaf ears. And can you blame them? ey oen came to court,
especially in civil cases, knowing the odds were at best 50/50 for
a win. Yet when a loss was coupled by judicial intemperance, an
inevitable perception of injustice occurred. I resolved to never
put anyone in that position if I took the bench and it has guided
my behavior ever since. So, I reinforce to those students that
the way you treat people, especially those whom you have
some power over, has long lasting effects that are poten-
tially good and bad. Demeanor and temperance matter.
Temperance is not a new concept. e ancient Greeks
included temperance in their meaning for sophrosyne, which
was their concept of excellence of character and was dened
as “moderation in action, thought or feeling; restraint.”
1
Temperance was one of Plato’s four core virtues, and was her-
alded by Aristotle. For many centuries, most religions have
spoken of and advocated for proper temperance in one form
or another. Most recently, noted psychologists have studied
temperance and its role in the betterment of the human mind
and society as a whole, especially, in the “positive psychology”
movement. e American Psychological Association denes
temperance as “any form of auspicious self-restraint, mani-
fested as self-regulation in monitoring and managing one’s
emotions, motivation, and behavior and as self-control in the
attainment of adaptive goals”.
2
ere have been many courtroom observational studies,
worldwide, that oen include judicial demeanor and the per-
ception of fairness by the public.
3
In Australia, an extensive
national observational study (National Court Observational
Study) of their lower criminal courts was undertaken between
August 2004 and July 2005.
4
e study examined various types
of demeanor displayed towards “major participants,” namely,
the prosecution, defense counsel, and the defendant.
5
e study
took snapshots of many types of procedural matters, both trial
and pretrial, and followed one docket at a time for an entire
day. In the end, 2,323 interactions were observed. Five types
of demeanors were observed in the study and their origins
and impacts discussed. In the end, one clear conclusion from
the study was that judicial demeanor and temperament can
“embody or undermine the core value of impartiality” within
a judicial system and ultimately “enhance or detract from the
legitimacy of courts as institutions and the exercise of judicial
authority.”
6
A 2005 case study in New York City collected observations
about the judiciary, including perceived fairness, from 400
criminal defendants within the Red Hook Community Justice
Center (“Red Hook”) as well as in traditional courts. Red Hook
was established as a non-traditional court in an eort to combat
perceived unfairness within the local traditional court system.
e goal of the study was to compare dierent perceptions
VIRGINIA LAWYER | June 2020 | Vol. 69 | GENERAL INTEREST FEATURES
28
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GENERAL INTEREST
by similarly situated defendants within the traditional courts
and Red Hook and then to try to identify the predictors of the
dierent perceptions.
7
e Red Hook study concluded, like
its Australian counterpart, that demeanor matters. Of note in
the Red Hook study is that the defendant in both the com-
munity-based court system (which seems to emphasize the
importance of impartiality in all aspects by all courthouse par-
ticipants) and in the traditional court saw the perception of fair-
ness eected in large degrees by the way they were treated by
the judge. In the traditional court, the study found that “judges
who make an eort to connect with defendants (e.g. making eye
contact, providing clear explanations of court proceedings and
their decisions and appearing respectful and impartial) can help
to enhance their sense that the court is fair” and “defendants
who were more satised with the judge were more satised
with the court’s overall fairness .”
8
More importantly, per-
ceived treatment of defendants by the judge, in both courts, was
the “most important predictor” of perceived fairness because
“defendants who perceived that that judge treated them with
respect, helpfulness, and objectivity were more likely to say the
experience was fair overall.”
9
No surprise there.
In Virginia, I believe judicial demeanor has always been
a priority. ere has been a recent trend, appropriately, to
emphasize demeanor even more, and one need look no further
than the Judicial Performance Evaluations (JPE) for proof of
this. Established by statute in 2014, the JPEs serve to pro-
vide direct feedback to judges for self-improvement and to
lawmakers for consideration for reappointment.
10
Opinions
will vary, but there is no denial that a substantial number of
questions on the evaluations relate directly to demeanor and
an objective look at the responses can be an eective tool of
improvement for a new or even seasoned judge. Clearly, the
JPEs demonstrate that demeanor is a key part of the equation
for re-appointment. Anecdotally, I can point to very encourag-
ing conversations with lawmakers about demeanor dating back
to the 90s when I was still an attorney; so the current desire to
have some sort of feedback by litigants regarding demeanor is
no surprise.
Our own Judicial Canons contain sections relating directly
to demeanor. Canon 3(B)(4) is a prime example. It states:
A judge shall be patient, dignied and courteous to liti-
gants, jurors, witnesses, lawyers and others with whom the
judge deals in an ocial capacity, and shall require similar
conduct of lawyers, and of sta, court ocials and others
subject to the judge’s direction and control.
11
Canon 3(B)(7) certainly touches on this subject as well in its
directive to a judge to aord all litigants the “right to be heard
according to the law.” It seems Virginia made demeanor a pri-
ority long before I came along, thankfully.
Now, just because I referenced rare encounters of bad judi-
cial demeanor back when I was a trial attorney doesn’t mean
I have all the answers nor that I sanctimoniously tout myself
the “alpha demeanor” judge. I certainly try, but at the end
of the day we are all human; good demeanor is oen a work
in progress. e truth is most judges, myself included, try to
restrain reexive or reactive behavior from time to time when
confronted with the occasional bad actor. “Restraint,” a com-
mon term found in any denition of temperance and demeanor
as well as the observational studies cited above, is a great word
to use when discussing the day-to-day struggle to maintain a
reasonable demeanor. Impatience, irritation, and even anger are
all things judges suer from occasionally while on the bench.
Restraint of temptation to act as a result of these things is not
easy, but essential, in maintaining proper demeanor, especially
when bad actors potentially disrupt court proceedings. Here,
good demeanor can take you only so far. ere is a limit.
So, what about contempt as it relates to judicial demeanor?
Having a bad day or generally bad demeanor is one thing (and
again rare in my opinion) but confronting disrespectful behav-
ior in the courtroom can also test the demeanor of otherwise
good-tempered jurists. As a young trial attorney, I would oen
hear my colleagues talk about certain judges who never “suf-
fered fools gladly” and thought, at least at the time, that it made
sense. In many circumstances it does. However, as I sit now in
judgement, I oen nd myself suering fools a bit. Reasonable
people oen act foolish in the course of litigation are oen cap-
tured by emotion and do so out of character. In those circum-
stances, patience, understanding, and empathy are oen the
proper way to “suer” such behavior. Certainly, ensuring the
proper administration of justice requires summary action, such
as contempt, from time to time when the circumstances merit
such action. But the action should be a result of an aront to
the judiciary’s integrity, not the subjective integrity of the judge
personally.
I believe this relates directly to demeanor and temperance.
Contempt in Virginia is reserved for behavior that “is calculated
to embarrass, hinder, or obstruct the court in the administra-
tion of justice.”
12
A judge must divorce whatever emotions may
be triggered by bad courtroom behavior and only seek redress
for such behavior through the eyes of a blind-folded lady jus-
tice, not the judge’s personal ego. is is easier said than done
and takes practice. Again, restraint is key. If the behavior only
bruises the ego and fails to hinder or obstruct the adminis-
tration of justice, contempt may not be an option. When you
take the bench as a new judge, it is only a matter of time before
someone acts up in open court and I oen give new judges
the advice to “not take it personally” when it happens and to
evaluate the situation objectively. If the behavior could possibly
erode the integrity of the judiciary as set forth in the caselaw,
take the appropriate action, but never let pride or a bruised ego
override or inuence this evaluation. Again, easier said than
done; we are only human.
On a side note, sometimes bad demeanor on the part of
a judge or even an attorney is the result of forces outside their
control such as personal tragedy, depression, addiction or the
tremendous amount of stress associated with the job (and
isolation for judges). In those cases, there are always avenues
for help such as the Virginia Judges and Lawyers Assistance
Program. q
GENERAL INTEREST FEATURES | Vol. 69 | June 2020 | VIRGINIA LAWYER
29
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Endnotes
1 https://en.wikipedia.org/wiki/Temperance_(virtue)#Greek_civilization
2 https://dictionary.apa.org/temperance
3 Kathy Mack & Sharyn Roach Anleu, “Performing Impartiality: Judicial
Demeanor and Legitimacy.”Law & Social Inquiry, vol. 35, no. 1, 2010, pp.
137–17, 143–44 n.3., http://www.jstor.org/stable/40539409, (citing, e.g.,
Cole, Bankole Cole, “Rough Justice: Criminal Proceedings in Nigerian
Magistrates’ Courts” International Journal of the Sociology of Law, vol.
18, no. 3, pp. 299–316 (1990) (studying use of laughter and sarcasm by
Nigerian magistrates)).
4 http://www.inders.edu.au/ehl/law/research-activities/judicial-re-
search-project/national-court-observation-study.cfm
5 Mack & Anleu, 170.
6 Id.
7 M. Somjen Frazer. “A Case Study at the Red Hook Community Justice
Center.” Center for Court Innovation, www.courtinnovation.org,
September 2006.
8 Id. at 29.
9 Id. at iii.
10 Va. Code Ann. § 17.1-100 (2019).
11 C J C C V,
C (B)() ().
12 Potts v. Commonwealth, 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946); Carter
v. Commonwealth, 2 Va. App. 392, 396, 345 S.E.2d 5, 7–8 (1986).
the national store is chained up and possession retaken without
lease termination?
Real Estate Opportunities to meet Challenges
COVID-19 will create work for the real estate lawyers. e abil-
ity to use e-meeting technology, make e-payments and remotely
connect to an oce pushes the need for even more data storage
in high-value buildings near “internet pipe.” Localized and last-
mile logistics are the rage among supply chains — many are
looking to repurpose failed retail real estate. On the scal side,
we will be working through the back side of those PPP loans —
they were forgivable — right?
We will muddle on through all this and be better tomor-
row than today. Aer all, Mr. Twain helps us close out: “e
secret of getting ahead is getting started.” q
Endnotes
1 A free version is available from the Project Gutenberg at
https://www.gutenberg.org/les/376/376-h/376-h.htm
2 e Coronavirus Aid, Relief, and Economic Security (CARES) Act became
eective March 27, 2020.
3 Defoe’s London lawyers must have been subject to similar orders: “[t]he
Inns of Court were all shut up; nor were very many of the lawyers in the
Temple, or Lincoln’s Inn, or Gray’s Inn, to be seen there.”
Benjamin D. Leigh is a partner in the Leesburg rm Atwill, Troxell &
Leigh, P.C. and was a former Law Clerk to Chief Justice Harry L. Carrico.
Leigh is the 2020 recipient of the Real Property Section’s Traver Scholar
Award that honors lawyers who embody the highest ideals and expertise in
the practice of real estate law.
e Hon. Steven C. Frucci has been a Circuit Court Judge for the City of
Virginia Beach since August 2013. He was elevated to the Circuit Court
aer serving four and a half years as a judge in the Virginia Beach General
District Court. Prior to assuming the bench, Judge Frucci practiced law in
Virginia for 18 years in both civil and criminal litigation. In the years Judge
Frucci practiced as an attorney he served as a CLASS (Concerned Lawyers
Advocating Spousal Safety); certied Guardian Ad Litem for children;
served as Chair for the Virginia Beach Bar General District Court Liaison
Committee; a member of the Virginia Beach Bar Circuit Court Liaison
Committee; a member of the Virginia State Bar Fee Dispute Resolution
Committee; and was a certied Fee Dispute Arbitrator. In 2012, he was
elected to the Board of Governors to the VSB Section on Criminal Law and
appointed by the Virginia Supreme Court to the Advisory Committee for
the Judicial Mentoring Program as well as a Judicial Mentor. Judge Frucci
served as a Facilitator Judge for Mentoring Training from 2012 to 2016. In
2015, Judge Frucci headed the committee for implementation of the current
Drug Court Program in Virginia Beach. He currently serves as a member
of the Virginia Criminal Sentencing Commission as well as a member of
the Virginia Criminal Justice Conference. He received his BA degree from
University of North Carolina, Chapel Hill in 1988, and his Juris Doctorate
from the University of North Carolina, Chapel Hill in 1991. He is an active
member of both the VSB and the State Bar of Hawaii.
GENERAL INTEREST
Real Estate continued from page 25
Condential help for substance abuse problems and mental health issues.
For more information, visit https://vjlap.org
or call toll free 24/7: 1-877-545-4682
Lawyers Helping Lawyers is now Virginia Judges and Lawyers Assistance Program
Virginia is one of about a dozen states
that permit an ordinary citizen to put the
criminal justice system in motion by ling a
private criminal complaint. Section 19.2–71
of the Virginia Code authorizes the issu-
ance of an arrest warrant by any judicial
ofcer, including a judge or clerk of a court
or a magistrate, on a complaint. (To facili-
tate discussion, this article uses the term “mag-
istrate” to include all of these types of judicial
ocer.) e text of the statute makes it clear
that the complaint may be led, not only by a
law enforcement ocer or prosecutor, but by
anyone. If the magistrate nds probable cause
to believe that a crime has been committed by
the accused, aer examining the complainant
and possibly other witnesses, he must issue an
arrest warrant.
1
A private citizen needs no prior authori-
zation before going to a magistrate for misde-
meanor warrants. For felony complaints, no
warrant may issue without prior approval by
either the Commonwealth’s attorney or by a
law-enforcement agency. Commonwealth’s
attorney approval is necessary for arrests for
capital murder. Some Commonwealth’s attor-
neys apparently pre-authorize warrants for
classes of felony cases. Law enforcement agen-
cies also may grant pre-approvals.
2
e prac-
tice is unevenly used across Virginia. In fact,
some experienced Commonwealth’s attorneys
may have never heard of it.
A private criminal complaint must be
presented to the magistrate in writing;
3
a
complaint by law-enforcement ocer must
be sworn, but it may be oral.
4
Section 19.2–53
gives the magistrate the option of issuing a
summons instead of a warrant for certain mis-
demeanors.
Once the magistrate nds probable cause,
the form of the warrant or summons is no
dierent than if it had issued based on the
complaint of a law enforcement ocer. Nor
does execution dier based on how the case
was commenced. A warrant is directed to a
law enforcement ocer with jurisdiction; the
summons is directed to the respondent. e
warrant is executed by taking the accused into
custody; a summons is executed by delivering
it to the respondent.
5
e police are obligated to execute war-
rants (or to give notice and allow the accused
voluntarily to appear)
6
but they are not obli-
gated to allocate resources to investigate a par-
ticular case. Commonwealth’s attorneys have
a statutory duty to prosecute felonies, and
discretion whether to prosecute misdemean-
VIRGINIA LAWYER | June 2020 | Vol. 69 | GENERAL INTEREST FEATURES
30
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Taking the Law into Your Own Hands:
Private Criminal Complaints in Virginia
by Henry H. Perritt, Jr.
Bill Oxford, Unsplash
GENERAL INTEREST FEATURES | Vol. 69 | June 2020 | VIRGINIA LAWYER
31
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GENERAL INTEREST
ors.
7
e Commonwealth’s attorney may decline to prosecute
even felonies, however, by entering a nolle prosequi appearance.
In practice, a Commonwealth’s attorney’s oce sometimes
asks for additional investigation into a case where a misde-
meanor warrant was obtained from a magistrate on a private
citizen complaint. e prosecutor may need more follow-up
from a witness(s), evidence sent to the lab, or a follow-up with
the complaining party to get more details about the incident.
is is infrequent, except for classes of misdemeanors that
Commonwealth’s attorneys prosecute, especially DUI and
domestic violence cases.
8
Virginia had just under 400 magistrates, as of March 2019,
9
with at least one magistrate oce in each of 32 judicial districts.
In 2018, Virginia magistrates issued 110,393 felony arrest war-
rants, and 184,476 misdemeanor arrest warrants.
10
In each judi-
cial district, a magistrate is on call 24 hours per day, 7 days per
week.
e oce of Magistrate replaced the oce of Justice of
the Peace, on January 1, 1974. e Virginia General Assembly
extensively restructured the magistrate system in 2008, to
centralize appointment, training, and supervision under the
Executive Secretary of the Supreme Court. Formerly, magis-
trates had reported to the chief judges of the circuit courts for
the judicial circuits where they sat.
11
Until 2009, no consul-
tation with Commonwealth’s attorneys or law enforcement
was required, even for felony warrants. Until 2011, the statute
merely required consultation, with Commonwealth’s attorney
or law enforcement, not approval.
Private criminal complaints presented to magistrates
make Virginia’s criminal justice system more accessible to
victims of crimes. The possibility offers protection when
the police and public prosecutorial apparatus is indifferent
or lacking in sufcient resources. Despite the claims of some
critics to the contrary, private criminal complaints are at the
core of due process. When the 14th Amendment’s Due Process
Clause was adopted, and for centuries before, in the evolution
of the Anglo-American legal system, private criminal com-
plaints were the norm, organized law enforcement and public
prosecutors were hardly known. When someone was thought to
have committed a crime, any person who knew or heard about
it would go to a magistrate – usually a justice of the peace--and
swear out (in other words, give sworn testimony supporting the
issuance of) a warrant.
