virginia lawyer december 2013 · 2014-01-02 · december 2013 volume 62/number 5 the official...

Virginia LawyerVirginia LawyerVOL . 6 2 / NO. 5 • D EC EMBER 2 0 1 3VOL . 6 2 / NO. 5 • D EC EMBER 2 0 1 3

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

www.vsb.org

feature articles by theVirginia Association of Law Libraries

Special section inside on the Virginia Law Foundation: Forty years of philanthropy, justice, education, and the rule of law.

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December 2013Volume 62/ Number 5

The Official Publication of the Virginia State Bar

Virginia Lawyer

FeaturesLAW LIBRARIES15 Law Libraries and Options Galore

by Gail F. Zwirner

16 Appellate Research Lessons from the Judgesby Benjamin A. Doherty

20 Discovering E-Discovery: a Resources Guideby Timothy L. Coggins

24 Solving Your Ethical Conundrums: Researchingthe Rules of Professional Conductby Joyce Manna Janto

45 Increasing Your “App”titude: Legal Research Appsfor Virginia Practitionersby Marie Summerlin Hamm

49 A Much Debated Debt: The Virginia–WestVirginia Debt Controversyby Gregory H. Stoner

53 Virginia CLE Sources: Important PractitionerTools for Forty Yearsby Gail F. Zwirner

NoteworthyVSB NEWS

57 Highlights of the October 4,2013, Virginia State BarCouncil Meeting

57 Weiner Is President-electDesignee of the VSB

PEOPLE

58 In Memoriam

58 Local and Specialty BarElections

ET AL.

59 Task Force OffersRecommendations to Improve Legal Writing

60 Supreme Court ExhibitHighlights the History of theVSB and VBA

60 Trees for Virginia

Departments63 Forum

64 An Effective Model forMisdemeanor Courts and theMentally Ill Defendant by the Hon. Joseph A. Migliozzi Jr.

67 CLE Calendar

69 Professional Notices

70 Classified Ads

Columns8 President’s Message

10 Executive Director’s Message

61 Consultus Electronica

56 Harrisonburg Attorneys Honored for Pro Bono Work

Access to Legal Services

VIRGINIA LAW FOUNDATION

Cover: Among the many beneficiaries supported by the Virginia Law Foundation during its forty-year history is the Court Appointed Special Advocacy program.(Photo courtesy of National CASA Association)

30 The VLF Celebrates Forty Years of Philanthropyby James V. Meath and Manuel A. Capsalis

32 One Barn at a Time (Being Good and Doing Great)by Raymond M. White

34 Center Spreads the Rule of Law Projectby G. Michael Pace Jr.

36 Museum Exhibit Represents the Greatest Exampleof Rule of Law in Historyby Irving M. Blank

38 VLF Grant Has Powered Critical Virginia CapitalDefense Trainingby David I. Bruck

39 VLF Grant Fuels JusticeServer Expansionby Alexandra S. Fannon

41 Public Service Internship Program: An Investmentin the Community and Future Lawyersby Dana M. Fallon

42 2013 Oliver Hill/Samuel Tucker Pre-Law Instituteby Latoya C. Asia and Providence E. Napoleon

43 Virginia CLE Helps Attorneys to Help Othersby Raymond M. White

44 The Arc of Opportunityby Manuel A. Capsalis

VIRGINIA LAWYER | December 2013 | Vol. 624 www.vsb.org

Virginia State Bar Staff DirectoryFrequently requested bar contact

information is available online at

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

http://www.vsb.org

Editor:Rodney A.Coggin ([email protected])

Assistant Editor:Gordon Hickey ([email protected])

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Virginia LawyerThe Official Publication of the Virginia State Bar

2013–14 OFFICERSSharon D. Nelson, Fairfax, PresidentKevin E. Martingayle, Virginia Beach, President-electW. David Harless, Richmond, Immediate PastPresidentKaren A. Gould, Executive Director and ChiefOperating Officer

EXECUTIVE COMMITTEESharon D. Nelson, Fairfax, PresidentKevin E. Martingayle, President-electW. David Harless, Richmond, Immediate PastPresidentAlan S. Anderson, AlexandriaDoris H. Causey, RichmondDonna Sue Baker Cox, WiseTracy A. Giles, RoanokeRay W. King, NorfolkWilliam L. Schmidt, FairfaxKenneth L. Alger, II, Luray, YLC PresidentEugene M. Elliott, Jr., Roanoke, CLBA ChairJohn M. Oakey, Richmond, SLC ChairRupen R. Shah, Staunton, DC Chair

COUNCIL

1st CircuitNancy G. Parr, Chesapeake

2nd CircuitWilliam Drinkwater, Virginia BeachJudith L. Rosenblatt, Virginia BeachDaniel M. Schieble, Virginia Beach

3rd CircuitNicholas D. Renninger, Portsmouth

4th CircuitI. Lionel Hancock, III, NorfolkRay W. King, NorfolkDavid W. Lannetti, Norfolk

5th CircuitCarl Phillips “Phil” Ferguson, Suffolk

6th CircuitPeter D. Eliades, Hopewell

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

8th CircuitLesa J. Yeatts, Hampton

9th CircuitJohn Tarley, Jr., Williamsburg

10th CircuitRobert E. Hawthorne, Kenbridge

11th CircuitDale W. Pittman, Petersburg

12th CircuitGraham C. Daniels, Chester

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

14th CircuitThomas A. Edmonds, RichmondDaniel L. Rosenthal, RichmondWilliam J. Viverette, Richmond

15th CircuitGrayson S. Johnson, Rockville

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

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

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

19th CircuitSusan M. Butler, FairfaxPeter D. Greenspun, FairfaxPaul W. Hammack, Jr., FairfaxJoyce M. Henry-Schargorodski, FairfaxSean P. Kelly, FairfaxDaniel B. Krisky, FairfaxLuis A. Perez, Falls ChurchWilliam B. Porter, FairfaxDennis J. Quinn, ViennaCatherine M. Reese, FairfaxMichael W. Robinson, Tysons CornerWilliam L. Schmidt, FairfaxMelinda L. VanLowe, FairfaxJames A. Watson, II, Fairfax

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

21st CircuitJoan Ziglar, Martinsville

22nd CircuitLee H. Turpin, Chatham

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

24th CircuitDavid B. Neumeyer, Lynchburg

25th CircuitRoscoe B. Stephenson, III, Covington

26th CircuitW. Andrew Harding, Harrisonburg

27th CircuitRichard L. Chidester, Pearisburg

28th CircuitRoy F. Evans, Jr., Marion

29th CircuitJoseph M. Bowen, Tazewell

30th CircuitWilliam E. Bradshaw, Big Stone Gap

31st CircuitGifford R. Hampshire, Manassas

MEMBERS AT LARGED. Sue Baker Cox, WiseMichael HuYoung, RichmondBeverly P. Leatherbury, EastvilleDarrel Tillar Mason, Manakin SabotNancy C. Dickenson, AbingdonTodd A. Pilot, AlexandriaSavalle C. Sims, Silver Spring, MDLorrie A. Sinclair, LeesburgEdna R. Vincent, Fairfax

Senior Lawyers Conference ChairJohn M. Oakey, Richmond

Young Lawyers Conference PresidentKenneth L. Alger, II, Luray

Conference of Local Bar Associations ChairEugene M. Elliott, Jr., Roanoke

Diversity Conference ChairRupen R. Shah, Staunton

Virginia State Bar

1974 Society ($10,000+ lifetime)Keith, John A.C.Estate of Ken McFarlane

SmithStreet, III, W. Scott

Trustee ($5,000+)Robins Foundation

Partner ($1,000-$2,499)Capsalis, Manuel A.Gould, Karen A.Penrod, DavidSheridan, Hon. Paul F. Weinberg, Jay M.

Associate ($250-$999)Albert, Alan D.Arntson, PeterArrington, Jr., C.

BreckenridgeBaliles, Hon. Gerald L. Barr, Jr., Stanley G.Belcher, DennisBetz, Jr., Hon. Thomas F.Blank, Irving M.Bobzien, David P.Brown, Jr., ThomasBurnett, PeterBurrus, Jr., RobertBurtch, JackChambers, Edward L.Cox, III, James P.Cox, KaraCoyle, TimothyCreasy, Roy V.Cullen, RichardDaniel, John W.Epps, John D.Fletcher, John

Fletcher, Paul E.Goodman, Robert C.Hettrick, GeorgeHopper, Leila BaumHudson, Cynthia E.King, Ray W.Lacy, Hon. Elizabeth B.Landin, David C.Light, Angelica D.Malone, Christopher M.Mastracco, Jr., VincentMcGavin, JohnMcPhillips, Charles V.Meath, James V.Memmer, C. KailaniMercer, David S.Millner, Jr., H. VictorMitchell Jr., Robert T.Morris, III, JamesMurov, Kenneth B.Murphy, Gregory LMurray, WilliamNelson, Margaret A.Oakey, Jr., John M. Pace, Jr., G. MichaelPalmer, Jr., ThomasPulley, J. WaverlyRapisarda, Jr., Joseph P.Redmon, GantRigsby, Linda F.Rigsby, Michael L.Ring, Carlyle C.Roberts, Jr., George H.Rosenblatt, Judith L.Shanks, George W.Sheild, Conway H.Showalter, Donald E.Smith, Julious P.Tarley Robinson PLC

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TayloeO’Brien, KathleenOsborne, J Lee E.Pinckney, C. CotesworthPollard, Overton P.Poston, Anita O.Prince, Hon. William T.Pulley, Glenn W.Rachels, Jr., William E.Rashkind, Alan B.Rhinelander, John BRobinson, Melissa W.Rosenfield, Steven D.Rosenthal, Stephen D.Rucker, Jr., Douglas P.Ryan, John M.Samuels, Stanley

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In Honor of DonationsIn Honor of Kathy Mays

Coleman from the Honorable Diana McQuade Strickland

In Honor of Lynn L. and Neil S. Kessler Family, Donor Advised Fund, Richmond Jewish Foundation

In Honor of Roderick B. Matthews from John Huddleston

As the philanthropic arm of Virginias legal profession, the Virginia Law Foundation has provided over $23 million in grants since its inception in 1974. We would like to thank the following

benefactors for their generous support in our 2013 �scal year (October 2012—September 2013). Without them, our important work would not be possible.

Donate online securely via PayPal by 11:59 p.m. on December 31 (Visa, MasterCard, Discover, Amex, or bank transfer)

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VIRGINIA LAWYER | December 2013 | Vol. 628

THE VIRGINIA STATE BAR salutesthe Virginia Law Foundation on its

40th Anniversary. The VLF has cer-

tainly lived up to its mission statement,

which is, “The Virginia Law

Foundation promotes through philan-

thropy the rule of law, access to justice

and law-related education.”

The VLF has been a shining exam-

ple of adherence to its mission state-

ment, funding nearly $24 million in

grants through 2012 to hundreds of

projects and initiatives benefitting

thousands of Virginians.

Some signature projects of the

VLF include:

• $100,000 to support construction of

the Nuremberg Courtroom exhibit at

the Virginia Holocaust Museum in

Richmond (and if you haven’t seen

this exhibit, you truly owe it to your-

self to go);

• $350,000 over four years to the

VLF/VBA Rule of Law Project,

• funding of the Annual Legal Aid

Conference of the Virginia Poverty

Law Center ($341,046 over the past

twenty years);

• VBA Capital Defense Workshop

($288,800 over the past seventeen

years); and

• VLF Public Service Internships—

honoring Oliver W. Hill Sr.

($1,238,000 since 1989).

• provided start-up funding for twenty-

eight Court Appointed Special

Advocate (CASA) programs in

Virginia (over $1.2 million) as well

as the Community Tax Law Project’s

Low-Income Taxpayer Clinic

($230,000) which later became the

model for the National Taxpayer

Advocate Service which is now a

division of the IRS.

I have to stop right there and tell

you that I am a Court Appointed

Special Advocate for Abused and

Neglected Children so I am particularly

enthused that the VLF has helped to

fund so many CASA programs. These

unfortunate kids, through no fault of

their own, end up embroiled in a mys-

terious and frightening legal and social

service system. They deserve all the

help they can get to find their way to a

safe home and to any and all assistance

we can offer to help them recover from

their abuse and neglect. Having seen

firsthand the many successes of CASA

involvement, I send out a big “Huzzah!”

to the VLF for its support of CASA.

The VSB owes a debt of gratitude

to the VLF on a more personal level for

its support of our Conference of Local

Bar Associations, particularly with its

help in funding the So You’re 18 hand-

books, which have proven so popular.

The handbooks have been translated

into Spanish and Vietnamese to help

serve more young people. It is truly a

great project, which VLF funds have

helped to sustain for many years.

We also recognize, with thanks, a

grant to the Senior Lawyers Conference

for the revision and printing of the

ever-popular Senior Citizens Handbook,

which has been instrumental in

informing many of the common-

wealth’s older population about laws

that pertain especially to them.

The VLF has provided more than

$15 million to support projects that

provide civil legal assistance and/or pro

bono legal services to low-income

Virginians. The foundation has also

funded studies related to pro bono ser-

vices and the unmet need for legal ser-

vices. Seed money provided by VLF has

provided the critical initial funding for

many innovative projects such as the

Legal Information Network for Cancer

(LINC). It has also funded a host of

videos, pamphlets, presentations, and

workshops.

Under the able leadership of new

VLF president James V. Meath, the VLF

is moving to Charlottesville, cutting

costs by consolidating its offices in the

building now used by Virginia CLE.

This will allow for lower overhead and

make more money available for grants.

Virginia CLE Director Raymond M.

White will now also serve as the VLF

executive director, which is a tremen-

dous bonus for the VLF.

As Meath has said, the VLF is “the

philanthropic arm of the bar nobody

really knows about.” Well, I hope this

column will change that just a bit and

that lawyers reading this will consider a

donation (I make one annually). All

www.vsb.org

President’s Messageby Sharon D. Nelson

Saluting the 40th Anniversary of theVirginia Law Foundation:Bravo for Funding Good Works

Vol. 62 | December 2013 | VIRGINIA LAWYER 9

donations should be made payable to the

Virginia Law Foundation, and mailed to

600 East Main Street, Suite 2040,

Richmond, VA 23219.

Save the Date: May 19, 2014

As a longtime member of the ABA

TECHSHOW faculty, I am delighted to

tell you that the Virginia State Bar will be

offering a VSB TECHSHOW on May 19,

2014, at the Richmond Convention

Center. The stellar faculty members are

all nationally-known veteran ABA

TECHSHOW speakers who will offer a

full day of legal technology CLE. Not

only is the conference free, every lawyer’s

favorite price, but lunch is included in

the bargain. So mark your calendars now

and watch for registration information

to appear shortly.

President’s Message

www.vsb.org

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

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

2013 EditionNow Available

Want to check on your MCLE credits or certify your latest course?

Go to the iTunes store to download the Virginia State Bar app for

mobile devices. The app allows you to check your contact

information of record, certify courses, and access Fastcase

from anywhere, using the same login and password

you now use on your computer.

The VSB mobile member access app

is available for free in the iTunes store.


Executive Director’s Messageby Karen A. Gould

www.vsb.org

VSB New HeadquartersBy the time this column is published inthe December Virginia Lawyer, theVirginia State Bar should have executeda ten-year lease with the owner of theBank of America building in down-town Richmond, at 1111 E. Main St.The bar’s offices will be on the seventhfloor of the building, with additionaloffice space on the sixth floor. The leasealso includes two five-year options toextend the lease term. The bar has beenlocated in its present office space, 707E. Main St., since 1996.

New Admission Without ExaminationRule (Reciprocity)By order entered November 1, 2013,the Supreme Court of Virginia hasadopted, effective February 1, 2014, anew Rule 1A:1, addressing admissionto the Virginia bar without examina-tion (often called “admission onmotion”). Although the old and newrules are similar in many respects, thereare several significant differences.

To continue encouraging otherstates to grant the same privilege toVirginia lawyers, the Court hasretained the requirement that onlylawyers who are admitted in jurisdic-tions that also admit Virginia lawyerswithout examination (i.e., “reciprocal”jurisdictions) are eligible for admissionon motion in Virginia. The new rulerequires that admission to the bar ofthe reciprocal jurisdiction must havebeen by examination.

Admission on motion is based onthe premise that passage of a reciprocalstate’s bar exam combined with theexperience gained over the course of

several years of recent successful lawpractice may be accepted in place of asecond bar exam as evidence of one’slegal knowledge and ability. The mini-mum practice requirement has beenreduced from five of the last sevenyears under the old rule to three of thelast five years. New requirements fortwelve hours of approved instructionon Virginia substantive law and/or pro-cedure and familiarity with theVirginia Rules of Professional Conducthave been added. Unchanged is thestatutory requirement of a minimumof five years’ bar admission. Personsapplying for admission on motionmust still establish their good characterand fitness to practice law in Virginia.

In what is perhaps the most signif-icant change, the new rule drops theold rule’s requirement that one admit-ted on motion commit to practice full-time in Virginia; and lawyers admittedon motion, including those who havebeen admitted under the old rule, areno longer subject to potential licenserevocation if they move out of state orchange their status. Lawyers admittedon motion may change their member-ship status under the applicable mem-bership rules in the same manner aslawyers admitted by examination.

The Supreme Court of Virginiawill be issuing revised regulations con-sistent with the provisions of new Rule1A:1, and the Board of Bar Examinersis preparing new application forms.The new regulations and the applica-tion forms will be available in Januaryon the board’s website, and the boardwill begin accepting applications underthe new rule on February 1, 2014.

Also on November 1, 2013, the Courtentered an order effective immediatelyamending Rules of ProfessionalConduct 1.11, 1.15 and 5.4.

Rule of Professional Conduct 1.11One change to RPC 1.11 is cosmetic: itmoved the definition of “confidentialgovernment information” from section(g) to section (c), which is the onlyplace in the rule that the term is used.The second change to Rule 1.11 addeda provision to section (d), allowing theconflict for a lawyer who is currently ingovernment service to be waived withconsent from the private client and theappropriate government agency. Thisprovision parallels section (b), whichallows for informed consent to con-flicts created by a lawyer’s move fromgovernment service to private practice.The third change to RPC 1.11 was theadoption of American Bar AssociationModel Rule Comment 3, whichexplains why paragraphs (b) and (d)are not limited to situations in which alawyer would be adverse to her formerclient, but rather apply to any matter inwhich the lawyer participated person-ally and substantia lly prior to her movefrom government to private employ-ment or vice versa.

Rule 1.11 now reads as follows:

RULE 1.11 Special Conflicts of Interestfor Former and Current GovernmentOfficers and Employees(a) A lawyer who holds public office

shall not:(1) use the public position to

obtain, or attempt to obtain, a

New VSB Offices; New and Amended Rules

1992.


special advantage in legislativematters for the lawyer or for aclient under circumstanceswhere the lawyer knows or it isobvious that such action is notin the public interest;

(2) use the public position to influ-ence, or attempt to influence, atribunal to act in favor of thelawyer or of a client; or

(3) accept anything of value fromany person when the lawyerknows or it is obvious that theoffer is for the purpose of influ-encing the lawyer’s action as apublic official.

(b) Except as law may otherwiseexpressly permit, a lawyer shall notrepresent a private client in connec-tion with a matter in which thelawyer participated personally andsubstantially as a public officer oremployee, unless the private clientand the appropriate governmentagency consent after consultation.No lawyer in a firm with which thatlawyer is associated may knowinglyundertake or continue representa-tion in such a matter unless: (1) the disqualified lawyer is

screened from any participationin the matter and is appor-tioned no part of the fee there-from; and

(2) written notice is promptlygiven to the appropriate gov-ernment agency to enable it toascertain compliance with theprovisions of this Rule.

(c) Except as law may otherwiseexpressly permit, a lawyer havinginformation that the lawyer knowsis confidential government informa-tion about a person acquired whenthe lawyer was a public officer oremployee, may not represent a pri-vate client whose interests areadverse to that person in a matter inwhich the information could beused to the material disadvantage ofthat person. As used in this Rule, theterm “confidential government

information” means informationthat has been obtained under gov-ernmental authority and that thegovernment is prohibited by lawfrom disclosing to the public or hasa legal privilege not to disclose, andthat is not otherwise available to thepublic. A firm with which thatlawyer is associated may undertakeor continue representation in thematter only if the disqualifiedlawyer is screened from any partici-pation in the matter and is appor-tioned no part of the fee therefrom.

(d) Except as law may otherwiseexpressly permit, a lawyer serving asa public officer or employee shallnot: (1) participate in a matter in which

the lawyer participated person-ally and substantially while inprivate practice or nongovern-mental employment, unlessunder applicable law no one is,or by lawful delegation may be,authorized to act in the lawyer’sstead in the matter or unlessthe private client and theappropriate government agencyconsent after consultation; or

(2) negotiate for private employ-ment with any person who isinvolved as a party or as attor-ney for a party in a matter inwhich the lawyer is participat-ing personally and substan-tially, except that a lawyerserving as a law clerk to ajudge, other adjudicative offi-cer, mediator or arbitrator maynegotiate for private employ-ment as permitted by Rule1.12(b) and subject to the con-ditions stated in Rule 1.12(b).

(e) Paragraph (d) does not disqualifyother lawyers in the disqualifiedlawyer’s agency.

(f) As used in this Rule, the term “mat-ter” includes: (1) any judicial or other proceed-

ing, application, request for aruling or other determination,

contract, claim, controversy,investigation, charge, accusa-tion, arrest or other particularmatter involving a specificparty or parties; and

(2) any other matter covered bythe conflict of interest rules ofthe appropriate governmentagency.

COMMENT[1] This Rule prevents a lawyer from

exploiting public office for theadvantage of the lawyer or a privateclient. A lawyer who is a public offi-cer should not engage in activities inwhich his personal or professionalinterests are or foreseeably may bein conflict with official duties orobligations to the public.

[2] A lawyer representing a governmentagency, whether employed or spe-cially retained by the government, issubject to the Rules of ProfessionalConduct, including the prohibitionagainst representing adverse inter-ests stated in Rule 1.7 and the pro-tections afforded former clients inRule 1.9. In addition, such a lawyeris subject to Rule 1.11 and tostatutes and government regulationsregarding conflict of interest. Suchstatutes and regulations may cir-cumscribe the extent to which thegovernment agency may give con-sent under this Rule.

[3] Paragraphs (b) and (d) applyregardless of whether a lawyer isadverse to a former client and arethus designed not only to protectthe former client, but also to pre-vent a lawyer from exploiting publicoffice for the advantage of anotherclient. For example, a lawyer whohas pursued a claim on behalf of thegovernment may not pursue thesame claim on behalf of a later pri-vate client after the lawyer has leftgovernment service, except whenauthorized to do so by the govern-ment agency under paragraph (b).Similarly, a lawyer who has pursued

Executive Director’s Message

www.vsb.org


a claim on behalf of a private clientmay not pursue the claim on behalfof the government, except whenauthorized to do so by paragraph(d). Rule 1.10 is not applicable tothe conflicts of interest addressed bythese paragraphs.

[4] Where the successive clients are apublic agency and a private client,the risk exists that power or discre-tion vested in public authoritymight be used for the special benefitof a private client. A lawyer shouldnot be in a position where benefit toa private client might affect perfor-mance of the lawyer’s professionalfunctions on behalf of publicauthority. Also, unfair advantagecould accrue to the private client byreason of access to confidential gov-ernment information about theclient’s adversary obtainable onlythrough the lawyer’s governmentservice. However, the rules govern-ing lawyers presently or formerlyemployed by a government agencyshould not be so restrictive as toinhibit transfer of employment toand from the government. The gov-ernment has a legitimate need toattract qualified lawyers as well as tomaintain high ethical standards.The provisions for screening andwaiver are necessary to prevent thedisqualification rule from imposingtoo severe a deterrent against enter-ing public service. The private clientshould be informed of the lawyer’sprior relationship with a publicagency at the time of engagement ofthe lawyer’s services.

[5] When the client is an agency of onegovernment, that agency should betreated as a private client for pur-poses of this Rule if the lawyerthereafter represents an agency of

another government, as when a

lawyer represents a city and subse-

quently is employed by a federal

agency.

[6] Paragraphs (b)(1) and (c) do not

prohibit a lawyer from receiving a

salary or partnership share estab-

lished by prior independent agree-

ment. They prohibit directly relating

the attorney’s compensation to the

fee in the matter in which the

lawyer is disqualified.

[7] Paragraph (b)(2) does not require

that a lawyer give notice to the gov-

ernment agency at a time when pre-

mature disclosure would injure the

client; a requirement for premature

disclosure might preclude engage-

ment of the lawyer. Such notice is,

however, required to be given as

soon as practicable in order that the

government agency will have a rea-

sonable opportunity to ascertain

that the lawyer is complying with

Rule 1.11 and to take appropriate

action if it believes the lawyer is not

complying.

[8] Paragraph (c) operates only when

the lawyer in question has knowl-

edge of the information, which

means actual knowledge; it does not

operate with respect to information

that merely could be imputed to the

lawyer.

[9] Paragraphs (b) and (d) do not pro-

hibit a lawyer from jointly repre-

senting a private party and a

government agency when doing so

is permitted by Rule 1.7 and is not

otherwise prohibited by law.

VIRGINIA CODE COMPARISON

Paragraph (a) is identical to DR 8-

101(A).

Paragraph (b) is substantially similar to

DR 9-101(B), except that the latter used

the terms “in which he had substantial

responsibility while he was a public

employee.” The Rule also requires con-

sent of both a current client and the for-

mer agency.

Paragraphs (c), (d), (e) and (f) have no

counterparts in the Virginia Code.

COMMITTEE COMMENTARY

The Committee believed that the ABA

Model Rule provides more complete

guidance regarding lawyers’ movement

between the public and private sectors.

However, the Committee added the lan-

guage of DR 8-101(A) as paragraph (a)

in order to make this Rule a more com-

plete statement regarding the particular

responsibilities of lawyers who are public

officials. Additionally, to make paragraph

(b) consistent with similar provisions

under Rule 1.9(a) and (b), the

Committee modified the paragraph to

require consent to representation by

both the current client and the lawyer’s

former government agency.

Rule of Professional Conduct 1.15

The amendment to RPC 1.15 clarifies

that money held by a lawyer on behalf of

a client must be held in a trust account,

while other property may be placed in a

safe deposit box or other place of safe-

keeping. As it was previously written,

Rules 1.15(a) appeared to permit a

lawyer to place money held on behalf of

a client into a safe deposit box rather

than a trust account. The Court also

replaced the word “monies” with “funds”

in Comment 1 to be consistent with the

language in the remainder of the Rules

and Comments.

The rule now reads as follows, in

pertinent part:

Rule 1.15 Safekeeping Property

(a) Depositing Funds.


Rule 5.4 continued on page 14


Nominations Sought for 2014–15 District Committee VacanciesThe Virginia State Bar Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be filled byCouncil in June 2014. Note that there are vacancies which may not become available because some members are eligible for reappointment.

To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 – Establishment ofDistrict Committees, specifically 13-4.E (Qualifications of Members) and 13-4.F (Persons Ineligible for Appointment).