12
e magistrate would give the warrant
to the sheri, and if the sheri did not think he was big enough
and tough enough to eect the arrest of the accused, he would
command an adequate number of citizens to form a posse
comitatus to help him make the arrest.
13
e involvement of
public ocers was quite limited; privatization was the norm.
In an increasingly bureaucratized world, in which all
organs of government seem more and more remote from ordi-
nary citizens, allowing private criminal complaints gives the
ordinary person direct access to the criminal justice system.
is may be an important justice safety net for those who are
unable to get redress otherwise. When law enforcement refuses
to investigate or Commonwealth’s attorneys refuse to prosecute
a legitimate criminal case because of bias, prejudice, or other
abuse of discretion, the existence of a privately obtained war-
rant might bring a matter to the public’s attention.
But it’s not 1868, and times have changed. Critics argue that
police and prosecutorial discretion are important protectors of
accused’s rights, and the private criminal complaint system is
easily abused for malicious purposes. It makes it too easy, critics
say, for an angry spouse or a cranky neighbor to get an oppo-
nent put in jail when, at most, their dispute should be adjusted
in the civil courts. Using the private criminal complaint system
against police ocers thrusts the criminal justice system into
an arena better suited for civil actions for false arrest and has
a chilling eect on police performance. Use of the procedure
in the context of personal vendettas oen results in cross com-
plaints, where each party swears out a warrant against the other,
creating a tangle for prosecutors and judges to unravel.
Roanoke defense attorney Seth Weston thinks private
complaints without police or prosecutor involvement burden
the judicial system with lots of poor-quality cases. He thinks
it would be better if the statute required police involvement
before arrest warrants issue. Virginia Beach Commonwealth’s
attorney Colin Stolle agrees, although he is not certain of the
magnitude of the problem. Although the statute authorizes
magistrates to call witnesses, reality limits magistrate investiga-
tion. Police agencies, on the other hand are more likely to be on
the scene, where they easily can investigate.
Not much momentum exists for changing the system,
however. Should a problem with the police exist, an ethical
Commonwealth’s attorney can refer a legitimate case to an
outside agency for investigation. e Internet and social media
make it much easier for disgruntled victims of crime to bring
prosecutorial inaction to public attention.
Although the statute does not require complainants to
consult the Commonwealth’s attorney before presenting
misdemeanor complaints to magistrates, it does not pre-
clude the magistrate from consulting informally with the
Commonwealth’s attorney before acting on the complaint.
Magistrates sometimes do so, and this enables them to handle
private complaints so that they do not interfere with ongoing
criminal investigations, as they would if warrants were issued
prematurely alerting the defendant of an ongoing investigation.
Senator Bill DeSteph introduced legislation in the 2020
Regular Session to amend sections 19.2-71 and 19.2-72 to
require Commonwealth Attorney approval when the accused
in a private criminal complaint is a law enforcement ocer
who allegedly committed an oense in the performance of his
ocial duties.
14
e bill died in committee on a straight par-
ty-line vote, with all the Republicans voting for it and all the
Democrats voting against it. In a telephone interview with the
author, Sen. DeSteph recounted instances in which suspects
resisting arrest went to several magistrates, seven, in one case,
Criminal Complaints continued on page 54
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Jason Glenn Shoemaker
James Edward Short
Jennifer Barbara Shupert
Mark Loren Simons
Nicholas Foris Simopoulos
Satnam Singh
Lorena Rae Smalls
Benjamin Melford Smith, III
John Randolph Smith
Sefton Keller Smyth
Louis David Snesil
Jeffrey Bellamy Sodoma
Elden Ray Sodowsky
Nicholas Jon Solan
Eric Roland Spencer
Charles Paul Stanley, III
Joseph John Steffen, Jr.
Virginia Marie Stephens
Jessica Lasha Stokes-Johnson
Steven David Stone
Robert James Strayhorne
Bryan Kimball Streeter
Rodrick Karl Sutherland
Andrew Robert Tank
Seymour M. Teach
Roy Tesler
Diana Margeaux Thomas
Khadeja Binte Tipu
Richard Scott Toikka
George Lysle Townsend
Elizabeth Blair Trent
Cheryl Sue Tuck
Benjamin Scott Tyree
Sean E. Underwood
Jill Lori Velt
David Bruce Vermont
Harsh Kalyan Voruganti
Shane Nathaniel Waller
Brandon Clay Waltrip
Paul Snyder Ward
Marie Everlyn Washington
Steven Kent Webb
Matthew James Weinberg
Blake Andrew Weiner
Edward Laurence Weiner
Brad Daren Weiss
Michael Owen Wells
Joseph Elmer Whitby, Jr.
Steven Blythe Wiley
Alanna Camille Williams
Mark Bailey Williams
Michael Allan Williams
James Bradley Winder, Jr.
Marshall Allen Winslow, Jr.
Lisa Dale Woodward
Clayton Andrew Worthington
Victoria Paige Young
Rami Nassib Zahr
Wilhelm Alfons Zeitler
VLRS Thank Yous[1].indd 3VLRS Thank Yous[1].indd 3 6/16/20 10:49 AM6/16/20 10:49 AM
For a fee, which is collected by the Virginia Lawyer Referral
Service (VLRS) at time of referring, a referred caller is entitled
to up to one half-hour consultation with a VLRS lawyer that is a
VSB member.
If you are a VSB member in good standing and want to serve as
a consulting lawyer for the VLRS, contact 804-775-0591 or visit
the “For Lawyers” section of the VLRS website and ll out an
application today. A $95.00 annual fee is required after the rst
year of membership.
JOIN THE VIRGINIA LAWYER REFERRAL SERVICE
www.vlrs.net
Shawn Michael Mihill
Abigail Ann Miller
Robert Kenneth Miller, Jr.
Douglas Edward Milman
John Charles Moore
Cary Powell Moseley
Faisal Shawn Mughal
Charisse Monae Mullen
Robert Gustafson Munro
Jay Barry Myerson
Jonathan Allen Nelson
Scott Jeffrey Newton
Anthony Mark Nicewicz
Edward Kelley Nickel
Macayla Marie Nicolaison
Matthew James O’Herron
Christopher Michael Okay
Timothy Melvin Olmstead
Frederic Neal Ornitz
J. A. Terry Osborne
Kimberly Lee Osborne
Ronald Allen Page, Jr.
Teresa Lynn Pagliaro
Kellam Thomas Parks
Louis George Paulson
Benjamin Dean Pelton
William L. Perkins, III
Sabahat Pervaiz
Alexander Reed Phillips
Richard Earl Phillips
Deborah Dech Piland
Gregory Allen Porter
Todd Joseph Preti
Michael Wayne Price
Helen Margaret Primo
Jeremy Lyle Pryor
Christopher Russell Rau
Nancy Marie Reed
Vanessa Crockett Reed
Jane Maria Reynolds
Barrett Rives Richardson, Jr.
Andrew Thomas Richmond
Jeffrey Floyd Riddle
Robert Frank Rider
James Barbour Rixey
Brien Anthony Roche
Jeffrey Scott Romanick
Paul Steven Roskin
Bruce Harold Russell, II
Spencer Alexandre Rygas
Lily Annice Saffer
Charles Richard Samuels
Todd Francis Sanders
Paul Todd Sartwell
Anna Clarke Sas
Frederick Michael Schick
Ryan Michael Schmalzle
Sam David Scholar
Matthew Thomas Schottmiller
Theseus Danger Schulze
James Peter Seidl
Albert Charles Selkin
Scott Raymond Sexauer
William Gilbert Shields
Jason Glenn Shoemaker
James Edward Short
Jennifer Barbara Shupert
Mark Loren Simons
Nicholas Foris Simopoulos
Satnam Singh
Lorena Rae Smalls
Benjamin Melford Smith, III
John Randolph Smith
Sefton Keller Smyth
Louis David Snesil
Jeffrey Bellamy Sodoma
Elden Ray Sodowsky
Nicholas Jon Solan
Eric Roland Spencer
Charles Paul Stanley, III
Joseph John Steffen, Jr.
Virginia Marie Stephens
Jessica Lasha Stokes-Johnson
Steven David Stone
Robert James Strayhorne
Bryan Kimball Streeter
Rodrick Karl Sutherland
Andrew Robert Tank
Seymour M. Teach
Roy Tesler
Diana Margeaux Thomas
Khadeja Binte Tipu
Richard Scott Toikka
George Lysle Townsend
Elizabeth Blair Trent
Cheryl Sue Tuck
Benjamin Scott Tyree
Sean E. Underwood
Jill Lori Velt
David Bruce Vermont
Harsh Kalyan Voruganti
Shane Nathaniel Waller
Brandon Clay Waltrip
Paul Snyder Ward
Marie Everlyn Washington
Steven Kent Webb
Matthew James Weinberg
Blake Andrew Weiner
Edward Laurence Weiner
Brad Daren Weiss
Michael Owen Wells
Joseph Elmer Whitby, Jr.
Steven Blythe Wiley
Alanna Camille Williams
Mark Bailey Williams
Michael Allan Williams
James Bradley Winder, Jr.
Marshall Allen Winslow, Jr.
Lisa Dale Woodward
Clayton Andrew Worthington
Victoria Paige Young
Rami Nassib Zahr
Wilhelm Alfons Zeitler
VLRS Thank Yous[1].indd 3VLRS Thank Yous[1].indd 3 6/16/20 10:49 AM6/16/20 10:49 AM
VIRGINIA LAWYER | June 2020 | Vol. 69
34
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Wellness
Dear Members of the Virginia State Bar,
My deepest thanks for the bar dues
assessment you gave to the Attorney
Wellness Fund for the rst time last year.
My dear mother would be mortied to
learn that I hadn’t written to you earlier.
A staunch believer in never using a gi
before penning a proper “thank you”
card, she would admonish my impa-
tience and remind me of the importance
of gratitude oen when I was a child. I
viewed this as motherly nagging at the
time, but have come to see how crucial
patience and thankfulness can be for
well-being, particularly for those of us
in the legal profession.
1
It is in that spirit
that I write to you today (better late than
never) because, as the Coordinator for
the Virginia Lawyers’ Wellness Initiative
(VLWI), I have been using your gi for
almost a year now.
2
So, how have I been spending
your contribution? If you have kept
up with the hot news in occupational
wellness, you already know that Chief
Justice Lemons and the 25 brilliant
legal minds he appointed to serve on
the Committee on Lawyer Well-Being
created a ground-breaking roadmap for
our Commonwealth in 2018. e report
they produced started the VLWI with 38
recommendations designed to improve
mental health and address substance
abuse in our profession.
3
Of those rec-
ommendations, 15 were intended to be
on-going, such as “communicate that
well-being is a priority,”
4
“reduce the
stigma of mental health and substance
use disorders,”
5
and “discourage alco-
hol-centered social events.”
6
Within
the rst year of the VLWI, all of these
on-going recommendations are under-
way.
e remaining 23 recommendations
in the report are immediate, one-and-
done changes, like “provide adequate
funding to Lawyers Helping Lawyers
[now the Virginia Judges and Lawyers
Assistance Program] for implemen-
tation of its statewide strategic plan,”
7
“re-evaluate bar application inquiries
about mental health history,”
8
and (my
favorite) “create a position and pro-
gram within the Oce of the Executive
Secretary of the Supreme Court to
coordinate comprehensive well-being
initiatives.”
9
Sixteen of these recommen-
dations have been completed already,
and the VLWI is excited to tackle the
nal seven recommendations in the
upcoming year. Virginia is leading the
nation by publishing our state-specic
report on lawyer well-being and by
taking it further to implement its rec-
ommendations through a staed and
funded Supreme Court initiative.
10
Of course, any good “thank you”
note should include more than a rec-
itation of the numeric value of the gi.
“Make it personal!” my mother’s voice
gently urges — a layperson’s way of
saying that gratitude can strengthen
our connections and, in turn, our social
wellness.
11
Selshly, I am grateful for my
job, but for more than the obvious rea-
son of being employed. When I read the
national studies that show the staggering
prevalence of depression, anxiety, addic-
tions of all kinds, burnout, and suicide in
our profession (two to four times that of
the general population depending on the
metric),
12
I recognized myself in nearly
all of these dire statistics.
Similar to 23% of law students in
a 2016 survey,
13
I started law school at
Washington & Lee in 2008 with “mild to
moderate” anxiety. While in law school,
I coped with the increasing stress the
same way 43% of surveyed students did:
binge drinking.
14
is culturally accept-
able but ultimately unhealthy strategy
did little to assuage my worrying brain,
and, like 14% of survey respondents,
my anxiety increased to “severe.”
15
As
clinical experts will tell you, anxiety and
depression go hand in hand, and by the
end of my 1L year, I had joined 6% of
students who reported serious suicidal
thoughts.
16
I was fortunate enough to
have a strong family support system that
encouraged me to seek the professional
help I needed — and that W&L provides
therapy to its students on campus at
no-cost — the combination of which set
me on a path of increasing awareness of
the complexity of mental health issues
and improving my coping mechanisms
as I prepared to enter our demanding
profession.
Since becoming a member of the
VSB in 2011, I’ve seen how our unique
occupational risks play out in dierent
areas of the law: rst as an Assistant
Commonwealth’s Attorney for the City
of Roanoke, then as a private defense
attorney for a small rm in the New
River Valley. I learned these issues
were not unique to Virginia when I
moved to Pittsburgh, PA to serve as
the Sta Attorney for the Pennsylvania
Interbranch Commission for Gender,
Racial, and Ethnic Fairness.
17
All the
while, my understanding of my own
mental health continued to develop; I
began to experience what experts refer to
post-traumatic growth, dened as “posi-
tive psychological change experienced as
a result of adversity and other challenges
in order to rise to a higher level of func-
tioning.”
18
To see my darkest moments
reected in these statistics was at rst
reassuring (“I’m not alone! I’m not the
only crazy one!” screamed my mon-
key-brain, always wanting to t in) and
then devastating (“What is wrong with
our profession on a structural level and
how on earth could we ever start to x
it?” prodded my policy wonk training).
To nally see how Virginia attorneys,
judges, law schools, and legal profes-
A ank You Note to All Virginia Lawyers
by Margaret Hannapel Ogden
ank you continued on page 36
Wellness
A Lawyer’s Story of Recovery: First Step to Full Circle
by Asha Pandya
Feeling supported and connected
enabled me to rebuild my social, emo-
tional, and occupational wellness;
establish a strong foundation for living
a healthy life; and resume employment
in a position from which I previously
resigned due to struggles with substance
use and mental health. e Virginia
Judges and Lawyers Assistance Program
(VJLAP, formerly Lawyers Helping
Lawyers) was integral to my regenera-
tion and recovery.
e rst few days of February 2012
were among the worst of my life. Aer
being arrested for a second alcohol-
related oense while employed as a
Senior Assistant Commonwealth’s
Attorney (ACA), I resigned from the
position which had become the most
important thing in my life during
the previous 12 years. Within days,
I received a call from Norfolk Circuit
Court Judge Charles Poston who
expressed his concerns and support. His
kind and quick response was lifesav-
ing. While I was unsure where my life
was headed, it was apparent I required
professional assistance. Judge Poston’s
suggestion was to call VJLAP (formerly
LHL) and talk with Jim Leer.
Again, I found support there. I
arrived in the VJLAP oce, lling out
paperwork and completing assessments
that made no sense to me at the time.
I had not had a drink in four days and
had no intention of ever drinking again.
A promise I had made so many times
before to myself. While skeptical, I was
assured that I could recover from my
current situation. Jim explained that
my assessment results, history of alco-
hol use, and mental health background
indicated that inpatient treatment was
recommended. A step which I was
unwilling to take as I had not exhibited
any signs of withdrawal. Like most, I was
in denial but emotionally lost. Again, I
found support and received encourage-
ment from VJLAP as Jim navigated me
towards treatment. e one truth I did
embrace was that I was determined to
remain sober and willing to do (almost)
anything to accomplish that. us, with
Jim’s guidance, I agreed to attend 90
12-step AA/NA meetings in the next 90
days, was referred for intensive outpa-
tient treatment (IOP), and began volun-
tary monitoring by VJLAP.
Participating in a treatment pro-
gram created for other professionals
such as doctors, nurses, dentists, and
other lawyers was integral to my recov-
ery. Treatment included groups twice a
week; individual therapy once a week;
psychoeducational programs about
addiction and recovery; medication
management and attendance at 12-step
recovery groups. Recovery was my full-
time job. Learning skills for living a life
without alcohol and focusing on posi-
tive mental health enabled me to build
a strong foundation for my recovery.
Consistent aercare over the next three
years, included attendance of VJLAP
support groups where I continued to
meet with other legal professionals strug-
gling with sobriety and mental health
disorders. I was to learn later that Judge
Poston periodically checked in with
VJLAP on my progress, as I had volun-
tarily authorized by a signed release.
In April 2012, I opened a solo prac-
tice as a defense attorney and continued
working my recovery program. Again, I
received support, this time professionally
from colleagues, judges, and courts. As I
developed a practice consisting of court
appointed criminal defense cases, I was
repeatedly shown that others believed I
was legally competent. is professional
validation along with positive comments
concerning my continued legal eec-
tiveness meant much to my recovery
path. I can never fully thank those who
took a chance on me professionally, but
know that your actions and words have
assisted in my success in a meaningful
way over the years as I celebrate eight
years of sobriety. I joined the VJLAP
Board of Directors aer a year of sobri-
ety and have remained a board member
ever since. VJLAP had enabled me to
assist numerous other attorneys in their
attempts to get sober, to mentor other
attorneys in recovery, and to share my
story at various CLEs. e response
from other legal professionals has been
surprisingly supportive and I continue to
receive much needed acceptance.
While I believe it was necessary for
my recovery path to include all the tri-
als and tribulations that led me to that
weary state in February 2012, there was
much pain before I was willing to look
honestly at myself and become moti-
vated to make the changes necessary.
Surprisingly last fall, I returned
to the Norfolk Commonwealth’s
Attorney’s Oce as a Senior Assistant
Commonwealth’s Attorney — the very
position I resigned from some eight
years ago on that fateful night when I
was a dierent person mentally, emo-
tional, physically, and professionally.
It is not lost on me today that I am
assigned to the same position and same
prosecution team and that I work with
the same sta (secretaries and parale-
gals), some of whom requested to work
with me again. I know I am called to do
this work; however, aer my resignation
I never thought a chance to do so would
present itself. I am so thankful that the
Norfolk Commonwealth’s Attorney’s
Oce embraced a universal truth — that
when a person recovers from addiction
and embraces the help needed to address
mental health issues and substance abuse
that the person is a skillful, well-rounded
employee who is a worthwhile team
member and public servant.
Vol. 69 | June 2020 | VIRGINIA LAWYER
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Recovery continued on page 36
VIRGINIA LAWYER | June 2020 | Vol. 69
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Wellness
sionals came together to address these
ndings gives me faith that we can grow
together. Connection, gratitude, and
support saved my life over a decade
ago. Just think of all the lives we will
change for the better as we take the
rst steps to embed these positive cop-
ing mechanisms into the profession at
large. I am grateful, humbled, honored,
and optimistic to be walking this path
with you all.
ank you for your gi to both our
profession as a whole and each of us
individually who comprise it. I can’t wait
to see you all in person to fully convey
my appreciation, and until then, stay
well! q
Endnotes
1 Practicing gratitude has been scientically
shown to improve our physical and emo-
tional wellness, and to play a major role
in how we overcome trauma. See Morin,
Amy, “Seven Scientically Proven Benets
of Gratitude,” Psychology Today, April
3, 2015, available online at https://www.
psychologytoday.com/us/blog/what-mental-
ly-strong-people-dont-do/201504/7-scienti-
cally-proven-benets-gratitude
2 e precision-minded among you may take
issue with my usage of the term “gi,” when
this assessment was a mandatory fee approved
by the General Assembly at the behest of the
Supreme Court of Virginia. See Virginia State
Budget Bill of 2019, H.B. 1700, Chapter 854,
Item 38, P.1 – 3. See also Virginia State Bar
Professional Guidelines 23. Attorney Wellness
Fund, available online at https://www.vsb.org/
pro-guidelines/index.php/bar-govt/attorney_
wellness_fund/
3 See A Profession at Risk, Report of the
Committee on Lawyer Well-Being of the
Supreme Court of Virginia, September 2018,
available online at http://www.courts.state.
va.us/programs/concluded/clw/2018_0921_
nal_report.pdf
4 Id. at 9.
5 Id. at 10.
6 Id. at 21.
7 Id. at 5. is recommendation has been com-
pleted thanks to your bar dues assessment.
8 Id. at 12. e VBBE has completed this recom-
mendation.
9 Id. at 4. is recommendation was completed
when I was hired in October 2019, so my bias
in favor of these recommendations should be
apparent.
10 At least 32 other states have created committ
es in response to the National Taskforce on
Lawyer Well-Being. See e National Task
Force on Lawyer Well-Being, available online
at https://lawyerwellbeing.net/ Virginia was
one of the rst three states to publish its
Report, and the rst to create and fund a full-
time position in its court system dedicated
to wellness in the profession. Utah, another
early publisher of a wellness report, created
a Standing Well-Being Committee for the
Legal Profession within their State Bar, staed
by a part-time Executive Director Martha
Knudson. See e Utah Task Force on Lawyer
and Judge Well-Being, Creating a Well-Being
Movement in the Utah Legal Community,
February 2019, available online at https://www.
utahbar.org/wp-content/uploads/2019/07/
Task-Force-Report-2.pdf. e Massachusetts
Supreme Judicial Court established a Standing
Committee on Lawyer Well-Being, and hired
Heidi Alexander as its full-time Director in
February 2020. See Supreme Judicial Court
Steering Committee on Lawyer Well-Being,
Report to the Justices, July 2019, available
online at https://www.lawyerwellbeingma.com/
history-and-report. Martha, Heidi, and I have
a standing monthly conference call to discuss
national trends and state-specic hurdles.
11 See Bartlett, Monica Y, and David DeSteno.
“Gratitude and prosocial behavior: helping
when it costs you.” Psychological Sciencevol.
17,4 (2006): 319-25.
12 A Profession at Risk, supra note 3, referenc-
ing P. R. Krill, R. Johnson, & L. Albert, e
Prevalence of Substance Use and Other Mental
Health Concerns Among American Attorneys,
10 J. ADDICTION MED. 46 (2016).); and J.
M. Organ, D. Jae, & K. Bender, Suering in
Silence: e Survey of Law Student Well-Being
and the Reluctance of Law Students to Seek
Help for Substance Use and Mental Health
Concerns 66 J. LEGAL EDUC. 116 (2016).
13 Organ, Jae, & Bender, supra note 12.
14 Id.
15 Id.
16 Id.
17 Established in 2005 in response to a
Pennsylvania Supreme Court report on gender
and racial bias, the Pennsylvania Interbranch
Commission applies the resources of all three
branches of state government to implement
the report’s numerous recommendations
to improve court policy and procedure. See
http://www.pa-interbranchcommission.com/
about.php
18 Tedeschi, R.,et al. Post Traumatic Growth:
eory, Research and Applications. New York,
NY: Routledge (2018).
ank you continued from page 34
Margaret Hannapel Ogden is the wellness
coordinator in the Oce of the Executive
Secretary of the Supreme Court of Virginia.
She is dedicated to improving mental health
and addressing substance abuse in the legal
profession through education, regulation, and
outreach. Ogden began her legal career in
the Roanoke City Commonwealth Attorney’s
Oce before entering private practice. A native
of Washington, D.C., she graduated Phi Beta
Kappa from the University of Maryland and
earned her J.D. from Washington & Lee School
of Law.
With the assistance and support of
many, both inside and outside the legal
community, I have maintained recovery.
I know continued work is necessary to
grow and thrive, just as I must share my
story so that others see that it is possible
for addicts to turn their lives around.
And that help and support is a phone
call away 24/7, 365 days a year.
I will always be an alcoholic in
recovery. I am healthy mentally, with
medication management that will last
a lifetime. I will always be available to
assist others seeking assistance with
mental health and substance abuse.
During my journey, I have learned that
being connected with and helping others
allows me to live a life of which I am
proud. Talking to people I trust, going
to meetings, and utilizing recovery tools
allow me to have the life I have today.
Talking about it is step two, and seeking
treatment is the 3rd step, followed by so
many other steps along the way. All that
is necessary to take that rst step is to
reach out.
My name is Asha Pandya.
Asha Pandya is a Senior Assistant
Commonwealth’s Attorney for the City of
Norfolk.Before returning to the oce she
maintained a solo practice, was a partner
in RPPG, and was employed as an Assistant
Public Defender for the City of Virginia Beach.
She has provided training on various legal top-
ics on recovery.
Recovery continued from page 35
Vol. 69 | June 2020 | VIRGINIA LAWYER
37
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Wellness
irty-ve years ago, a small group
of Virginia lawyers concerned about
colleagues who were struggling with
addiction recognized the need for an
organized assistance program from
which the seeds for the Virginia Judges
and Lawyers Assistance Program
(VJLAP, formerly Lawyers Helping
Lawyers) were planted. Over the years,
the organization has relied largely on
the service of a single counselor and a
vast network of dedicated volunteers to
assist Virginia’s entire legal profession
with addiction and, when the mission
expanded, mental health concerns. With
the recent swell of information that has
emerged on the risk for and rate of sub-
stance use and mental health disorders
within the legal profession, VJLAP’s
need for more support was specically
addressed one year ago.
anks to the incredible vision
and support of the Supreme Court of
Virginia (SCV), and the Virginia State
Bar (VSB), the Virginia Bar Association,
Virginia Trial Lawyers Association, and,
in fact, each of you, VJLAP received
additional funding and has now fully
executed the Lighthouse Plan
1
we have
been talking about for several years.
VJLAP’s mission remains, as
it was from the beginning, to pro-
vide condential, non-disciplinary,
no-cost assistance to judges, lawyers,
law students, other legal profession-
als, and their families in addressing
substance use and mental health
concerns
2
. We continue to rely on our
amazing peer volunteers, and, instead
of a single counselor, we now have a
team of counselors located in key parts
of the Commonwealth. Our Clinical
Director, Jim Leer, is now supported
by a Deputy Clinical Director, Barbara
Mardigian. Mardigian’s principle focus
is on northern Virginia. Janet Van Cuyk
joined our team as our Tidewater Region
Manager, and Angeline Saferight Lloyd
is our Southwest Region Manager. Each
of our counselors are connected to each
other and our volunteers, and are located
closer to each of you. You can learn
more about our program and sta by
visiting our the VJLAP website.
VJLAP entered 2020 with improved
stang, expanded ideas, and enhanced
outreach eorts so that every legal pro-
fessional throughout the Commonwealth
knows we are available. In addition to
changing our name, VJLAP adopted a
new website and social media presence.
We reached out to law rms, govern-
ment agencies, bar associations, and
others to strengthen our partnerships
in spreading the word on our purpose
and availability. We enhanced our
relationships within the law schools by
assigning a specic VJLAP counselor
to each school while making ourselves
available in any way possible. We
presented CLEs. We were available at
resource tables at trainings and confer-
ences. We updated our website blog (e
Beacon) and Facebook page and started
VJLAP Twitter, Instagram, and LinkedIn
accounts. We strive to serve as a beacon
of hope to anyone reaching out by what-
ever means available.
In the one month between our rst
fully-staed month in January and the
pandemic restrictions in March, we
saw a doubling of our rst-time client
engagement, the largest single month
of new clients in our history. Since
the pandemic restrictions, our support
groups (women’s, 12-step, and wellness
via Zoom) participation increased by 60
percent VJLAP has taken advantage of
the expanded sta and virtual capabili-
ties and has remained and remains open,
with acute awareness of the possible
exacerbation of areas of concerns as the
world adapts to our tumultuous circum-
stances. A lot has changed over the last
six months and, certainly, COVID-19
has limited our activity; but the care and
attention our team gives each individual
seeking our assistance remains the same
as it has been for the past 35 years.
We told you if we built it, they
would come. ank you for your trust,
faith and support, but more importantly,
your care and commitment to your fel-
low legal professionals. We are here for
you!
Endnotes
1 In 2017, the VJLAP Board of Directors
approved the Lighthouse Strategic Plan to
expand the VJLAP organizational structure to
include regional coordinators for providing
services and organizing volunteers. Adoption
of the Lighthouse Plan was a recommendation
of the SCV’s 2018 report, A Profession at Risk.
e 2019 assessment added to the VSB dues,
in part, funded this expansion.
2 LHL’s mission was expanded to include men-
tal health issues in 2003.
e Lawyers’ Lighthouse: e Growth of VJLAP
by Tim Carroll
Tim Carroll is the Executive Director of
Virginia Judges and Lawyers Assistance
Program. He grew up in Henrico County and
le aer high school to join the United States
Air Force. Aer 28 years of service and numer-
ous assignments around the world, he retired in
Anchorage, Alaska where he became the Chief
Executive Ocer of a sheries related business.
In 2014, he returned to Virginia and assumed
his role at VJLAP in 2015. Carroll has an under-
graduate degree in history from the University
of Alaska and a Master’s degree in business
administration from Virginia Commonwealth
University.
For resources for legal professionals during
COVID-19, please visit: http://www.vsb.org/
docs/PATH-resources.pdf.
VIRGINIA LAWYER | June 2020 | Vol. 69
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Noteworthy
> VSB NEWS
On March 12, 2020, the Governor of
Virginia declared a state of emergency
due to the COVID-19 pandemic,
declaring it unsafe for public bodies
to assemble in person. erefore, the
VSB Annual Meetingscheduled for
June 17-20,2020, in Virginia Beach was
canceled. Additionally, the VSB Council
meeting scheduled for June 18 was
canceled.
e VSB Executive Committee convened
telephonically on June 9, 2020, and
heard the following signicant report
and took the following action.
Rule 1A:8, Military Spouse Provisional
Admission
By a vote of 11–2, the Executive
Committee voted to recommend revi-
sions to Supreme Court of Virginia
Rule 1A:8. e proposed amendments
request the removal of Section 4, requir-
ing supervision and direction of local
counsel for attorneys barred under this
rule. An additional amendment updates
the CLE requirement in Section 2. (k).
e proposed changes will be presented
to the Supreme Court of Virginia for
approval.
Highlights of the June 9, 2020, Virginia State Bar
Executive Committee Meeting
Virginia lawyers’ annual renewal state-
ments for the 2020–21 year were mailed
on June 26. More information about the
topics below may be found on our web-
site, www.vsb.org.
In response to a request by VSB
Executive Director Karen A. Gould,
the Supreme Court of Virginia issued
an order on April 14, 2020, extending
a number of compliance deadlines that
aect Virginia lawyers to ease their
professional responsibilities during the
COVID-19 public health emergency.
e Court’s modications
aect deadlines for dues, the Clients’
Protection Fund fee, certication of
professional liability insurance, and the
attorney wellness fund fee. e exten-
sions move all membership dues/
renewal deadlines from July 31, 2020,
until September 30, 2020.
e MCLE deadline has been
moved from October 31, 2020 to
December 31, 2020. All CLE hours need
to be reported no later than 4:45 p.m.
EST February 15, 2021.
As of our printing deadline, the VSB
oce is closed to the public. Please
consider using the VSB member portal
or a trackable express delivery method
if sending close to the September 30
deadline. Please be advised if you intend
to mail or deliver renewals/payments
to the Virginia State Bar, deliveries are
only accepted from the following ser-
vices: USPS, UPS, Fed Ex, DHL, and
Richmond Express. All renewal require-
ments must be received by 4:45 p.m. on
September 30, 2020.
Voluntary Pro Bono reporting: All
active and associate members are
encouraged to report their pro bono
contributions this year, which will be
recorded anonymously unless an attor-
ney chooses to provide a name and/
or Bar ID. Amendments to Paragraph
22 Voluntary Pro Bono Publico Legal
Services reporting became eective May
15, 2020.
Emeritus status: If you’re considering
retirement, the Court made changes to
the requirements for Emeritus status in
December 2017 which makes it easier to
transition to pro-bono-only work.
Please contact the VSB Regulatory
Compliance Department at (804) 775-
0530 or email [email protected]
if you have questions about your dues
statement.
Dues Statements Mailed: What’s New is Year?
Vol. 69 | June 2020 | VIRGINIA LAWYER
39
www.vsb.org
VSB NEWS <
Noteworthy
Jay B. Myerson of Reston is the Virginia
State Bar president-elect for 2020–21
and will serve as president for 2021–
2022. Myerson, who was unopposed in
his bid for the presidency, will succeed
current president Brian L. Buniva of
Richmond, who was sworn in as VSB
president on June 30th, succeeding
Marni E. Byrum.
Myerson, who assumes his VSB
president-elect position on July 1st,
founded e Myerson Law Group, P.C.
and supervises a six-attorney domestic,
criminal, and civil litigation practice in
Fairfax County.
Myerson was twice elected to Bar
Council, representing the 19th Circuit
from 2014 to 2019. He has been a mem-
ber of the VSB’s Executive Committee
since 2018. Myerson has been a member
of the VSB’s Standing Committee on
Budget and Finance for seven years, and
recently completed his second three-year
appointment on the VSB’s Standing
Committee on Legal Ethics. Myerson
has also served as a member of the
Harry L. Carrico Professionalism Course
faculty, the VSB’s Study Group on
Online Elections, and the 19th Judicial
Circuit Committee on Resolution of Fee
Disputes.