First District Committee: 2 attorney vacancies (both current members are eligible for reappointment); 2 non-attorney vacancies (1 currentmember is eligible for reappointment). The vacancies are to be filled by members from the 1st, 3rd, 5th, 7th or 8th judicial circuits

Second District Committee, Section I: 1 attorney vacancy; 3 non-attorney vacancies (2 current members are eligible for reappointment).The vacancies are to be filled by members from the 2nd or 4th judicial circuits.

Second District Committee, Section II: 4 attorney vacancies (3 current members are eligible for reappointment); 1 non-attorney vacancy.The vacancies are to be filled by members from the 2nd or 4th judicial circuits.

Third District Committee, Section I: 1 attorney vacancy (current member is eligible for reappointment); 3 non-attorney vacancies (2 current members are eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judi-cial circuits.

Third District Committee, Section II: 2 attorney vacancies (both current members are eligible for reappointment); 1 non-attorney vacancy(current member is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicialcircuits.

Third District Committee, Section III: 3 attorney vacancies (2 current members are eligible for reappointment); 2 non-attorney vacancies(1 current member is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th or 14th judicialcircuits.

Fourth District Committee, Section I: 3 attorney vacancies (all current members are eligible for reappointment); 1 non-attorney vacancy(current member is eligible for reappointment). The vacancies are to be filled by members from the 17th or 18th judicial circuits.

Fourth District Committee, Section II: 3 attorney vacancies (2 current members are eligible for reappointment); 1 non-attorney vacancy.The vacancies are to be filled by members from the 17th or 18th judicial circuits.

Fifth District Committee, Section I: 2 attorney vacancies (1 current member is eligible for reappointment). The vacancies are to be filledby members from the 19th or 31st judicial circuits.

Fifth District Committee, Section II: 3 attorney vacancies (all 3 current members are eligible for reappointment); 2 non-attorney vacancies(1 current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits.

Fifth District Committee, Section III: 2 attorney vacancies (both current members are eligible for reappointment); 1 non-attorney vacancy(current member is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits.

Sixth District Committee: 3 attorney vacancies (all 3 current members are eligible for reappointment); 1 non-attorney vacancy (currentmember is eligible for reappointment). The vacancies are to be filled by members from the 9th or 15th judicial circuits.

Seventh District Committee: 2 attorney vacancies (both current members are eligible for reappointment); 2 non-attorney vacancies (bothcurrent members are eligible for reappointment). The vacancies are to be filled by members from the 16th, 20th or 26th judicial circuits.

Eighth District Committee: 2 attorney vacancies (1 current member is eligible for reappointment); 2 non-attorney vacancies (1 currentmember is eligible for reappointment). The vacancies are to be filled by members from the 23rd or 25th judicial circuits.

Ninth District Committee: 3 attorney vacancies (1 current member is eligible for reappointment); 2 non-attorney vacancies (both currentmembers are eligible for reappointment). The vacancy is to be filled by a member from the 10th, 21st, 22nd or 24th judicial circuits.

Tenth District Committee, Section I: 3 attorney vacancies (2 current members are eligible for reappointment). The vacancies are to befilled by members from the 27th, 28th, 29th or 30th judicial circuits.

Tenth District Committee, Section II: 3 attorney vacancies (all 3 current members are eligible for reappointment); 2 non-attorney vacan-cies (both current members are eligible for reappointment). The vacancies are to be filled by members from the 27th, 28th, 29th or 30thjudicial circuits.

Nominations, along with a brief resume, should be sent by February 28, 2014, to Stephanie Blanton, Virginia State Bar, 707 East MainStreet, Suite 1500, Richmond, VA 23219-2800 or [email protected].

www.vsb.org

(1) All funds received or held by a

lawyer or law firm on behalf

of a client or a third party, or

held by a lawyer as a fiduciary,

other than reimbursement of

advances for costs and

expenses shall be deposited in

one or more identifiable trust

accounts; all other property

held on behalf of a client

should be or placed in a safe

deposit box or other place of

safekeeping as soon as practi-

cable.

Rule of Professional Conduct 5.4

The amendments to Rule of Professional

Conduct 5.4 bring subpart (d)(2) into

alignment with Virginia Code § 54.1-

3902(B)(1). The statute permits a non-

lawyer to serve as the secretary, treasurer,

office manager or business manager of a

professional entity that is authority to

practice law. The rule change now pro-

vides an exception when a nonlawyer

corporate officer is authorized by law.

The rule now reads as follows:

Rule 5.4 Professional Independence of a

Lawyer

(d) A lawyer shall not practice with or

in the form of a professional corpo-

ration or association authorized to

practice law for a profit, if:

(1) a nonlawyer owns any interest

therein, except as provided in

(a)(3) above, or except that a

fiduciary representative of the

estate of a lawyer may hold the

stock or interest of the lawyer

for a reasonable time during

administration;

(2) a nonlawyer is a corporate

director or officer thereof,

except as permitted by law; or

(3) a nonlawyer has the right to

direct or control the profes-

sional judgment of a lawyer.



Rule 5.4 continued from page 12

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LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 15

As I listened in October to news coverage ofAmericans struggling with access to the AffordableCare Act insurance exchanges, I thought about thecommunications challenges in instructing libraryusers on all the research options we have today. Weare in information overload, and more than everresearchers need help to determine the most effec-tive research strategies.

When I discuss with my law school studentstheir best option—perhaps a print source, Internet,or paid online services—I ask them to think abouthow they will use the information and what sourcesare available to them. • Will the client pay for online searches? • Does the researcher need a treatise that is accessi-ble in one vendor’s service but not in another?• Does the researcher need an official source to submit for an exhibit?• Will the researcher need 19th or early 20th centurysources that are available only in print?• Does the researcher need to use the appropriatesource for citation to satisfy Bluebook standards?

• Does the researcher need to read a recent lawreview article to catch up on the latest issues in acertain practice area where an Internet or onlineoption will work?Let me illustrate my point with a couple of

examples. A practitioner called the reference desksaying he was having trouble finding a Virginia deci-sion that ruled a person cannot burglarize his ownhome. He was using a free database of Virginia caselaw. I thought a secondary source would be a goodstarting point and told him I would call him back. Ipulled Criminal Offenses and Defenses in Virginia,one of the Virginia Practice Series titles, and foundthe answer in a few seconds. When I looked at thefootnote for the authority, I found the decision wasfrom 1884. The database the attorney was using didnot have the depth of coverage to find that decision.I returned the call and suggested he use the print

source or its availability in Westlaw. He called meback to say he succeeded.

In another example, a law review draft articleincluded references to hearings. The student neededa source for a proper citation. There are manyonline options for legislative history, but in this case,the best source was the microfiche that reproducedthe official print source of the hearings thatincluded the pinpoint pagination. Of all the recom-mendations I make, microfiche is not the most pop-ular, but in this rare case, it was the only option.

We librarians deal daily with online vendorscompeting to add more databases. One online ven-dor claims that its system contains more than36,000 databases. The challenge for law librarians isto remember which vendor has added whichsources. Most researchers become proficient in onesystem, despite law librarians’ efforts to cross-trainlaw students on various systems. Seasonedresearchers can make obvious links from a Lexispublication in print to the Lexis online version,West to Westlaw, and BNA to Bloomberg. But thelogic of going to LexisNexis to find a MatthewBender treatise escapes recent generations ofresearchers unaware of the connections between thepublishing houses. Tell a library user that PractisingLaw Institute materials have moved from Westlaw toBloomberg and the regular response is, “How doyou keep up with all these changes?”

Six Virginia librarians provide a range of arti-cles for this issue on topics including a survey of theVirginia and Federal judiciary on appellate researchlessons, sources on e-discovery, researching ethicsissues, research apps, a historic piece about the150th anniversary of the Virginia/West Virginia debtissue stemming from West Virginia independence,and in special honor of the 40th anniversary of theVirginia Law Foundation, a review of its indispens-able CLE handbooks, hands down favorites amongVirginia’s practitioners.

www.vsb.org

Law Libraries and Options Galoreby Gail F. Zwirner

16

Know your audience. Appellate advo-cacy is an exercise in convincing a specific

audience — judges — of the strength of

your arguments. From using accurate

citations, to properly representing case

holdings, to successfully explaining how

your case fits within a larger jurispru-

dence, good research can help you con-

vince the judges to agree with you. Who

better to explain what the judges would

like to see in the briefs they read than the

judges themselves?

Last summer, I sent a questionnaire on legalresearch to the justices and judges of the SupremeCourt of Virginia, the Virginia Court of Appeals,and the United States Court of Appeals for theFourth Circuit. I asked simply, “What one pieceof advice would you provide to attorneys whoare presenting legal research in a brief or memoto your court?” Seventeen justices and judgesresponded. Their advice followed several themes:using secondary sources to your advantage,focusing on analysis—not just finding—usingpersuasive authority as appropriate, being waryof online research traps, preserving credibilitythrough candor, and making your argumentsobvious.

Use Secondary SourcesWhen analyzing case law or statutes, there is noneed to reinvent the wheel.Understanding context is crucial to legal research,as judicial decisions or statutes rarely stand alone.Senior Judge Rudolph Bumgardner III of theVirginia Court of Appeals suggested that treatisesare often the best resource to gain that under-standing. There is no need to try to reinvent thewheel in legal research, trying to understand anunfamiliar area of law with your own searches forcases or statutes. Instead, use treatises or practiceguides written by experts to point you in the rightdirection and allow you to understand how themajor cases or laws or statutes fit together to form

a coherent body of law. Equipped with thatunderstanding, your own searches for cases thatsupport your specific arguments will be moreeffective. There are many Virginia practice guidesor treatises you can use. West publishes the VirginiaPractice Series on a variety of topics. LexisNexispublishes several lengthy treatises on complextopics, including civil procedure, criminal law andprocedure, and evidence.1 VirginiaCLE publishesa series of Virginia Lawyers Practice Handbooksthat can be useful for legal background in an areayou are briefing on appeal. If you do not have arelevant book in your office or as an online sub-scription, ask for it at the local law library.

Should the books not address the specificissue you are briefing, try Virginia Lawyer or lawreview articles. Each Virginia Lawyer issue con-tains several articles on aspects of Virginia law.Law review articles often begin with an overviewof a particular area of law before delving intoarguments about law reform. In addition, remem-ber that cases themselves can serve as good sec-ondary sources. For example, in writing a brief toa Virginia state court, you may not want to cite toa case from the fourth circuit. However, if afourth circuit judge has written an opinionreviewing an area of Virginia law, that opinionmay be useful for your own background under-standing.

Analyze the Cases, Do Not Just Find Them“Analyze cases cited rather than just lifting quota-tions.” —Senior Court of Appeals of Virginia JudgeRudolph Bumgardner IIIMany judges suggested they would like to seemore analysis in legal briefs. With the ease of full-text online case research, it is easy to forget thatjudicial decisions are not just strings of legal state-ments there to be plucked as needed to supportarguments in briefs. Cases are decided in context.Too frequently ignoring that context in your briefwhile using only selected legal statements or quo-tations weakens your argument. Several judgesemphasized that good legal research means morethan just finding cases or quotations—it meansalso taking the time to synthesize and analogizethe cases you have found to your client’s situation.A Virginia Court of Appeals judge attributed the

www.vsb.orgVIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES

Appellate Research Lessons from the Judgesby Benjamin A. Doherty

Benjamin A. Dohertyjoined the research andreference team of theUniversity of Virginia Law Library in 2004. Hereceived a B.A. in African-American and AfricanStudies, and English, fromthe State University ofNew York at Binghamtonin 1993; and an M.A. inAfrican-American Studiesfrom the University ofWisconsin-Madison in1995. He graduated from the University ofWisconsin Law School in 1999.


need for more in-depth analysis in briefs to thefact that it is easy to do online, full-text keywordsearches for good quotes. Do not allow the easewith which you can search online databases todull your ability to think about what you havefound. Finding legal materials and helpful legallanguage may be easier than ever, but the core oflegal research and analysis remains the ability toanalogize existing cases or statutes to new situa-tions, something even the most sophisticatedsearch engines cannot do.

In your analysis, pay attention to the facts.One Virginia Court of Appeals judge expressed acommon sentiment: “I prefer when attorneys setforth case law that is both factually and legallysimilar to the case at bar.” When discussing thecases most central to your arguments, include therelevant facts from those cases along with thelegal conclusions. Make a full analysis of thosecases in your brief, showing point-by-point howthey compare factually and legally with the caseat hand.

Remember as well that cases usually do notstand alone. “If it is not obvious how a line ofcases works together to form the parameters ofthe court’s jurisprudence in a particular area,harmonize them and set them out coherently asopposed to addressing them separately,” explaineda fourth circuit judge. In your research, take thetime to understand how the most relevant casesfit together to form a body of law so that you canexplain that jurisprudence clearly in your brief.Courts do this particularly well, so judicial opin-ions can serve as a good model.2

Find a case or other legal authority to sup-port every argument or legal proposition youraise in your brief, however minor. One judgepointed to the language of Fadness v. Fadness, 52Va. App. 833, 851, 667 S.E.2d 857, 866 (2008), onthe Virginia Supreme Court Rule 5A:20(e)requirement that attorneys provide legal author-ity for each assignment of error: “Appellatecourts are not unlit rooms where attorneys maywander blindly about, hoping to stumble upon areversible error. If the parties believed that thecircuit court erred, it was their duty to presentthat error to us with legal authority to supporttheir contention.”

If it is not obvious how a case supports theproposition you raise, explain it to the court sothat the judges do not have to figure it out ontheir own. One Virginia Court of Appeals judgeappreciated parentheticals following a case cite forexactly that purpose. Parenthetical explanationsmake reading your brief easier for judges who donot have to look up each case separately to under-

stand its relevance, and they force you to makesure that the cases you cite do indeed say whatyou claim. A case citation with no explanationcan be a red flag to appellate judges that you didnot spend time thinking about the case and thatyour research never progressed beyond finding toactually analyzing.

Look for Cases from Other Jurisdictions andUnpublished Opinions When AppropriatePersuasive authority is best for issues of first impression.Several judges agreed that appellate attorneysshould use cases from other jurisdictions forissues of first impression. There is no need to turnto other jurisdictions when Virginia courts or thefourth circuit have already squarely addressed anissue, but for an issue of first impression, analyzecases from other jurisdictions as persuasiveauthority in a similar manner to binding cases:Those with similar facts are the most useful.Remember that cases do not stand alone, soexplain the full jurisprudence of an area of law inanother jurisdiction and how it might apply simi-larly in Virginia instead of just picking a singlecase that supports your argument. Finally, be can-did by acknowledging negative cases from otherjurisdictions or jurisdictional splits, while per-suading the court that one approach is preferable.

The same is true of unpublished opinions. AVirginia Court of Appeals judge said that, “It ismy practice to read all unpublished opinions

dealing with the issue about which I am to write.”Each court has rules on citing unpublished opin-ions.3 Within those rules you might use unpub-lished opinions to demonstrate to the court aparticular approach you think it should adopt.

Watch Out for Online Research TrapsOnline databases make legal research easier thanever. Don’t let that ease make you careless.Watch out for mistakes common to electronicresearch. A fourth circuit judge has seen instancesin which attorneys who have found good quotesfrom full-text keyword searching have used that

APPELLATE RESEARCH LESSONS FROM THE JUDGES

www.vsb.org

”Find a case or other legal authority

to support every argument or legal

proposition you raise in your brief,

however minor.

18

wording incorrectly out of context or have evencited a dissent as if it were the opinion of thecourt. These are easy mistakes to make whenreading cases on a computer screen, particularlywhen working quickly. Virginia Court of AppealsJudge Teresa M. Chafin noted frequent “cut andpaste” errors, where an attorney copied sections ofa brief from other sources without correcting for-matting inconsistencies or even the party names.These types of electronic mistakes signal to judgesthat the attorney has not spent enough timepreparing the brief.

Preserve Credibility with CandorEnable appellate judges to trust you as an advocateby being honest with your legal research.The judges want to trust you as an advocate. Theymay not always agree with your arguments, butyour goal should be for them to grow to trustyour legal and factual analysis. Fourth CircuitJudge Paul V. Niemeyer said, “Above all else, pre-serve credibility. Credibility is lost by misstate-ment and exaggeration, among other things, ofboth law and fact.”

“It is not helpful to simply ignore difficultcases,” said a Virginia Court of Appeals judge. Infact, Virginia Rule of Professional Conduct3.3(a)(3) requires you to disclose adverse control-ling legal authority. In your legal research, spendtime thinking about the unfavorable cases so thatyou can distinguish them in your brief. Judgeswill discover those cases whether or not you citethem, and your strongest position is to acknowl-edge them first and explain to the court how theydiffer from your client’s situation.

Similarly, “Do not spin the facts. Absolutecandor and fairness is essential in the factualpresentation of the case,” pointed out VirginiaCourt of Appeals Judge Glen A. Huff. Candorwith your factual analysis is also important4 andmay be more difficult. An appellate record isoften built at trial in a disjointed and duplicativemanner, so it can take time to construct yourbrief ’s factual recitation coherently and accu-rately. If judges sense that you have left outimportant facts or portrayed the facts inaccu-rately, it can affect how they perceive your legalarguments. Just as with the cases you find, give

yourself time to understand the facts of yourcase so that you can present them in a way thatreads well and is accurate.5

A couple of judges noted the importance ofmaintaining credibility by updating your researchup through oral arguments. A fourth circuit judgeexplained that filing supplemental authority is notappropriate when you simply missed an existingcase in preparing your brief, but is essential if anew case comes out between when you filed yourbrief and oral argument.6 Judges will know of anynew case law, so preserve your credibility byacknowledging new developments, favorable orunfavorable, in advance, rather than waiting for ajudge to bring it up during your argument.

Focus and Make Your Arguments ApparentJudges read a lot of briefs. Make your argumentseasy to follow and eliminate unnecessary references.“Come to the point. No long windups,” saidFourth Circuit Judge J. Harvie Wilkinson III.Another fourth circuit judge said, “Spend what-ever time is necessary to boil your argumentdown to its essentials.” Judges at all three courtspointed to the importance of focusing on yourstrongest arguments in your brief. Lead withthose arguments without unnecessary introduc-tion, and spend most of your brief on them. Yourjob as an appellate advocate is to help the judgesfocus on those central arguments without beingdistracted by side issues that are unlikely to deter-mine the outcome. The importance of brevityextends to your recitation of the facts as well.Virginia Court of Appeals Senior Judge James W.Haley Jr. explained, “Only relate the facts neces-sary to crystallize the issues raised.” Distilling yourarguments and facts down to the essentials meansstepping away from online databases to spendtime thinking about your research findings andthe factual record.

Once you have taken the time for researchanalysis, construct your brief in a way that makesit easy for the judges to follow your argument.Virginia Supreme Court Senior Justice Charles S.Russell advocated a simple technique suggested tohim by one of the permanent law clerks at theCourt: Use headings and subheadings to youradvantage. Use a simple heading for each of thearguments in your brief, followed by subheadingsthat provide a very brief summary of the logic ofyour argument. That way the judges will knowthe logical flow of your arguments by simplyscanning through your brief and will have thatlogic in mind as they focus on your analysis.



Judges at all three courts pointed to the importance of

focusing on your strongest arguments in your brief.


Finally, retired Virginia Court of AppealsJudge Larry G. Elder suggests having “someoneunfamiliar with the case read your writing inorder to make sure your arguments are clear.” Youcould even have a non-lawyer read your brief.Your analysis may be nuanced, but your mainarguments should be clear enough that evensomeone without legal training can discern theirbasic logic.

I am grateful to all of the justices and judges whotook time from their busy schedules to providethe terrific legal research advice discussed in thisarticle. I also thank my colleagues Kristin Gloverand Kent Olson for their helpful comments on anearlier draft.

Endnotes:1 Charles E. Friend & Kent Sinclair, The Law of

Evidence in Virginia (7th ed. 2012); Kent Sinclair& Leigh B. Middleditch, Jr., Virginia Civil Procedure(5th ed. 2008); and John L. Costello, VirginiaCriminal Law and Procedure (4th ed. 2008).

2 For example, see Surles v. Mayer, 48 Va. App. 146,173-75, 628 S.E.2d 563, 576-77 (2006), in whichJudge Robert J. Humphreys draws on a variety ofcases from the Virginia Supreme Court and Courtof Appeals to explain Virginia’s jurisprudence onthe relocation of a custodial parent. Note that aftersetting forth the legal background, JudgeHumphreys engages in a specific factual analysis,comparing the facts of the case at hand to the factsof the most relevant Court of Appeals decisions.See id. at 175-76, 628 S.E.2d at 577-78.

3 SeeVa. Sup. Ct. R. 5:1(f) & 5A:1(f); Fed. R. App. P.32.1; 4th Cir. R. 32.1. Note that the Fourth Circuitrule is dependent on the date of the decision.

4 SeeVa. Rules of Prof ’l Conduct R. 3.3(a)(1).5 As with legal propositions, which must be sup-

ported by citation, remember that factual state-ments must be supported by reference to therecord or appendix. SeeVa. Sup. Ct. R. 5:17, 5:27,5:28, 5A:20 & 5A:21; and Fed. R. App. P. 28.

6 See Fed. R. App. P. 28(j); 4th Cir. R. 28(e).


www.vsb.org

VSB.org: A Member BenefitVSB.org—the Virginia State Bar’s website—helps you with your membershipobligations and your practice.

There you’ll find the Member Login, where you can:• download your dues statement and pay your dues,• certify Mandatory Continuing Legal Education,• conduct research on Fastcase, and• update your contact information with the bar.

At VSB.org, you also can link to:• Latest News on VSB regulation, programs, and practice information;• the Professional Guidelines that contain the Rules of Professional Conduct;• Rule Changes, proposed and approved;• the Ethics Hotline; • Meetings and Events; and• Search Resources for locating Virginia attorneys and checking their status withthe state bar.

VSB.org will keep you current and connected.

Virginia State BarHarry L. Carrico

Professionalism Course

See dates and registration

information at

http://www.vsb.org.

Lawyers Helping LawyersConfidential help for substance abuse problems and mental health issues.

For more information, call our toll free number:

(877) LHL-INVAor visit http://www.valhl.org.

20

E-discovery refers to discovery in civil litiga-tion that focuses on the exchange of informationin electronic form. Lainie Crouch Kaiser, a litiga-tion attorney with McDermott Will & Emery,writes that “e-Discovery can be used as anumbrella term for both the legal and operationalconsiderations related to how electronically storedinformation (ESI) is used in the modern daypractice of law.”2 There are many types of ESI,including e-mail and office documents, voicemail,photos, video, and databases. Attorneys and oth-ers who write about e-discovery also include “rawdata” as discoverable information. Ronald J.Hedges of Nixon Peabody writes that “[t]echni-cally, documents and data are ‘electronic’ if theyexist in a medium that can only be read throughthe use of computers. Such media include cachememory, magnetic disks (such as DVDs or CDs),and magnetic tapes.”3

This article does not present any legal analy-sis of e-discovery and what is and is not discover-able, but rather it provides a listing of resourcesthat attorneys and those who work with themcan use to gain a better understanding of e-dis-covery and its application in both federal andstate courts.

Research Guide and Comprehensive CollectionsAs in other legal research, starting with a sourcethat identifies the relevant resources is useful and

time-efficient. The law library at the University ofMissouri School of Law produced and updates aresearch guide titled Electronic Discovery. Theguide, designed for attorneys, judges, and law stu-dents who need to research electronic discoveryissues, is thorough. It includes an overview andsections addressing sanctions and privileges, rele-vant blogs, law firm e-discovery practice groups,and more. The guide references important mate-rials produced by the Sedona Conference, theleading voice in addressing concerns about elec-tronic discovery, and links to the SedonaPrinciples: Best Practices, Recommendations &Principles for Addressing Electronic DocumentProduction. The guide is available at http://libraryguides.missouri.edu/electronicdiscovery.

The Touro College Jacob O. Fuchsberg LawCenter’s library produced another useful guidetitled Social Media Use For Attorneys. The guideincludes a list of print and electronic resourcesthat deal specifically with e-discovery and a listof e-discovery blogs that address current andcutting-edge issues. The guide is available athttp://guides.tourolaw.edu/socialmedia.

Westlaw, LexisNexis, Bloomberg BNA, andthe Practising Law Institute all have databases thatprovide varied e-discovery resources. Westlaw’s e-discovery collection includes law reviews, textsand bar journals, a national e-discovery law briefscollection, e-discovery trial court orders, state and


Discovering E-Discovery: a Resources Guideby Timothy L. Coggins

Timothy L. Coggins isassociate dean for Libraryand Information Servicesand professor of law at theUniversity of RichmondSchool of Law. He is amember of the AmericanAssociation of LawLibraries and has chairedseveral AALL committees,including those that dealwith government relationsand advocacy and digitallegal information. He hasreceived numerous honorsand awards for his workwith information technol-ogy, government relations,and the authenticationand preservation of digitallegal information, includ-ing the 2013 Robert L.Oakley Advocacy Award.

“Finding a suitable sanction for the destruction of evidence in civil cases has neverbeen easy. Electronic evidence only complicates matters. As documents are increasingly

maintained electronically, it has become easier to delete or tamper with evidence (both

intentionally and inadvertently) and more difficult for litigants to craft policies that

ensure all relevant documents are preserved. This opinion addresses both the scope of a

litigant’s duty to preserve electronic documents and the consequences of a failure to

preserve documents that fall within the scope of that duty,” wrote U.S. District Judge

Shira Scheindlin in her influential Zubulake v. UBS Warburg LLC decision in 2003.1

And thus began the legal community’s increasing attention to electronically created

information and e-discovery.


federal e-discovery law cases, national e-discoverylaw civil trial court filings, and an ElectronicDiscovery and Records and InformationManagement Guide. This guide addresses issuessuch as proper planning of possible discovery inorder to reduce costs and burdens of complyingwith discovery requests. It also addresses issuesrelating to records management.

The Lexis e-discovery database is extensiveand includes treatises, forms, litigation reports,and other materials. Its collection of e-discoveryforms includes demand letters, discovery plans,interrogatories, motions, preservation orders,requests for production, stipulations, and others.Most forms are from Matthew Bender publica-tions that are included in the Lexis databases.Mealey’s Litigation Report: Discovery covers thelatest news pertaining to discovery issues, such ashow federal discovery rules are interpreted by dif-ferent districts and judges, work product, attor-ney-client and common interest privileges, anddiscovery abuse. An important resource located inLexis is E-Discovery: the Newly Amended FederalRules of Civil Procedure, authored by theHonorable Shira A. Scheindlin. This guideincludes sections that deal with the changes to theRule 26(f) meet-and-confer requirement, newrequirements in Rule 26(b) about production ofinaccessible electronically stored information,new “safe harbors” provision in Rule 37 for loss ofinformation due to routine, good faith operationof an electronic information system, and newprocedures under Rule 26(b)(5) for requestingreturn of privileged or work product-protectedinformation that was inadvertently produced.

Bloomberg BNA’s e-Discovery ResourceCenter includes many types of materials, including:• Federal and state statutes and rules dealing withe-discovery,• Practice tools, including pleadings and forms,calendars, etc.,• Latest e-discovery cases,• BNA Insight articles (such as the one cited earlier by Lainie Crouch Kaiser),• Top headlines in the news about e-discovery,digital discovery, and e-evidence, and• A comprehensive and searchable database of e-discovery cases.Attorneys using this collection can focus the

research on narrower topics, including digital dis-covery and e-evidence, preservation, production,costs, privilege, and sanctions.

Practising Law Institute’s Discover Plus is theonline version of familiar PLI materials, including

treatises, course handbooks, CLE materials, andsession transcripts. Searching the collection iseasy, and an attorney can restrict results to partic-ular types of publications. To locate informationabout e-discovery, an attorney selects Litigationfrom the Practice Area choices. In the Litigationpractice area, a simple search for e-discoveryresults in valuable and important documents.Representative results include course handbookchapters about sanctions for e-discovery viola-tions, efficient e-discovery for the smaller case,and ethical issues in e-discovery. Results alsoinclude an important course handbook chapterwritten in 2012, titled The Courts Intervene withModel Rules to Curb the Costs of E-Discovery: WillIt Work and Should Litigants Use these Model Rulesin the Rule 26(f) Conference.

Included in the PLI Discover Plus database isa full-text and searchable copy of The ElectronicDiscovery Handbook, authored by Thomas Y.Allman, Anthony J. Diana, Ashish S. Prasad, andMatthew A. Rooney, very important authors andpractitioners in e-discovery. Representative chap-ters in the handbook deal with information man-agement policies and procedures, preservationobligations, review and production of electroni-cally stored information, managing spoliationclaims and defenses, international issues, and thenext generation of ESI (social media, web-basedcollaboration applications, cloud computing, andmobile technologies). Chapter 11 of the ElectronicDiscovery Handbook covers e-discovery in specificareas of practice, such as antitrust, construction,contracts, intellectual property, product liability,

and securities. For each specific area of practice,the authors cover the nature of discovery, relevantdata courses, and issues regarding preservationand production.

The print treatise most frequently cited andcommonly considered the authority in the field isElectronic Discovery: Law and Practice, authoredby Adam I. Cohen and David J. Lender (two vol-umes; Wolters Kluwer Law and Business, 2013).Cohen, a principal with Ernst & Young LLP’sForensics Technologies and Dispute Services prac-tice, has more than seventeen years of experience

DISCOVERING E-DISCOVERY: A RESOURCES GUIDE

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”The Lexis e-discovery database is

extensive and includes treatises,

forms, litigation reports, and

other materials.

22

in law and technology. Lender, a partner in the lit-igation department of the New York office ofWeil, Gotshal & Manges LLP, specializes in com-plex commercial litigation with a particularemphasis in patent and intellectual property law.This treatise began as a primer on electronic dis-covery for the Weil Gotshal litigation attorneys toteach them about the role that electronic discov-ery would play in shaping the litigation process.The authors delve deeply into the analysis of e-

discovery case law and then present suggestionsand strategies about the current state of e-discov-ery law and where it is likely heading. In chapter 1of this book, the authors present an overview ofthe e-discovery issues facing litigators and writethe following: “Perhaps the best advice lawyersshould heed regarding the scope of electronic dis-covery is this: if it’s relevant, you need to worryabout how to handle it, regardless of the systemor storage media in which it is contained.”4

Incorporated into this treatise now is the ESIHandbook, which offers valuable practice aids tohelp attorneys with corporate retention policydrafting, electronic discovery depositions, andmany other issues.

Other Useful Books and ResourcesAttorneys who need the basics about electronicdiscovery and digital evidence should look first atElectronic Discovery and Digital Evidence in aNutshell by Judge Shira A. Scheindlin and DanielCapra (West 2009). The following treatises andother resources are useful for more in-depth coverage.

Michael R. Arkfeld, Arkfeld Electronic Discoveryand Evidence (3d ed. 2013).

John M. Barkett, The Ethics of E-Discovery (2009)and E-Discovery: Twenty Questions and Answers(2008).

Michael D. Berman, Courtney Ingraffia Barton &Paul W. Grimm, eds., Managing E-Discovery andESI (2011).

Prashant Dubey & Sam Panarella, LitigationReadiness: a Practical Approach to ElectronicDiscovery (2011).

E-Discovery: Creating and Managing an EnterpriseProgram: a Technical Guide to Digital Investigationand Litigation Support (2009).

Neal Feigenson & Christina Spiesel, Law onDisplay: the Digital Transformation of LegalPersuasion and Judgment (2009).

Jeffrey J. Fowler & William H. Dance, PreservingElectronically Stored Information: a PracticalApproach (Bloomberg BNA e-Discovery PortfolioSeries 2013 ed.)

Jay E. Grenig & William C. Gleisner III, E-Discovery & Digital Evidence (2005).

Alison Grounds & Benjamin W. Cheesbro, CloudControl: E-Discovery and Litigation Concerns WithCloud Computing, in Cloud Computing 2013: CutThrough the Fluff & Tackle the Critical Stuff(2013).

Brent Kidwell, Matthew Neumeier & BrianHansen, Electronic Discovery (2005).

David J. Lender, Privilege Issues in the Age ofElectronic Discovery (Bloomberg BNA e-DiscoveryPortfolio Series 2013 ed.).

Amy Jane Longo, Electronic Discovery PracticeUnder the Federal Rules (Bloomberg BNA e-Discovery Portfolio Series 2013 ed.).

Ralph C. Losey, e-Discovery: Current Trends andCases (2008).

Ralph C. Losey, Electronic Discovery: New Ideas,Case Law, Trends and Practice (2010).

Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA Section onLitigation 2011).

Sharon D. Nelson, Electronic Evidence andDiscovery Handbook (2006).

Catrien Noorda & Stefan Hanloser, eds., E-Discovery and Data Privacy: a Practical Guide(2011).



“Perhaps the best advice lawyers should heed regarding

the scope of electronic discovery is this: if it’s relevant,

you need to worry about how to handle it, regardless of

the system or storage media in which it is contained.”


Bruce A. Olson & Tom O’Connor, ElectronicDiscovery for Small Cases: Managing DigitalEvidence and ESI (2012).

Predictive Coding for Dummies (Wiley 2013).

Marian K. Riedy, Suman Beros & Kim Sperduto,Litigating With Electronically Stored Information(2007).

The Rule(s) of Law: Electronic Discovery and theChallenge of Rulemaking in the State Courts:Report of the 2005 Forum for State Appellate CourtJudges (2005).

Seventh Annual National Institute on E-DiscoveryABA Section of Science and Technology Law andthe Center for Professional Development 2013).

John Hardin Young, Terri A. Zall & Alan A.Blakley, Written and Electronic Discovery (2009).

E-Discovery – Virginia ResourcesLike attorneys in other states, Virginia attorneysclosely monitor e-discovery developments.5 OnNov. 22, 2013, the National Business Institute pre-sented Everything You Don’t Know About E-Discovery (But Wish You Did) in Virginia Beach.The program, featuring John C. Lynch (TroutmanSanders), Craig L. Mytelka (Williams Mullen),and Dustin M. Paul (VanDeventer Black), coveredlatest state rules and regulations; e-discovery pre-cautions, risks, and advice; ethical pitfalls; han-dling social media, e-mail, video, and other ESI,new discovery sources; and other topics.

E-discovery resources listed below might beuseful to Virginia attorneys.

Va. Sup. Ct. R. 4:1 & 4:9A, Va. Code Ann. (2013)

Joan E. Feldman, “Mechanics of ElectronicDiscovery,” in The Nuts and Bolts of ElectronicDiscovery (Virginia CLE 2003) (advice aboutgathering computer-based information, filling inthe details with computer-based evidence, and theexpert’s role in computer-based discovery) (chap-ter is dated, but useful).

Barron K. Henley, “Business Continuity: the NewFrontier of Backup and Data Protection,” in LegalTechnology and Practice Management: FutureTrends and the Best of What’s Out There Now(Virginia CLE 2012) (practical aspects of elec-tronic data storage, including types of electronic

data, backup procedures, and how to deal withdata loss).

Honorable Thomas D. Horne, “The Nuts andBolts of Electronic Discovery: Virginia Practice2003,” in The Nuts and Bolts of ElectronicDiscovery (Virginia CLE 2003) (issues relating toprivileges, expectation of privacy, spoliation, andothers) (chapter is dated, but useful).

V. Thomas Lankford & William F. Coffield,“Electronic Discovery: Navigating the New FederalRules,” in E-Discovery and the New Federal Rules:a Legal and Technological Survival Kit (VirginiaCLE 2006) (includes the Sedona ConferencePrinciples and information about computerforensics experts, phases in the electronic discov-ery process, and preservation and storage).

Edward B. Lowry, “Virginia’s Proposed Rules ofDiscovery Relating To Electronically StoredInformation,” in Digital Tools for the UberLitigator: What Every Trial Attorney Needs toKnow (Virginia CLE 2008) (discussion of how theproposed rules would affect e-discovery).

Stephen E. Noona, The Discovery and Introductionof Electronic Evidence in Federal Court, in DigitalTools for the Uber Litigator: What Every TrialAttorney Needs to Know (Virginia CLE 2008)(how various rules that govern electronic infor-mation may be used in federal court, how tointroduce and use electronic information at trial,and practice advice on obtaining electronic dis-covery and how to manage the e-discoveryprocess and costs).

Correy E. Stephenson, “Trends to Watch onElectronic Discovery,” Virginia Lawyers Weekly(available at http://valawyersweekly.com/2011/11/22/trends-to-watch-on-electronic-discovery/)(changes in e-discovery expected during 2012,including data, coding, and sanctions issues).

Correy E. Stephenson, “Computer Assisted ReviewBecomes Popular,” Virginia Lawyers Weekly (avail-able at http://valawyersweekly.com/2013/02/01/computer-assisted-review-becomes-more-popular/) (increasing use of computers to reviewlarge numbers of documents and how courts havehandled determining whether computer assisteddocument review is acceptable).


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When I introduce the topic of ethicalrules to my first-year legal research stu-dents, someone will always question theneed to research them. My students thinkthe rules are a self-explanatory set ofguidelines for their behavior, much likethe Ten Commandments. They are sur-prised when I point out the need toresearch the rules to clarify what is meantby a specific rule, to deepen their under-standing of the issues involved, and togain insight into trends in this area oflaw. In short, you research ethical rulesand issues for the same reasons youundertake any statutory research: inorder to ensure that your (or yourclient’s) behavior complies with the law.

The current Model Rules of ProfessionalConduct (Model Rules), as promulgated by theAmerican Bar Association (ABA), were adoptedon August 2, 1983. On January 25, 1999, theSupreme Court of Virginia revised the VirginiaCode of Professional Responsibility, replacing itwith the Virginia Rules of Professional Conduct(Rules), adapting the Model Rules issued by theABA. They became effective on January 1, 2000.Since that time, forty-nine states have adopted theModel Rules either in whole or with revisions.1

Thus, an attorney in Virginia who wishes toresearch a particular rule or an ethical issue has awide array of sources available.

Old School Research: Finding Resources in PrintIn researching the rules or ethical issues in gen-eral, the first question is: print or online? If printis your preference and you merely need the rules,the obvious starting place is the Code of Virginia.The Virginia bar is under the jurisdiction of theSupreme Court of Virginia, so the rules are foundin the Court Rules volume.2 This volume also

includes the rules dealing with the unauthorizedpractice of law.3

There are three ways to access the rules inthis volume. The first is to use the title index toPart Six. This index lays out the contents of thepart in detail. The heading of each rule is listedallowing the user to quickly scan and identify theneeded provision. The second way is to use thevolume’s index. This index provides a more con-trolled, subject oriented access to the rules.Finally, the general index of the code containsentries to the material found in the rules volume.

The rules in the code are published in theCode of Virginia, and there is some advisorymaterial available to the researcher within thecode volumes. While not actually part of the code,the Legal Ethical Opinions (LEOs) and theUnauthorized Practice of Law Opinions (UPLs)issued by the Virginia State Bar (VSB) are pro-vided as unnumbered volumes of the code. Theseopinions, while they have no precedential value,do give guidance as to how a disciplinary com-mittee might interpret a rule. Access to theseopinions is through the subject index which islocated at the end of each section.

Since the Virginia Rules are based on theABA Model Rules, the ABA/BNA Lawyer’s Manualof Professional Conduct can be a rich source ofinformation if you are seeking a broader interpre-tation of a particular rule. This loose-leaf serviceis easy to use as it is arranged in rule numberorder. Under each rule you will find ethics opin-ions from the ABA and a variety of bar associa-tions, both state and local. In addition to theethics opinions, the set contains a current aware-ness newsletter which summarizes recent opin-ions issued by courts or bar associations, andarticles on ethical issues facing attorneys writtenby members of the practicing bar. An index pro-vides subject access to the material, both theopinions and the newsletters.

Lawyers in Virginia have the right to appealthe decision of the disciplinary board to theSupreme Court of Virginia, so a print search forcase law takes you to the Virginia/West Virginia


Joyce Manna Janto wasappointed deputy directorof the University ofRichmond William TaylorMuse Law Library in July1991. She previouslyserved as the acquisitionslibrarian and associatedirector for collectiondevelopment at Richmondfrom 1982 to 1991. Sheserved as president of theVirginia Association ofLaw Libraries, theSoutheastern Chapter ofthe American Associationof Law Libraries, and theAmerican Association ofLaw Libraries.

Solving Your Ethical Conundrums:Researching the Rules of Professional Conductby Joyce Manna Janto


Digest. A quick perusal of the title index for thetopic “Attorney and Client” identifies key num-bers for a variety of ethical issues such as theunauthorized practice of law (12), advertising andsolicitation (32(9)), malpractice (105.5), and evendisbarment (59.14). The digest provides informa-tion about decisions issued by any court (federalor state) sitting within the geographic confines ofVirginia and West Virginia.

If you are interested in broader trends inlegal ethics, you would do well to consult theRestatement of the Law Third, The Law GoverningLawyers. This publication of the American LawInstitute was issued in 2000. According to theintroduction, it covers much of the law governinglawyers but not all of it. At present, the restate-ment addresses primarily the lawyer-client rela-tionship, confidentiality, and conflicts of interest.Like all restatements, it includes comments on theprinciples stated, illustrations of the principles inaction, and a table of cases which construe theprinciples addressed.

Along with the restatement, many bookshave been published in this area in recent years. Asearch in your library’s catalog using the subjectheading “legal ethics - United States” should pro-duce many relevant entries. Books under this sub-ject heading will deal not only with ethics in theabstract, but also with the ethical concerns of spe-cific practice areas. One of my favorite recenttitles is Ethics and Integrity in Law and Business:Avoiding “Club Fed.”

Web-Based Resources: Free and SubscriptionEven though the print resources are easy to use,these days most lawyers prefer to do their researchonline. The good news is that many of the onlinesources are free. The most obvious free resource isthe website of the VSB.4 Clicking on the link for“Professional Regulation” brings up a wealth ofresources. As you would expect, the rules are pre-sented here since the VSB no longer providesprinted copies. Amendments to the rules, pro-posed, adopted, and even rejected, are also avail-able on this page allowing you to trace theevolution of the rules in Virginia.

LEOs are searchable in a variety of ways.When you click on the link to the LEOs you aretaken to a page maintained by the Virginia CLEdivision of the Virginia Law Foundation.5 Hereyou can pull up LEOs by number or you cansearch by subject. When you choose the subjectsearch you are given the option to run anadvanced Google search which permits Booleansearching and the ability to limit the search by date.

The other link to the LEOs directs you to apage maintained by the law firm of McGuireWoods.6 Here you find the LEO summaries pre-pared by attorney Thomas E. Spahn. Spahn, apartner at McGuireWoods, is a nationally recog-nized expert in the field of legal ethics. The data-base contains his summaries of not only theVirginia LEOs recognized by the VSB after itsreorganization of the LEOs in 1983, but also theformal opinions issues by the ABA StandingCommittee on Professional Responsibility. Youcan find opinions in this database in several ways.There is a topical table of contents that links toLEOs on an assortment of subjects. Then there isa link that will retrieve a list of all of the LEOsummaries written in the past year. The databasealso supports keyword searching. When searchingby keyword, you have the option of filtering thesearch by date or limiting the search to ABA orVirginia LEOs.

Finally, if you can’t find a LEO dealing withyour specific concern, you can request one fromthe VSB. There is a link on both the “ProfessionalRegulation” page and the “Members Resources”page which allows any member of the Virginiabar to request a LEO via e-mail. This service isconfidential; ethics counsel for the VSB cannotdisclose the contents of any discussion about thee-mail without the express consent of the personposing the question.

A free, to VSB members, source is Fastcase7.While LEOs and the rules are not part of theFastcase database, Supreme Court of Virginiadecisions are. As mentioned above, disciplinarymatters are appealable to the Supreme Court ofVirginia so you will find valuable content in thissource.

No mention of free Internet sources wouldbe complete without talking about Google. Youcould just throw some words into the search barand come up with a few million hits. Simplysearching “ethics opinions” results in some verygood results, the ethics opinions of many stateand local bar associations. A savvy Google user,however, would scroll to the bottom of theGoogle results page and click on the advanced

SOLVING YOUR ETHICAL CONUNDRUMS

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easy to use, these days most lawyers

prefer to do their research online.

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search option. Using this option allows you toeasily do Boolean searching and limit the resultsby language, last updated, or, most helpful, bydomain.

A search in Google for “internet advertisingethics opinions” garners slightly over twenty-fourmillion hits. An advanced search for “internet~advertising “ethics opinions” site:org” yieldsslightly more than seven thousand hits. The tildebefore the word advertising pulls websites usingsynonyms for advertising, such as solicitation. By

placing ethics opinions in quotes, Google willlook for those terms as a phrase. Finally, sincemost bar associations, as well as the ABA, have a.org domain you know the results retrieved willbe from reliable sites.

Google Scholar shouldn’t be overlookedeither. Running the above search using the LegalDocument option in Google Scholar results in762 hits. The results include court cases and arti-cles from scholarly journals. Results can be fur-ther sorted by relevance or limited by date. Youcan select one of the dates provided or create acustom date range.

A mixture of free and paid resources areaccessible at the webpage for the ABA Center forProfessional Responsibility.8 On the home page ofthe center, any visitor can view or download thelatest LEOs issued by the ABA. There is also anews section on this page which highlights recentarticles on ethical issues. Under the “Resources”tab, the Model Rules of Professional Conductalong with the comments are available.

Non-members of the ABA can see a list of allof the formal LEOs issued by the ABA and indi-vidual opinions may be purchased for $20.Members of the section are able to search theentire ethics database and download opinions freeof charge. If a member doesn’t want to search thedatabase, he or she can take advantage of the cen-ter’s EthicSearch Research System. The center’slawyers will research ABA, state, and local barassociation opinions to assist a lawyer to under-stand or resolve any ethical issues.

In the ethics area, it doesn’t matter if yousubscribe to the legacy versions of Westlaw orLexis or the newer WestlawNext or Lexis Advance.

All of the content in this area is available on bothversions. To determine what is available in classicWestlaw, you click on “Directory” and open thetree for “Topical Materials by Area of Practice”and then the tree for “Legal Ethics andProfessional Responsibility.” In WestlawNext youfirst click on “Secondary Sources” then “Texts andTreatises” and then “Ethics and ProfessionalResponsibility.”

In Lexis.com, you can select the entry for“Ethics” under the heading “Area of Law byTopic” on the home screen. A full listing of allavailable titles is then displayed allowing you tochoose to search in one or all of the databases. InLexis Advance you first click on the “BrowseSources” tab. In the left hand frame, above thefacets, is a search box. If you type in the wordethics, Lexis Advance will pull up all of the data-bases in which the word appears in either theheading or the database descriptor. The list ofdatabases that appear can then be sorted by mate-rial type or jurisdiction.

Both Lexis and Westlaw have the full comple-ment of ABA ethics materials, the model rulesand the formal and informal LEOs. When itcomes to Virginia research, Lexis has the edge.Both systems have the rules but only Lexis has theVirginia LEOs. Interestingly, Westlaw does have afile of the public disciplinary orders issued by theVSB.

There is an extensive collection of secondarysources available from each service. Both containthe Restatement of the Law Third: The LawGoverning Lawyers.Westlaw has more generaltreatises dealing with the topic while Lexis has an“Emerging Issues” database dealing with hot top-ics in the area. Lexis also has the ABA/BNALawyer’s Manual on Professional Conduct avail-able.

Bloomberg Law is similar to Fastcase in itsethic content. The cases of the Virginia SupremeCourt are present, but the rules and the LEOs arenot part of the Bloomberg platform. Currently,there are not any treatises dealing with ethicalissues on Bloomberg.

Even with the wide assortment of resources,both in print and electronic available to you,sometimes you just want the human touch. InVirginia, that’s still possible. If you desire, you cancall the Legal Ethics Hotline9 maintained by theVSB. When you call, you will be prompted toleave a detailed message and your call will bereturned the same business day, if possible. Theservice is confidential and the lawyers employedby the VSB will provide you with an informalethics opinion.



Even with the wide assortment of resources, both in

print and electronic available to you, sometimes you

just want the human touch.


ConclusionBeing a lawyer is a difficult proposition. Peopletell you their darkest secrets or ask you to per-form certain tasks for them. This may cause youto have information you feel compelled to shareor to feel as if you’re being pushed in a directionin which you hesitate to go. By using theresources outlined in this article you can assureyourself that your behavior is conforming to theethical standards of the Virginia bar.

Endnotes:1 As of this publication date, California has not

adopted the Model Rules. The California State Baris currently revising their Rules of ProfessionalConduct, taking into account the final report andrecommendations of the ABA’s Ethics 20/20Commission, with the intent of eliminating con-flicts between the rules in California and otherstates.

2 Part Six, Integration of the State Bar, Section Two,Rules of Professional Conduct

3 Part Six, Integration of the State Bar, Section One,Unauthorized Practice Rules and Considerations

4 www.vsb.org5 http://www.vacle.org/leoslegallinks-pg107.aspx6 http://leo.mcguirewoods.com/7 http://www.fastcase.com/ 8 http://www.americanbar.org/groups

/professional_responsibility.html9 (804) 775-0564


www.vsb.org

Correy E. Stephenson, Rules ChangesWould Deal with Discovery, VirginiaLawyers Weekly (available athttp://valawyersweekly.com/2013/05/10/rule-changes-would-deal-with-dis-covery/) (recent proposed changes tothe Federal Rules of Civil Procedureand how the changes impact discovery,particularly e-discovery).

ConclusionE-discovery continues to be challeng-ing for judges and lawyers. In a recentarticle, Craig D. Ball lists three reasonswhy electronic data discovery can bechallenging to the bench: • “Judges tend to be more senior thanthe average lawyer – with the conse-quence that most jurists have had lit-tle hands-on experience withelectronically stored information intheir own law practices.• Most lawyers are still at sea with e-discovery technology, so they are lessadept at framing ESI issues, making arecord, and educating courts.• The common practice to ‘split thebaby’ to achieve a just result rarelyprompts outcomes in electronic datadiscovery.”6

Ball then proceeds with eleventips to help both judges and practi-tioners “get it right.” His first tip sum-marizes well why it is so important forattorneys and others in the legal com-munity to understand e-discovery:“Electronic evidence is the new nor-mal, there is no going back. If youdon’t fully accept that ESI is here andgrowing in importance, litigants willprey on your nostalgia and exploityour desire to stay within a last-cen-tury comfort zone.”7

Judges have their own advice forattorneys about e-discovery. At therecent annual Electronic DiscoveryInstitute Leadership Summit, fourjurists presented one dominant theme— attorneys should solve EDD prob-lems themselves without turning to thejudges.8 The four judges recom-mended that attorneys develop proto-cols with their adversaries and offertutorials to judges where technologymay be a heavy factor. A goal, accord-ing to one jurist panelist, should be tochange the “existing mindset of pro-ducing parties that the data ‘is mine toknow and for you to find out,’ ratherthan cooperating.”9 She actually sendsattorneys who are bickering to a jury

room and tells them to resolve thematters or she will. Another jurist pan-elist at the program was even moredirect about e-discovery problems: “Idon’t get headaches, I give headaches… Without a discovery strategy, youare playing chicken.”10

The author thanks Jessica E. Barile,third-year law student at the Universityof Richmond School of Law, for herresearch assistance.

Endnotes:1 220 F.R.D. 212 (S.D. N.Y. 2003). For

more information about JudgeScheindlin’s influence in e-discoverydevelopments, see “Another Big E-Discovery Ruling for Scheindlin,”Nat’l L.J., Aug. 28, 2013, at 18, andLisa Holton, “A Front-Row Seat: FiveJudges At the Forefront of ElectronicDiscovery,” Am. Law., Aug. 2013, at 54.

2 Lainie Crouch Kaiser, “UnderstandingeDiscovery Can Boost a NewAssociate’s Career,” BNA Insight(available via the Bloomberg BNA e-Discovery Resource Center) (Oct. 9,2013).

3 Ronal J. Hedges, Discovery ofElectronically Stored Information:Surveying the Legal Landscape 1(2007).

E-Discovery continued on page 52

E-Discovery continued from page 23


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The Virginia Law Foundation ... promotes throughphilanthropy the rule of law, access to justice, and

law-related education.

30 www.vsb.orgVIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION

The Virginia Law Foundation

is the philanthropic arm of Virginia’s

legal profession. It uses its endowment

to fund worthy projects in three crucial

areas: the rule of law, access to justice,

and legal education. Next year the

foundation celebrates forty years of

philanthropic work. The organization

has provided more than $23 million in

grants during its history.

One of the components of the

foundation is its Fellows Committee.

There are more than 400 fellows of the

Virginia Law Foundation, representing

the top 1 percent of lawyers and retired

judges in the commonwealth. These are

men and women who have achieved

excellence in the profession while

demonstrating leadership and a selfless

commitment to the betterment of their

communities. The fellows of the

Virginia Law Foundation are celebrat-

ing thirty years of leadership and com-

mitment in 2014.

The VLF Celebrates Forty Years of Philanthropyby James V. Meath, president of the Virginia Law Foundation, and Manuel A. Capsalis, immediate past-president of the Virginia Law Foundation

It is with great pride that we welcome you to

this issue of Virginia Lawyer magazine. The Virginia

State Bar has graciously dedicated the issue to the

Virginia Law Foundation. We are thankful for this

great honor.


In the pages that follow, you will

read about the philanthropic efforts of

the foundation. We hope you will be

struck by the good work that has been

done by the funds that the foundation

has provided to grantees. Lives have

been changed, futures have been

formed, and the commitment that our

Founding Fathers made to justice for all

has been furthered. That said, there is

more need now than ever for the

Virginia Law Foundation to raise funds

and continue its philanthropic mission.

We hope that you enjoy this special

issue of Virginia Lawyer and find the

articles instructive and compelling. We

also hope you agree that there is some-

thing very special about being a

Virginia lawyer—a sense of history and

of civic duty to the commonwealth and

its people. Supporting the foundation’s

philanthropic pursuits enables us to

touch the lives of thousands of

Virginians our individual good work

could not possibly reach.