Myerson is a past president of the
Fairfax Bar Association (FBA), and for
many years led its eorts to obtain judi-
cial funding. He is a ve-time recipient
of the FBA’s President’s Award and
was the 2018 recipient of the Local Bar
Leader of the Year Award from the
VSB’s Conference of Local and Specialty
Bars.
Myerson has served in the
American Bar Association’s House of
Delegates and is a past president of the
George Mason American Inn of Court.
A graduate of Georgetown
University and Georgetown University
Law Center, Myerson is a Fellow of the
Virginia Law Foundation and has been a
member of the Fairfax Law Foundation’s
Board of Directors since 2012.
Myerson lives in Reston with his
wife Barbara. ey are the parents of
three adult children — Josh, Jennifer
Samuelson (Patrick) and Matthew
(Annie Savage) — and have a young
granddaughter.
“It will be a privilege to work with
the many talented bar leaders across
Virginia,” Myerson said. “I’m especially
looking forward to working with the
wonderful VSB sta, the Chief Justice
and other justices on our Supreme
Court.”
Check Your MCLE Hours Online Now
Please apply for any non-approved courses now to avoid the 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. The
live interactive requirement can be met by attending live in person, completing a live webcast, or completing a live teleconference.
Since the live interactive requirement can be met without leaving home and/or violating any Stay-at-Home orders there are no plans
at this time to change the annual CLE requirement. A partial list of already approved CLE courses is available on the VSB MCLE web
page under Current Virginia Approved Courses at http://bit.ly/MCLEvsb. All CLE hours need to be reported no later than 4:45 p.m.
EST February 15, 2021.
Questions? Please contact the VSB Regulatory Compliance Department at (804) 775-0577 or [email protected].
Jay B. Myerson will be VSB President
for 2021–22
VIRGINIA LAWYER | June 2020 | Vol. 69
40
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Noteworthy
> VSB NEWS
For the rst time since 1945, the
Virginia State Bar Annual Meeting
in Virginia Beach was cancelled, this
time not for a war but for a pandemic.
ough COVID-19 forced us to miss
the collegiality and learning opportu-
nities of the Annual Meeting, as well
as the induction celebration of our
new president, Brian L. Buniva, the
Virginia State Bar wishes to thank the
many lawyers who worked diligently
for our profession and for their com-
munities. Special thanks to Immediate
Past President Marni E. Byrum,
who worked tirelessly to traverse the
Commonwealth spreading her message
of diversity, inclusion, and engagement.
On the following pages, we include
the resolution that would have been
presented to Marni at the Annual
Meeting, as well as the award winners
whose awards would have been pre-
sented at the meeting.
ank you to all the members of
the Virginia State Bar for the work you
do as lawyers of the Commonwealth.
Hopefully, we will see many of you in
June 2021 as we convene for the 82nd
Annual Meeting.
e Virginia State Bar Council welcomes
eleven representatives aer voting was
held in ve circuits.
e Council is an 81-person
body, consisting of 65 lawyers elected
from the 31 circuits throughout the
Commonwealth, as well as nine at-large
members appointed by the Supreme
Court of Virginia, four conference
chairs, and three ocers.
Newly elected, re-elected, and
appointed members include:
Conference of Local and Specialty Bar
Associations chair
Susan Godman Rager, Coles Point
Diversity Conference chair
Sheila M. Costin, Alexandria
Senior Lawyers Conference chair
Margaret A. Nelson, Lynchburg
Young Lawyers Conference president
Melissa Y. York, Richmond
2ndCircuit:
Ryan G. Ferguson, Virginia Beach,
elected to a second term
Bretta Marie Zimmer Lewis,
Virginia Beach
9thCircuit:
Susan B. Tarley, Williamsburg
13thCircuit:
Neil S. Talegaonkar, Richmond
15thCircuit:
Allen F. Bareford, Fredericksburg
19thCircuit:
Brian C. Drummond,Fairfax,
elected to a second term
Susan M. Butler, Fairfax
Sandra L. Havrilak, Fairfax;
Christie A. Leary, Fairfax
Luis A. Perez, Falls Church
Susan M. Pesner, Tysons Corner
Council at-Large appointments:
Lisa A. Wilson, Arlington
See the full list of Bar Council and Execu-
tive Committee members on page 4.
Rager Costin Nelson York
Ferguson Lewis Tarley Talegaonkar
Bareford Drummond Butler Havrilak
Leary Perez Pesner Wilson
Bar Welcomes New Council Members and
Conference Leadership
The Annual Meeting That Wasn’t
VIRGINIA STATE BAR
JUNE 17-20 2020
VIRGINIA BEACH
RESOLUTION
WHEREAS, Marni E. Byrum, a founding partner of McQuade Byrum PLLC, has diligently and
enthusiastically pursued her goals of inclusion, diversity, and engagement as she served as the president of the
Virginia State Bar during the 2019–2020
Bar year; and
WHEREAS, since her admission to the Bar in 1979, Marni E. Byrum has contributed her time and
leadership skills to the Virginia State Bar, serving as a member of the Council 1997–2003 and 2015–2020; as
a member of the Executive Committee 2015–2021; as a member of the Standing Committee on Legal Ethics
1994–2014 and as its chair 2002–2004 and 2009–2014; as chair of the Standing Committee on Budget and
Finance 2015–2020; as a member of the Judicial Candidate Evaluation Committee 1990–1992 and 2008–2010
and as its chair 1992–1996 and 2010–2011; as chair of the Rule 1A:3 Study Committee 2011-2012; as chair of
the Rules Revision Committee 2019–2020; as chair of the Bar Counsel Search Committee 2018–2019; as chair
of the Multi-Jurisdictional Practice Task Force 2004–2008; as chair of the Task Force on Membership Rules
2009–2013; as a member of the Study Committee on the Future of Law Practice 2014–2017; as a member of the
Special Committee on Future of Law Practice 2017–2019; as a member of the Legal Education Conclave 1991–
1993; as a member of the Long Range Planning Committee 1989–1994; as a member of the Study Committee
on Prepaid Legal Services 1990 and as its chair 1991–1993; as a member of the VSB Section on Education of
Lawyers Board of Governors 1993–1995; and
WHEREAS, Marni E. Byrum’s leadership as president of the Virginia State Bar has been exemplified by
her unwavering commitment to improving the profession, to protecting and informing the public, to service to
the VSB’s members and its committees, and by supporting the Virginia State Bar staff in a myriad of ways; and
WHEREAS, Marni E. Byrum traversed the Commonwealth of Virginia during her year as president
speaking to bar organizations and to new lawyers at the Professionalism Courses about lawyers’ obligations to
their clients under the Rules of Professional Conduct, the ongoing need for pro bono assistance, the importance
of judicial independence, the collegiality and cooperation between the Virginia State Bar and the Virginia Bar
Association to represent and support the interests of all Virginia lawyers, the importance of inclusion, diversity,
and engagement, and the strength and stability of the VSB.
WHEREAS, in the spring of 2020 during the coronavirus pandemic, Marni E. Byrum supported the
mission of the Virginia State Bar and was a steadying force available via telephone or email to provide advice
while managing her own law practice and representing clients during one of the most challenging times an
employment lawyer has ever faced; and
WHEREAS, Marni E. Byrum, in her April, 2020, column in Virginia Lawyer magazine wrote eloquently
of the importance that lawyers will play in the pandemic recovery and how we will be needed on the front line
defending and protecting clients’ rights and speaking for those who may have no voice.
NOW, THEREFORE, BE IT RESOLVED, this 30th day of June, 2020, that the Executive Committee
of the Virginia State Bar, on behalf of Council and the 50,000 members of the Virginia State Bar, and in
recognition of her outstanding service to the Bar and her powerful statements on behalf of the legal profession,
offers their expressions of gratitude and affection to Marni E. Byrum for her service as the 81st president of the
Virginia State Bar.
Brian L. Buniva Karen A. Gould
President-elect, Virginia State Bar Executive Director/Chief Operating Officer
Byrum resolution.indd 1Byrum resolution.indd 1 6/23/20 10:52 AM6/23/20 10:52 AM
VIRGINIA LAWYER | June 2020 | Vol. 69
42
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Noteworthy
> VSB NEWS
Over 1,000 Virginia lawyers tuned in
for the rst ever completely virtual pre-
sentation of the Leroy Rountree Hassell
Sr. Indigent Criminal Defense Seminar.
e seminar brought together a national
panel of illustrious speakers for one of
the Bar’s most popular CLEs: Justice
Hassell’s vision of a yearly opportu-
nity for those who represent indigent
Virginians to learn, interact, and prepare
to best represent their clients.
e seminar was introduced by
Justice Stephen R. McCullough of the
Supreme Court of Virginia, whose
unimpressed rescue cat, Ginger, made
a languid appearance. Professor Randee
Waldman, of Emory Law School dis-
cussed ethical considerations when rep-
resenting juveniles aer a brief barking
session by her out-of-the-frame dog. e
audience, who were able to ask questions
of the speakers, led o by asking, “May
we see your dog?”
Lawyers on the panel included
Vernida Chaney, Chaney Law Firm,
Fairfax; Daniel Goldman, Capital
Defender Oce of Northern Virginia,
Tysons; Kenneth Hardin, Assistant
Public Defender, Houston, TX; Bonnie
H. Homan, National Association of
Criminal Defense Lawyers, Washington,
D.C.; Doug Passon, Passon Law,
Phoenix, AZ; and Lauren Whitley,
Public Defender, Richmond.
Other speakers included Dr.
Matthew Clair of Stanford University
and Nora Gruber of Square Cap Media,
Los Angeles, CA.
Of Cats, Dogs, and Defense Attorneys: e Indigent
Criminal Defense Seminar Goes Virtual
Fee Dispute
Resolution
If COVID-19 has put you and a client
at odds over fees, consider the VSB’s
Fee Dispute Resolution Program. For
over 25 years, this program has helped
lawyers and clients resolve fee conicts
without litigation and for only $20.
Learn more at www.vsb.org/site/
members/fee_dispute_resolution.
Yorktel Communications
When you retire, your law degree doesn’t have to.
Transition into emeritus status and practice
only pro bono.
For questions about the program, contact the VSB Pro Bono/Access to Legal
Services department at (804) 775-0522.
To start the application process toward emeritus status, call (804) 775-0530.
Vol. 69 | June 2020 | VIRGINIA LAWYER
43
www.vsb.org
VSB NEWS <
Noteworthy
For the rst time since 2013, the Virginia
State Bar Senior Lawyers Conference
has comprehensively updated the Senior
Virginians Handbook (formerly known
as the Senior Citizens Handbook).
is book contains over 100 pages
of information designed to assist older
Virginias with a vast range of legal
issues, life decisions, and other topics of
interest. It has been a popular resource
for lawyers whose practices assist older
Virginians, and a valuable aid to seniors
across the Commonwealth. Copies are
distributed free of charge to participants
of the Senior Law Day programs and are
available in some public libraries.
Edited by the SLC Board of
Governors member Barbara Anderson,
other contributors include Sheri Abrams,
Amy Allman, Alan Anderson, Tom
Bell, Peter Burnett, Grimes Creasy, Julia
Criseld, John Eure, Doris Gelbman,
Wayne Glass, Richard Gray, Amy
McCullough, Martha McQuade, Jesci
Norrington, Kathryn Poe, Tom Tokarz,
Robert Vaughan, Edward Weiner,
Christopher Wright, Loretta Williams,
and Carter Younger.
e Senior Virginians Handbook is
available for download online. Attorneys
or individuals may purchase the books
singly or by the box by completing the
order form. https://www.vsb.org/site/
publications/senior-virginians-handbook
2020 Edition of Senior Virginians
Handbook Available
July 16
Mark your calendars:
Healthcare Decisions Day
is designed to raise public
awareness of the need to
plan ahead for healthcare
decisions related to end
of life care and medical
decision-making whenever
patients are unable to
speak for themselves and
to encourage the specic
use of Advance Directives
to communicate these
important healthcare
decisions.
www.vsb.org/site/public/healthcare-decisions-day/
Learn more:
ADVANCE DIRECTIVE
HEALTHCARE DIRECTIVE
POWER OF ATTORNEY
END-OF-LIFE CARE
VIRGINIA LAWYER | June 2020 | Vol. 69
44
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Noteworthy
> VSB NEWS
Roger L. Amole Jr.
Alexandria
September 1939 – January 2020
William H. Bass III
Midlothian
June 1947 – March 2020
Norborn P. Beville Jr.
Manassas
February 1941 – February 2019
Susan Elizabeth Bishop
Barboursville
February 1956 – July 2019
Donald Hart Bowman
Mathews
October 1924 – March 2020
Douglas Andrew Britton
Montross
December 1950 – February 2020
Robert F. Brooks
Richmond
July 1939 – March 2020
David D. Brown
Abingdon
July 1929 – May 2007
Robert Elmer Cappell
Bowie, Maryland
April 1954 – April 2020
Randolph W. Church Jr.
Mclean
November 1934 – March 2020
Barry S. Comess
Richmond
May 1944 – May 2020
William D. Cremins
Southport, North Carolina
February 1939 – March 2020
Walter Clayton Farley
Harpswell, Maine
July 1932 – January 2020
Morton Foelak
Arlington
May 1931 – May 2020
Bernard S. Gild
Ashburn
May 1929 – April 2020
Edwin C. Gillenwater
Falls Church
February 1938 – January 2019
Richard Barthen Gorman
Annandale
May 1944 – January 2016
Colleen Tate Hagy
Roanoke
March 1961 – May 2020
Jack Franklin Hankins
Martinsville
November 1920 – April 2015
R. Braxton Hill III
Norfolk
August 1946 – March 2020
Henry M. Jarvis
Irvington
March 1923 – April 2020
Larry Quinn Kaylor
Harrisonburg
July 1950 – September 2019
Daoud L. Khairallah
Falls Church
February 1937 – March 2020
Catherine Crismon Lorraine
Bethesda, Maryland
July 1949 – March 2020
Janet C. McCaa
Portland, Maine
January 1943 – June 2016
Richard Edward McCallum
Birmingham, Alabama
July 1929 – November 2005
Hugh S. Meredith
Virginia Beach
November 1916 – June 2019
Gerald Joseph Mossingho
Arlington
September 1935 – March 2020
Darryl Arthur Parker
Richmond
August 1963 – April 2020
omas Dawson Pearson Jr.
Norman, Oklahoma
April 1939 – June 2019
Frank T. Peartree
Falls Church
July 1923 – June 2014
Earle W. Putnam
Lynchburg
June 1928 – May 2013
Sebastian Richard Rio Jr.
Annandale
October 1945 – August 2018
Randolph Clay Robertson
Richmond
February 1960 – April 2020
Barbara Wurtzel Rabin
Gwynedd, Pennsylvania
April 1933 – September 2019
Robert Edward Stroud
Charlottesville
July 1934 – June 2020
Tracy Lee Taliaferro
Prince George
October 1962 – April 2020
Lawrence James Tracy
Reston
April 1944 – February 2020
Charles F. Tucker
Norfolk
April 1929 – April 2020
Ralph E. Turpin Jr
Lovingston
May 1942 – May 2020
William C. Walker
Virginia Beach
August 1937 – May 2020
In Memoriam
Vol. 69 | June 2020 | VIRGINIA LAWYER
45
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VSB NEWS <
Noteworthy
Defense attorney Jamilah D. LeCruise
of Norfolk has been awarded the 2020
R. Edwin Burnette Jr. Young Lawyer of
the Year Award by the Virginia State Bar
Young Lawyers Conference.
e award recognizes young lawyers
who demonstrate dedicated service to
the conference, the legal profession, and
the community. LeCruise has served
in numerous roles both at the VSB and
other bar associations and is a prolic
lecturer who donates much of her time
to community and civic organizations.
Before opening the Law Oce of J.
D. LeCruise, she served as an Assistant
Public Defender for the City of Norfolk,
handling hundreds of criminal cases
including felonies, misdemeanors, trac
oenses, and probation violations.
Her pro bono involvement includes
volunteering abroad with a human
rights organization in Ghana, traveling
to villages for educational programs and
participating in juvenile defense during
law school. LeCruise also interned at the
Legal Aid Society of Eastern Virginia
where she currently serves on the board
of directors, and at the Oce of the
Capital Defender in Richmond, assisting
in the defense of individuals charged
with death penalty oenses.
LeCruise is the chair of the
Norfolk Portsmouth Bar Association
Young Lawyers Section and President
of the South Hampton Roads Bar
Association. She is also a member of
the Old Dominion Bar Association and
the Virginia Association of Criminal
Defense Lawyers.