Members of the Virginia Law Foundation board gathered at the Virginia State Bar annual meeting in June.

Pictured on page 29 are, standing (left to right): John D. Epps, president-elect; Raymond M. White, executive

director; James V. Meath, president; G. Michael Pace Jr.; Irving M. Blank, vice president; Manuel A. Capsalis,

immediate past president; William L. Schmidt; The Honorable Paul F. Sheridan; Yvonne C. McGhee, secretary;

George Warren Shanks, Fellows Committee chair; Stanley G. Barr Jr.; J. Page Williams; David P. Bobzien, CLE

chair; and F. Anderson Morse. Seated (left to right): John M. Oakey Jr.; Karen A. Gould, treasurer; Lucia Anna

“Pia” Trigiani; Cynthia E. Hudson; and Angelica D. Light.


I cannot help but believe thereason most of us chose the law

as our life’s work is to help make

a difference in the administration

of justice in our communities

while bettering the lives of our

clients, our neighbors, and our

loved ones.

Practicing law provides us with a uniqueopportunity to be good people and aspecial platform for doing great things.Accordingly, among the many reasons Iam especially proud to join the VirginiaLaw Foundation (VLF) as its executivedirector is it gives me a chance be goodand do great in important ways.

In fact, the VLF gives us all a won-derful opportunity to share our collec-tive passion for the multitude of causes

the foundation supports, while also shar-ing ourselves in ways that mean so muchto so many and that can also be uncom-monly fulfilling.

For example, throughout our firstforty years as the philanthropic arm ofVirginia’s legal profession and the parent organization of Virginia CLE, theVLF has provided sizable grants to anumber of critical law-related projectsacross the commonwealth, including:

One Barn at a Time(Being Good and Doing Great)by Raymond M. White


• Central Virginia Legal Aid Society –Immigrant Domestic ViolenceSurvivors Project

• CASA of Central Virginia –CASA BigBrother/Big Sister Collaborative

• Blue Ridge Legal Services –LegalAssistance for the Elderly

• ChildHelp Children’s Center ofVirginia –Kids Court

• Greater Richmond SCAN (Stop ChildAbuse and Neglect) –Child AdvocacyCenter

• Hispanic Committee of Virginia –Immigration Services Program

• Legal Services of Northern Virginia –Domestic Violence Pro Bono Program

• Offender Aid & Restoration ofRichmond–Prostitution RehabilitationProgram

• Southwest Virginia Legal Aid–Community Training to ProtectVictims of Domestic Violence

• Asian Pacific American Legal ResourceCenter –Asian American Equal AccessProject

• Virginia State Bar Young LawyersConference–The Oliver Hill-SamuelTucker Prelaw Institute

• The Women’s Center –DomesticViolence Audio-Visual Project

• Virginia Bar Association–CapitalDefense Workshop

• Virginia State Bar –Spare The ChildVideo (Protecting Children of Divorce)

• Virginia Law Schools –Public ServiceInternships

• William and Mary Law School –Veteran’s Assistance Project

• Virginia Bar Association–Rule of Law Project

• Greater Richmond Bar Foundation–Justice Server Project

• Virginia Holocaust Museum–Nuremburg Courtroom Project

The VLF gives our legal communitya chance to be good and do great as wetry to make a difference in the lives ofthose without meaningful access to jus-tice, and in the lives of those who maysomehow feel that they have been leftbehind by the rule of law.

What personally grounds me in thisconcept comes from a simple storyabout my late father-in-law, John Bartel.

A dairy farmer from the time hewas in his teens, Mr. Bartel loved hiswork more than life itself. Still, the upsand downs of family farming broughthim to a point where he eventually hadto sell several acres at a time simply topay the bills. And if that wasn’t enough,one summer night as the bills continuedto mount, up the hill and out ofnowhere a flame shot through the sky asthe barn he helped build years agoburned to the ground. There was noth-ing left; this was the only time my wifehad ever seen her father cry.

That next morning, as word of thefire spread across the county, a smallarmy of farmers got off their tractors,left their milking parlors, and stoppedbailing hay. They grabbed hammers andsaws, and started carting lumber in dustypickup trucks as they gathered togetherto do whatever it was going to take torebuild that barn.

They worked day and night torebuild that barn, and when they weredone, with hardly a word spoken, asnone were needed, they patted myfather-in-law on the back and madetheir way home. They didn’t needthanks; they didn’t need praise; they did-n’t need a front page story telling theworld how special they were. To them,what they did wasn’t special. They weresimply good people doing somethinggreat—because that’s who they were.

This story matters so much to mebecause it shows the goodness of who wereally are as a people, and how thatgoodness shines through when given achance. It represents how we rise to theoccasion for all the right reasons, andthis is precisely what the VLF representsto me.

Our system of justice is second tonone. But is it perfect? Let’s just say I

think we all might agree there are still afew more barns that need to be rebuiltalong the way to that perfection. That iswhy I am here, why I am writing thispiece, and why I hope you find a way tojoin with us as the VLF crosses the com-monwealth to help rebuild the occa-sional barn that needs fixing.

Yes, the VLF will always be there tosupport our own, and it is comforting toknow that in the past we have been ableto count on so many of you to be inthere with us, hammering away until thejob is done.

We are particularly proud that overthe course of our forty-year history wehave provided more than $23 million ingrants to promote the rule of law, accessto justice, and law-related education.We are prouder still that beginning lastyear we embarked upon an ambitiousplan to expand our outreach to betterassist even more Virginians with criticallegal needs.

To that end we believe that throughpassion, people, and partnerships we cancontinue to make a difference, and alongthe way we are looking to old and newfriends who share our passion and whowould like to join with us—to standtogether like those dairy farmers did—whether through financial donations,donations of time, or donations ofexpertise, so together we can fix whatneeds fixing as we strive to perfect ourlegal system, and help our communitiesand neighbors one barn at a time.

Raymond M. White is the executive director ofVirginia CLE and the Virginia Law Foundation.He previously worked as a prosecutor and inprivate practice in New York, as chief operatingofficer of the National Institute for TrialAdvocacy at The Notre Dame School of Law,for the Michie Co., and as a screenwriter in LosAngeles and songwriter in Nashville.


With its beginnings in the Virginia BarAssociation, and with the generousfinancial support of the Virginia LawFoundation, the Rule of Law Project isstarting its fifth year, and now involvesall state-wide bar associations and agrowing number of local ones, some forthe fourth and fifth time. We continueto expand our website offerings(www.ruleoflaw-vba.org), which pro-vide on-line teacher resources, trainingmaterials, reading lists, and lesson plansfor teaching the origin, meaning, andimportance of the rule of law in society,together with training materials for volunteer bar members.

We created a Lawyer AdvisoryCommittee to establish relationshipswith more local bar associations for thepurpose of organizing Rule of Law Dayin every community in Virginia on anannual and sustainable basis. We havealso created a Teacher AdvisoryCommittee comprising educators andadministrators in Virginia and otherstates. The purpose of this committee is

to advise us about educational contentand to create additional online materialsfor classroom use.

Working together, we will assurethat Virginia is recognized as the leaderin rule of law education nationwide.

The Rule of Law Project in the UnitedStates and the WorldCreated at Roanoke College in 2012, theCenter for Teaching the Rule of Law(www.thecenterforruleoflaw.org) is athink-tank, research, scholarship, andtraining institute for rule of law educa-tion. It also serves as a forum for discus-sion about the relationship between therule of law and society, nationally andinternationally. The center is the vehicleby which the Rule of Law Project will beintroduced to other states and countries.It is an independent Section 501(c)(3)educational charitable organization supported by private donations. Thecenter received its first grant, of $50,000,this spring from the Foundation for theRoanoke Valley. These funds help

support scholarship, programming, andoperations. Other grant requests are out-standing. The center has an audaciousgoal of raising $10 million within threeto five years to fully endow its program.

We held the initial meeting of thecenter’s board of directors on August 27at Roanoke College. The members of theboard of directors include: Kathy MaysColeman, Senior Justice Lawrence L.Koontz Jr., Justice Cleo E. Powell, DianeM. Strickland, Guy K. Tower, andAnthony F. Troy.

None of the board members arerequired to raise money for the center.Their willingness to serve and the guid-ance they provide is greatly needed andappreciated.

Roanoke College has graciouslydonated office space and technical andoperational support for the center. Thecollege’s reputation as an excellent liberal arts institution provides the per-fect platform to engage students, fac-ulty, staff, and the community in thecenter’s activities, and for teaching our

Center Spreads the Rule of Law Projectby G. Michael Pace Jr.

The Henrico County Bar Association brought the Rule of Law Project to Godwin High School on October 10. The association presented a line-up of speakers to discuss the sepa-ration of powers and roles of the three branches of government. Among the speakers were Supreme Court of Virginia Justice Cleo Powell, Delegate John O’Bannon of the 73rdHouse District, and Roderick C. Young of the U.S. Attorneys’ Office. Other participants included (seated, left to right) Jennifer Fox, Heather Szjada, Nerissa N. Rouzer, Tony H.Pham, and Suzanne E. Wade, (standing, left to right) Deputy Joel Lawson, Officer Allen Wilson, Officer Pete Siepert, Lori Lord, Daniel L. Rosenthal, Officer Craig Burton, Officer SunJung, Officer John Woodson, Timothy Isaacs, Angela B. Axselle, Officer Rafael Medina, G. Michael Pace Jr., Christopher H. MacTurk, Officer Clay Woodcock, Renu Brennan,Benjamin N. Spence, Kathryn Daughtry, Andrew McNevin, Deputy John Barnes, Melissa Y. York, Deputy Walter Allmon, James Parsley, Deputy Mike Genau, Ramona L. Taylor,Deputy Megan Clark, Deputy John Mizell.

VIRGINIA LAW FOUNDATION | Vol. 62 | December 2013 | VIRGINIA LAWYER 35

Law and Society class. The center willhave two student interns to assist inresearch and writing projects on rule oflaw-related subjects. We are workingwith several college organizations on aseries of co-sponsored programs forthis academic year.

In addition, we have expanded ourcurriculum to include “The Rule of Lawand the Environment,” a topic ofincreasing national and internationalimportance. Our environmental educa-tion curriculum will be led by MaggiPace, our new director ofEnvironmental Education and SocialMedia. Maggi is a Wake ForestUniversity graduate with a major inbiology, and a master’s degree in envi-ronmental education from SlipperyRock University. She began her newposition on September 1. The othermembers of our staff are: H. TimothyIsaacs, vice president of education; JohnS. Koehler, director of communications;and Nancy H. Pace, administrativeassistant.

We are bigger than we look.As a result of our relationship with theNational Council of the Social Studies,the largest association of civics, socialstudies, and history teachers in the U.S.,we are working on rule of law projects inBrookfield, WI, and Howard County,MD). Through our involvement in theNational Council of Bar Presidents, wealso helped start a rule of law initiativein Florida spearheaded by theJacksonville Bar Association in its publicschools. We expect schools in morestates to adopt the Rule of Law Projectthis year.

At the invitation of the World JusticeProject (www.worldjusticeproject.org),we participated in World Justice ForumIV at The Hague in July. We also partic-ipated in World Justice Forum II inVienna in 2009 and Forum III inBarcelona in 2011. This year’s partici-pants included more than 600 peoplefrom 100 countries. We presented eachof the four days of the forum and ledgroup discussions on the topic “Youthand the Rule of Law.” Our involvementled to requests to provide rule of laweducation in Jamaica, the Philippines,and Burundi and closer to home inTexas. In addition, we expect to be

included as the rule of law educationcomponent in a new U.S. Departmentof State program that hosts delegationsfrom other countries.

Our existing relationships also con-tinue to expand:

Virginia Department of Education—Patricia Wright, Superintendent forPublic Instruction, will again endorsethe Rule of Law Project for inclusion inall public schools. We have received this endorsement each year since ourbeginning.

The Virginia Consortium of SocialStudies Specialists and CollegeEducators (VCSSE)—We have beeninvited to present at the last three VCSSEannual conferences in Williamsburg.This year, the annual meeting will beheld in Roanoke in October, where wehave been invited to speak and willsponsor a teacher reception.

American Bar Association Commissionon Civics Education—The Rule of LawProject continues to be designated as a“best practices” program for all state barassociations.

Legacy International—This spring,Legacy asked us to present the Rule ofLaw Project to a group of twenty-twoIndonesian secondary school exchangestudents and their teachers. These stu-dents were very engaged and extremelywell versed in the relationship betweenthe rule law and democracy, exceedingthe understanding of most Americanstudents.

The Virginia Holocaust Museum—Weare pleased the Rule of Law Project andrule of law education will continue to bepart of the offerings of the VirginiaHolocaust Museum in its program againthis year.

Big Brothers and Big Sisters/Oliver HillHouse/Roanoke City PublicSchools/Roanoke Bar Association/Ruleof Law Project—This fall, these organi-zations will collaborate to provide after-school educational programs at theOliver Hill House for students ages 7 to12 in four inner-city elementary schools.

Center staff and Roanoke BarAssociation members will teach studentsabout the rule of law and citizenship.This is a perfect example of relationshipsthat develop to address a need andimprove communities. We are proud tobe part of this effort. The center will bemeeting with national representatives ofBig Brothers and Big Sisters about usingthe Oliver Hill House experience as apilot project for similar ones across thecountry.

I will end with my favorite storyfrom this past semester. The MotonMuseum is the former public school inFarmville that closed its doors to stu-dents during the “massive resistance” erain Virginia in the 1950s and ‘60s. A newschool, Prince Edward Academy (nowcalled the JB Fuqua School) was createdfor white students while a generation ofblack students was denied a public edu-cation. Later, Prince Edward Countyrecreated and integrated its public schoolsystem. The former Moton Schoolbecame the Moton Museum, under thestrong leadership of Lacy Ward Jr.Moton is a sobering yet hopefulreminder of a part of our history duringwhich the rule of law was suspended andthe concept of equality did not includeeveryone.

With the wonderful help of mem-bers of the Prince Edward County BarAssociation, we held Rule of Law Day in

G. Michael Pace Jr. is general counsel toRoanoke College in Salem. He is also the presi-dent and CEO of the Center for Teaching theRule of Law and the creator of its signatureprogram, the Virginia Law Foundation and TheVirginia Bar Association Rule of Law Project.He is a member and past president of TheVirginia Bar Association, a member of theAmerican Bar Association, and of the NationalConference of Bar Presidents. He is a Fellow ofthe American Bar Foundation and a boardmember of the Virginia Law Foundation. Heserved as managing partner of Gentry LockeRakes & Moore LLP from 1999 to 2012 inRoanoke and remains of counsel to the firm.

Rule of Law continued on page 37


The Nuremberg Courtroom Exhibit inthe Virginia Holocaust Museum at 2000 E. Cary St. in Richmond is anexact replica of the Palace of Justicewhere the Nuremberg Trials were heldfollowing World War II into the springof 1949. The exhibit contains memora-bilia, videos, and photos of the trials.The enormity of the crimes committedby the Nazis were put before the court

and witnessed by the entire world as thefirst trials of a vanquished army and the greatest example of the rule of lawin history.

In 2006, Jay Ipson, the founder ofthe Virginia Holocaust Museum, thoughtthat a permanent exhibit depicting theNuremberg Courtroom would be aunique addition to the museum and animpressive testament to justice and the

rule of law. The original courtroom inNuremberg, Germany, had been sub-stantially changed, was only open to visi-tors on weekends, and was rumored tobe scheduled for demolition by the city.Ipson secured the original plans for thecourtroom and began fundraising tobuild a replica of the Nuremberg Palaceof Justice. I volunteered to raise fundsfor the project.

Museum Exhibit Represents the Greatest Example of Rule of Law in Historyby Irving M. Blank

The Virginia Law Foundation honored Murray J. Janus and Roderick B. Mathews for their life-long dedication to the ideals of the Rule of Law during a ceremony at the VirginiaHolocaust Museum in May. Accepting the award from Anthony F. Troy on behalf of her late husband was Karia Mathews (left photo). Accepting the award from Irving M. Blankon behalf of her late father was Rabbi Beth Janus.


At the Virginia State Bar Councilmeeting in April 2007, I met Jon D.Huddleston, who was then on the boardof the Virginia Law Foundation (VLF)and the Virginia State Bar Council. Wehappened to sit next to each other onthe bus taking council members to din-ner. During the ride, I told Huddlestonabout the Nuremberg Courtroom pro-ject and its need for funds. He told methat he was trying to get the VLF tochange the grant-giving process so thatfewer but larger grants would be madeto get a greater impact from the grants.That chance meeting led to a greatfriendship between our families and awonderful marriage between the LawFoundation and the HolocaustMuseum. Huddleston was successful inhis efforts to change the grant givingprocess at the VLF and the museumwas approved for a $100,000 grant. Amemorandum of agreement betweenthe two entities was executed in August2007. That marriage has endured andgrown over the years. The NurembergCourtroom Exhibit is permanently displayed at the Virginia HolocaustMuseum and is managed by theNuremberg Courtroom Committee that is made up of eight members, fourof whom are selected by the museumand four of whom are selected by thefoundation. The committee also selectsthe annual recipient of the Rule of Law Award.

While the courtroom exhibit hasonly existed for a few years, it has been

the scene of many memorable eventsand is an impressive tool to teach therule of law. Past recipients of the Rule ofLaw Award have included Henry King, a prosecutor at the Nuremberg trials;Senator John W. Warner; Justice GabrielBalch, who was the prosecutor ofAdolph Eichman and later a member ofthe Israeli Supreme Court; and in 2013,Roderick B. Mathews and Murray J.Janus, who were great Virginia lawyersand the living essence of the rule of law,as well as devoted members of theNuremberg Courtroom Committee.

The dedication of the exhibit onLaw Day, May 1, 2008, was the culmi-nation of an extraordinary day in thehistory of the museum, the VLF, theRichmond bar, and the State Bar.Through the efforts of Mathews, themuseum was selected as one of the sitesfor the World Justice Project. On May 1,2008, the day-long international pro-gram focused on the rule of law and culminated in the dedication of thecourtroom exhibit. Madam JusticeRosalie Abella of the Supreme Court ofCanada delivered the keynote addressand there was not a dry eye in the audi-ence. The courtroom exhibit has beenused by the general and legal communi-ties as a means to see that democraticvalues, rights, and institutions designedto ensure that justice is not only seen tobe done, but is done. It has also allowedus to trumpet justice and promote toler-ance by reminding people of the injus-tice and intolerance of the Holocaust.

Thousands of visitors, including manystudents and teachers, have visited theexhibit and taught the lessons of theNuremberg Trials. The visual remindersof the world’s response to the Naziatrocities are invaluable in the under-standing, appreciation, and applicationof the rule of law.

The mission of the Virginia LawFoundation is to promote, throughphilanthropy, the rule of law, access tojustice, and law-related education. Themission of the Virginia HolocaustMuseum is to promote tolerancethrough education. Rarely have twoinstitutions and their missions so perfectly coincided.

Irving M. Blank, a personal injury attorneywith Paris Blank LLP in Richmond, is a formerpresident of the Virginia State Bar. He is a fel-low of the Virginia Law Foundation and theAmerican College of Trial Lawyers. He is amember of the John Marshall Inn of Court, theVirginia Association of Defense Attorneys, andthe Virginia Trial Lawyers Association.He was a member of the Virginia BarAssociation commission that developed theVirginia Principles of Professionalism, an aspi-rational set of standards for attorney conduct.

Farmville on April 27. For the firsttime, students, teachers, and adminis-trators of the two schools cametogether to talk about their history.The day included remarks by JusticeCleo Powell, Lacy Ward Jr., and localofficials, followed by breakout sessionsto discuss the presence and absence ofthe rule of law in our history, and itsenduring nature as the basis for hope,justice, fairness, stability, and equalityfor all people.

Everyone involved left with agreater appreciation for the need tobe constantly reminded about howdemocracy is supposed to work. Itwas a magnificent day, one we hopeto recreate from year to year. Thisexperience, as much as any other sofar, makes clear the importance ofwhat we do.

With the encouragement, partici-pation, and support of members of thebar, we are making a difference to

teachers, their students, and to thecommunities in which they live.Together, we will help create new gen-erations of citizens who understandthat without enlightened and activecitizen participation, democracy is notsustainable.

As we plan for another busy andexciting school year, let’s alwaysremember what Abraham Lincoln toldus: “Teach the children so it will not benecessary to teach the adults.”

Rule of Law continued from page 35


The death penalty is probably the singlemost controversial and divisive feature ofour criminal justice system. The dis-agreements between those who supportthe death penalty and those who wouldcurtail or abolish it roils many narrowerdifferences over how the criminal justicesystem should operate.

But death penalty supporters andopponents all agree on at least one thing:no one should be convicted of a capitalcrime or sentenced to death because ofinadequate legal representation. Capitaldefense attorneys have long contended(with a lot of evidence to prove thepoint) that the quality of the defenseprovided by court-appointed attorneysoften explains more about who lives anddies in the American system of capitalpunishment than do the facts of thecrimes charged. From the other side ofthe issue, the importance of adequatedefense representation is equally clear.George W. Bush oversaw more execu-tions as governor of Texas than anystate’s chief executive in American his-tory up until that time, but in 2005, aspresident, he devoted part of a State ofthe Union Address to announcing thathis administration intended “to fundspecial training for defense counsel incapital cases” because, as he put it, “peo-ple on trial for their lives must havecompetent lawyers by their side.”

It was in this spirit, seventeen yearsago, that the Virginia Law Foundationbegan providing funding to support theVirginia Bar Association’s (VBA) then-fledgling Capital Defense Workshop(CDW). The impetus for the CDW wasVirginia’s adoption, in 1992, of mini-mum experience and training require-ments for lawyers who wished to beconsidered for appointment in capitalcases. Since that first VBA CapitalDefense Workshop in November 1993the CDW has developed into Virginia’s

best-attended criminal defense trainingprogram, and has provided up-to-dateinformation and creative new ideas fromVirginia and national leaders in the capi-tal defense field. This annual day-and-a-half program always includes sessions onforensic science, ethics, and legal andlegislative developments, and frequentlyexplores such topics as how to negotiatelife-saving plea agreements, how to rec-ognize mental impairments in clients,and how to respond with sensitivity andcompassion to murder victims’ families.

At the time of that first CapitalDefense Workshop, the U.S. SupremeCourt had only recently held, in twocases arising from Virginia, that seem-ingly minor procedural errors by court-appointed or volunteer lawyers couldforfeit forever their condemned clients’ability to have their constitutionalclaims heard by any court. Those ratherdraconian procedural rules are, if any-thing, even less forgiving today thanthey were in 1993, so the need to equipcourt-appointed lawyers with theknowledge and skill to navigate thecomplexities of capital trial litigation isas great as it ever was.

To be sure, in recent years nationalcapital defense training programs haveemphasized more intensive, “bring-your-own-case” training methods that engageexisting defense teams with their ownpending cases in small workshops. Infact, the modest federal funding that theBush and Obama administrations haveprovided for capital defense trainingsince 2005 have gone mainly to supportsuch targeted, “bring-your-own-case”programs around the country (includingtwo in Virginia so far). But as long asVirginia retains the death penalty, therewill be a need for at least one large capi-tal defense CLE each year to introducenew lawyers, and re-introduce experi-enced ones, to recent legal and scientific

developments and to current best prac-tices in death penalty trial defense. TheVirginia Law Foundation’s steady, gener-ous support for such a program, and thefaithful work of the Virginia BarAssociation in administering it, have metthis pressing need for more than twentyyears, and continue to do so now.

VLF Grant Has Powered CriticalVirginia Capital Defense Trainingby David I. Bruck

David I. Bruck has directed Washington & LeeSchool of Law’s death penalty defense clinic, theVirginia Capital Case Clearinghouse, since2004. Prior to coming to W&L, Bruck practicedcriminal law in South Carolina for twenty-eightyears, and specialized in the defense of capitalcases at the trial, appellate and post-convictionstages. Over the course of his career, he hasserved as Richland County (Columbia, S.C.)public defender, as chief attorney of the SouthCarolina Office of Appellate Defense, and since1992 as federal death penalty resource counselto the federal defender system nationwide.

Michael HuYoung, who was 2012 chair of the CapitalDefense Workshop Planning Committee, spoke at the20th Annual Capital Defense Workshop, sponsored bythe Criminal Law Section of The Virginia BarAssociation.


Times are challenging, and changing.Recent studies indicate that 80 percent ofcivil legal needs go unmet in Virginia.Given that one million Virginians live inpoverty, and 48 percent of those willencounter a legal problem each year onaverage, legal aid organizations have480,000 potential clients in the com-monwealth, just in 2013. With budgetcuts, legal aid staff is dwindling, and so isits ability to serve underprivilegedVirginians. In the current conditions,legal aids can only handle about 35,000cases a year, for the benefit of nearly87,000 people. That means almost400,000 Virginians each year do not haveaccess to the services of a lawyer on civilmatters.

The good news is pro bono lawyervolunteerism is on the rise. More attor-neys than ever appreciate the need andobligation to give back, and they arelooking for paths of service.

The Solution: JusticeServerThe best ways to attack the legal aid crisisare to provide more volunteer pro bonolawyers, improve efficiency to stretchlegal aid lawyers’ capability, and developa centralized organization for the deliveryof services around Virginia. JusticeServerprovides all of these and more.

At the Supreme Court of Virginia’s2010 Pro Bono Summit, leaders atCapital One pledged to build for legalaid a state-of-the-art information man-agement and case referral system. CapitalOne began leading a collaborative pro-ject team composed of members of theGreater Richmond Bar Foundation(GRBF), the Central Virginia Legal AidSociety (CVLAS), the Legal Aid JusticeCenter (LAJC) and the Virginia BarAssociation Pro Bono Task Force. Thiscore team deconstructed the currentprocesses of civil case intake, case man-agement, and case placement with pri-

vate bar volunteers. The result was thecreation of JusticeServer, an online casemanagement and pro bono opportunitymatching system.

With an internet connection, legalaid staff can now screen client eligibility,provide legal service, and collect requiredcase information on the JusticeServersystem—tripling functionality for lesscost. From JusticeServer, staff can trackcase activity, attach documents or plead-ings, or even e-mail the client. Supervisorscan track individual and team produc-tivity, and monitor the status of cases.Any data entered into JusticeServer canbe tracked, tallied, and analyzed througha robust reporting feature.

Besides being a legal aid nerve center, JusticeServer is also a lawyerrecruitment tool, a case referral system,a website, and a virtual law library.Through its Pro Bono Portal, www.justiceserver.org, JusticeServer providesa centralized location for any interestedattorney, law student, or paralegal to reg-ister and create a profile of pro bonointerest (practice area and location). Theprofile is used to filter the available cases

of interest and to trigger e-mail notifica-tions about case availability.

JusticeServer allows participatinglegal aid and nonprofit organizations tosend cases to the Pro Bono Portal in oneeasy step. The portal provides levels ofsecure information for the volunteers tobrowse opportunities, perform the con-flicts check, evaluate the case, and acceptthe pro bono engagement. The Pro BonoPortal allows legal aid to exchange allclient information and relevant docu-ments with the volunteer online, andvice versa.

Current status:Only Virginia has this technology. AJusticeServer pilot is underway in centralVirginia. Thanks to the generosity of theVirginia Law Foundation with a$100,000 grant to the Greater RichmondBar Foundation, the core team collabo-rative partnership can continue toenhance the pilot version and expand toother pilot regions, with full deploymentthroughout Virginia by 2015.

With technology advances, the com-monwealth can operate as one region. As

VLF Grant Fuels JusticeServerExpansionby Alexandra S. Fannon

The Virginia Law Foundation in July presented a check for $100,000 to the Greater Richmond Bar Foundation tohelp fund the JusticeServer program. Presenting the check were (from left) Leslie A.T. Haley, president of the GRBF;James V. Meath, VLF president elect; Alexandra S. Fannon, GRBF executive director; and John D. Epps, VLF vice presi-dent. JusticeServer, which was featured in a June/July 2012 Virginia Lawyer article, is an online case managementand referral system developed in collaboration between the GRBF, the Legal Aid Justice Center, and Central VirginiaLegal Aid Society. The system allows volunteer attorneys, paralegals, and law students to work on pro bono casesonline.


the world shrinks, organizations such asthe Virginia Bar Association and theGreater Richmond Bar Foundation canrally and deploy lawyers statewide. Withthe expansion of JusticeServer, we canmake initiatives like distance lawyering,virtual pro bono law firms (Firms InService), and centralized deployment ofspecialized law projects realities in thecommonwealth.

We thank the Virginia LawFoundation for being justice servers,and partnering in this groundbreakingsolution to improve access to justice forhundreds of thousands of Virginians.

Endnote:1 The active members of the Core Team

are: Alexandra S. Fannon (executivedirector, GRBF), Alex R. Gulotta (execu-tive director, LAJC), Kathleen D.Caldwell (senior attorney, LAJC), PhillipT. Storey (attorney, LAJC), Dan Epstein(finance, LAJC), Stephen E. Dickinson(executive director, CVLAS), Martin D.Wegbreit (senior attorney, CVLAS), BillBurnet (senior business analyst, CapitalOne), and Michele Deane (senior pro-ject manager).

1. Pete Johnson of Hunton & Williams and Scott Oostdyk of McGuireWoods were co-chairs of the Virginia BarAssociation’s Pro Bono Committee when the JusticeServer project began.

2. John G. Finneran Jr., general counsel and corporate secretary of Capital One Financial Corporation, brought ateam of experts to the project.

3. The Capital One team (l–r): IT Director Andy Schwarz, Michelle Deane for supply chain management, BrentTimberlake from the legal department, Elizabeth Wood in communications, and Bill Burnet from operations.

4. Virginia Attorney General Ken Cuccinelli presents JusticeServer T-shirts to Alex Gulotta (left) and Steve Dickinson,at a luncheon following an April 2012 Pro Bono Summit. The shirt portrays Gulotta’s comparison of the old LegalAid case management system to a plastic picnic knife—not effective for getting the work done.

1

3

2

4

Alexandra S. Fannon is executive director ofthe Greater Richmond Bar Foundation. Shepreviously was an assistant city attorney forCity of Richmond, representing various citydepartments in all levels of courts and adminis-trative hearings and providing legal counsel onissues ranging from constitutional to publicrelations. She has been on the board of direc-tors of the Metropolitan Richmond Women’sBar Association, the board of directors of localnonprofit CARITAS, and the LocalGovernment Attorneys’ Standing Pro BonoCommittee.


Each year since 1990 the Virginia LawFoundation has provided public serviceinternship stipends to selected studentsat Virginia law schools. In 2013,Virginia’s eight American BarAssociation-accredited law schoolsreceived $5,000 each to fund public ser-vice internships during the summer.This important program supports uni-versal access to legal representation andenables law students to work at law-related public service jobs. It alsoencourages young lawyers to considercareers in public service and to be mind-ful of the importance of pro bono work.Interns work under the direct supervi-sion of an attorney at an organization inVirginia. These organizations serve avariety of legal needs of the citizens ofthe commonwealth and provide accessto legal services that might otherwise notbe available. Some examples of thegroups that Virginia law students serveinclude the Community Tax LawProject, Community Mediation Center,Refugee and Immigration Services, theOffice of the Virginia Attorney General,as well as numerous commonwealthattorneys’, legal services, and publicdefenders’ offices.

The statistics are impressive, withmore than $1.2 million provided tomore than 400 law students since 1990.But, the numbers alone do not speak tothe real impact of the program. Thesestipends increase the awareness of publicservice legal opportunities available inthe community. Additionally, thestipends allow some students to take onthis type of service work who could nototherwise consider an unpaid summerposition.

Dan Monahan, a student at GeorgeMason University School of Law, spentlast summer at the Fairfax CountyPublic Defender Office. It was a chal-lenge that helped him build professionalskills while providing him the chance tomake a greater impact on the commu-nity. “Without the financial supportfrom the Virginia Law Foundation, I

would not have had this opportunity.The grant helped ease the uncertaintyabout providing for additional supportto care for my daughter while I worked,”he said. Monahan’s biggest fear was thatif his daughter got sick or when her pre-school was closed he would have to takeoff work, not only reducing the amountof time he had to give back, but alsoaffecting his ability to be a contributingmember of the team. “Being an adult lawstudent with a family, I work hard tobalance and prioritize the things in mylife. The VLF grant went a long way ineliminating a potential conflict in mydeveloping legal career. As a result of mysummer grant, I never had to worryabout choosing between family andcareer because the financial support Ireceived meant I would be able to pro-vide both with quality care.”

Malvina Hryniewicz graduatedfrom George Mason in 2010 and cur-rently works at the Office of SpecialCounsel. Her VLF internship gave her abetter perspective on law school and thepractice of law. “I first found law schoolextremely difficult due to the stress ofclasses and the pressure of grades,” shesaid. “At the time, I associated the lawwith competition and academic success.But my time at the Immigration andRefugee Appellate Center showed methat the law could be used to help indi-viduals who were suffering and neededprotection. I learned to use the law as a

tool to assist real people facing tremen-dous and unthinkable problems.” Withthe VLF scholarship opportunity,Hryniewicz realized how lucky she wasthat her biggest stress in life was lawschool grades rather than trying to seeka safe place to live. “My experience mademe remember that attorneys can makebig differences.”

All the participating law schools andstudents are grateful for the support ofthe VLF, and especially all members ofthe bar who support the Public ServiceInternship stipend program. The effortsof all involved make an immediate andreal difference in the lives of Virginia cit-izens. To find out more about the VLF’slaw related education grant programs goonline at http://virginialawfoundation.org/grantprogram.htm.

Public Service Internship Program:An Investment in the Community and Future Lawyersby Dana M. Fallon

Dana M. Fallon is the director of AlumniServices at George Mason University. She is a1999 graduate of George Mason UniversitySchool of Law. Until December 2007, she was apartner at Ritzert & Leyton PC, specializing inadministrative and regulatory law related toinstitutions of higher education. Prior toattending law school, she was an assistant direc-tor of residence life at Marymount University.

Since 1990, the Virginia Law Foundation Public Service Internship Program has provided more than $1.2 million togive more than 400 students at Virginia law schools the opportunity to learn more about public service while servinglow-income clients. Interns from 2012 include Washington & Lee students William Beecher, Jan Fox, and PatrickSweeney, all class of 2014.


The 2013 Oliver Hill/Samuel Tucker Pre-Law Institute (HTI) continued to affectthe lives of young people by nurturingtheir interest in the legal profession.About thirty students participated in theinstitute this year—twenty new and tenreturning—aged 13 to 21. The 2013HTI class included students from allover Virginia, one from Maryland, andone from Ohio. These students were alsofrom diverse racial, ethnic, and socio-economic backgrounds.

Held on July 7–12, 2013, at theUniversity of Richmond, the institutedrew distinguished individuals from thelegal profession, dedicated and commit-ted to increasing diversity in the legalprofession. Judges Roger L. Gregory ofthe U.S. Court of Appeals for the FourthCircuit, James R. Spencer of the U.S.District Court for the Eastern District ofVirginia, and Justice Cleo E. Powell ofthe Supreme Court of Virginia spokewith the students who toured their cour-thouses. Delegate Jennifer L. McClellanof the Virginia General Assembly visitedthe students and led a mock session onhow bills become laws, after which thestudents toured the Virginia Capital.Richmond City Sheriff C. T. Woody andTony Pham, general counsel of theRichmond City Sheriff ’s Office, gave thestudents an unforgettable tour of the cityjail and spent time answering the stu-dents’ questions.

On the first evening of the institute,the students participated in an invalu-able networking event. Several legal andnon-legal professionals volunteered tointeract with the students and exchangecontact information. The studentslearned firsthand the art of networking.For personal and professional develop-ment, the students also participated inan etiquette dinner facilitated by a pro-fessional. This program allowed the stu-dents to understand fully the importanceof dining etiquette and protocol, and

how they will continue to play animportant role in their lives as they pur-sue further education and their careers.

Throughout the week, the studentsprepared for a mock trial held on thelast day of the institute. Session topicsincluded opening statements, closingarguments, direct and cross examina-tion, and evidence. We thank RaymondM. White, executive director of VirginiaContinuing Legal Education, for theextensive and comprehensive traininghe provided. The students also had theopportunity to hear from and ask ques-tions of a panel of admissions officersfrom Virginia Commonwealth

University and the University ofRichmond, and from professionals rep-resenting traditional and alternativelegal careers.

The 2013 HTI class graduated instyle at the end of the week. Families andfriends attended the graduation. Thebanquet’s keynote speaker, Douglas B.Smith, director/assistant general counselat Capital One, addressed the realities ofthe legal profession, inspiring the stu-dents on how they can each play theirrole in standing out and succeeding.

We have no doubt that in less thanten years the 2013 HTI class will repre-sent our profession well.

2013 Oliver Hill/Samuel TuckerPre-Law Instituteby Latoya C. Asia and Providence E. Napoleon

Latoya C. Asia is an associate at McGuireWoods LLP in Richmond. She counsels and represents employ-ers in various aspects of employment-related litigation and labor law. She has served as co-director of theOliver Hill/Samuel Tucker Pre-Law Institute since 2011. She recently returned from a one-year mission-ary trip to Niamey, Niger, West Africa, where she taught high school sociology, Spanish, and U.S. History.

Providence E. Napoleon is an associate at McGuireWoods LLP in Richmond. She represents clients inantitrust and trade regulation, class actions, and complex commercial litigation. She also conducts inter-nal investigations and represents clients who are being investigated by federal and/or state agencies. Shehas served as co-director of the Oliver Hill/Samuel Tucker Pre-Law Institute since 2011.

Asia Napoleon

The Oliver Hill/Samuel Tucker Pre-law Institute at the University of Richmond drew students from Virginia, Maryland,and Ohio in the summer of 2013.


On my first day at Virginia CLE I wasasked an excellent question by one ofour staff members: “What makes youwant to take a job like this?”

While it was something I’d neverasked myself, I knew the answer rightaway. Having practiced law for fifteenyears, I knew the awesome responsibilityof having a client on the other side ofthe desk—it was something I took veryseriously. I knew the look—the lookthat said I was the most important per-son in a client’s life, or in the life of aloved one. And my look hopefully toldthem I’d do all I could to get them thebest outcome possible, and that I feltconfident in my ability to do so.

Whether it was defending a lovedone accused of a crime; helping a divorc-ing parent get as much parenting time aspossible; or helping a musician, a writer,actor, or a small business person navi-gate contracts that could change theirlives, those moments made me realizethat attorneys who cheat themselves outof meaningful continuing legal educa-tion actually cheat more than just them-selves. For attorneys to do their jobproperly, and to sleep well at night (Iknow you know what I mean), it’sincumbent upon us to make sure wereally know our stuff.

So as for my answer: I want to be animportant part of Virginia CLE as wehelp attorneys gain the requisite skill,confidence, and professionalism so theynever feel they are letting their clientdown … or letting themselves down.

I also want to help give our legalcommunity what we need to enhancethe administration of justice across thecommonwealth, and I want to helplawyers sleep well at night.

You may know that Virginia CLEhas been in existence since 1960 andcontinually strives to be the top qualityprovider of educational materials to helpmeet the continuing education needs ofthe Virginia legal community, and tohelp Virginia attorneys practice profi-

ciently, competently, professionally, andethically throughout their careers.

You may also know that we are theVirginia State Bar and Virginia BarAssociation sponsored CLE provider inVirginia. We are a not-for-profit, receiv-ing no state funds or dues. We strive tobe financially self-sufficient by generat-ing revenue to cover both operatingexpenses and long-term capital needswhile offering the fairest prices possibleto our customers.

But one thing about Virginia CLEmany attorneys may not know is thatwe are a proud branch of the VirginiaLaw Foundation (VLF) tree. And thatsome of our finest faculty members andhighly valued CLE committee membersare CLE fellows.

In fact, in addition to its philan-thropic endeavors, the VLF supportslegal education at all levels and in manyways, including within the legal profes-sion, through Virginia CLE, and in thecommunity to consumers, educators,young adults, the elderly, visually handi-capped, and others through educationalvideos, pamphlets, presentations, andworkshops.

This broad commitment to educa-tion is one of the many things I find soappealing. Now in my current role asexecutive director of both organizationsI hope to forge an even stronger bondbetween the VLF and VACLE.

As the strength of the VLF in somany ways rests on our collaborationwith other organizations such as theVSB and the VBA, so does the strengthof Virginia CLE. Now is clearly the timefor us to strengthen ourselves from theinside out, to take stock of what we do,why we do it, and what we want to dointo the future. It is also the time to usethis strength to join in collaborationsacross all of Virginia’s legal service orga-nizations to be sure we can and willfully support every attorney who sitsbehind a desk — and the client sittingacross from them.

Virginia CLE Helps Attorneys toHelp Othersby Raymond M. White

Raymond M. White is the executive director ofVirginia CLE and the Virginia Law Foundation.He previously worked as a prosecutor and inprivate practice in New York, as chief operatingofficer of the National Institute for TrialAdvocacy at The Notre Dame School of Law,for the Michie Co., and as a screenwriter in LosAngeles and songwriter in Nashville.

44

It is said that the privilege ofpublic service is its own reward. I

know of no better example of this

than the honor bestowed upon

those of us who have served as

stewards for the Virginia Law

Foundation. As the philanthropic

arm of Virginia’s legal profession,

over the last thirty-nine years the

foundation has granted almost

$24 million throughout our com-

monwealth to promote and pro-

tect the rule of law, improve

access to justice, and support law-

related education.

The VLF’s history of grant-making

in addressing the legal needs of our fel-

low Virginians is simply astounding. As

the articles within this issue of Virginia

Lawyer wonderfully illustrate, the foun-

dation has supported and sustained

countless legal projects large and small,

statewide and local. As the foundation

prepares to celebrate its 40th anniversary

in 2014, and for all that is has achieved,

it is clear that there is much more work

to do and many challenges ahead. With

those challenges, however, comes great

opportunity. The foundation will con-

tinue to make a critical difference, and

its unrealized potential is enormous.

We are members of the only self-

regulated profession in the common-

wealth. The Preamble to the Rules of

Professional Conduct sets forth the

duties attendant to the practice of law

and that go well beyond the ethical con-

siderations in the representation of our

clients. Along with the license to prac-

tice, each of us carries the unique

responsibility of our learned profession.

The preamble reminds us that a lawyer is

a “public citizen having special responsi-

bility for the quality of justice. . . As a

public citizen, a lawyer should seek

improvement of the law, the administra-

tion of justice and the quality of service

rendered by the legal profession.”

It is my respectful opinion that no

organization is better poised to meet this

glorious responsibility than the Virginia

Law Foundation. As a long-time board

member and now as a past-president, I

have been blessed with the opportunity

to see the good works of the foundation

firsthand. It has been truly inspiring to

work with so many dedicated colleagues.

Thank you for the honor of service.

The Arc of Opportunityby Manuel A. Capsalis

www.vsb.orgVIRGINIA LAWYER | December 2013 | Vol. 62 | VIRGINIA LAW FOUNDATION

Manuel A. Capsalis is the managing partner ofCapsalis, Fitzgerald PLC, concentrating primar-ily in criminal defense and civil litigation. Healso has been the Town of Herndon’s deputytown attorney and its prosecutor from 1989 to1992 and from 1994 to the present. He is a for-mer president of the Virginia State Bar.

LAW LIBRARIES | Vol. 62 | December 2013 | VIRGINIA LAWYER 45www.vsb.org

Tablet usage statistics are equally impressive.The first generation iPad was released April 3,2010. In 2011, only about 15 percent of attorneysused a tablet. By 2012 that figure had increased to33 percent. This year, 48 percent of all attorneysreport using a tablet. Although Windows Mobilehas not yet gained a statistically significant shareof the market, that is likely to change with therecent release of the new Surface Pro 2 withWindows 8.

The benefits of mobile research are obvious.Just as the advent of online legal research systemsobviated the need for hauling volumes from officeto court, so has the mobile device obviated theneed for lugging a laptop. Lawyers can research,communicate, collaborate and generally stay con-nected in real-time, all the time.

There are two major types of apps: thosedesigned for Apple’s iOS (available through theiTunes App Store) and those created for theAndroid OS (available on the Google Play Store).Downloading an app from either is as easy as theproverbial piece of cake. Indeed, one of the fea-tures that make apps so popular is their inherentsimplicity. Apps are generally not plagued by thecomplexities and quirks of their software dwellingcounterparts. Instead, screens offer users a limitednumber of task-driven functions.

As mobile devices have proliferated, so havethe number of available apps. There are more than900,000 apps available for iOS and about 866,000for Android. Not surprisingly, legal-related appsabound. Though it pains me to ignore theplethora of available practice and productivitytools, this article will focus exclusively on legalresearch apps of interest to Virginia practitioners.

VIRGINIA APPS

Virginia State Bar Mobile Member Access The Virginia State Bar app is a must for Virginiapractitioners. Not only does the app allow accessto membership details and MCLE information, italso provides seamless access to Fastcase. Free.iOS. An Android version is in development.

FastcaseAlthough the vast majority of Virginia lawyers areundoubtedly familiar with the web-based versionof Fastcase, it bears noting that according to theaforementioned ABA Technology Survey, Fastcaseis the most popular legal research app, withdownloads surpassing both WestlawNext andLexis Advance. Searchers can use citations,phrases, or keywords. Boolean operators andproximity connectors are allowed. The basicFastcase app is free to all with registration,although bar members should take advantage of the more robust version accessible via theVirginia State Bar Mobile Member Access. Free. iOS and Android.

dLaw (better known as Droidlaw)This native Android app developer essentiallyallows the end user to cobble together a series offree and paid in-app add-ons to create a cus-tomized research platform. The free app includesthe Federal Rules of Civil Procedure, Evidence,Appellate Procedure, Criminal Procedure, andBankruptcy Procedure. The U.S. Constitution,U.S. Tax Court cases, and a legal dictionary arealso available as free add-ons. The U.S. Code($14.99), U.S. Supreme Court opinions ($9.99),

Marie Summerlin Hammis a past president of theVirginia Association ofLaw Libraries. She isassistant director for collection development at Regent University LawLibrary. She has a mas-ter’s degree from SyracuseUniversity and a lawdegree from RegentUniversity School of Law,where she teaches theadvanced legal researchand writing course as anadjunct professor.

Increasing Your “App”titude: Legal Research Apps for Virginia Practitionersby Marie Summerlin Hamm

According to the recently released 2013 ABA Technology Survey, 91 percentof the approximately one million attorneys in the United States regularly use a smart-

phone in the practice of law. Of those, nearly 62 percent are using an iPhone.

Increasingly popular Android OS phones have garnered 22 percent of the market.

Somewhat shocking is the fact that only 16 percent of lawyers continue to choose

Blackberry.

46 www.vsb.orgVIRGINIA LAWYER | December 2013 | Vol. 62 | LAW LIBRARIES

the entire Federal Code of Regulations ($14.99),individual CFR titles ($1.99), a wide variety ofstate codes, and a variety of other resources arealso available for purchase. Virginia specific add-ons include the complete Virginia Code ($9.99),Virginia Crimes and Offenses (Title 18.2) ($2.99),Virginia Motor Vehicle Code (Title 46.2) ($2.99),Virginia Criminal Procedure (Title 19.2) ($2.99),and Virginia Civil Remedies (Title 8.01) ($2.99).The app allows users to search, bookmark, copy,share, and annotate text, which can be saved to anSD card for offline access. Free. Android.

THE USUAL SUSPECTS

WestlawNextThe mobile version of WestlawNext works well onany device, even without an app. That said, bothiPad and Android apps are available and providefull access to the powerful WestSearch algorithm,KeyCite, and folders—though the iPad versiondoes seem to offer additional functionalityincluding offline viewing of documents andhighlighting. The app syncs automatically withboth the WestlawNext website and across allmobile devices, so research is always up to date.Free. WestlawNext subscription required. iOSand Android.

Lexis Advance HDLike the excellent mobile site, the intuitive LexisAdvance HD app allows users to run a searchwithout having to select a specific source. Resultscan then be filtered by jurisdiction, date, legaltopic, key word, or court. Documents and searchhistory stored in work folders synchronize withyour web-based Lexis Advance application. Youcan even view documents and make notes offlineand then synch any changes. And it is Lexis, soShepard’s evaluation is readily available. Free.Subscription required. iOS. There is also a sepa-rate LexisNexis Get Cases & Shepardize app that,as the name implies, allows quick retrieval of acase and codes by citation and features an at-a-glance Shepard’s analysis. Free. Subscriptionrequired. iOS.

Bloomberg Law and Bloomberg BNAIn 2010, Bloomberg’s renowned news, business,company and financial data was coupled with theresearch and in-depth analysis created by highlyrespected Bureau of National Affairs (BNA)reporters, correspondents, and practitioners. Allof this expert knowledge was loaded onto anintuitive, sophisticated platform also offering pri-mary and secondary legal resources, dockets, fil-

ings, treatises, and rules. Bloomberg Law hastaken the legal information world by storm. Thelaw school market has been particularly welcom-ing as a whole new generation of soon-to-belawyers is introduced to the electronic counter-part of the once ubiquitous but now infrequentlyencountered black BNA binder set. BothBloomberg Law and Bloomberg BNA functionwell on any mobile device, but the BloombergLaw Reports app offers easy access to reports inpractice areas including tax & accounting, labor &employment, intellectual property, banking &securities, employee benefits, health care, privacy& data security, human resources, and environ-ment, health & safety. Reports can be marked asfavorites for future reference. Free. Subscriptionrequired. iOS only.

CCH IntelliConnectCCH IntelliConnect allows subscribers on-the-goaccess content such as Tax Tracker News andCCH Mobile alerts. The newest release employs atiled, widget approach and lets a user customizethe homepage. In addition to relevant Aspen trea-tises, content includes IntelliConnect’s SmartCharts, State Tax Reporters, rate tables, and cita-tion templates. Practice areas include corporategovernance, federal banking, financial reform, andsecured transactions. Subscription required. iOSand Android.

LoisLaw ConnectAnother product from publisher Wolters Kluwer,LoisLaw Connect is a comprehensive legal data-base that includes primary law, forms, and Aspentreatises. Users can search by keyword, case name,or citation. Features include a clean search inter-face, federated and advanced search options,hyperlinks to related cases and regulatory content,and the ability to save and e-mail search results. Arather unique feature of this app is the ability topurchase primary law access in increments offorty-eight hours, one week, or one month ratherthan committing to a lengthy subscription. Free.Subscription required. iOS.

HeinOnlineHeinOnline boasts the world’s largest image-based legal research database. Best known for itsextensive PDF collection of law reviews and jour-nals, HeinOnline’s available libraries also includethe Congressional Record, Federal Register, CFR,treaty collections, historic legal treatises, andmuch more. Content is fully searchable, with avariety of advanced search features available.Additionally, resources can be retrieved by cita-

INCREASING YOUR “APP”TITUDE: LEGAL RESEARCH APPS FOR VIRGINIA PRACTITIONERS


tion or electronic table of contents. Free.Subscription required. iOS and Android.

ALTERNATIVE LEGAL RESEARCHAPPS

Constitution AnnotatedCreated jointly by the Library of Congress, theSenate Committee on Rules and Administrationand the Government Printing Office, this app isthe mobile version of the print Constitution of theUnited States of America: Analysis andInterpretation. It features the full text of both theConstitution and the treatise, including clause byclause legal analysis. It lists all federal, state, andlocal laws struck down by the Supreme Court andall cases where the Court overturned its priorprecedent. There are tables of contents and casesas well as an index. Free. iOS. An Android versionis in development.

LawStack This app includes the U.S. Constitution, FederalRules of Civil Procedure, Appellate Procedure,Evidence, Bankruptcy Procedure, and CriminalProcedure at no cost. Additional titles may bedownloaded in the app. Free. iOS.

Push LegalAlthough Virginia has not yet been added to thegrowing number of jurisdictions covered by PushLegal, this popular app, designed by lawyers forlawyers, still has much to offer. It attempts tomake needed information available on demand,much as it would be found in a deskbook.Content includes the usual selection of federalrules and selected state materials. A distinguishingfeature is that it includes annotated case law andsmart linking to Google Scholar. Free trial.Subscriptions begin at less than $1 per day. iOSand Android.

MyCongressThis app provides detailed information aboutU.S. Congressional officials, allowing users totrack news, video, and Twitter feeds. It also incor-porates a direct link to each legislator’s website aswell as to official Open Congress profiles. Free.iOS.

CongressThis app offers users real-time notifications ofvotes, laws, floor activity, and other congressionalactivities. Users can search lawmakers by state,house, or senate, and view how they voted on leg-islation. Free. iOS and Android.

RulebookAn innovative app that obviates the need forpocket parts with automatic updating, Rulebookis a must have. The basic app includes a numberof free titles, including the Federal Rules ofEvidence and U.S. Constitution. Users can thenpersonalize their platform with additional low-cost federal and state rules. Those resources arethen kept current by automatic updates — nomore pocket parts. It is also the only app whichoffers The Bluebook: a Uniform System of Citationas an in-app purchase. ($39.99) The app offersmany functional features including the ability tohighlight (in a variety of colors), take notes, copy,print, and bookmark selected text. Users can navi-gate easily from rule to rule by swiping and cantoggle between multiple authorities withRulebook’s multi-task function. Free. Most add-ons are $1.99. iOS.

OpenRegsWith this app, the Federal Register is always atyour fingertips. Users can locate recently issuednotices of final and proposed rule-making, andbrowse regulations by agency or comment peri-ods that were recently opened or are soon closing.Free. iOS

OyezToday Created by the Oyez Project at Chicago-KentSchool of Law, this app offers the latest informa-tion and media on current cases in the U.S.Supreme Court. The app provides searchableaudio of oral arguments and transcripts, up-to-date summaries of the Court’s most recent deci-sions, and copies of the full decisions. Free. iOSand Android.

PocketJustice Pocket Justice claims to bring the U.S. SupremeCourt “down to earth” with its innovative andinteractive app. The application includes votingalignments and biographical sketches for all 110of the Court’s past and present justices andincludes audio of hundreds of hours of oralarguments and opinion announcements. A dis-tinguishing feature is synchronized, searchabletranscripts which identify all speakers. $0.99. iOS and Android.