Jamilah D. LeCruise Receives Young Lawyer of the
Year Award
Doris Henderson Causey, 80th VSB
president and managing attorney of the
Richmond oce of the Central Virginia
Legal Aid Society, has been awarded the
Clarence M. Dunnaville Jr. Achievement
Award, sponsored by the Diversity
Conference of the VSB. e award hon-
ors a lawyer who exemplies “…the con-
ference’s goal of fostering, encouraging,
and facilitating diversity and inclusion
in the bar, the judiciary, and the legal
profession.”
In 2017, Causey made legal history
in the Commonwealth when she was
inducted as the Virginia State Bar’s rst
African American president, and rst
president from the legal aid community.
roughout her legal career, Causey
has made service a priority, both in her
profession and for the legal community.
Causey has provided many years of ser-
vice on the VSB’s Executive Committee
and Bar Council, as well as on the Old
Dominion Bar Association’s Executive
Committee, and as secretary of both
the Old Dominion Bar and of the Hill
Tucker Bar, Richmond Chapter.
At the Central Virginia Legal Aid
Society, Causey works to meet the needs
of the underserved, delivering quality
legal services to low income individuals
and communities, while advocating for
the protection of civil and human rights
in the Commonwealth.
e award, named aer Clarence
Dunnaville, the noted Virginia attor-
ney, civil rights pioneer, legal reformer,
author, and justice activist, will be pre-
sented by the Diversity Conference at a
future date.
Doris Henderson Causey Receives the Clarence M.
Dunnaville Jr. Award
VIRGINIA LAWYER | June 2020 | Vol. 69
46
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Noteworthy
> VSB NEWS
Covington lawyer Michael McHale
Collins has been awarded the General
Practice Section’sTradition of Excellence
Award. e award recognizes a Virginia
lawyer who “…embodies the highest
tradition of personal and professional
excellence in Virginia, enhances the
image and esteem of attorneys in the
Commonwealth, and has devoted sig-
nicant amounts of time, eorts, and/
or funds to activities that benet their
community.”
In his nomination, Benjamin P.
urman wrote, “Michael genuinely
enjoys helping people and nds it di-
cult to turn away those in need, regard-
less of the complexity of the problem or
the client’s ability to pay,”
In addition to being a founding
member and senior partner of Collins
& Hepler, PLC for 12 years, Collins has
donated his time to the Covington-Hot
Springs Rotary Club, the Advisory Board
for the Alleghany Highlands Community
Housing Improvement Program, and
the Board of Trustees for the Dabney S.
Lancaster Community College.He has
served as the pro bono legal advisor to
the Covington Fire Department and the
Covington Rescue Squad since 1973.
Jeanne M. Hepler, his co-partner
said, “Michael is the classic example
of the beloved country lawyer — he’s
handled nearly every kind of case imag-
inable, is an outstanding litigator with a
keen understanding of the law, always
conducts himself with fairness, respect,
and humility, and has a delightful sense
of humor with many amusing stories to
share.”
Collins was a member of the
Virginia State Bar Disciplinary District
Committee for the 6th Congressional
District, serving as chair of the northern
division in 1987. He was a long-stand-
ing member of the Local Government
Attorneys of Virginia.
Collins served Alleghany and Bath
counties for almost 50 years. He earned
his bachelor’s degree from the University
of Virginia in Charlottesville and his law
degree from e College of William &
Mary, where he was the managing editor
of the William & Mary Law Review and
a member of the Omicron Delta Kappa
Honorary Fraternity.
Michael McHale Collins Receives Tradition of
Excellence Award
Benjamin D. Leigh of Atwill, Troxell
& Leigh, P.C. in Leesburg is the 2020
recipient of the Traver Scholar Award,
awarded by the Real Property Section of
the VSB and VaCLE to honor a lawyer
who embodies the highest ideals and
expertise in the practice of real estate law.
Aer clerking for the Chief Justice
of the Supreme Court of Virginia,
Leigh practiced with the Fairfax rm of
Blankingship & Keith, P.C. In 2002, he
joined Bill Atwill and William C. Mims
to form Mims, Atwill & Leigh, P.C.,
which now exists as Atwill, Troxell &
Leigh, P.C.
Leigh’s practice includes a variety of
business and real estate matters, transac-
tions, planning, and litigation, as well as
administrative lobbying and even legisla-
tive amendments. He has also personally
developed residential and commercial
real estate projects.
Leigh is a frequent lecturer and
writer on topics from ethics in real
estate, easements, title insurance cover-
age and disputes with published articles
on unique topics such as slander of title
limitations. He has served the past few
years as a co-moderator of the Advanced
Annual Real Estate Seminar.
A graduate of the University of
Richmond for both undergraduate and
law school, Leigh is a past chair of the
Real Estate Section of the Virginia Bar
Association, a current member of the
Board of Governors of the Virginia
Bar Association, and currently an Area
Representative for the Real Property
Section of the VSB. He has served as a
Commissioner in Chancery and Special
Commissioner for the 20th Judicial
Circuit. Leigh has also served on the
Loudoun County Rural Economic
Development Council and the Economic
Development Commission.
Leesburg Lawyer Ben Leigh Receives 2020 Traver
Scholar Award
Vol. 69 | June 2020 | VIRGINIA LAWYER
47
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VSB NEWS <
Noteworthy
Marcellinus Slag, who has fought for the
rights of underserved Virginians for over
30 years, has received the 2020 Virginia
State Bar Legal Aid Award honoring
excellence in legal aid society work.
e award recognizes those who
exhibit: 1) Innovation and creativity in
advocacy; 2) Experience and excellence
in service; and 3) Impact beyond his or
her own program’s service area.
A native of the Netherlands, Slag
received his undergraduate and mas-
ter’s degrees in the Netherlands before
graduating from George Washington
University Law School in 1988. He then
lived in Richmond where he has devoted
his entire legal career to legal aid work
primarily in housing, consumer, and
employment law issues. He retired from
the Legal Aid Justice Center in April
2020.
In his nomination, Jonathon T.
Blank of McGuire Woods recalled
the many cases he tried against Slag
as a young attorney working for the
Richmond Redevelopment and Housing
Authority while Slag represented low
income tenants. Said Blank, “Marcel
taught and forced me to learn how to be
a trial attorney. More importantly, he
taught me the importance of the role of
the attorney in the system of justice. He
did so with civility, dignity, passion and
pride. To this day, I cherish those lessons
and try to pass on what Marcel did for
me to others.”
e Legal Aid Award, usually given
at the VSB Annual Meeting in June, will
instead be presented to Slag at the Pro
Bono Conference in October, 2020.
Marcellinus Slag Named 2020 Legal Aid Lawyer of
the Year
Emily Lopynski of the University of
Richmond Law School class of 2020
has been awarded the Oliver White Hill
Law Student Pro Bono Award honoring
“extraordinary law student achievement
in the areas of pro bono publico and
under-compensated public service work
in Virginia.”
Lopynski was heavily involved in the
Carrico Center for Pro Bono & Public
Service at the University of Richmond.
She participated in the Wills for Seniors
Pro Bono Clinic and Pro Bono Housing
Law Program, volunteered at the
Farmville immigration detention center,
and draed an asylum brief for a pro
bono immigration case. She was also
a part of the student cohort selected to
support the Governor’s Commission to
Examine Racial Inequity in Virginia Law.
Lopynski interned at Legal Aid
Justice Center, Virginia Poverty Law
Center, and the Division of Human
Rights of the Oce of the Attorney
General of Virginia. Lopynski repre-
sented pro bono clients in special immi-
grant juvenile, delinquency and truancy
cases, through the Children’s Defense
Clinic of the University of Richmond.
Additionally, aer graduating
magna cum laude At William & Mary
she participated in a year-long fellow-
ship in El Paso, Texas, delving into the
dynamics of the border and starting an
immigration legal assistance program at
a community-based non-prot.
Fluent in Spanish, Lopynski facil-
itated communication with Spanish-
speaking clients, and worked cases at
the Children’s Defense Clinic, run by
Julie McConnell at the University of
Richmond School of Law.
Beginning in August 2020, Lopynski
will clerk for e Hon. Louise M.
DiMatteo of the Arlington County
Circuit Court.
e Oliver White Hill Award will be
presented at the October 2020 Pro Bono
Conference.
Emily Lopynski Receives Law Student Pro Bono
Service Award
CLSBA Honors Bar Associations
VIRGINIA LAWYER | June 2020 | Vol. 69
48
www.vsb.org
Noteworthy
> VSB NEWS
Awards of Merit
e CLSBA has recognized three
bars across the commonwealth for
outstanding special projects that have
assisted Virginians with access to jus-
tice or enhanced the profession and
quality of legal services in Virginia.
e 2020 Awards of Merit were
judged by George W. Shanks, past
president, Virginia State Bar; Peter D.
Vieth, Virginia Lawyers Weekly; and
Dean Wendy S. Perdue, University of
Richmond.
e winners are:
Alleghany-Bath-Highland Bar —
Senior Citizens Law Day
Roanoke Bar Association —
You and the Law: Legal and Social
Tools for Assisting Survivors of
Violence
e Prince William County Bar
Association —
Attorney Wellness Initiative
Certicate of Achievement
Virginia Beach Bar Association —
VBBA Feeds the Homeless: Legal
Minds; Helping Hands
Because this year’s meeting was can-
celled, theConference of Local and
SpecialtyBar Associationswill present
the Awards of Merit at each respective
bars’ next in-person meeting.
e conference makes information
on winning projects available to other
groups that want to consider similar
programs. For information, contact
Paulette J. Davidson at davidson@vsb.
org or (804) 775-0521.
Shemeka C. Hankins of Hampton
Roads, the associate attorney at Invictus
Law, has received the Conference of
Local and Specialty Bar Associations’
(CLSBA) Local Bar Leader of the Year
Award that honors a bar leader who
“oers important service to the bench,
bar, and public.”
Hankins’ support of the community
includes hosting the SHRBA Annual
Judges Panel in May 2019 and moderat-
ing a So You’re 18 program at Heritage
High School, where she was a teacher
prior to starting her legal career.
According to LeCruise, many of the
student attendees had never met lawyers
or had the opportunity to ask legal ques-
tions in a safe space.
Hankins was a prosecutor for
over six years with the Norfolk
Commonwealth’s Attorney’s Oce,
where she advocated for help for defen-
dants suering from mental health
issues. She has received specialized train-
ing in the areas of domestic violence,
driving under the inuence, and narcot-
ics. She has moderated and organized
numerous panels, roundtables and pre-
sentations to the benet of her bar, alma
mater, and community.
eConference of Local and
SpecialtyBar Associationswill present
the Local Bar Leader of the Year Award
at the South Hampton Roads Bar
Association’s next in-person meeting.
Shemeka C. Hankins Receives Local Bar Leader of the
Year Award
e Virginia State Bar Conference of
Local and Specialty Bar Associations
has namedtheLynchburg Bar
AssociationBar Association of the Year.
e Lynchburg Bar Association
(LBA), founded in 1915, carries out
community outreach eorts and strives
to promote the relationships between
citizens and the law.
Pro bono work is central to the
mission of the LBA, and the close part-
nership the bar association has with the
Virginia Legal Aid Society. e LBA has
created the Conicts Panel, a group of
attorneys willing to speak to someone
who has approached VLAS but, due to a
conict, VLAS cannot help the prospec-
tive client.
Lynchburg Bar
Association
Named 2020 Bar
Association of
the Year
John B. Adams Jr.
Eileen M. Albertson
Lars Eric Anderson
William E. Artz
Karen Lee Atkinson
William James Baker
John Sykes Barr
Gilbert Anson Bartlett
B. W. Basheer
James W. Benton Jr.
Douglas K. Bergere
Howard Leonard Bernstein
Michael J. Blachman
Richard Jeffrey Bonnie
Robert D. Bouck
Rosemarie G. Bowie
Burt A. Braverman
Janet Blake Brydges
Nancy L. Buc
Francis L. Burk Jr.
Stephen G. Butler
Thomas B. Carr
Earl W. Chapman
Francis Chester
William G. Christopher
James K. Cluverius
Thomas F. Coates III
Irwin Charles Cohen
John Marshall Coleman
Tucker St Martin Coleman
Michael McH. Collins
Thomas A. Connor
Robert B. Cousins Jr.
Thomas L. Crisman
James A. L. Daniel
Joel A. Deboe
Bruce E. Denslow
Joseph H. Dettmar
James S. W. Drewry
Seymour Dubow
John J. Easton Jr.
Allen T. Eaton
Stephen L. Echols
John W. Edmiston
Homer Lee Elliott
Thomas S. Ellis III
Ralph A. Elmore III
William C. Field
Henry Joseph Flynn
David P. Forbes
John Thomas Fowlkes
B. Roland Freasier Jr.
Joel Mark Freed
Jerome B. Friedman
Frank William Frisk Jr.
Thomas McInnis Gachet
Richard J. Gallagher
Ronald M. Gates
Gordon Bertram Gay
Andrew R. Gelman
W. Peyton George
Robert A. Giannasi
Stanley J. Glod
Jack J. Goehring
Walter B. Golden III
Webster Lee Golden
Michael T. Goode
Robert C. Goodman Jr.
Katherine L. Goolsby
Michael J. Graetz
Edward F. Greco
Jess Frank Greenwalt Jr.
Ray W. Grubbs
Donald G. Gurney
Raymond J. Gustini
David R. Hackett
Barry A. Hackney
Virginia H. Hackney
Richard D. Hall Jr.
Paul W. Hallman Jr.
Ronald S. Hallman
Bruce H. Hamill
Thomas Francis Hancock III
John Waller Harrison
Pierre M. Hartman
Randall Stone Hawthorne
C. Alexander Hewes Jr.
Allen E. Hirschmann
Edward L. Hogshire
Barry M. Hollander
William H. Hoofnagle III
Leighton Summerson Houck
Edwin Cutter Hughes Jr.
John E. Hughes III
James S. Insley
Matthew M. Jacob
Paul E. Jensen
Thomas G. Johnson Jr.
George Herman Jones
Hugh J. M. Jones III
Albert A. Kashinski
James D. Kemper Jr.
William R. Keown
Edward J. Kessler
Richard W. Kienle
Angus S. King Jr.
William L. Kirby III
Carol Cole Kleinman
Byron Peter Kloeppel
Harry Lane Kneedler III
J. Richard Knop
Jason David Kogan
William T. Kresge Jr.
Richard M. Kurshan
Jonathan S. Kurtin
Robert P. Kyle
Dennis H. Lambert
Edward E. Lane Jr.
Girard C. Larkin Jr.
Robert deTreville Lawrence IV
Burton M. Leibert
John Waugh Leonard
Robert A. Lester
Theodore Alan Levine
Michael Haim Levinson
Stephen Lewis
Stuart Miley Lewis
Robert D. Linder
Richard Linn
Elizabeth G. Loggia
Daryll N. Love
David G. Ludwig
Gerald Joel MacFarlane
Eugene Mar
Eric B. Marcy
Carl Markowitz
Vernon E. Martens Jr.
James Thayer Martin Jr.
Alexander T. Mayo Jr.
James L. McLemore III
Nancy Mattox McMurrer
Gaynor Vanlandingham
McNeal
Val S. McWhorter
Jay C. Miner
H. Ronnie Montgomery
John Norton Moore
Lester V. Moore Jr.
Frank West Morrison
Roger Linwood Morton
James Moushegian
Thomas J. Mullaney
Thomas Orville Murphy
George H. Myshrall Jr.
Carroll T. Neale III
George S. Newman
William A. Noell Jr.
David B. Olson
M. Richard Page
Jon Larry Palmer
Thomas G. Parachini
Lloyd J. Parker Jr.
Michael Lee Paup
Saul Ralph Pearlman
Mosby Garland Perrow III
Fred Anderson Phelps
Edward A. Plunkett Jr.
Joseph Pogar Jr.
G. Michael Price
Gary G. Quintiere
James Edward Rainey
David William Ralston
John H. Raubitschek
Pasquale A. Razzano
David D. Redmond
William Ryder Register
Michael L. Rigsby
Robert Foster Ripley Jr.
Rollin Anthony Rogers
Alton D. Rollins
Filmore E. Rose
David Lee Ross
Mark Stuart Rudy
Rodney Laird Russell
Clement Paul Ryan
John J. Sabourin Jr.
Henry L. Sadler III
Stanley M. Salus
Stanley John Samorajczyk
Laurens Sartoris
James R. Saul
Charles Kane Schanker
Edward F. Schiff
William McClure Schildt
Jerold I. Schneider
Norval Dennis Settle
William M. Sexton
George Warren Shanks
William Tracey Shaw
Raymond John Shelesky
Brian Charles Shevlin
Howard B. Silberberg
Eric Lee Sisler
Daniel D. Smith
J. Randolph Smith Jr.
John D. Sours
Stuart D. Spirn
James Roderick St Martin
Frederick T. Stant III
Myron T. Steele
Edward L. Stolarun
Phillip C. Stone
William F. Stone Jr.