REFERENCE

Black’s Law DictionaryOne of the most well-known and well-respectedof all legal reference titles, Black’s Law Dictionary,



9th Edition, edited by Bryan A. Garner, is avail-able for $54.99. iOS and newly available Android.

iWriteLegalThis app includes legal writing tips and checkliststo assist with editing and revising legal docu-ments. Free. iOS.

Nolo’s Plain English Law DictionaryThis popular app offers a no cost alternative tothe Black’s Law Dictionarymobile application.Free. iOS and Android.

Osborn’s Concise Law DictionaryOffering definitions of more than 4,700 legalterms, the Osborne’s app permits users to searchor browse for terms. Other features include cross-references and the ability to bookmark selectedterms. $13.99. iOS

Wolfram Lawyer’s Professional AssistantThis innovative legal reference tool providesaccess to a plenitude of helpful information.Features include a legal dictionary, quick access tostatutes of limitations for each state, crime rateand demographic data, a variety of calculators,and more. $4.99. iOS.

KEEPING CURRENT

ABA JournalMobile This app provides daily breaking legal news andarticles featured in the ABA Journal. Users can e-mail, bookmark, or share articles via social mediafrom within the app. Free. iOS and Android.

The National Law JournalThe NLJ app offers up-to-the-minute reportingon both local and national legal news. Coveragedetails recent court decisions, jury verdicts, andincludes expert practitioner columns, as well asreports focusing on emerging trends. iOS andAndroid.

Law.comComing soon. According to Robert Ambrogi’sLaw Sites blog, legal publisher ALM is about tounveil an app that “delivers content from all ALMpublications and websites in a seamless, stylishand customizable interface.” ALM publicationsinclude American Counsel, American Lawyer,Daily Business Review, Law Technology News, LegalIntelligencer, National Law Journal, and others.Free to download. iOS.

LawRachet Launched shortly after the demise of GoogleReader, LawRachet was designed by lawyers deter-mined to create an effective, yet visually engaginginterface. The pre-populated search parametersmake it surprisingly simple to stay current on allthings legal or to focus on particular, albeit preset,practice areas. Free. iOS.

Legal EdgeDeveloped by and streamed through JD Supra,the Legal Edge app offers news alerts, updates,newsletters, and case filings. Subject areas includereal estate, banking and finance, immigration,insurance, consumer protection, taxes, bank-ruptcy, intellectual property, health law, labor andemployment, legal marketing and more. Free. iOS

LexisNexis Tax Law CommunityAlthough limited in scope, this app is excellent forpractitioners seeking news, analysis, and com-mentary on emerging tax issues. Free. iOS.

LEARNINGMORE ABOUT APPSIf you are interested in more information aboutthe range of legal apps available, Tom Mighell’siPad Apps in One Hour for Lawyers, published in2012 by the ABA’s Law Practice ManagementSection, is an excellent starting point. The bookintroduces basic concepts and covers both pro-ductivity and legal research apps.

If you prefer something other than a frontalsearch assault on the nearly one million appsavailable for each mobile operating system, checkout the Mobile Apps for Law database compiledand maintained by Infosources Publishing,provider of basic reference sources for lawyers,law librarians, legal researchers and informationprofessionals since 1981. A $50 annual subscrip-tion is required to enable all search features, buteven the free components of the site are quiteuseful. Additionally, the paid site offers an RSSfeed providing information on the latest mobileapps that have been released for legal research andlegal utilities. The feed is accessible at www.mobi-lappsforlaw.com and can be subscribed tothrough any news reader.

Additionally, articles, blog posts, and, ofcourse, law library research guides on the topicalso abound. At the end of the day, all that isrequired is a willingness to expand your technicalhorizons and increase your “app”itude.



For more than half a century,Virginia’s antebellum debts loomed over

the political and economic landscape of

the commonwealth. In the years following

the Civil War, Virginia’s politicians

grappled to formulate an approach that

would both reduce the financial burden

on the state and satisfy its creditors. A

longstanding source of attention and

debate centered on the obligations of

West Virginia as related to this prewar

debt. After years of discussion, political

posturing, and various funding schemes,

Virginia presented the case to the

Supreme Court of the United States in

1906. Over the course of the next twelve

years, the Court would hand down a

series of decisions in the case that would

eventually lead to a resolution — a

financial settlement between Virginia and

West Virginia of their much debated debt.

OriginsThe origins of the controversial Virginia debtdated to the mid-1820s, when the Virginiagovernment embarked on an ambitious campaignof funding internal improvements. Fundsdedicated to rivers, canals, roads, turnpikes,railroads, and bridges served the dual purpose ofstimulating the economy and improvingtransportation networks. While these efforts alsohelped mitigate longstanding sectionalismbetween eastern and western Virginia, issuesconcerning voting, representation, and taxationcontinued to be a source of contention betweenthe regions.1

By 1861, sectional discord within theexpansive state had reached a breaking point.Following Virginia’s secession from the United

States a series of Unionist conventions were heldin the western town of Wheeling. At the SecondWheeling Convention, held in June 1861, the“Restored Government of Virginia” wasorganized. This government, which declared thegovernment in Richmond did not representVirginia, elected a governor and receivedrecognition by President Lincoln as the legitimategovernment of the entire state. Efforts to formallyseparate the counties of northwestern Virginiaand establish a new state soon moved forward.After voters approved the new constitution ofWest Virginia, Congress passed a statehood billthat President Lincoln signed in December 1862.A revised constitution was adopted the followingMarch, and on June 20, 1863, West Virginia wasformerly admitted to the Union.

Throughout the process to statehood, thenew state recognized the prewar debts of Virginia.First, a provision from an ordinance of theWheeling Convention acknowledged both theexistence of the debt and the obligation to pay it:

The new State shall take upon itself a justproportion of the public debt of thecommonwealth of Virginia, prior to the firstday of January, 1861, to be ascertained bycharging to it all the state expenditures withinthe limits thereof, and a just proportion ofthe ordinary expenses of the Stategovernment since any part of said debt wascontracted, and deducting therefrom themoneys paid into the treasury of theCommonwealth from the counties includedwithin the said State during said period.2

Article 8, Section 8 of the Constitution of theState of West Virginia also acknowledged the debtand directed the legislature to determine theextent of the obligation “as soon as may bepracticable” and to “provide for the liquidationthereof.”3

Following the Civil War, efforts to apportionand settle the debt became viable. During the nextseveral years, authorities in Virginia and WestVirginia made unsuccessful attempts to determine

Gregory Stoner, referencelibrarian at McGuireWoods in Richmond, has bache-lor’s degrees in historicpreservation and AmericanStudies from the Universityof Mary Washington, amaster’s degree in historyfrom VirginiaCommonwealth University,and a master’s in informa-tion science from theUniversity of Tennessee. Heis a member of the VirginiaLaw Libraries Associationand other professionalgroups that advance thework of law librarians.

A Much Debated Debt: The Virginia–West Virginia Debt Controversyby Gregory H. Stoner


the proportion of the debt obligations of eachstate. Reconstruction in Virginia combined with asuit before the Supreme Court seeking adetermination of the status of two border countiesproved significant obstacles. In 1871, withReconstruction complete and the border issuenearly resolved, Virginia’s legislature proposed tohave a group of commissioners arbitrate the debt.West Virginia rejected the proposal and insteadcreated a debt commission to visit Richmond and

conduct research in the records of the state.However, this method of ascertaining the debt wasfrowned upon by Virginia’s governor and areciprocal commission was not appointed.

To manage state debts that had ballooned tomore than $45 million, Virginia’s legislaturepassed the first in a series of funding acts. The firstact, passed by the legislature in 1871, called forVirginia to pay two-thirds of the debt, with WestVirginia assuming the remainder. This calculationand apportionment of the debt was based on theassumption that at the time of its separation WestVirginia contained “about one-third of theterritory and population of Virginia.” Thisindependent determination of West Virginia’sshare of the debt, which lacked any definitivebasis, would prove to be a primary source ofcontention in the years to come.

In the decades that followed, Virginia’slegislature passed additional funding acts. By theearly 1890s, Virginia had settled and adjusted thetwo-third liabilities it had accepted two decadesearlier. In 1894, the Virginia legislature providedby joint resolution for the adjustment of theproportion of debt owed by West Virginia. Backand forth communications for more than adecade resulted in little progress, as West Virginia’sgovernor and legislature refused to acceptVirginia’s steadfast assertion that they wereresponsible for one-third of the prewar debts.Frustrated with the inability to adjust the debt bynegotiation, Virginia concluded that a resolutionto the matter may only be reached in the SupremeCourt of the land.

The Suit Commenced On February 26, 1906, the Commonwealth ofVirginia filed its bill of complaint in the U.S.Supreme Court, seeking “an adjudication of theamount due the former state by the latter as theequitable proportion of the public debts of theoriginal state of Virginia” that West Virginia hadassumed upon statehood. Virginia asserted thatWest Virginia had repeatedly recognized itsliability for a just portion of the debt, and that theone-third division allocated by thecommonwealth represented a just and equitableproportion. West Virginia filed a demurrercontending the Court lacked jurisdiction toresolve the dispute, but the Court disagreed in itsfirst ruling in the matter.4

After the overruling of the demurrer in May1907 and the filing of West Virginia’s answer to thecomplaint, counsel for both states proposed thatthe case be referred to a special master for thepurpose of ascertaining West Virginia’s liability.The Court handed down its second decision inMay 1908 and referred the case to a master whowas instructed to examine evidence, consult withthe authorities of both parties, and present to theCourt a report of his findings.5 Charles E.Littlefield of Maine, recommended by WestVirginia, was selected by the Court as the specialmaster.

Over the course of the next fifteen months,accountants and attorneys for both statesconducted extensive research in Virginia’s records.Several hearings were held in which scheduleswere reviewed and argued. Following his review oftestimony and evidence, Littlefield prepared anextensive report of more than 200 pages.6

Littlefield determined that on January 1,1861, the public debt of Virginia amounted to$33,897,073.82. He agreed with the conclusionsreached by both states concerning the assessedvaluation of the territory constituting each stateand their respective population. Of the remainingquestions the master was charged withdetermining, the most significant andcontroversial concerned whether interest on thepublic debt was an ordinary expense ofgovernment. Littlefield held that the interest paidon public debt was indeed an ordinary expenseand calculated that Virginia had paid more than$18 million in interest prior to January 1, 1861.This determination, and the report overall, wasviewed by many as favoring the assertions ofVirginia in the dispute.

In January 1911, the matter again returned tothe Court where both sides presented theirarguments by way of briefs and oral argument. In

A MUCH DEBATED DEBT: THE VIRGINIA–WEST VIRGINIA DEBT CONTROVERSY

Frustrated with the inability to adjust the debt by

negotiation, Virginia concluded that a resolution to

the matter may only be reached in the Supreme

Court of the land.


its most noteworthy ruling to date in theproceeding, the Court calculated that the debt was$30,563,861.53 as of January 1, 1861. Regardingthe debt as general and assumed for the benefit ofthe entire state and not a particular region, theCourt declined to attempt a determination basedon the location of improvements and their cost.Instead, the Court adopted the master’s view thatan apportionment of the debt was best determinedby utilizing the estimated valuation of real andpersonal property in the states (excluding slaves)at the date of separation, June 20, 1863. Using thismethod, the Court calculated that West Virginiawas responsible for 23.5 percent of the debt, a sumof $7,182,507.46.7

While the March 1911 ruling of the Courtsignified noteworthy progress in the dispute, theissue of West Virginia’s liability to pay interest onthe debt remained open. In an expression ofoptimism, the Court directed the two statesconference in the hope of resolving the matter.

...this case is one that calls for forbearanceupon both sides. Great states have a tempersuperior to that of private litigants, and it isto be hoped that enough has been decided forpatriotism, the fraternity of the Union, andmutual consideration to bring it to an end.8

Unfortunately, such confidence wasmisplaced. Progress toward an eventual resolutionhad only just begun.

Per the Court’s direction, members of theVirginia commission appointed many years earlierbegan to plan for negotiations with theircounterparts from West Virginia. When WestVirginia failed to promptly organize a committeeto conference, Virginia filed a motion requestingthe Court to “determine all questions left open bythe decision of March 6, 1911.” While holding thatthe questions should be disposed of withoutexcessive delay, the Court ruled that West Virginiahad not attempted to shirk its responsibility andobligation.9

By 1913 the committees from both states hadbegun to conference. West Virginia argued that theCourt’s 1911 order to conference was for thepurpose of evaluating West Virginia’s share ofboth principal and interest, while Virginiabelieved the matter of interest was the only issueof note remaining unresolved. Frustrated with thelack of progress, Virginia petitioned the Court fora final decree in October 1913. However, a patientCourt remained unmoved and instead grantedWest Virginia additional time to attempt aresolution.10

When the matter again came before theCourt in June 1914, it granted West Virginia’srequest to file a supplemental answer to Virginia’soriginal 1906 complaint and explain how certaincredits should be applied in calculating its portionof the debt principal. While noting that suchaction by the Court was highly irregular, theopinion explained the unique nature of the case.The matter was once again directed to MasterLittlefield.11

In his report dated January 1915, Littlefieldnotified the Court that additional assets andinvestments, not previously disclosed, resultedin a net credit to West Virginia in the amount ofprincipal owed. He also determined that WestVirginia was indeed liable for interest on thedebt for more than a fifty year period from 1861to 1915. Largely following Littlefield’srecommendations, the Court ruled that WestVirginia’s total obligation was $12,393,929.50,with additional interest of 5 percent per annumuntil the entire debt was discharged.12

The Debt ResolvedIn 1916, Virginia petitioned the Court for a writ ofexecution against West Virginia for a moneyjudgment in connection with the Court’s priorruling. Determining that the West Virginialegislature had not met during the interveningperiod, the Court denied the petition.13

Two years later, following a long period ofinactivity by the West Virginia legislature, theCourt issued its ninth and final decision in thisprotracted dispute. In its opinion, the Court

asserted the finality of its June 1915 ruling, thatthe Court had the authority to enforce thejudgment, and that Congress had the power tosecure the enforcement of a contract betweenstates.14 After continued discussions with theVirginia commissioners, the West Virginialegislature passed legislation on April 1, 1919,providing for the payment of West Virginia’s shareof the debt. Under the legislation, the amountwould be settled by a combination of bondsspread out over the course of the following twentyyears and an initial cash payment. On April 18,


”In an expression of optimism, the

Court directed the two states

conference in the hope of resolving

the matter.


1919, a check for $1,062,869.16, representing thelargest single payment ever made by the state, waspresented to the attorney general of Virginia at aceremony between the two commissions. By 1939,West Virginia’s proportion of Virginia’s debt hadbeen liquidated. Finally, after nearly eight decades,countless meetings and years of litigation, thisunique and unparalleled controversy finally drewto a close.15

Endnotes:1 For a discussion of the issues surrounding the ori-

gins of the suit, see Randolph Harrison, WestVirginia’s Contributive Share of the Debt ofVirginia, 10 Va. L. Reg. 1055-1071 (1905).

2 Virginia v. W. Virginia, 220 U.S. 1, 25 (1911).3 Id. at 26.4 Virginia v. W. Virginia, 206 U.S. 290 (1907).5 Virginia v. W. Virginia, 209 U.S. 514 (1908).

6 CHARLES LITTLEFIELD, REPORT OF SPECIALMASTER (1910).

7 Virginia v. W. Virginia, 220 U.S. 1 (1911).8 Id. at 36.9 Virginia v. W. Virginia, 222 U.S. 17 (1911).10 Virginia v. W. Virginia, 231 U.S. 89 (1913).11 Virginia v. W. Virginia, 234 U.S. 117 (1914).12 Virginia v. W. Virginia, 238 U.S. 202 (1915).13 Virginia v. W. Virginia, 241 U.S. 531 (1916).14 Virginia v. W. Virginia, 246 U.S. 565 (1918).15 BIENNIAL REPORT OF THE TREASUER OF

WEST VIRGINIA FOR THE PERIOD ENDINGJUNE 30, 1920 (1920) at 9-10; and Rosewell Page,The West Virginia Debt Settlement, 5 Va. L. Reg.n.s. 257 (1919-1920). For a more extensive narra-tive and analysis of the entire debt controversy, seeElizabeth J. Goodall, The Virginia Debt Controversyand Settlement, 24 W. Va. Hist. 42, 296, 332 (1962-1963); 25 W. Va. Hist. 42, 102 (1963-1964) (pub-lished in five parts).


4 1 Adam I. Cohen, David J.Lender & G. Edward Kalbaugh,Electronic Discovery: Law andPractice § 1-2 (2013).

5 The Richmond Journal of Lawand Technology (University ofRichmond School of Law) pre-sents an annual Spring sympo-sium about e-discovery andpresents the papers athttp://jolt.richmond.edu/. See,e.g., E-Discovery In a World ofCloud Computing, SocialNetworking, and Data Hording(Spring 2011, issue 3).

6 Craig Ball, 11 E-Discovery Tips forJudges and Lawyers, LawTechnology News, Sept. 25, 2013(available athttp://www.law.com/jsp/lawtech-nologynews/PubArticleLTN.jsp?id=1202620757390&slre-turn=20130913234725) . Ball is atrial lawyer and certified com-puter forensic examiner who haswritten many publications on e-discovery, including E-DiscoveryWorkbook, ED: a Special Master’sPerspective, E-Mail in CivilDiscovery 2009, and Plaintiff ’sGuide to E-Discovery.

7 Id.8 Monica Bay, Jurists Spill the Beans

About E-Discovery, L. Tech. News,Oct. 16, 2013.

9 Id.10 Id.

E-Discovery continued from page 27 Call for Nominations

The Betty A. Thompson Lifetime Achievement AwardThe VSB Family Law Section recognizes and honors an individual who hasmade a substantial contribution to the practice and administration of family lawin the Commonwealth of Virginia. The award is presented at the Annual FamilyLaw Seminar in April at The Jefferson Hotel in Richmond, Virginia.

Family Law Service AwardThe VSB Family Law Section recognizes and honors an individual or organiza-tion who has consistently given freely of time, talent and energies to providevaluable services in advancing family, domestic relations or juvenile law inVirginia. The award is presented at the Annual Family Law Seminar in April atThe Jefferson Hotel in Richmond, Virginia.

VSB Family Law Section award nominations are due January 31, 2014. More information at http://www.vsb.org/site/sections/family

Award of Merit CompetitionThe VSB Conference of Local Bar Associations recognizes outstanding projectsand programs of Virginia bar associations.

Local Bar Leader of the YearThe VSB Conference of Local Bar Associations recognizes past and presentlyactive leaders in their local bar associations who have continued to offerimportant service to the bench, bar and public. The award serves as a continu-ing monument to the dedication of local bar leaders. It also serves to empha-size the importance of close cooperation between the Virginia State Bar andlocal bar leaders.

VSB Conference of Local Bar Associations nominations are due April 25, 2014.More information at http://www.vsb.org/site/conferences/clba/view/clba-awards


In honor of the Virginia LawFoundation’s 40th anniversary, wecelebrate some of Virginia’s most impor-

tant research tools, the continuing legal

education sources published by Virginia

CLE, the foundation’s nonprofit educa-

tional division. Virginia CLE offers semi-

nars and publications in many formats,

including live, on-site seminars, and pop-

ular online and USB flash drive seminars.

Each year Virginia CLE presents approxi-

mately eighty-five new seminars in all

practice areas, offered as live on-site pro-

grams, video on-site replays, webcasts, or

telephone seminars. In addition, the pub-

lisher offers more than 300 previously

presented programs for online viewing or

on USB flash drive.

This article focuses primarily on the desk-book sources that are the go-to materials in manysubject areas for Virginia practitioners.i The pub-lisher offers all these sources on CD, USB, ordownloads. The titles include the forms that prac-titioners savor as good starting points for theirclients’ needs. These forms account for many ref-erence desk success stories for practitioners whorely on Gouldman’s Virginia Forms and are disap-pointed when that group does not provide thespecificity they want. When I refer the patron to aCLE, the response consistently is, “I found exactlythe language I need.”

Virginia CLE also bundles at significant dis-counts related publications into “libraries.” Thefollowing descriptions outline the libraries andtheir contents:

Bankruptcy and Collections: With contributionsfrom leading bankruptcy practitioners and the

Virginia judiciary, Bankruptcy Practice in Virginia(2012) covers many topics ranging from pre-bankruptcy planning troubleshooting to how tosave a business through a reorganization. It alsoreviews the legislative history of the BankruptcyAbuse Prevention and Consumer Protection Actof 2005. Enforcement of Liens and Judgments inVirginia (6th ed. 2009) blends analysis of the law,practical advice, and forms to enable the practi-tioner to deal with creditor/debtor issues. Thenew edition of Debt Collection for VirginiaLawyers: A Systematic Approach (5th ed. 2013)guides practitioners from winning a case throughcollection of the debt with nearly 200 forms andpractical advice from experts in the field.

Business and Commercial Law: Choosing aVirginia Business Entity (3d ed. 2009) includes ahelpful chart comparing the attributes of C and Scorporations, general, limited and limited liabilitypartnerships, limited liability companies, andbusiness trusts and allows the practitioner tochoose among the different business forms todetermine the best client match. Limited LiabilityCompanies in Virginia (4th ed. 2012) covers topicsincluding formation, dispute resolution, taxation,use in estate planning and real estate, and termi-nation. It also addresses state and federal legisla-tive changes. Corporations and Partnerships inVirginia (2009) covers many topics, including for-mation planning, general corporate governanceand management, sales of assets, mergers andacquisitions, redemptions, and liquidations.

Civil Litigation: Civil Discovery in Virginia (3ded. 2009) moves through the preparation of acomprehensive discovery plan, possible ethicalproblems, and court expectations when the attor-ney faces a discovery obstacle. The forms discincluded with the handbook works with a docu-ment assembly system called Pathagoras. The Lawof Damages in Virginia (2d ed. 2008) outlines thefactors that determine the amount of recovery ina particular case. Topics include evaluating a case

Gail Zwirner is head ofaccess services at theUniversity of RichmondLaw School Library, whereshe also teaches legalresearch in the first yearlaw skills program. Prior tojoining the library faculty,she was senior referencelibrarian at Hunton &Williams LLP in Richmondand worked at law firms inWashington, D.C. andPhiladelphia. She is a con-tributing author and co-editor of A Guide to LegalResearch in Virginia.Zwirner is a formerPresident of the VirginiaAssociation of LawLibraries and co-chairs thepublications committee.She welcomes suggestionsfor article topics for theLaw Libraries column infuture issues [email protected].

Virginia CLE Sources: Important Practitioner Tools for Forty Yearsby Gail F. Zwirner


for damages, a judge’s decision to increase/decrease jury-awarded damages, punitive dam-ages, damages without proof of loss, and futurefinancial losses. Objections: Interrogatories,Depositions, and Trial (2013) covers objections ateach stage of litigation from discovery and voirdire to closing argument. Additionally, itaddresses written objections to discovery, motionsin limine, and pleas in bar. Appellate Practice –Virginia and Federal Courts (5th ed. 2012)addresses the needs of an appellate practitionerincluding preservation of issues for appeal, briefwriting, oral argument, and federal and statecourt procedure. It also addresses recent SupremeCourt of Virginia rules changes.

Criminal Law: Defending Criminal Cases inVirginia (9th ed. 2012) is a collaboration withthe Virginia Association of Criminal DefenseLawyers. It is designed to provide relevant statu-tory and case material, and also significant por-tions devoted to tactics and techniques. A Guideto the Rules of Evidence in Virginia contains thefull text of the new rules that became effective onJuly 1, 2012. The Boyd-Graves ConferenceEvidence Committee collaborated with VirginiaCLE on the guide and contributed updated cita-tions and descriptions of recent case law. TheGuide is Virginia CLE’s best-selling title. Trial ofCapital Murder Cases in Virginia (5th ed. 2013)addresses many unique issues related to this typeof litigation. The publication provides tables ofrelevant cases grouped by defendant’s surnameand citation, by degree of aggravation and mitiga-tion, by aggravator, and by Virginia Code section.A new section addresses issues related to the inef-fective assistance by counsel. Defense of SeriousTraffic Cases in Virginia (3d ed. 2012) includesanalysis of the different aspects of scientific evi-dence relied on to support the methods of proof.Mental Health Experts: Roles & Qualifications inCourt guides a practitioner through evaluatingexperts and understanding who is qualified to dowhat and when. It also includes trial preparationsources including voir dire questions for manykey types of mental health professionals, directand cross-examination samples, an acronymglossary, and professional association contactinformation.

Employment: Employment Law in Virginia (4thed. 2010) is a comprehensive overview of statu-tory, regulatory, and common law issues and is

offered with the companion Virginia EmploymentPractices and Forms (2007 & Supp. 2011). The lat-ter is intended to provide practical advice on theuse of more than thirty forms related to employerpolicies that become the subject of a dispute. Itincludes summaries of the revisions to the FairLabor Standards Act. Workers’ CompensationPractice in Virginia (8th ed. 2011) addresses notonly the issues for the workers’ compensationpractitioner, but also employment attorneys, per-sonal injury attorneys, and corporate counsel.

Estate Planning and Administration: Two titlesin this series were released with new editions thisyear. Estate Planning in Virginia (4th ed. 2013) is acore tool for new and experienced attorneys andwalks practitioners through the entire estate plan-ning process from client intake to completion ofrepresentation. It includes ready-to-use forms andaddresses recent developments in Federal andVirginia legislation and case law. Estate and TrustAdministration in Virginia (4th ed. 2013) tracesstep-by-step the probate process, including initialdecisions in the administration process, qualifica-tion of the personal representative, probate of thewill, and distribution of assets. Practitioners willalso benefit from the topics covering tax filingrequirements, federal and Virginia estate taxreturns, and the fiduciary income tax return. TheManual for Commissioners of Accounts (4th ed.2009) is the product of the Standing Committeeon Commissioners of Accounts of the JudicialCouncil of Virginia and includes a list of VirginiaCommissioners of Accounts and contact informa-tion. Elder Law in Virginia (2011) tackles themany challenges unique to this practice area witha special focus on Medicare and Medicaidstatutes. The last title in this library is a manage-ment tool published by the American BarAssociation entitled How to Build and Manage anEstates Practice (2d ed. 2008). It covers many top-ics, including client development, fee agreements,and how technology and ethics have changed thepractice area.

Family: Virginia Family Law: A SystematicApproach (3d ed. 2008 & Supp. 2013) is authoredby Professor Richard Balnave of the University ofVirginia School of Law. This two-volume titletackles all aspects of family law from the attorney-client relationship through divorce, discovery andtrial, custody, property, domestic violence, andinterstate divorce and support issues. It includes

VIRGINIA CLE SOURCES: IMPORTANT PRACTITIONER TOOLS FOR FORTY YEARS


more than 200 forms to support each stage of theproceedings. The supplement covers legislativeupdates including required content to custodyand visitation orders, enforcement of equitabledistribution awards, and garnishment of federalpensions. Juvenile Law and Practice in Virginia (3ded. 2009) covers the unique proceedings associ-ated with children and adolescents. It includesanalysis of factors such as child psychology anddevelopment, physical and medical aspects ofchild abuse and neglect, and substance abuse.Adoption Procedures and Forms: A Guide forVirginia Lawyers (5th ed. 2010) provides guidanceto the novice and experienced family law attorneywith a practical guide to the successful comple-tion of each type of adoption procedure.Negotiating and Drafting Marital Agreements (5thed. 2008) is one of the most heavily circulatingitems in our collection. The source has addedvalue with nearly 100 available on disc. In anothercollaborative effort with the ABA, Virginia CLEmakes How to Build and Manage a Family LawPractice (2006) available to Virginia practitioners.The author shares practical tips, techniques,forms, and checklists from an established special-ized legal practice.

Practice Management and Technology: A Guideto Legal Research in Virginia (7th ed. 2012) assistspractitioners with finding Virginia researchsources to comply with their ethical obligation forwell-prepared representation. The guide coversthe primary materials generated from all branchesof government, secondary sources and Fastcase,and includes coverage of internet and major ven-dor sources as well. The Virginia Lawyer: ADeskbook for Practitioners (4th ed. 2011 & Supp.2013) is an excellent source for new attorneys tounderstand the basics in many practice areas orfor the attorney whose regular client presents anunexpected topic to research. For example, itincludes general information on managing yourlaw office and professional responsibility, and alsotackles specific topics from “administrative law” to“representing debtors and creditors.” How to Startand Build a Law Practice by Jay Foonberg (5th ed.2004) is published by the ABA and made availableto Virginia practitioners through Virginia CLE®.It is a comprehensive guide to planning, launch-ing, and growing a successful practice.

Additionally, there are new chapters coveringmergers and dissolutions, opportunities createdby an aging population, non-lawyer consultants,

and globalization of legal practice. Fee Agreementsfor Virginia Lawyers (2004) is designed to assistthe practitioner in creating fee agreements thatare consistent with professional ethics require-ments. Forms are easily modifiable for a particu-lar situation and commentary clarifies thesubject areas.

Real Estate: Real Estate Transactions in Virginia(3d ed. 2012) is a comprehensive two-volumesource addressing issues ranging from the sim-plest purchase transactions to complex zoningissues. It includes checklists, forms and practicaladvice for many situations. Virginia ConstructionLaw Deskbook (2d ed. 2011) offers expert adviceon dealing with builders, owners, insurers, finan-cial institutions, subcontractors, and suppliers atall government levels – federal, state and localauthorities. The new edition includes a chapter onsubcontractors and suppliers and covers changesto the Virginia Public Procurement Act, use of thefederal E-Verify system to verify eligibility ofemployees on projects involving federal funds,and revision of Public Contracts title of the U.S.Code. Eminent Domain Law in Virginia (2012)covers proceedings at both the federal and statelevel, including expert advice on aspects such asvaluation and relocation assistance.

Virginia CLE sources are favorites among manypractitioners because of the expert analysis andthe specificity of supporting appendices andforms. It is well worth your time to familiarizeyourself with these titles and we look forward toforty more years of effective publications fromVirginia CLE.

Endnote:1 For a complete list of Virginia CLE® sources, con-

sult the Virginia CLE publications page athttp://www.vacle.org/Publications-c131.aspx.

VIRGINIA CLE SOURCES: IMPORTANT PRACTITIONER TOOLS FOR FORTY YEARS

”The Boyd-Graves Conference

Evidence Committee collaborated

with Virginia CLE on the guide and

contributed updated citations and

descriptions of recent case law.


Access to Legal Services

www.vsb.org

Blue Ridge Legal Services, theShenandoah and Roanoke Valleys’ non-profit legal aid society, recognized fourHarrisonburg attorneys for their extra-ordinary pro bono work during theHarrisonburg-Rockingham BarAssociation’s annual ProfessionalismSeminar held October 9.

Honored were Timothy E. Cupp,Thomas D. Domonoske, Laura A. Evans,and Robert C. Lunger. Mr. Cupp prac-tices law with Cupp and Cupp PC; Mr.Lunger practices law with Wharton,Aldhizer, and Weaver PLC; Mr.Domonoske and Ms. Evans are solopractitioners.

Blue Ridge Legal Services’ president,Dana J. Cornett, and its executive direc-tor, John E. Whitfield, presented awardsand recognized the volunteers for thequality of pro bono services they pro-vided to their clients and their dedica-tion to promoting equal access to justicefor local low-income residents who oth-erwise could not afford to obtain legalassistance. The pro bono awards presen-tation is a longstanding tradition recog-nizing particularly noteworthy pro bonocontributions of members of the

Harrisonburg-Rockingham BarAssociation.

Since 1982, Blue Ridge LegalServices and the Harrisonburg-Rockingham Bar Association have col-laborated in this pro bono referralprogram to provide free civil legal ser-vices to financially disadvantaged mem-bers of the community. Last year, thebar completed 138 pro bono cases forlow-income local residents, logging over937 hours of donated legal services con-servatively valued at over $227,000.Over the last eighteen months, nearlythree-quarters of the bar’s firms and solopractitioners were involved in pro bonorepresentation through the pro bonoreferral program.

Over the last three decades, this pro-gram has garnered statewide andnational acclaim, including the nationalLegal Services Corporation’s Rural ProBono Attorneys of the Year Award in1993, the Virginia State Bar’s LewisPowell Pro Bono award in 1998, theAmerican Bar Association’s prestigiousHarrison Tweed Award in 1995, and aPro Bono Service Award from the LegalServices Corporation in 2011.

As a partner-agency of the UnitedWay, Blue Ridge Legal Services providesfree civil legal assistance to low-incomeresidents of the Shenandoah andRoanoke Valleys through its staff andvolunteer attorneys across its service area.

Harrisonburg Attorneys Honored for Pro Bono Work

Award recipients (above, left to right) were Timothy E.Cupp, Laura A. Evans, and Thomas D. Domonoske. Also receiving an award was Robert C. Lunger (below).

The Greater Richmond Bar Foundation hosted its 2013 Pro Bono Clearinghouse Reception on October 24.Attending were (left to right) Scott C. Oostdyk, foundation vice president; Andy Nea, volunteer of the year;Justice S. Bernard Goodwyn of the Supreme Court of Virginia; and Leslie A. Haley, foundation president.


VSB NEWS < Noteworthy

www.vsb.org

At its meeting on October 4, 2013, inNorfolk, the Virginia State Bar Councilheard the following significant reportsand took the following actions:

Amendments to VSB Bylaws RegardingExecutive Committee SizeThe motion to amend the Bylaws ofCouncil, Part II, Article VI, “ExecutiveCommittee,” Sec. 1, changing the totalnumber of members from thirteen tosixteen failed by a vote of 28 to 28.

Rule ChangeCouncil unanimously approved amend-ments to Rules of Professional Conduct

5.5 and Comments 5 and 13 regardingthe temporary practice of foreign lawyers.

Paragraph 13-13 Amendments Council approved by unanimous votethe proposed amendments to Paragraph13-13 regarding participation and dis-qualification of counsel.

Clients’ Protection Fund Limits andAssessmentCouncil approved 48 to 5 seeking anamendment Va. Code § 54.1-3913.1 toauthorize the Supreme Court to con-tinue the $25 CPF assessment beyondJune 30, 2015.

Council voted 44 to 12 to refer theproposed per-claim limit increase to$100,000 to the CPF Board for consider-ation of a gradual phase-in.

Virginia Code § 2.2-1839 AmendmentCouncil approved by unanimous votepursuing the amendment of Va. Code § 2.2-1839 to include a risk managementplan for VSB pro bono volunteers.

YLC Website and Social Media Policy Council approved by unanimous votethe proposed YLC website and socialmedia policy.

Highlights of the October 4, 2013, Virginia State BarCouncil Meeting

Edward L. Weiner, founder and seniorpartner at Weiner Spivey & Miller PLCin Fairfax, is the new president-electdesignee of the Virginia State Bar.

Weiner will take over as presidentfor the 2015–16 year. He will followKevin E. Martingayle, who will be presi-dent for 2014–15 after the term ofSharon D. Nelson ends.

Weiner is president of the FairfaxBar Association. He also is a past presi-dent of the VSB Conference of Local BarAssociations. In 2012 he was appointedto serve on the Virginia Supreme Courtprofessionalism faculty.

Weiner founded Jazz 4 Justice, afund-raising model to be used by localbar associations and university musicdepartments to benefit their programs,in 2000. Numerous Virginia universitieshave joined this partnership betweeneducation, music, and law. This eventhas received an award from the

American Bar Association, as well as anaward from the VSB for being an innov-ative fundraising program.

He is a graduate of the StateUniversity of New York at Binghamton,and received his J.D. from the Universityof Richmond and his LL.M inInternational Law from GeorgetownUniversity Law Center.

Weiner is a member of the board ofdirectors of the George MasonUniversity Center for the PerformingArts, serves on the board of directors ofthe University of Richmond Law SchoolAlumni Association, and is the host ofan annual Law Day celebration that ben-efits the Fairfax Law Foundation’s probono programs.

His practice areas are personalinjury and medical malpractice.

He will become president at theVSB annual meeting in June 2015.

Weiner Is President-elect Designee of the VirginiaState Bar

Edward L. Weiner


Noteworthy > PEOPLE

www.vsb.org

Robert Abady AdesSpringfield

March 1948 – September 2013

F. Keith AdkinsonHartsville, TennesseeMay 1944 – June 2013

John Taro AkiyamaReston

October 1969 – December 2012

Robert Lee AstonElberton, Georgia

August 1924 – September 2013

Warren McElroy BallardCatonsville, Maryland

December 1910 – July 2013

Franklin Robert BlattHarrisonburg

April 1947 – October 2013

William James Bradley IIINew York, New York

March 1960 – March 2013

John M. BraswellAlexandria

January 1955 – July 2013

Kenneth Paul BucciCharlottesville

July 1968 – August 2013

Gary Lee CardwellCollinsville

September 1943 – August 2012

Rexford R. CherrymanHartfield

October 1925 – July 2013

Thomas W. diZeregaUpperville

September 1926 – July 2013

Robert C. Elliott IIColonial Heights

August 1943 – October 2013

Joseph Hugh ErosFort Richardson, ArkansasApril 1971 – June 2013

Frank Morris FeibelmanRichmond

July 1948 – August 2013

Carter Bruce FouldsWinchester

September 1956 – June 2013

Douglas K. FrithMartinsville

September 1931 – October 2013

Richard A. GrahamChevy Chase, Maryland

November 1945 – June 2013

Valerie Nichole HaleRoanoke

April 1975 – August 2013

Thomas J. HarriganSun City West, Arizona

May 1933 – September 2013

G. Duane HollowayWilliamsburg

January 1931 – December 2012

Robert Alan JonesLas Vegas, Nevada

November 1940—September 2013

John L. Krajsa Jr.Allentown, Pennsylvania

December 1946 – November 2012

Alexander Nicholas LammeMcLean

September 1974 – April 2013

Lee M. ModjeskaRaleigh, North Carolina

September 1932 – January 1996

John E. O’BrienGanesville

January 1932 – October 2013

Robert John PatchAlexandria

November 1926 – September 2013

Ronald George PrecupAlexandria

June 1942 – May 2013

Stacy Suzanne RiordanArlington

February 1966 – August 2013

Roger Lewis TuttleMidlothian

November 1930 – September 2013

Christoph WalkerSacramento, California

September 1961 – January 2013

Mark Bridger WarlickNorfolk

April 1955 – July 2013

In Memoriam

Local andSpecialty BarElectionsAsian Pacific American Bar Associationof Virginia, Inc.Quynh-Trang Duc-Thuy Mary Nguyen, President

Shani Rosanne Else, Vice PresidentLynette Teresa Kleiza, SecretaryMatthew William Lee, Treasurer

Hill Tucker Bar AssociationStacy Elizabeth Lee, PresidentMyron Demarcus McClees, Vice President

Crystal Garrett Foster, SecretaryDevika Edele Davis, Treasurer

Virginia Creditors Bar AssociationLt. David Benjamin Ashe, PresidentPhilip Matthew Roberts, Vice PresidentWilliam Douglas Moore III, SecretaryGeorge Ryder Parrish, Treasurer


ET AL. < Noteworthy

www.vsb.org

In January, Professor A. BenjaminSpencer, chair of the Virginia State BarSection on the Education of Lawyers,established a Task Force on LegalWriting chaired by Senior JusticeElizabeth B. Lacy. The need to addressthe problem of inadequate legal writingbecame apparent during the 20thAnniversary Conclave on the Educationof Lawyers held in Charlottesville inApril 2012.

The task force was appointed andbegan its work in January 2013. InSeptember the task force produced itsreport recommending that the sectionsupport efforts to assess and improvelegal writing skills during law schooland later in practice, support efforts toinclude evaluation of legal writing as acomponent of the bar exam, andencourage CLE providers to offer legalwriting seminars. The task force madethe following observations and recom-mendations for section consideration:

Support Efforts of Law SchoolsMost legal writing faculty agree thatstudent writing skills in general havedeclined in recent years. The Virginia lawschools are increasing resources devotedto improving writing skills. A number ofapproaches have emerged to deal withthe problem, including an earlier andcontinuing focus on writing and com-munication skills by including writing

skills in grading standards. Some lawschool faculty members have suggesteda writing component be including inthe bar exam to reinforce the impor-tance of clear writing. The task forcerecommended the section provide anongoing environment for legal writinggroups from all law schools to exchangeideas on best practices and other aspectsof legal writing education. The taskforce also concluded that it should sup-port efforts to identify measurements toassess writing skills during law schooland later in practice.

Expanding the Bar ExamThe task force recommended that thesection should support efforts to includeevaluation of legal writing as a compo-nent of the bar exam. As stated in thereport, Virginia Board of Bar ExaminersSecretary Treasurer W. Scott Street IIIindicated he was interested in workingwith the section to find an exam format,other than the Multistate PerformanceTest, to address legal writing issues. Barexaminers do not now grade based onthe quality of writing and they believetime constraints and grading parameterswould make such a standard impossible.Thirty-seven states, Washington, DC,and three U.S. territories—though notVirginia—use the MultistatePerformance Exam, which has a writingcomponent.

Law FirmsAlthough the quality of legal writing wasa concern expressed by both lawyers andjudges at the 2012 Conclave, few lawfirms responded to a survey sent tothem by the task force. The few that didrespond said there was little concernwith legal writing skills.

JudgesSome judges said they marked up defi-cient pleadings and sent them back tothe drafting attorney. Most said that ifthe poor writing was not in compliancewith the applicable rule in a pleading,an order rejecting the pleading wouldbe entered.

CLE Providers and ProgramsThe task force recommended that thesection should encourage CLEproviders to offer legal writing semi-nars. A survey of CLE providers foundthat very few offer a CLE for legal writ-ing. The task force supported theproposition that the cachet for teachingin the Professionalism Course mightcarry over to teaching an intensive writ-ing program, and that the section couldassist with identifying lawyers, judges,and professors to serve as faculty mem-bers for such a program.

Task Force Offers Recommendations to Improve Legal Writing

VSB TECHSHOWSave the Date: May 19, 2014

The Virginia State Bar is sponsoring a VSB TECHSHOW on May 19, 2014, at the Richmond Convention Center. The stellarfaculty members are all nationally-known veteran ABA TECHSHOW speakers who will offer a full day of legal technologyCLE. Not only is the conference FREE, every lawyer’s favorite price, but lunch is included in the bargain. So mark your calen-dars now and watch for registration information to appear shortly.


Noteworthy > ET AL.

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The Supreme Court of Virginia hasopened an exhibit titled “The Bar atWork: 125 Years of Building the LegalProfession in Virginia, 1888–2013” onthe third floor of the Supreme Courtbuilding at 100 N. 9th St., across fromthe State Capitol.

This exhibit highlights the historyof the Virginia Bar Association from itsorganization in 1888 and also com-memorates the 75th anniversary of theVirginia State Bar.

The VSB was formed after theVirginia General Assembly authorized amandatory, regulatory bar in 1938. Themain issue before the bar then was thetask of defining the practice of law.

Today, Virginia is one of only threestates with a mandatory and a separatestate-wide voluntary bar.

For 125 years, Virginia lawyers haveexerted a profound influence on thedevelopment of the legal system inVirginia through their participation inbar associations. From 1890 to 1910,the bar led the way in raising therequirements for entry to the profes-sion; however, it also created barriersfor women, minorities, and foreignborn attorneys that were not removeduntil the twentieth century.

Many of the items and documentsdisplayed were culled from the Supreme

Court of Virginia Archives, housed inthe law library on the second floor.

The exhibit, which will run throughat least August 2014, is open to the pub-lic, but people are asked to call the lawlibrary at (804) 786-2075 to make anappointment. Exhibit hours are8:15–4:45 on weekdays.

* * *

To read a profile of Chief JusticeCynthia D. Kinser, and for an article onthe Virginia State Bar and Virginia BarAssociation, see the December issue ofVirginia Livingmagazine.

Supreme Court Exhibit Highlights the History of theVSB and VBA

One of the premier projects of the VSB’sSenior Lawyers Conference is to con-tinue the late John Tate’s plan to plantmore trees in Virginia. In the last twoyears, the conference has planted morethan 7,500 trees plus an Honor Tree inCapitol Square in Richmond for the lateChief Justice Leroy Hassell Sr.

Make your contribution to John M.Oakey, Treasurer, c/o McGuireWoodsLLP, 901 E. Cary St., Richmond, VA23219.

If you are aware of any person ororganization that would like trees(they’re free), contract Bruce E.Robinson, [email protected] should be placed by January 3,2014, and the trees will be delivered to beplanted in late February or early March.

Trees for Virginia Save the Date

Virginia State Bar Young Lawyers Conference12th Annual Celebration of Women and Minorities

in the Legal Profession Bench Bar Dinner

Honoring the newly elected and elevated women and minority member of the Virginia judiciary.

Keynote SpeakerJustice Elizabeth A. McClanahan

Monday, February 10, 2014The Bull and Bear Club, Richmond

For more information visit www.vayounglawyers.com

Have You Moved?To check or change your address of record with the Virginia State Bar, go to the VSBMember Login at https://member.vsb.org/vsbportal/. Go to “Membership Information,”where your current address of record is listed. To change, go to “Edit Official Address ofRecord,” click the appropriate box, then click “next.” You can type your new address,phone numbers, and email address on the form.

Contact the VSB Membership Department ([email protected] or (804) 775-0530) with questions.


Consultus Electronica

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The Computer Fraud and Abuse Act(CFAA) is a computer trespass statutethat has been called “one of the broadestfederal criminal laws currently on thebooks.”1 Congress enacted the CFAA in1984 to criminalize the hacking ofcomputers in connection with nationalsecurity, financial records, and govern-ment property.2 But the CFAA has beenexpanded a number of times since then.3

For example, in 1994 the statute wasexpanded to allow private entities toassert a civil cause of action and obtaincompensatory damages.4 In 1996, theCFAA was further amended to expandthe class of protected computers to in-clude any computer “used in interstate orforeign commerce or communication.”5

In the space of a dozen years, the scopeof this criminal statute has gone from alimited set of protected computers topossibly every computer in the UnitedStates connected to the Internet.6

The CFAA prohibits “access with-out authorization” and “exceed[ing]authorized access” to a protectedcomputer.7 But the CFAA has beencalled “remarkably vague” on this point.8

The Story of Aaron SwartzCalls to reform the CFAA have increasedsignificantly after the tragic death ofAaron Swartz.

At age 14, Aaron was working withleading technologists to craft openstandards such as the Really SimpleSyndication specification for sharinginformation on the Internet.9 He thenhelped Lawrence Lessig with CreativeCommons, a company that promotes theuse of simple, standardized copyrightlicenses that give the public permissionto share and use creative works.10 At age19, Swartz was a founding developer ofReddit, a widely-used social news websitewhere users can post news links and voteon them.11 Swartz later became a

political activist for Internet freedom andsocial justice issues, and formed theadvocacy group Demand Progress.12

In late 2010, Swartz allegedlyattempted to access and rapidlydownload a large number of academicarticles from JSTOR (or JournalStorage), a nonprofit organization thatprovides a searchable database ofdigitized articles archived from academicjournals.13 Libraries and universities paya subscription fee for access to JSTOR,where its Terms of Service prohibitdownloading or exporting documentsfrom JSTOR using automated computerprograms.14 JSTOR also uses technicalmeasures to prevent such automateddownloading.15

JSTOR declined to pursue legalaction against Swartz after he turnedover his hard drives which contained 4.8million JSTOR documents.16 But thefederal government charged Swartz withviolations of the CFAA.17

A computer expert for the defenseasserts that Swartz did not “hack” theJSTOR website under any reasonabledefinition—Swartz did not useparameter tampering, break aCAPTCHA gate, or do anything morecomplicated than automate a processthat downloads a file in the samemanner as clicking “Save As” from abrowser.18 Whether this defense wouldhave been successful is questionablebecause the CFAA prohibits more thanjust traditional hacking.

With criminal charges hanging overhim for a year-and-a-half, Swartz wasoffered a plea bargain requiring a felonyconviction, under which the governmentwould recommend a six-month prisonterm (although his defense counsel couldargue to the judge for probationinstead).19 The government would notback off its demand for jail time.20 Faced

with this dilemma, at age 26, Swartz tookhis own life in January 2013.21

Aaron’s LawIn the wake of Swartz’s death, there havebeen several proposals to amend theCFAA. In June 2013, Rep. Zoe Lofgren,D-CA, introduced a bill titled “Aaron’sLaw Act of 2013” to reform the CFAA.22

The bill would eliminate the “exceedsauthorized access” language from thestatute and define “access withoutauthorization” to mean obtaininginformation on a protected computerthat the accesser lacks authorization toobtain by circumventing one or moretechnological measures that exclude orprevent unauthorized individuals fromobtaining or altering that information.23

“The proposed changes make clear that the CFAA does not outlaw mereviolations of terms of service,” butwould prohibit “bypassing technologicalor physical measures via deception (asin the case with phishing or socialengineering), and scenarios in which anauthorized individual provides a meansto circumvent to an unauthorizedindividual (i.e., sharing logincredentials).”24

Notwithstanding the bipartisan sup-port of Rep. Darrell Issa, R-CA, and Sen.Ron Wyden, D-OR, it may be a lengthypolitical journey for these legislative pro-posals.25 Congress rarely scales backcriminal laws,” according to Tim Wu, aprofessor at Columbia Law School.26

Proposals to narrow the scope of a crim-inal statute often also include provisionsfor increased penalties to avoid a soft-on-crime label.27 “To be successful, (theeffort to pass Aaron’s Law) will likelytake substantial time and require sus-tained and intense support from all ofyou,” according to Lofgren.28 Time will

The CFAA and Aaron’s Lawby James Juo


Consultus Electronica

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tell whether momentum will be sus-tained for Aaron’s Law to become law.

Endnotes:1 Paul J. Larkin Jr., “United States v. Nosal:

Rebooting the Computer Fraud andAbuse Act,” 8 SETON HALL CIR. REV.257, 261 (2012); see also JenniferGranick, “Towards Learning fromLosing Aaron Swartz,” THE CENTER FORINTERNET AND SOCIETY (Jan.14, 2013,4:37 PM), https://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz. (“Another way to look atthe CFAA, is that it protects the box”).

2 Technically speaking, the CFAA was a1986 amendment to 18 U.S.C. § 1030,but the common convention is to referto Section 1030 as a whole as the CFAA.Orin S. Kerr, “Vagueness Challenges tothe Computer Fraud and Abuse Act,” 94MINN. L. REV. 1561, 1561 n.2 (2012).The original 1984 statute was called theComprehensive Crime Control Act(CCCA). Id. at 1563-64.

3 Id. at 1566. 4 Id. (citing 18 U.S.C. § 1030(g)).5 Id. at 1567–68 (citing 18 U.S.C.

§ 1030(e)(2)). 6 Id. at 1571 (“Perhaps the only identifi-

able exclusion from the scope of pro-tected computers is a ‘portable handheld calculator.’”)

7 See 18 U.S.C. § 1030(a)(2); see alsoJennifer Granick, “Thoughts on OrinKerr’s CFAA Reform Proposals: A GreatSecond Step,” The Center for Internetand Society (Jan. 23, 2013, 9:43 PM),https://cyberlaw.stanford.edu/blog/2013/01/thoughts-orin-kerrs-cfaa-reform-proposals-great-second-step(“Historically, the CFAA partitioned theworld of computer criminals into twocamps, outsiders who ‘access withoutauthorization’ and wayward insiderswho abuse their position of trust to‘exceed authorized access’ and obtaininformation they were not entitled to.”)

8 “Investigating and Prosecuting 21stCentury Cyber Threats: Hearing BeforeUnited States House of RepresentativesSubcommittee on Crime, Terrorism,Homeland Security and Investigations,”113th Cong. 1 (Mar. 13, 2013) (writtenstatement of Orin S. Kerr, Fred C.Stevenson Research Prof., GeorgeWashington Univ. Law School), availableat http://www.volokh.com/wp-content

/uploads/2013/03/KerrCFAATestimony2013.pdf.

9 Tim Carmody, “Memory to Myth:Tracing Aaron Swartz Through the 21stCentury,” THE VERGE (Jan. 22, 2013,12:30 PM),http://www.theverge.com/2013/1/22/3898584/aaron-swartz-profile-memory-to-myth.

10 Lawrence Lessig, “Prosecutor as Bully,”LESSIG BLOG, V2 (Jan. 12, 2013),http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully.

11 Larissa MacFarquhar, “Requiem for aDream,” THE NEW YORKER (Mar. 11,2013), http://nyr.kr/ZUnMMv.

12 See also Justin Peters, “The Idealist:Aaron Swartz Wanted To Save theWorld. Why Couldn’t He Save Himself?”SLATE (Feb. 7, 2013, 9:47 PM),http://slate.me/YevwGC.

13 Superseding Indictment at 1, UnitedStates v. Swartz, No. 11-cr-10260, Dkt.No. 53 (D. Mass. Sept. 12, 2012).

14 Id. at 2. The subscription fees are sharedwith the publishers who hold the origi-nal copyrights. Id.

15 Id. 16 See Lessig, supra note 10 (“JSTOR fig-

ured ‘appropriate’ out: They declined topursue their own action against Aaron,and they asked the government to dropits.”)

17 Press Release, United States Attorney’sOffice for the District of Massachusetts,“Alleged Hacker Charged with StealingOver Four Million Documents fromMIT Network” (July 19, 2011),http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html.

18 Alex Stamos, “The Truth About AaronSwartz’s ‘Crime’,” UNHANDLEDEXCEPTION (Jan. 12, 2013),http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/.

19 MacFarquhar, supra note 11; see alsoJennifer Granick, “Towards LearningFrom Losing Aaron Swartz: Part 2,” TheCenter for Internet and Society (Jan.15,2013, 3:54 PM), https://cyberlaw.stan-ford.edu/blog/2013/01/towards-learn-ing-losing-aaron-swartz-part-2(discussing the “great practical risk” inpleading to a felony).