William Jesse Strickland
Aron Leslie Suna
Scott Hugh Swan
Philip J. Sweeney III
John K. Taggart III
Henry W. Tarring II
William L. Taylor
Carl John Turnquist
Paul M. Vincent
Gerard E. W. Voyer
Herbert Clare Wamsley
Jeffrey L. Ward
George D. Webb II
Harold C. Wegner
Kemble White
Paul Whitehead Jr.
David K. Wiecking
Mervin C. Withers
Franklin David Wolffe
John Ashton Wray Jr.
Hubert H. Young Jr.
Wilhelm Alfons Zeitler
Jeffrey M. Zwerdling
John Kenneth Zwerling
50
YEARS OF
SERVICE
The Senior Lawyer’s Conference
presents the 50 Year Award for
lawyers who have been members
of the Bar for 50 years. The award
is traditionally presented during
the VSB Annual Meeting. There are
236 lawyer’s entering their 50th
year of service in Virginia. They
were admitted to the bar between
July 1, 1969, and June 30, 1970.
VIRGINIA LAWYER | June 2020 | Vol. 69
50
www.vsb.org
Law Libraries
During the past few months, COVID-19
has aected the lives of all Americans.
For legal practitioners, the outbreak and
subsequent shutdown have quickly and
profoundly disrupted the practice of
law. Many attorneys have been working
remotely for an extended period — some
for the rst time — and have come to
rely on various online resources for
research purposes. Others have been
forced to deal with myriad new legal
issues and scenarios.
roughout this crisis, a number of
companies have oered complimentary
products and services related to COVID-
19 legal issues to practitioners. While the
list that follows is far from comprehen-
sive, it hopefully serves as a helpful guide
to tools of particular note for attorneys
navigating these complex times.
Fastcase
(www.fastcase.com/covid19)
Fastcase, a legal news and research
resource available as a free membership
benet to all members of the Virginia
State Bar, has developed a collection of
COVID-19 resources. In addition to
tools featuring COVID-19 related cases,
as well as news via Law Street Media,
Fastcase is also oering a number of
complimentary webinars.
LexisNexis
Lexis Practice Advisor Coronavirus
Resource Kit
(www.lexisnexis.com/en-us/products/
lexis-practice-advisor/coronavirus-
resources.page)
e Lexis Practice Advisor Coronavirus
Resource Kit provides lawyers across
a number of practice areas with prac-
tical guidance and analysis related to
COVID-19 and the law. Included in
the resource kit are a number of forms,
guides, and substantive analysis in prac-
tices including, but not limited to, com-
mercial transactions, M&A, data security
and privacy, and employee benets.
Law360
(www.law360.com/coronavirus)
Law360’s free COVID-19 page includes
access to a number of legal news arti-
cles, in-depth features, commentary and
expert analysis of various topics related
to the law and COVID-19. Articles focus
on the impact of the pandemic on the
legal industry, the practice of law, how it
is aecting the government, courts, and
industries throughout the United States
and around the world. Interested indi-
viduals may also subscribe to a compli-
mentary electronic newsletter with daily
headlines.
Practising Law Institute (PLI)
(www.pli.edu/coronavirus)
Practising Law Institute (PLI), a well-
known nonprot learning organization,
oers complimentary access to a num-
ber of online programs dealing with
the coronavirus crisis and related legal
developments. Prior programs are avail-
able for viewing “on demand,” while
interested individuals may register for
upcoming live programs.
omson Reuters
Practical Law Global Coronavirus
Toolkit
(www.thomsonreuters.com/en/
resources/covid-19.html)
is Global Coronavirus Toolkit is an
extensive collection of practical guidance
resources concerning numerous issues
encountered by practitioners in today’s
challenging climate. Practice Notes,
Standard Documents and Checklists
provide users with “how to” guidance
and insightful analysis. Resources
encompass a number of practice areas
including corporate and mergers &
acquisitions, labor and employment, liti-
gation, real estate, and many more.
ose who are subscribers to other
omson Reuters products, including
Westlaw and Checkpoint, now also have
additional resources related to COVID-
19 available within their subscriptions.
Wolters Kluwer
Cheetah COVID-19 State & Federal
Compare Smart
Chart (lrus.wolterskluwer.com/store/
cheetah-covid-19-state-federal-compare-
smart-chart/)
e State & Federal Compare Smart
Chart allows users to quickly view and
compare federal and state laws, regula-
tions and executive orders. Content is
arranged topically across subject matter
and practice areas including banking and
nance, labor and employment, human
resources/benets, health, tax, securities,
and more. Research results can be easily
exported (email, print, download) to be
shared with colleagues and clients.
Gregory Stoner, library manager at
McGuireWoods in Richmond, has bachelor’s
degrees in historic preservation and American
Studies from the University of Mary
Washington, a master’s degree in history from
Virginia Commonwealth University, and
a master’s in information science from the
University of Tennessee. He is a member of
the Virginia Association of Law Libraries and
other professional groups that advance the
work of law librarians.
A Guide to COVID-19 Legal Research Resources
by Gregory H. Stoner
Vol. 69 | June 2020 | VIRGINIA LAWYER
51
www.vsb.org
Technology and the Future Practice of Law
e COVID-19 pandemic has changed
our way of life. Stay-at-home orders and
social distancing policies have shuttered
courthouses and law oces across the
country. As states begin reopening, the
legal profession, like so many others,
will continue adjusting to the “new
normal.” During this period, courts
and law oces have adapted and iden-
tied new ways to deliver legal services.
Technology has played a major role in
this process and will undoubtedly con-
tinue to shape the practice of law for
years to come.
Adapting by using technology
While necessity may be the mother
of invention, COVID-19 will likely
be a driver of innovation. Stay-at-
home orders have forced law oces,
courts, and government oces to work
remotely; from virtual meetings with
colleagues and clients, to remote hear-
ings, depositions, arbitrations, and even
oral arguments using virtual meeting
platforms such as Zoom, Microso®
Skype, and Microso® Teams. Even the
delivery of legal education has changed:
In a matter of weeks law schools, like
colleges, have transitioned from lecture
halls and classrooms to online learning
platforms. e pandemic has, for better
or for worse, altered the way legal edu-
cation and legal services are provided
throughout the world.
Remote workforce = evolving demand
for technology solutions
Along with the demand for technologies
capable of allowing attorneys to attend
meetings, hearings, and depositions
remotely, the current environment
has driven a need for technologies that
help law oces address the daily chal-
lenges of managing a remote workforce.
Workforce productivity and law practice
management soware are being utilized
by law oces to track employee time,
increase productivity, and reduce costs
by leveraging technology to improve
workow eciency, reduce travel, and
manage legal tasks. While many of these
technologies were in existence prior to
the pandemic, the need for lawyers to
work remotely has increased the adop-
tion of these technologies and increased
the development of new applications.
Downsizing and work-life balance
rough technology, attorneys and
support personnel are discovering that
many legal tasks can be performed with-
out having to set foot inside a physical
oce. Law oce managers are discover-
ing that certain legal services can be pro-
vided eectively without the expense of
leasing large oce spaces. Additionally,
some attorneys and support personnel
may nd that using technology to work
remotely provides a more desirable
work-life balance. In virtual meetings,
we meet with colleagues remotely while
in our homes, creating a less rigid work-
ing social dynamic.
Ethical responsibilities
With all its advantages, technology also
brings heightened risks. Virginia Rule
of Professional Conduct 1.1 requires
lawyers to consider the benets and risks
associated with relevant technology.
1
For
example, when using technologies such
as online meeting platforms, lawyers
must be sure that they are using technol-
ogy responsibly and within appropriate
ethical boundaries. Recently, as use of
the videoconferencing platform Zoom
increased, reports appeared showing
that conguration and credential shar-
ing issues led to instances of hacking
and the practice of “Zoombombing”
in which an uninvited person joins a
meeting in order to cause disruption.
is occurred partly because of users
sharing meeting credentials through
social media or not password protecting
meetings. As a result, Zoom modied
its default settings to require passwords
to enter conference calls and the “wait-
ing room” feature which allows the
host of the meeting to control the entry
of participants. ese issues implicate
a lawyer’s duty to act competently to
safeguard information relating to the
representation of a client against unau-
thorized access by third parties and to
prevent inadvertent or unauthorized
disclosure by the lawyer or other persons
participating in the representation of the
client. Lawyers must make sure that they
are familiar with technology and able to
use it competently and securely.
Change = Opportunity
As we begin easing into life “post
COVID-19,” technology will play a cru-
cial role in transforming the delivery of
legal services. e COVID-19 pandemic
Jonathan Gallo has practiced law for over
twenty years and is Of Counsel at Vandeventer
Black LLP. Gallo is a member of the firm’s
Cybersecurity & Data Privacy group, Hemp and
Medical Cannabis group, and the Government
Contracts practice group. He advises clients on
a range of matters related to data privacy and
security, data breach planning and response,
cyber risk liability and compliance, soware
development and licensing, government con-
tracting, and other technology-related matters.
He also assists businesses in navigating regula-
tory and contractual requirements in the indus-
trial hemp and medical cannabis elds.
Technology Use by the Legal Profession in a Post-
COVID-19 World
by Jonathan V. Gallo
Tech continued on page 53
VIRGINIA LAWYER | June 2020 | Vol. 69
52
Risk Management
An ounce of prevention is worth a
pound of cure. We talk a lot about risk
management here atALPS, but what
we’re really talking about is prevention
— systems and practices that your rm
can put into place to help catch human
error before the mistake causes harm
to a client’s case. We all know that pre-
ventative medicine is the most eective
medicine and that’s the angle we’re com-
ing from as it relates toCOVID-19.
We have all been inundated with
information about the virus, from
cautions to concessions to cancella-
tions. ankfully atALPS, we have not
received any reports from lawyers of
claims arising fromCOVID-19 issues as
of now. However, there are some basic
systems that we would recommend law
rms put in place to mitigate risk in this
unknown time:
1. Ensure that lawyers and sta are set
up to work remotely and can still e-le
and perform other necessary functions
from their home oce to address
deadlines.
2. As always, ensure communication and
documentation systems are in place to
keep clients up-to-date and informed
as to how their case may be aected.
3. Lawyers should be diligent in conrm-
ing with sta and other attorneys that
have been assigned tasks to ensure
those tasks were completed in case of
an unexpected absence.
4. Be aware of the most up-to-date
notices from the courts regarding
appearances and deadlines and stay in
communication with opposing parties
(and document that communication!).
5. Be smart, use common sense, and pri-
oritize your health. Stress can lead to a
weakened immune system. Take care
of yourself so you’ll be equipped to
take care of your clients.
StaceyK.Smithis the Claims Manager at
ALPS. She received her B.A. from Montana
State University and her J.D. from Willamette
University College of Law. Prior to joining
ALPS in October 1999,Smithspent over
ve years litigating major damage cases in
both state and federal court. She served on
the Washington State Bar Professionalism
Committee, the Washington State Bar Court
Rules and Procedures Committee and the
Washington State Bar Ad Hoc Committee on
Civility. She is a member of the Washington
State Bar Association.
www.vsb.org
Five Ways Law Firms Can Get Ahead ofCOVID-19
by Stacey K. Smith
You’ve Got Mail!
Or you might, if your email address is up to date with the Virginia
State Bar.
Please make sure you are getting our monthly VSB News and annual
compliance messages by adding [email protected], membership@
vsb.org, and [email protected] to your email contacts.
And as always: Keep all of your information current by logging on at
www.vsb.org.
NEW: You can opt out of receiving Virginia Lawyer by mail if you
prefer to read it online.
Vol. 69 | June 2020 | VIRGINIA LAWYER
53
www.vsb.org
rm from representing an adverse
party rather than in a good faith
endeavor to determine whether to
retain the lawyer”).
4. Communications and condential
information shared with a lawyer
by a prospective client are protected
under Rule 1.9. A lawyer must not
share condential information of a
prospective client, except as Rule 1.9
would permit as to information of a
former client.
5. A lawyer may condition conversa-
tions with a prospective client on
the person’s informed consent that
no information disclosed during
the consultation will prohibit the
lawyer from representing a dierent
client in the matter. If the agreement
expressly so provides, the prospec-
tive client may also consent to the
lawyer’s subsequent use of informa-
tion received from the prospective
client. Comment [5], ABA and Va.
Rule 1.18.
6. Unless the prospective client has
imparted information that could
be “signicantly harmful” to that
person if used to represent another
client, the lawyer will not be disqual-
ied even if the matter is the “same
or substantially related to” the sub-
ject of the consultation.
7. Information that could be “sig-
nicantly harmful” relates to its
potential use and requires material
prejudice or adverse impact within
the connes of the matter in which
disqualication is sought, “a deter-
mination that is exquisitely fact-sen-
sitive and -specic.” Formal Op, 492
gives numerous examples of what is
or is not “signicantly harmful infor-
mation.”
8. Lawyers should limit the informa-
tion obtained at an intake or initial
consult and do a conict check as
soon as practicable.
9. If a lawyer is disqualied for having
received information that could be
“signicantly harmful,” another law-
yer in the rm may undertake rep-
resentation of a client adverse to the
prospective client provided:
a. both the prospective and
aected clients give informed
consent conrmed in writing;
or,
b. the disqualied lawyer took
reasonable measures to avoid
exposure to more signicantly
harmful information than was
reasonably necessary to deter-
mine whether to represent the
prospective client, and:
i. the disqualied lawyer is
timely screened from par-
ticipation, and the lawyer
reasonably believes the
screen is eective to protect
information that could be
signicantly harmful to the
prospective client; and
ii. written notice describing
the matter about which the
lawyer was consulted and
screening procedures that
have been employed are
promptly given to the pro-
spective client. q
Ethics continued from page 14
will create long-lasting changes,
and in the practice of law and with
those changes come opportunities.
e legal profession can embrace
these opportunities by safely lever-
aging technology to eciently
improve the delivery of legal ser-
vices to clients. q
Tech continued from page 53
Endnotes
1 VA Rules of Professional Conduct,
Rule 1.1 Comment [6].
Join the General Practice Section
Organized in 1986, the General Practice Section sponsors programs and publica-
tions of general interest, but directs most programs to the sole practitioner and
small rm lawyer. The section serves as a forum for the exchange of practical ideas
and information on how to effectively manage and practice law. The section also
publishes a newsletter several times a year, and sponsors an Annual Meeting CLE
program. To recognize a general practitioner who has achieved distinction in public
service, the section presents its Tradition of Excellence Award each year during the
State Bar’s Annual Meeting.
www.vsb.org/site/sections/generalpractice
VIRGINIA LAWYER | June 2020 | Vol. 69
54
www.vsb.org
four, in another, trying to nd one that
would issue a warrant against a police
ocer. Sen. DeSteph believes there is a
need for private criminal complaints,
because one cannot always take an o-
cer o the street to procure a warrant
against a bad actor. “You shouldn’t be
able to magistrate shop, however,” he
said.
Senator John Edwards, chairman of the
Senate Judiciary Commission that killed
the bill, explained that the Democrats
opposed the bill because it gave special
treatment to law enforcement ocers,
unduly reducing police accountability.
Senator Creigh Deeds said, in an email
to the author, “e magistrate system
may need a close examination, but
I’m not willing to consider complaints
against law enforcement ocers at a
dierent level of scrutiny than those
made against other citizens.” In Senator
Edwards’ view, the problems with pri-
vate criminal complaints are not limited
to complaints against police ocers.
Many merchants abuse the process by
having shoppers arrested on imsy evi-
dence. “We might be better o getting
rid of private criminal complaints,” he
says, “by requiring prosecutors always to
be consulted before a warrant issues. But
we’d have to hire a whole lot more pros-
ecutors, and we can’t aord it.”
Everyone agrees that
Commonwealth’s attorneys’ ofces
lack the resources they would need if
they were suddenly ooded with all
the private misdemeanor complaints
that now go directly to magistrates.
Commonwealth’s attorneys receive state
funding only for their felony caseloads.
Commonwealth’s attorneys do not have
their own investigative stas, and their
oces usually are in the courthouse,
while magistrates are all over the place,
usually in law enforcement facilities.
Already, the oces are understrength
and stressed by increases in workload
occasioned by such initiatives as the
new criminal discovery rules.
15
Major
Greg Jenkins, of the Albemarle County
Police Department, says, “It appears
to be a more ecient process to allow
citizens to present their cases to a mag-
istrate, in misdemeanor cases, for the
probable cause hearing and issuance of
the warrant.”
e statewide centralization of the
magistrate system signicantly improved
selection and training of magistrates.
Chief circuit judges oen are consulted
by the chief magistrates regarding
administrative matters and enjoy a
good working relationship. Others,
while not criticizing the idea of central
control, lament undue bureaucratiza-
tion, resulting in more reluctance by
magistrates to consult informally with
Commonwealth’s attorneys when private
complaints are presented. Requiring
higher levels of formal education for
magistrates is a mixed blessing. Some
magistrates who went to law school
want to do suppression hearings in
conjunction with deciding whether to
issue an arrest warrant, conating two
completely separate steps in the crimi-
nal justice process. Others believe that
they are obligated to issue a warrant
if they nd probable cause, even if the
Commonwealth’s attorney advises that
prosecution should be withheld.