20 Peters, supra note 12; see also Lessig,supra note 2 (“[T]he question this gov-ernment needs to answer is why it wasso necessary that Aaron Swartz be

labeled a ‘felon.’ For in the 18 months ofnegotiations, that was what he was notwilling to accept.”)

21 John Schwartz, “Internet Activist, aCreator of RSS, Is Dead at 26,Apparently a Suicide,” N.Y. TIMES (Jan.12, 2013), http://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html?_r=0.

22 Proposed “Aaron’s Law Act of 2013,”available at http://www.lofgren.house.gov/images/stories/pdf/aarons%20law%20-%20lofgren%20-%20061913.pdf.

23 Id.24 Section-by-Section Summary, available

at http://www.lofgren.house.gov/images/stories/pdf/aarons%20law%20summary%20-%20lofgren%20-%20061913.pdf.

25 Tony Romm, “After Activist AaronSwartz’s Death, a Tough Slog for Aaron’sLaw,” POLITICO (Feb. 8, 2013, 4:48 AM),http://politi.co/XVjnau.

26 Tim Wu, “Fixing the Worst Law inTechnology,” THE NEW YORKER NEWSDESK (Mar. 18, 2013),http://nyr.kr/YCubsS.

27 See Orin Kerr, “Recent Developments—Both in the Courts and in Congress—on the Scope of the Computer Fraud andAbuse Act,” THE VOLOKH CONSPIRACY(July 30, 2012, 11:35 PM), http://www.volokh.com/2012/07/30/recent-developments-both-in-the-courts-and-in-congress-on-the-scope-of-the-computer-fraud-and-abuse-act/.

28 Romm, supra note 25.

James Juo is a partner at Fulwider Patton LLP, aLos Angeles law firm specializing in intellectualproperty including patents and trademarks. Heis a registered patent attorney and holds a B.S.in electrical engineering. He previously workedas a patent examiner at the United States Patentand Trademark Office. He received his J.D. fromGeorge Washington University. He may be con-tacted at [email protected].


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Trayvon Martin

Your writer, Clarence Dunnaville(Virginia Lawyer, October 2013),believes that the Trayvon Martin casehad important implications for ourbar. And, he is correct.

If any homicide case can be calledroutine, the killing of Trayvon Martinwas routine; an open and shut case ofself-defense. But, the Florida justicesystem succumbed to pressure gener-ated by the likes of Al Sharpton and hiscohorts who always stand ready toexploit the misfortunes of others toadvance their socio/political agenda. Ihope that we never witness a perver-sion of justice such as that in Virginia.

Mr. Dunnaville’s criticism of thedefense strategy is ill-founded as well.Surely, it is within the duty of a crimi-nal defense team to question the con-duct and character of a shooting victimwithout being charged with racism.Surely, too, it was their responsibility tochallenge the incoherent, contradictoryand unpersuasive testimony of RachelJeantel, Martin’s friend, without beingaccused of “disrespecting” her onaccount of her race.

And, yes, there were press state-ments which “fueled the flames of racialanimosity.” But they were made by thebusloads of agitators who came toFlorida from all over the country.

Of course, we must take Mr.Dunnaville at his word that he and hisfamily have suffered because they areAfrican American. All I know is, as amember of our bar for forty-sevenyears, that racial discrimination haslong since disappeared from our profes-sion and from the largest part of civilsociety as a whole.

Thomas P. DuganColumbus, OH

Letters

Send your letter to the editor to:

[email protected]; fax: (804) 775-0582;

or mail to:

Virginia State Bar, Virginia LawyerMagazine

707 E. Main Street, Suite 1500, Richmond, VA 23219-2800

Letters published in Virginia Lawyermay be edited for length and clarity and

are subject to guidelines available at http://www.vsb.org/site/publications/valawyer/.

A Note from the Editors:We Want Your IdeasThe December 2013 issue of Virginia Lawyer is an example of what our maga-zine has been and hopes to be. Like every issue, it includes a number of articleswith a pre-arranged focus—in this case, law libraries and librarians—and sev-eral other features, including a special section celebrating the 40th anniversary ofthe Virginia Law Foundation. It also includes an unsolicited article by JudgeJoseph A. Migliozzi Jr. discussing the value of mental health courts in Virginia,and another by James Juo about the Computer Fraud and Abuse Act and Aaron’sLaw. While we didn’t ask for those articles, they were too good to pass up.

It’s that too-good-to-pass-up quality that got those stories published inVirginia Lawyer. We know there are many other articles out there by and aboutthe members of the Virginia State Bar that are just looking for a place to appear.We would like to open up our magazine to those articles.

However, we also know that the solicited articles are equally valuable. Withthat in mind, we intend to continue our practice of publishing theme issues, butbecause of space and money considerations, we may ask for fewer theme articlesin future issues.

Upcoming theme issues are planned on family law, the Senior LawyersConference, trusts and estates, and construction law.

Look for those in 2014.We want Virginia Lawyer to serve our members. We will continue to edu-

cate, inform, and even entertain our readers. We might publish debates amongtwo or more of our members on an issue. We might print interesting profiles byand about our members. A lawyer might want to explore a controversial orevolving point of law. We might get an article from a lawyer just returned fromdoing pro bono work in another country. We might feature some of the serviceswe offer at the VSB or some of the work done by our committees.

We want your ideas. If you have an idea for an interesting article on a law-related issue that is not tied too closely to the daily news—we are, after all, aperiodical, not a daily—please let us know about it. Send a note to EditorRodney A. Coggin at [email protected] or Assistant Editor Gordon Hickey [email protected].


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In 2012, approximately 770,000 felonycriminal offenses were committed bypeople diagnosed with a mental illness.1

This figure does not account for thethousands of minor criminal infractionsor misdemeanors committed each dayby people afflicted with similar, if notmore severe, mental illnesses. Considerthe hypothetical story of Jerry.

Jerry is a 45-year-old, Axis 12, para-noid schizophrenic who lives alone in anapartment, almost entirely funded by hismonthly social security disabilityincome. He has, in the past, worked witha local community services caseworkerto assist with the administration of hismedication and his adjustment intocommunity-based housing.

Jerry has lived in a residential, multi-unit apartment building for three years.He has deliberately rigged his apartmentwith devices to make him feel safe, buteach apparatus constitutes a separate firecode violation that his landlord hasrepeatedly insisted he remove. Finally,during a regular city code inspection ofthe eight-unit apartment building, Jerry’sunit is cited for ten violations, all of whichare class-one misdemeanors chargeddirectly to the tenant and each carryingup to twelve months in jail. Jerry panics,but refuses to make any changes. Whenapproached by law-enforcement officerswho attempt to execute service of thenotice of violations, Jerry causes a publicdisturbance in the building and tem-porarily barricades himself in his apart-ment. He is subsequently apprehendedwith minor force, taken directly to amagistrate where he is charged with anadditional offense of obstructing justiceand held without bond. At his arraign-ment, Jerry is appointed an attorneywho immediately recognizes a potential

competency issue and requests a court-ordered evaluation.

There are many cases like Jerry’sthat appear before misdemeanor courtsin this country each day. In 2011, theGeneral District Court in Norfolkbecame one of only three misdemeanorcourts in Virginia3 to redirect all defen-dants with mental illnesses to a mentalhealth docket (MHD). This article iden-tifies a model for misdemeanor courts toorganize dockets exclusively for peoplewith mental health disorders in an effi-cient, cost-effective manner that utilizesservices that typically already exist inevery urban jurisdiction.

Summary of Mental Health Courts andTheir Development in VirginiaAs a result of de-institutionalizing thementally ill across the nation in the1960s, many of those individuals nowaimlessly wander city streets, sleep inparks, and often end up in local jails.4 In1999, the National Institute of Justiceestimated that “of the 10 million peoplearrested and admitted to jail each year,13% suffer from severe mental disabili-ties,”5 contrasted with only “2% in thegeneral population”6 who suffer mentalillness. In 2006, a Special Report by theBureau of Justice Statistics estimated thatmore than 17 percent of the nationalprison population was mentally ill.7 Ofthis population, 10 percent were incar-cerated in state prisons, 1 percent in fed-eral prisons and approximately 6 percentin local jails.8 In 2012, New York Cityreported that 24 percent of its prisonpopulation had mental health needs,with the largest segment of that popula-tion under the age of 25.9

The younger age of inmates coupledwith recidivism suggests that local jails

will house more mentally ill inmatesover longer periods. Our jails have, effec-tively, become the new state institutionsfor the mentally ill. Because jail cellswere never designed to care for the men-tally ill and because jail personnel arenot trained mental health caretakers, theresult is often no different than what wasonce considered cruel and inhumane.

Fortunately, some progress has beenmade to change this bleak situation. Thefirst nationally recognized Mental HealthCourt began in Broward County Floridain 1997. Subsequently, President Clintonsigned into law the Mental Health CourtsBill10 in 2000 to establish a nationalmental health court system, offeringnonviolent, felony offenders with severemental illnesses an opportunity to par-ticipate in a voluntary, supportive, andstructured program designed to transi-tion the inmate back into society.

The advent of these “problem-solv-ing” courts helped to alleviate some ofthe burdens placed on the criminal jus-tice system, but most of the mentally-illwere still falling through the cracks forone reason: Most people in need werecommitting misdemeanors, not felonies.Consequently, some states started spe-cialty misdemeanor dockets to identifyand assist the mentally ill in local jails.Unlike in mental health courts, a misde-meanor inmate does not volunteer toparticipate in the program. During hisintake process or during his stay in jail,an inmate who suffers a mental illnessmay be diverted to the MHD by the courtor upon motion of a lawyer. Once on thedocket, the case is treated like any otherwith respect to ensuring a timely andappropriate adjudication of the offensescharged—with the exception that par-ticular attention is given to the mental-

An Effective Model for Misdemeanor Courts and theMentally Ill Defendantby The Honorable Joseph A. Migliozzi Jr.


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health diagnoses. The court may orderan evaluation for competency, assurethat previously prescribed medicationsare available, and order access to a com-munity-based support service to assistthe transition of the mentally ill inmatethrough the criminal justice system.

The Mental Health DocketBeginning in September 2011, the NorfolkMHD has been called to order at 2:00p.m. on the first and third Wednesday ofeach month. Defendants who meet theunique criteria to be placed on thisdocket11 no longer languish in jail await-ing medications, psychiatric treatment,or sentencing for their misdemeanorviolations. Similarly, the community isassured that the revolving door of recidi-vism among mentally ill defendants isdeliberately monitored by the court andby the various agencies that serve thejudicial system.

Making such a docket work requiresthe cooperation of several large entities.The relationship between the sheriff ’sdepartment, which operates the localjail, and the court is most critical. Foryears, jail officials recognized that theircells were becoming long-term holdingfacilities for the mentally ill, drainingvaluable resources needed for otherinmates.12 Similarly, the court noticedthat with a random rotation of judges,no time limits for the return of compe-tency evaluations, and little order to thearray of mental health services availablewithin the community, this specific seg-ment of the jail population may havebeen held in custody for longer peri-ods.13 Thus, a few short organizationalmeetings between jail representativesand the Norfolk General District Courtresulted with the identification of a clearsolution—to exercise the statutoryauthority already provided to the chiefjudge to organize the docket in such amanner that “allows the court to operateefficiently.”14

At each MHD, at least one represen-tative is present from the adult commu-nity supervision office (probation), the

local community services board, thePACT team (Program of AssertiveCommunity Treatment), the jail’s mentalhealth service provider, the VeteransAdministration, the public defender’soffice, the commonwealth attorney’soffice, and various other agencies thatprovide independent services through-out the city. A written docket is preparedtwo weeks in advance, listing all defen-dants who are pending dispositions andwill be in need of services. Each entityrepresented at the MHD recognizes thatsimply allotting four hours each monthto attend this docket not only serves theneeds of the mentally ill and the com-munity, but also furthers their own fun-damental mission of service.

Most importantly, the MHD pro-vides an isolated and dignified opportu-nity for defendants’ family members tobe present and to offer backgroundinformation and suggestions to the courtin an effort to determine an appropriatesentencing disposition. In fact, it can besaid that family members in attendanceprovide the greatest service to the MHDand can do so without the embarrass-ment of seeing their children or siblingsparaded before a packed courtroom ofless sensitive citizens.

In the end, each representative ispresent to provide recommendations oroptions to the court. The court is thentasked, as in any other case, to resolvecharges consistent with the law and todiscourage similar future behaviorthrough its sentencing dispositions.However, in these unique cases, thecourt recognizes the additional burdenof providing an incentive for defendantsto continue their prescribed medicationregimen, maintain a stable residence, andfind the necessary out-patient servicesbefore returning to their communities.

By the time Jerry first appearedbefore the MHD, two weeks after his ini-tial arrest and arraignment, a compe-tency evaluation was already preparedand provided to defense counsel and thecourt for review. Jerry was diagnosed assuffering from severe paranoid schizo-

phrenia and bi-polar disorders, yet wascapable of understanding the nature andconsequences of his behavior and therole of the court. Jerry had a life-longhistory of mental illness, but as long ashe maintained his anti-psychotic med-ications he was able to function inde-pendently in society. Thus, theevaluating psychologist determined thatJerry was competent to stand trial for theten misdemeanor fire-code violations.15

After reviewing the report withJerry and discussing with him the factsof the case, Jerry’s court-appointedattorney proposed to the prosecutor andthe court that a finding under advise-ment was appropriate, allowing Jerry tobe released on bail and giving him anopportunity to remedy the violationsand obtain the necessary medical atten-tion to deal with his diagnosis. Jerrywould be required to maintain regularmeetings with the community servicesboard, where his medication and psychi-atric treatment could be monitored. Anyviolations of this proposal would resultin an immediate violation hearing onthe MHD, a potential revocation ofJerry’s bond status and a conviction ofmost, if not all the charges pendingagainst him.

Considering the nature of thecharges in this hypothetical, the courtaccepted Jerry’s plea of guilty to allcharges and deferred a final dispositionfor six months. Twice he returned tocourt during his six-month probationaryperiod. Each time, he was reported astaking too long to address the fire codeviolations. Yet, with the encouragementof his case-worker, the city attorney andthe court, Jerry finally brought his homeinto conformance with city code, wasable to maintain his residence, obtainedsupervision for his medication intake,and his case was successfully closed. Jerryserved a total of fourteen days in jail.

ConclusionIn 1968, Virginia closed state institutionsfor the mentally ill and by 1976 thereremained only 5,967 in-patient beds for


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mentally ill patients who requiredrestoration or civil commitments.16 As of2011, that number was reduced to only1,252 beds.17 With an overall state popu-lation of 7.8 million that same year,262,000 of whom suffered from seriousmental health issues and often commit-ting minor criminal offenses, it’s not dif-ficult to understand why local jails haveinvoluntarily assumed the role of health-care provider. Yet, as demonstrated inNorfolk and increasingly in misde-meanor courts nationwide, specialtymental health dockets can provide ameaningful and substantial interventionto this unfortunate trend.

(The author recognizes the contribu-tions of Regent University law studentsDiana Galinis and Wesley Pilon, whoserved as judicial interns for the NorfolkGeneral District Court in 2013.)

Endnotes:1 Bureau of Census. U. S. Commerce

Department, The Statistical Databook.The National Abstract (Washington,DC: Government Printing Office,2012)(reporting 11 B arrests), GaryCordner, The Problem of People withMental Illness, Center for ProblemOriented Policy, Guide #40 -2006, 2013POP Conference( reporting 7 percent ofall people arrested are mentally ill).Therefore, 7 percent of 11B is 770,000mentally ill people arrested.

2 Diagnostic and Statistical Manual ofMental Disorders, Code 310.0, 4thEdition (DSM-IV), 1994 (defining Axis1 as the top-level of the DSM multi-axial system of diagnosis, representingacute symptoms that need treatment.Such symptoms include major depres-sive episodes, schizophrenic episodes,and panic attacks.)

3 Petersburg, VA in April 2011 andRichmond, VA in May 2011 startedmental health dockets.

4 In 2010, The U.S. Department ofHousing and Urban Development esti-mated that on any given night inAmerica, over 400,000 individuals inAmerica are homeless. U.S. Departmentof Urban Development, 2010 AnnualHomeless Assessment Report(AHAR)(Washington, DC 2010).

5 National Institute of Mental Health.1995. Mental Illness in America: TheNational Institute of Mental HealthAgenda. (Bethesda, MD 1995)

6 National Institute of Justice. TheAmerican with Disabilities Act andCriminal Justice: Mental Disabilities,U.S. Government Printing Office(Washington, DC 1995).

7 Doris J. James and Doris E. Glaze,Mental Health Problems of Prison andJail Inmates, Bureau of Justice StatisticsSpecial Report, NCJ 213600, Sept 2006.

8 Id.9 Justice Center, the Council of State

Governments, Improving Outcomes forpeople with Mental Illnesses Involvedwith New York City’s Criminal Courtand Correction Systems, December 2012.

10 S. 2639, H.R. Bill 5091, 106th Cong.(2000) (enacted).

11 A defendant may be placed on theMHD by order of any judge who deter-mines there to be sufficient history ofmental illness to warrant the commu-nity-based services made available bythis docket. Additionally, any defendantwho is evaluated for competency or san-ity is automatically referred to thedocket until such time as it is deter-mined that these issues no longer existor until the defendant is restored tocompetency.

12 At an average cost of $49 per day tohouse any inmate in the HamptonRoads area of Virginia, the MHD savesthe state an estimated $3,700 per indi-vidual. With over 300 inmates processedthrough the MHD, taxpayers have savedover $1.1 million in initial processingalone. Extrapolating these numbersusing the National Institute of Justiceand the Bureau of Justice Statistics, if 17percent of the 10 million peoplearrested are mentally ill, and housingthem in jail costs $49 per day (smalltowns would be lower and big citieshigher), this is a savings of $83.3 millionin one year.

13 Prior to the implementation of theMHD in Norfolk General DistrictCourt, the average wait for a compe-tency evaluation was ninety days,regardless of the nature of the offense.This was often the result of a systemoverwhelmed by the needs of thisinmate population. With the advent ofthe MHD, the maximum wait for a

written competency evaluation is nowfourteen days.

14 “Subject to such rules as may be estab-lished pursuant to § 16.1-69.32, thechief judge may establish special divi-sions of any general district court whenthe work of the court may be more effi-ciently handled thereby…” Va. Code § 16.1-69.35(4)

15 Had Jerry been deemed not-competentto stand trial, then the court would haveto consider restoring him to compe-tency. This could be accomplished at astate hospital, which would require thatJerry be taken into custody until a bedwas made available for him. Or, ifappropriate, his restoration could beaccomplished out of custody through acase worker at the community servicesboard. Prior to the introduction of theMHD in Norfolk, people held in cus-tody awaiting restoration at a state hos-pital spent on average 150 days in jailbefore being transported to the hospital.Since the MHD, that time has beenreduced to less than 80 days.

16 Nat’l Alliance on Mental Illness(NAMI), FACT SHEET: Mental Illnessin Virginia’s Adult Population,http://www.namivirginia.org.

17 Id.

Joseph A. Migliozzi Jr. was appointed tothe Norfolk General District Courtbench in 2009. Beginning in 2002, heserved as the southeastern district’scapital defender, representing peoplecharged in death-penalty-eligible cases.

CLE Calendar

Vol. 62 | December 2013 | VIRGINIA LAWYER 67www.vsb.org

December 13Ethics Update for Virginia Lawyers 2013Webcast/TelephoneNOON–2 PM

December 17Drafting and NegotiatingIndemnification Clauses in VirginiaTelephone10 AM–11:30 PM

January 7Representation of Children as aGuardian ad Litem 2011Video—Abingdon, Alexandria,Charlottesville, Norfolk, Richmond,Roanoke8:30 AM–5:15 PM (RICHMOND VIDEOBEGINS AT 9 AM)

January 8Representation of Children as aGuardian ad Litem 2011Video—Tysons Corner8:30 AM–5:15 PM

January 15Representation of IncapacitatedPersons as a Guardian ad Litem—2012Qualifying CourseVideo — Abingdon, Alexandria,Norfolk, Richmond, Roanoke9 AM–4:05 PM

January 16Representation of IncapacitatedPersons as a Guardian ad Litem—2012Qualifying CourseVideo—Charlottesville, Tysons Corner9 AM–4:05 PM

January 15The Basics of Bankruptcy Law inVirginiaLive—Charlottesville/Webcast/TelephoneNOON–2 PM

January 28Trying Cases in the Western District ofVirginiaVideo—Abingdon, Charlottesville,Danville8:55 AM–1:25 PM

January 29Trying Cases in the Western District ofVirginiaVideo—Harrisonburg, Roanoke8:55 AM–1:25 PM

January 30Trying Cases in the Western District ofVirginiaVideo—Lynchburg, Winchester8:55 AM–1:25 PM

January 30The Basics of Bankruptcy Law inVirginiaWebcast/Telephone10 AM–NOON

January 31Hot Topics for In-House Counsel 2014Live—Richmond9 AM–1:15 PM

February 5Elder Law BasicsLive—Richmond9 AM–4:10 PM

February 5Advanced Legal Writing: The Tips ThatYou Need to Take Your Practice to theNext LevelLive—Charlottesville/Webcast/TelephoneNOON–1:30 PM

February 7Forty-Fourth Annual Criminal LawSeminar 2014Live—Charlottesville8:15 AM–5:15 PM

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

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February 12Capacity IssuesTelephoneNOON–1 PM

February 14Forty-Fourth Annual Criminal LawSeminar 2014Live—Williamsburg8:15 AM–5:15 PM

February 20Capacity IssuesTelephoneNOON–1 PM

Virginia Lawyer publishes at no chargenotices of continuing legal education programs sponsored by nonprofit bar associations and government agencies. The next issue will cover February 22through April 13. Send information byJanuary 8 to [email protected]. For otherCLE opportunities, see Virginia CLE calendar and “CurrentVirginia ApprovedCourses” athttp://www.vsb.org/site/members/mcle-courses/ or the websites of commercial providers.

Over 12,000 times each year, we connect lawyers with clients from the general public, businesses, and legal professionals seeking lawyer to lawyer referrals. We can do it for you. Visit VLRS.net and �nd out how.

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

“Not in Good Standing” Search Available at VSB.org

The Virginia State Bar offers the ability to search active Virginia lawyers’ namesto see if they are not eligible to practice because their licenses are suspended orrevoked using the online Attorney Records Search at http://www.vsb.org/attorney/attSearch.asp.

The “Attorneys Not in Good Standing” search function was designed inconjunction with the VSB’s permanent bar cards.

Lawyers are put on not-in-good-standing (NGS) status for administrativereasons—such as not paying dues or fulfilling continuing legal educationrequirements—and when their licenses are suspended or revoked for violatingprofessional rules.

The NGS search can be used by the public with other attorney recordssearches—“Disciplined Attorneys” and “Attorneys without MalpracticeInsurance”—to check on the status and disciplinary history of a lawyer.

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Professional Notices

www.vsb.org

Marion S. Cooper has joined theAlexandria office of MercerTrigiani ascounsel. Most recently she worked asrisk management attorney for DowLohnes PLLC in Washington, DC,where she managed the firm’s conflictof interests and ethics issues. Previously,she was a conflicts attorney withHunton & Williams.

Anne W. Coventry, partner at Pasternak& Fidis, has been selected as the newauthor of Maryland Estate Planning andProbate Laws Annotated, a Thomson-West publication. She will provide edi-torial oversight and commentaries forthe book assisted by Pasternak & FidisAssociate Stephanie T. Perry who will beresponsible for research and annotations.

Douglas M. Diffie has joined theAlexandria office of MercerTrigiani as anassociate. His practice focuses on generallegal matters for common interest com-munity associations, including advisingcommunity associations with respect todaily business operations, contract mat-ters, voting and proxy issues, and quo-rum and meeting requirements.

Mark K. Flynn, general counsel of theVirginia Municipal League, has beenawarded the Edward J. Finnegan Awardfor Distinguished Services by the LocalGovernment Attorneys of Virginia Inc.

John C. Frazer has opened the LawOffice of John Frazer PLLC in Fairfax,focusing on firearm-related law includ-ing criminal, administrative, and regula-tory matters.

James W. Van Horn Jr. is a new partnerat Hirschler Fleischer in Richmond. Hisbackground is in advising middle-marketbusinesses and private investment funds.

William B. Hubbard has become a part-ner at Hubbard, Terry and Britt. Hispractice includes civil and criminal liti-gation, domestic relations, debt collec-tion, and the general practice of law.

Edward Augustus Mullen of Reed SmithLLP has been appointed to the Virginia

Foundation for the Humanities andPublic Policy by Governor BobMcDonnell.

Charles D. “Chip” Nottingham is a newpartner in Husch Blackwell’sWashington, DC, office, joining thefirm’s Transportation and Public Policy,Regulatory & Government Affairs teams.

Jeffrey S. Palmore, former director ofpolicy development and deputy counselin the Office of Virginia Governor BobMcDonnell, joined Reed Smith LLP’sGlobal Regulatory Enforcement Practicein Richmond on September 30. Palmorewill focus his practice on Virginiaadministrative, regulatory, and legislativelaw as well as commercial litigation.

Edward F. Parsons has moved his officefrom downtown Richmond to the GlenForest Office Park located south of I-64near Glenside Drive and Forest Avenuein Henrico County

Catherine M. Reese, family law attorneyand owner of Reese Law Office, has beenappointed by the Fairfax Bar Associationboard to serve as a member of theJudicial Nominations Committee for theFBA to assist the bar in making recom-mendations to the legislators for judicialappointments.

George H. “Skip” Roberts Jr., ofLexington, has been named interimpresident of the George C. MarshallFoundation. He will serve in that capac-ity during the search for a permanentreplacement for the current president,Brian D. Shaw, who resigned to becomethe assistant to the president at VirginiaCommonwealth University.

Michael W. Smith, a partner at Christian& Barton LLP in Richmond, has beenelected treasurer of the AmericanCollege of Trial Lawyers and will serveon its Executive Committee. He is chairof the Executive Committee at Christian& Barton, and he is head of the litigationpractice group. He is a former presidentof the Virginia State Bar and the BarAssociation of the City of Richmond.

Emily B. Talbott has joined ArmstrongBristow Farley & Schwarzschild PLC inRichmond as an associate. Her practicewill focus on estate and trust planningand administration.

James J. Wheaton, general counsel ofLiberty Tax Service, has been appointedto serve on the ABA Commission onDisability Rights, and to chair theFinance Committee of the ABA Sectionof Business Law.

Julie M. Whitlock has joined theVirginia Department of General Servicesas its first procurement, policy, and leg-islative analyst. Whitlock most recentlyserved ten years in the Procurement andTechnology Law section of the Office ofthe Attorney General.

Gregory D. Winfree was confirmed bythe U.S. Senate on October 16 andsworn in as the fourth administrator ofthe U.S. Department of Transportation’sResearch & Innovative TechnologyAdministration by Secretary AnthonyFoxx on October 28.

Charles A. Zdebski, a partner in EckertSeamans Cherin & Mellott LLC’sWashington, DC, and Richmond offices,has joined the board of directors of theUnified Prevention Coalition of FairfaxCounty LLC.

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