Greater transparency with respect
to the magistrate system, in particular
to its role in screening private criminal
complaints, is desirable. Data should
be collected and made available to the
public on the incidence of private com-
plaints, compared to law-enforcement
or Commonwealth’s attorney requests
for warrants, and on the relative number
of warrant requests granted or denied
in each category. e Virginia Court
Administration website has no compre-
hensive magistrate statistics for any year
since 2012.
16
Even pre-2013 statistics do
not separately track the handling of pri-
vate criminal complaints. q
Endnotes
1 Va. Code § 19.2-72.
2 Department of Magistrate Services, Oce of the
Executive Secretary of the Supreme Court of
Virginia, Magistrate Manual at 2-4, paras. II(c)(2)
& (3) (rev’d Jul. 2019) [hereinaer “Magistrate
Manual”] (giving felony bad check as example),
http://www.courts.state.va.us/courtadmin/aoc/
mag/resources/magman/chapter02.pdf
3 See Criminal Complaint Form, Form DC-311
(containing box to be checked if complainant is
not a law enforcement ocer or animal control
ocer; also containing boxes to be checked by
the Commonwealth’s attorney or law enforce-
ment agency approving issuance of a felony arrest
warrant).
4 Va. R. Crim. P. 3A:3.
5 Va. Code § 19.2-76.
6 Va. Code § 19.2-73.2.
7 Va. Code. § 15.2-1627(b). But see In re Horan,
271 Va. 258, 264, 634 S.E.2d 675, 679 (2006)
(“institution of criminal charges, as well as their
order and timing, are matters of prosecutorial
discretion”); 2001 Op. Va. Att’y Gen. 078 (Dec.
19, 2001), https://www.oag.state.va.us/les/
Opinions/2001/01-078.pdf (“Commonwealth’s
attorney should use restraint in discretionary
exercise of governmental power, such as in selec-
tion of cases to prosecute”).
8 2 April 2020 email interview with Major Gregory
Jenkins, Albemarle County Police Department.
9 Virginia State of the Judiciary Report 50-54
(2018) (listing magistrates by name).
10 Virginia State of the Judiciary Report Table 14
(2018).
11 Judicial Council of Virginia, Report to the
General Assembly and Supreme Court of
Virginia 49-52 (2008).
12 See William Blackstone, IV Commentaries on the
Law of England 287 (1766) (describing appear-
ance by citizen before justice of the peace).
13 State v. Goodman, 449 S.W.2d 656, 661 (Mo.
1970) (summarizing posse comitatus power).
14 2020 Va. Sen. Bill. No. 169 (oered Jan. 8, 2020),
referred to Committee for Courts of Justice.
15 See Michael R. Doucette,Virginia Prosecutors’
Response toTwo Models of Pre-Plea Discovery
in Criminal Cases: An Empirical Comparison,
73 Wash. & LeeL. Rev. Online415, 430 (2016),
https://scholarlycommons.law.wlu.edu/wlulr-on-
line/vol73/iss1/17 (noting increasing burden of
greater discoverable information, including video
and audio recordings that are time consuming
for prosecutors to review: “One individual trac
stop could generate several hours of video and
audio evidence.”).
16 See http://www.courts.state.va.us/courtadmin/
aoc/judpln/csi/stats/mag/mag_caseload_
rpt_2012.pdf.
Criminal Complaints continued from page 31
Henry H. Perritt, Jr. is a Professor of Law
and former Dean, Chicago-Kent College of
Law. He is a member of the bars of Virginia,
Pennsylvania, District of Columbia, Maryland,
Illinois, and the Supreme Court of the United
States. He has authored more than 100 articles
and twenty-ve books on judicial procedure,
dispute resolution, technology and law, and
labor law. He is a commercial helicopter and
private instrument airplane pilot and extra
class radio amateur (K9KDF). He is retiring
this summer and moving to Albemarle County,
where he will practice law part-time and write.
Vol. 69 | June 2020 | VIRGINIA LAWYER
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DISCIPLINARY SUMMARIES
e following are summaries of disciplinary actions for viola-
tions of the Virginia Rules of Professional Conduct (RPC) or
another of the Supreme Court Rules.
Copies of disciplinary orders are available at the link pro-
vided with each summary or by contacting the Virginia State
Bar Clerk’s Oce at (804) 775-0539 or clerk@vsb.org. VSB
docket numbers are provided.
DISCIPLINARY BOARD
Babak Bagheri
20-000-117931
Chevy Chase, Maryland 20815
Eective April 24, 2020, the Virginia State Bar Disciplinary
Board revokedBabak Bagheri’s license to practice law in the
Commonwealth of Virginia. is was a reciprocal revocation,
based on his January 9, 2020, disbarment from the practice of
law by the Court of Appeals of Maryland.
Rules of Court, Part 6, Section IV, Paragraph 13-24
https://www.vsb.org/docs/Bagheri-042420.pdf
William Franklin Burton
Chevy Chase, MD 20815
19-051-115210
By Order entered May 20, 2020, the Virginia State Bar
Disciplinary Board suspended William Franklin Burton’s license
to practice law in the Commonwealth of Virginiafor a period of
one year and one day for violating professional rules that govern
competence, diligence, communication, truthfulness in state-
ments to others, and bar admission and disciplinary matters.
is was an agreed disposition of misconduct charges.
RPC 1.1; 1.3(a); 1.4 (a-c); 4.1(a); 8.1(a)
https://www.vsb.org/docs/Burton-052120.pdf
Timothy Scott Carnes
20-000-118442
Norfolk, VA23507
Eective April 28, 2020, the Virginia State Bar Disciplinary
Board revokedTimothy Scott Carnes’slicense to practice law
based on his adavit consenting to the revocation. By ten-
dering his consent to revocation at a time when allegations
of misconduct are pending, Carnes acknowledges that the
material facts upon which the allegations of misconduct are
predicated are true.
Rules of Court, Part 6, Section IV, Paragraph 13-22 and 13-28.
https://www.vsb.org/docs/Carnes-042920.pdf
Michael Anthony Cole
19-090-114614 and 20-090-117131
South Boston, VA 24592
Eective February 21, 2020, the Virginia State Bar Disciplinary
Board revokedMichael Anthony Cole’s license to practice law in
the Commonwealth of Virginia for violating professional rules
that govern safekeeping property, truthfulness in statements to
others, bar admission and disciplinary matters, and misconduct.
RPC 1.15(a)(1); 1.15 (b)(5); 4.1(a); 8.1(a)(c); 8.4(b)(c)
https://www.vsb.org/docs/Cole-032320.pdf
Daniel Francis Izzo
19-053-116012
Alexandria, VA 22310
Eective April 8, 2020, the Virginia State Bar Disciplinary Board
suspended, with terms, Daniel Francis Izzo’s license to practice
law in the Commonwealth of Virginiafor one year and one day
for violating professional rules that govern scope of representa-
tion, diligence, communication, and misconduct. is was an
agreed disposition of misconduct charges.
RPC 1.2 (a); 1.3 (a); 1.4 (a) (b); 8.4 (c)
https://www.vsb.org/docs/Izzo-040920.pdf
Raymond Lewis Palmer
19-033-115044
Richmond, VA 23219
By Order entered May 15, 2020, the Virginia State Bar
Disciplinary Board suspended, with terms, Raymond Lewis
Palmer’s license to practice law in the Commonwealth of
Virginiafor a period of one year for violating professional rules
that govern diligence and safekeeping property. is was an
agreed disposition of misconduct charges. e suspension is
eective September 15, 2020.
RPC 1.3(a); 1.15(a)(1)(3), (b)(3-5), (c)(1,2,4), (d)(1-4)
https://www.vsb.org/docs/Palmer-052220.pdf
Kathryn SuzannePennington
18-021-110430, 18-021-110932, 18-021-112103, 19-021-113686,
19-021-114516, 19-021-114656
Virginia Beach, Virginia 23457
Eective May 11, 2020, the Virginia State Bar Disciplinary
Board revokedKathryn SuzannePennington’slicense to prac-
tice law based on her adavit consenting to the revocation. By
tendering her consent to revocation at a time when allegations
of misconduct are pending, Pennington acknowledges that the
material facts upon which the allegations of misconduct are
predicated are true.
Rules of Court, Part 6, Section IV, Paragraph 13-28.
https://www.vsb.org/docs/Pennington-051120.pdf
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DISTRICT COMMITTEES
Rose Ann Palmer
20-060-117391 and 20-060-117563
Mechanicsville, VA 23111
On March 10, 2020, the Virginia State Bar Sixth District
Subcommittee issued an admonition with terms to Rose Ann
Palmer for violating professional rules that govern diligence,
communication, and safekeeping property.
RPC 1.3 (a); 1.4 (a); 1.15 (a); 1.15(b)(3)
https://www.vsb.org/docs/Palmer-040620.pdf
Janice Lynn Redinger
19-070-116058
Charlottesville, VA 22902
Eective April 7, 2020, the Virginia State Bar Seventh District
Subcommittee issued a public reprimand without terms
toJanice Lynn Redinger for violating professional rules that
govern fairness to opposing party and counsel. is was an
agreed disposition of misconduct charges.
RPC 3.4 (d)
https://www.vsb.org/docs/Redinger-040820.pdf
DISCIPLINARY PROCEEDINGS
Respondent’s Name Address of Record Action Eective Date
Disciplinary Board
Babak Bagheri Chevy Chase, MD Revocation April 24, 2020
William Franklin Burton Chevy Chase, MD 1-Year and 1 Day Suspension May 20, 2020
Timothy Scott Carnes Norfolk, VA Revocation April 28, 2020
Michael Anthony Cole South Boston, VA Revocation February 21, 2020
Daniel Francis Izzo Alexandria, VA 1-Year and 1 Day Suspension April 8, 2020
Raymond Lewis Palmer Richmond, VA 1-Year Suspension With Terms September 15, 2020
Kathryn Suzanne Pennington Virginia Beach, VA Revocation May 11, 2020
District Committees
Rose Ann Palmer Mechanicsville, VA Public Admonition With Terms April 3, 2020
Janice Lynn Redinger Charlottesville, VA Public Reprimand April 7, 2020
Suspension – Failure to Pay Disciplinary Costs Eective Date Lied
Ellis Charles Baggs Richmond, VA May 27, 2020
Jason Michael Breneman Ashland, VA April 1, 2020 May 22, 2020
Kenneth Steven Kaufman Potomac, MD May 6, 2020
Justin Alan Torres Alexandria, VA April 1, 2020
Suspension – Failure to Comply with Subpoena
Marc Ericson Darnell Newport News, VA May 14, 2020
Impairment
Ellen Mary Lynch Arlington, VA May 12, 2020
Cheryl Schroeder omas Virginia Beach, VA April 29, 2020
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NOTICES TO LAWYERS
Supreme Court of Virginia Issues Statement on Justice
On June 16, 2020, theJustices of theSupreme Court of Virginia
issued a statement to members of the judiciary and the Virginia
State Bar.
https://www.vsb.org/site/news/item/SCV_statement_on_justice
Statement from VSB President Marni E. Byrum
Aer global and local protests spurred by civil rights issues,
VSB President Marni E. Byrum released a letter to all Virginia
lawyers.
https://www.vsb.org/site/news/item/statement_byrum_2020-06
Highlights of the June 9, 2020, Virginia State Bar Executive
Committee Meeting
e VSB Council meeting scheduled for June 18 was canceled.
e VSB Executive Committee convened telephonically on June
9, 2020. By a vote of 11–2, the Executive Committee voted to
recommend revisions to Supreme Court of Virginia Rule 1A:8.
e proposed changes will be presented to the Supreme Court
of Virginia for approval.
https://www.vsb.org/site/news/item/highlights_EC_060920
Supreme Court of Virginia Amends Rules of Court
On May 1, 2020, the Supreme Court of Virginia approved
amendments to Part 6, Section IV,Paragraph 3of the Rules
of Court regarding the organization and government of the
Virginia State Bar. ese Rules are eective June 30, 2020 and
will be implemented as part of 2020-2021 dues renewal. Most
notably, these Rule changes:(1) impose an email address of
record requirement for all members; (2) create separate mem-
bership classes for retired and disabled members(withcorollary
changes to Paragraph 13-23.K.); (3) remove the requirement
for active members to be “engaged in the practice of law;”(4)
revise some procedures for electing dierent membership
classes; and (5) update the Rule’s language to eliminate ambig-
uous terminology.https://www.vsb.org/site/news/item/scv_
amends_rules_of_court
Supreme Court of Virginia Amends Two Rules
Eective June 4, 2020, the Supreme Court of Virginia amended
two Rules of Court, one to take eect immediately and the other
to take eect on July 1, 2020.
Eective immediately are changes to Part ree A (Criminal
Practice and Procedure),Appendix of Forms, Form 10.
Eective on July 1, 2020, Rule 3B:2 of the Uniform Fine
Schedule has been amended. https://www.vsb.org/site/news/
item/scv_amends_two_rules
Supreme Court of Virginia Encourages E-Filing of All
Documents
As a result of the COVID-19 emergency, on June 2, 2020, the
Supreme Court of Virginia issued an order encouraging lawyers
and pro se litigants to electronically le pleadings and docu-
ments that would normally be required to be led in hard copy
with the Court. https://www.vsb.org/site/news/item/SCV_ele
VSB Bar Council Election Results
e Virginia State Bar Council welcomes eleven representatives
aer voting was held in ve circuits. e Council is an 81-per-
son body, consisting of 65 lawyers elected from the 31 circuits
throughout the Commonwealth, as well as nine at-large mem-
bers appointed by the Supreme Court of Virginia, four confer-
ence chairs, and three ocers.https://www.vsb.org/site/news/
item/bar_council_election_results
Supreme Court of Virginia Oers Extensions to Deadlines
Governing Lawyers Due to COVID-19 Pandemic
e Court’s modications aect deadlines for dues, the Clients’
Protection Fund fee, MCLE, certication of professional liability
insurance, and the attorney wellness fund fee. e extensions
move all deadlines from July 31, 2020, until September 30, 2020,
and October 31, 2020 to December 31, 2020.
https://www.vsb.org/site/news/item/extensions_to_deadlines_
COVID
COVID-19 Updates and Safety Measures
For the latest news and information regarding Supreme Court
of Virginia and Bar operations during the COVID-19 pan-
demic, please visit the website.
https://www.vsb.org/site/news/item/covid_19_safety_measures
Administrative Suspensions
Members of the Virginia State Bar were administratively sus-
pended on October 15, 2019, for failure to comply with the
Rules of the Supreme Court of Virginia, Part Six, Section
IV, Paragraphs 11 and/or 16, 18, 19; or the Code of Virginia,
Sections 54.1-3912 or 54.1-3913.1. ese attorneys were notied
of their suspensions using their last address of record with the
Virginia State Bar; however, in some instances, this has not been
eective. To assist the Virginia State Bar in re-establishing
contact with these attorneys, anyone having knowledge of
the present location and practice status of persons on this list
should contact the VSB Regulatory Compliance Department.
is list was published on April 30, 2020, at www.vsb.org/site/
members/administrative-suspensions
VIRGINIA LAWYER | June 2020 | Vol. 69
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Virginia Lawyer Register
NOTICES TO LAWYERS
Clients Protection Fund Reimburses $30,659 to Clients
e Virginia State BarClients’ Protection FundBoard autho-
rized payments totaling $30,659.00 in reimbursement to former
clients of eight Virginia attorneys at its September 20, 2019
meeting and at its most recent meeting on February 7, 2020.
In the largest award of the meetings, one petitioner, a
long-standing client of Travis Joseph Tisinger of Berryville, was
awarded $12,000 as reimbursement for retainer fees that the
attorney collected for a waterproong claim and settlement, and
trust fund work. e investigator found insucient work on
the attorney’s part. Tisinger’s license was revoked by consent in
April of 2019 for misconduct related to the petitioner’s case.
Two petitioners recovered $6,409 and $5,000, respectively,
for fees paid to Michael F. Fasanaro Jr. of Virginia Beach. e
rst petitioner was granted returns for an unearned fee in family
law wherein the petitioner hired Fasanaro to represent him in
a divorce case, but mediated the divorce without attorney assis-
tance, asking for a fee refund. Fasanaro did not have the funds
to deliver the refund. e second recipient recovered funds for
an unearned fee in criminal law. Fasanaro failed to represent the
petitioner in an appeal for conviction of a murder sentencing.
Fasanaro’s license was revoked by consent in July 2019 for mis-
conduct related to the two cases.
e board approved a $3,500 payment to a petitioner’s
father to reimburse for an immigration case in which Sean
Hanover of Fairfax did not do signicant work. e petitioner’s
father paid the fee that was not honored or refunded. Hanover’s
license was revoked by consent in February 2019 aer convic-
tion in a felony case.
A petitioner received $1,875 as reimbursement for funds
that the attorney Shelley Renee Collette of Winchester received
for prompt counsel in a drug distribution criminal case. e
attorney was found to engage in dishonest conduct including
failure to appear in court. Collette’s license was revoked by con-
sent in March 2018 for numerous infractions.
A former client of Jason Allen Spitler of Luray was awarded
$750 by the board for an insignicant amount of work in
an adoption case. A Memorandum Order of Revocation for
Spitler’s license was entered June 2019.
e board approved the payment of $500 to a petitioner
against Bryan James Waldron of Oakton for not fully earning
a retainer for ling a civil suit in September 2015. Waldron’s
license was revoked in September 2018 relating to this and three
other complaints for wrongful action.
Two petitioners, mother and son, were awarded reimburse-
ment for claims against John Frederick McGarvey of Glen Allen.
e son was awarded $125 and the mother was awarded $250
for McGarvey’s failure to appear in court and insucient service
in 2016. McGarvey was suspended indenitely on grounds
of impairment in February 2017. e board has previously
approved petitions against McGarvey, most recently seven cases
totaling $14,550 in 2018.
Finally, the board awarded a petitioner $250 for the failure
to fulll a verbal agreement by attorney George Ernest Marzlo
of Ruther Glen in a matter of a work release in 2017. Marzlo’s
license was revoked by consent in August 2019.
A chart of the amounts paid as a result of the two meetings
follows. e board delays the release of the nal chart, as the
awards given to new petitioners are subject to a 30-day appeal
period.
e Clients’ Protection Fund was created by the Supreme
Court of Virginia in 1976 to reimburse persons who suer
a quantiable nancial loss because of dishonest conduct by
a Virginia lawyer whose law license has been suspended or
revoked for disciplinary reasons, or who has died and did not
properly maintain client funds. e fund is not taxpayer funded
but is supported by Virginia lawyers who pay an annual fee of
up to $25. e Supreme Court of Virginia has set the current
annual fee at $10 per Virginia lawyer with an active license sta-
tus. Payments from the Clients’ Protection Fund are discretion-
ary and are not a matter of right.
If you have any questions, you may contact Vivian R. Byrd,
administrator to Clients’ Protection Fund at byrd@vsb.org or at
(804) 775-0572.
Docket Number Lawyer’s Name City of Record Amount Paid Type of Case
19-555-003199 George Ernest Marzloff Ruther Glen, VA $250.00 Unearned Fee/Criminal Law
19-555-003203 Bryan James Waldron Oakton, VA $500.00 Unearned Fee/Civil Law - State
19-555-003212 Sean Hanover Fairfax, VA $3,500.00 Unearned Fee/Immigration
19-555-003218 Shelly Renee Collette Winchester, VA $1,875.00 Unearned Fee/Criminal Law
19-555-003219 Travis Joseph Tisinger Berryville, VA $12,000.00 Malpractice-Negligence/Civil Law - State
20-555-003228 John Fredrick McGarvey Glen Allen, VA $125.00 Unearned Fee/Criminal Law
20-555-003229 John Fredrick McGarvey Glen Allen, VA $250.00 Unearned Fee/Criminal Law
20-555-003233 Michael F. Fasanaro, Jr. Virginia Beach, VA $6,409.00 Unearned Fee/Family Law
20-555-003232 Michael F. Fasanaro, Jr. Virginia Beach, VA $5,000.00 Unearned Fee/Criminal Law
20-555-003237 Jason Allen Spitler Luray, VA $750.00 Unearned Fee/Family Law
Vol. 69 | June 2020 | VIRGINIA LAWYER
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Professional Notices
Eective July 1, A.
Benjamin Spencermoves
from professor at the
University of Virginia
School of Law, the nation’s
second oldest law school to
dean of William & Mary Law School,
the nation’s oldest law school.Spencer
is the rst African American to hold
the position, and the rst Black dean
at William & Mary.Spencer graduated
from Harvard Law School, has worked
as a member of theAdvisory Committee
on Civil Rules of the U.S. Judicial
Conference(appointed by Chief Justice
John Roberts);and serves in the Judge
Advocate General’s Corps of the U.S.
Army Reserves, where he holds the rank
of captain and argues appeals on behalf
of the Army; and he is a frequent VSB
volunteer, having served on a variety of
committees and on Bar Council for six
years.
e Hon. Nolan
B.Dawkins, presiding
Circuit CourtJudgefor
the City of Alexandria,
retired on June 26,
2020.JudgeDawkinswas
appointed to the 18thJudicial Circuit
Court in May 2008, aer already serving
as a Juvenile & Domestic Relations
CourtJudgein Alexandria for more than
12 years.He was appointed in 1989 to
serve as a substitutejudge; then, from
1994 until his elevation to the Circuit
Court in 2008,JudgeDawkinspresided
over the Juvenile and Domestic Relations
(JDR) Court. He was the ChiefJudgeof
the JDR Court from 2004–2008 and
he presided over the Alexandria
Family Drug Treatment Court from
2001–2008. Prior to his 26-years on the
bench,JudgeDawkinspracticed law in
Alexandria and served as an Assistant
City Attorney.
Beth Gould has joined
Freeborn & Peter’s
Richmond oce as an
associate in the Litigation
Practice group and a
member of the Insurance/
Reinsurance Industry team. Gould has
extensive trial experience and focuses her
practice on insurance defense for per-
sonal lines, trucking, commercial gen-
eral liability, and restaurants and retail.
She received her law degree from the
University of Richmond School of Law,
and her B.A. from Dartmouth College.
Eric W.
Schweibenz
and John Kern,
partners at
Oblon LLP in
Alexandria,
recently secured appellate armation of
a U.S. Patent Oce decision for their cli-
ent Aisin Seiki and its customers Toyota
and Honda, freeing all parties from what
had become a multibillion dollar threat
to block some of the most fuel ecient,
environmentally friendly, and best-sell-
ing vehicles in the United States.
e Virginia Indigent
Defense Commission is
pleased to announce that
Tracey A. Lenox has been
selected to serve as the Chief
Public Defender for the
newly created Prince William County
Public Defender Oce. Lenox has prac-
ticed as a criminal defense attorney in
and around Prince William County for
over 26 years and is the current presi-
dent of the Prince William County Bar
Association. Lenox will lead an oce of
35 attorneys and support sta that was
created with strong support from the
community led by Virginians Organized
for Interfaith Community Engagement.
Two northern Virginia family law rms,
the Hottell Family Law Group and
Maddox & Gerock have joined forces.
e rm, known as Maddox & Gerock,
is in Falls Church. Dennis Hottell joins
Katherine Maddox and Julie Gerock.
Joseph Stepp has joined
Two Rivers Law Group,
P.C., in its Christiansburg
oce as an associate
in the rm’s Workers’
Compensation Practice. He
received his law degree and undergradu-
ate degree from Liberty University. Stepp
is currently licensed in Virginia and
Massachusetts.
Uzo Onwuchekwa has
also joined Two Rivers
Law Group, P.C., in its
Richmond oce as an asso-
ciate in the rm’s Workers’
Compensation Practice.
She began her legal education in Nigeria
and received her Master of Laws from
Fordham University as well as her
Juris Doctorate from e University of
Richmond. She is licensed in Virginia
and New York.
Gentry Lockehas
addedErin Harriganas a
partner in the Criminal &
Government Investigations
practice. Harrigan served
as Assistant United States
Attorney in the Western District of
Virginia, based in Charlottesville, where
she was the Lead Prosecuting Attorney
for the Organized Crime & Drug
Enforcement Task Force. As a federal
prosecutor, Harrigan also prosecuted
and investigated public corruption,
regulatory oenses, human tracking
and fraud cases of local origin and
involving multi-national corporations.
She previously worked for the Virginia
Attorney General’s oce handling
criminal matters in the trial and
appellate courts and focused on human
tracking and gang/organized crime.
Andrew O. Gayhas
rejoined Gentry Locke in
its Lynchburg oce. Gay
will work in the rm’s com-
mercial litigation practice
group, where he will focus
on assisting clients with complex con-
struction contracts and construction liti-
Spencer
Dawkins
Gould
KernSchweibenz
Lenox
Stepp
Onwuchekwa
Harrigan
Gay
GerockMaddoxHottell
VIRGINIA LAWYER | June 2020 | Vol. 69
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Professional Notices
gation. Gay has signicant experience in
construction claim and defect litigation,
as well as contract draing and negoti-
ations. He has represented a variety of
clients in the road and bridge, residen-
tial, commercial, aerospace, and utility
sectors, including national home build-
ers, ENR-ranked contractors, national
material suppliers, local and regional
subcontractors, design professionals, and
a variety of owners and developers. Gay
is licensed to practice in Virginia and
Florida.
Virginia lawyer David I. McCaskey,
author of e Ambidextrous Spore Print
BookandNotes on the Provenence of
my Pfretzschner Aluminum Bass, has
published his rst novel,Golden Chains,
available through Amazon. Golden
Chains chronicles the life of a wounded
D-Day veteran, discharged before the
war’s end who relocates to Staunton
aer having been treated at Woodrow
Wilson Hospital and touches on much
of the local history that he observed in
his job as a truck driver in Augusta and
Highland Counties.
Kerns & Kastenbaum, a 60-plus year
rm serving central Virginia has relo-
cated its oces to 4900 Radford Avenue
in Richmond.
Virginia Claims Prevention Hotline
For new and seasoned Virginia lawyers with concerns or questions about the day-
to-day practice of law, John Brandt will answer your questions which may minimize
the risk of your being sued for malpractice or receiving a bar complaint. There are
no limits to the topics you can discuss with him.
Call (703) 659-6567 or
Toll free: (800) 215-7854
for a condential, free, risk management consultation with
John J. Brandt, JD, LL.M. all at no cost to Virginia lawyers.
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fession and ensure the profession meets the needs of the
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Professional Notices
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portrait to [email protected] for
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Professional notices are free to
Virginia lawyers and may be edited
for length and clarity.
Potential Clients
are Looking for
Virginia Lawyers
Each month, the staff of the Virginia
Lawyer Referral Service create a list
from the vetted potential clients who call
looking for consultations — and who are
turned away for lack of member lawyers.
Please consider joining the VLRS and help-
ing provide legal services to potential
clients, building your practice while help-
ing Virginians with legal issues.
The rst year of membership in VLRS
is free. So, what do you have to lose?
Call Toni Dunson at (804) 775-0591
to talk about how you can help or sign up
online at www.vlrs.net.
McCaskey
Virginia State Bar Sta Directory
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-sta.
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Classied Ads
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Notices
SEEKING MISPLACED WILL
Searching for a lawyer who
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VIRGINIA LAWYER | June 2020 | Vol. 69
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e Last Word
It’s summer — a time when many law
rms, government oces, and judicial
chambers will be welcoming new hires,
summer associates, clerks, and interns
(even if virtually, in these socially dis-
tanced times). And a key part of having
aspiring attorneys in your oce is giv-
ing them meaningful feedback on their
writing. ey need and deserve eective
feedback to help build foundational
skills that will serve them the rest of their
careers.
1
And you benet from giving
good feedback, too, since it means you’ll
be getting better work product from
your guests for the rest of their stay.
2
Here’s how you can help the next
generation of lawyers become good,
self-directed legal writers.
Be a teacher, not just an editor.
Too oen, supervising attorneys simply
cross out or rewrite sentences and hand
back a marked-up document to their
interns. But that’s not really feedback,
that’s just editing. To grow as legal writ-
ers, novices must understand not only
what they did wrong and how to correct
it, but also why it’s wrong.
3
So, when
you’re giving feedback, be sure to explain
your suggestions; the word “because” is
your friend. Consider these two com-
ments:
• is paragraph is confusing.
• is paragraph is confusing because
it lacks a clear topic sentence to let the
reader know what the paragraph is
about.
With the second sentence, the recipient
understands both the symptom of their
writing aw (confusion) and its cause
(no topic sentence). Now, the writer
can independently diagnose other para-
graphs with the same issue.
Similarly, if you’re giving feedback
on digital documents, don’t make spe-
cic edits in “track changes” format.
It’s too tempting for recipients to auto-
matically “accept all changes” without
reecting on why those edits were made.
Instead, use comment bubbles or in-line
comments to suggest changes or raise
questions, which will prompt deeper
thinking and actual learning.
Prioritize quality over quantity
You might be tempted to mark every
single problem or error in a piece of
writing. And, of course, you’ll eventually
have to do that when preparing a nal
document for a client or a court. But in
earlier stages, when helping newer legal
writers to learn, it’s usually better to
give fewer, high-quality comments. Too
many comments on a document can
demoralize newer writers.
4
(Just think
back to how you felt in school when the
teacher handed back a paper dripping in
red ink.) Moreover, excessive comment-
ing overwhelms their ability to learn —
no one can try to master 25 new skills at
once.
Instead, look for ways to group your
comments into two to four broader les-
sons or themes for your new colleagues
to work on this time around. Read back
over the comments you made or the
problems you identied and ask yourself,
“What do these individual suggestions
have in common?” Are there consistent
issues with organization, reasoning, writ-
ing style, or even punctuation/grammar?
If so, try to label them; it’s much easier
for the novice to focus on improving
three main categories of problems than
xing 45 individual things scattered
throughout a document.
Set the right tone
e tone of your feedback is every bit as
important as the content. e goal isn’t
to sugar-coat or coddle; it’s to increase
the odds that the listener remains open
to hearing your feedback and is moti-
vated to incorporate it and improve next
time.
5
Accentuate the positive. e newer
legal writers you’re working with won’t
be perfect. But they won’t be wholly
decient, either. Inevitably, even those
who struggle will have some things they
did well. Point out those things. Positive
feedback encourages the listener and
makes them receptive to the rest of your
critique; so mention the good stu rst.
6
Positive feedback also lets new legal
writers know what they’re doing right so
they can replicate it in the future.
7
Avoid “you.” Getting feedback
isn’t easy. It can feel like our worth as a
person is being evaluated. So you want
to depersonalize the feedback as much
as possible — to avoid making it about
“me” judging “you.” One way is to keep
your comments focused on the writing
and not on the writer. Avoid using “you”
— as in “Your paragraph is confusing,”
or “You wrote a confusing paragraph…”.
Instead, try “is paragraph is confus-
ing,” which puts the emphasis, appropri-
ately, on the words that appear on the
page.
8
Adopt an alter ego. In addition
to cutting the “you,” another way to
depersonalize feedback is to cut the
“I” and have the critique come from
another source. Try some “professional
Giving Eective Feedback
by Joe Fore
Endnotes
1 Rebekah Hanley, Generous Bonus in a Down
Economy - Constructive Criticism, 70 O. S.
B. B. 13, 13 (2009).
2 Id.
3 Elizabeth Ruiz Frost, Overcoming Illusory
Superiority: Mentoring Legal Writers, 73 O.
S. B. B. 13, 14 (2013).
4 Hanley, supra note 1, at 14.
5 Joe Fore, Want to Give Better Writing
Feedback? Watch Your Tone, T
PT B (Nov. 28, 2017),
https://practicetuesday.com/2017/11/28/want-
to-give-better-writing-feedback-watch-your-
tone/.
6 As Dale Carnegie says, the rst step in getting
others to change their behavior is to “begin
with praise and honest appreciation.” D
C, H W F
I P 198 (Pocket Books 1981).
7 Anne Enquist, Critiquing Law Students’
Writing: What the Students Say is Eective, 2 J.
L W I. 145, 188 (1996), https://
www.lwionline.org/sites/default/les/2016-08/
Students_Enquist.pdf.
8 Sammy Mansour, Fostering Receptiveness to
Feedback, 98 M. B.J. 48, 49 (2019); Frost,
supra note 3, at 15-16.
9 Jessie Grearson, From Editor to Mentor:
Considering the Eect of your Commenting
Style, 8 J. L W I. , 164
(2002), https://www.lwionline.org/sites/
default/les/2016-08/Editor%20to%20Mentor_
Grearson.pdf.
Vol. 69 | June 2020 | VIRGINIA LAWYER
63
www.vsb.org
e Last Word
role-playing” — framing feedback in
terms of how another reader (a client,
judge, other supervisor, or a hypothetical
other “reader”) would respond to the
writing.
9
So rather than saying, “I found
this paragraph confusing because,” you
might try saying, “A judge reading this
would probably be confused by this para-
graph because…”.
Joe Fore is an Associate Professor of Law,
General Faculty and Co-Director of the Legal
Research & Writing Program at the University
of Virginia School of Law. Have a comment, a
question, or an idea for a future column? Email
him at [email protected] or connect with
him on Twitter (@Joe_Fore).
