Thursday, May 31, 2007

Office e-mail: Stick to the company line

Is using your office e-mail with its signature stamp the same as using office letterhead?

Should anyone down a chain of distribution that you can’t control assume that your e-mail speaks for your employer?

Office e-mail comes pretty close to company letterhead, according to one federal judge who considered the question in an unpublished opinion in Bowers v. Rector and Visitors of the University of Virginia (VLW 007-3-092), a case that has generated some buzz in Charlottesville over the past two years

“The law on the use of office e-mail systems is in its infancy,” said U.S. District Judge Norman K. Moon. He drew on precedent involving more traditional modes of communication to dismiss the First Amendment suit filed by Dena Bowers, a former employee of the human relations department at U.Va.

Bowers had used her university e-mail account to send a coworker and fellow NAACP member documents generated by that group that purportedly were critical of a university restructuring proposal. The e-mail was successively forwarded and ultimately went to hundreds of people, according to the court opinion.

The university contended that Bowers had been less than cooperative in helping to clear up the matter, and several weeks later it fired her.

In deciding how much protection the law afforded Bowers’ speech, Moon said his most serious concern arose “from the use of the signature or ‘stamp’ at the end of the e-mail that identified the sender” as a university HR employee.

Moon said that although Bowers “was not officially authorized to speak for the University, her e-mail misled others into thinking that she was,” and the court had to “hold her to the standards of those who are actually permitted to speak for government agencies: she must stick to the party line or face discipline,” Moon wrote.

“[N]obody would think to use University letterhead for personal messages, and e-mail signatures like the one in this case resemble official letterhead closely enough that the two should be treated the same way,” the judge said.

Bowers’ associational claims were not so easily dismissed, Moon wrote.

She “was justified in defending her rights and those of her fellow opponents of University restructuring by refusing to answer questions about the sources of data and preparation of her e-mail attachments.” But the associational right Bowers asserted was not clearly established, so the defendants were entitled to qualified immunity, Moon ruled.

Bowers has noted an appeal.

Wednesday, May 30, 2007

‘Civil remedial fees’ take effect July 1

In an ongoing, never-ending effort to figure out how to generate money for transportation, the 2007 General Assembly came up with at least a partial source for funds: bad drivers.

In House Bill 3202, the transportation funding bill, the Assembly established a new system of “civil remedial fees,” the purpose of which is “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth.”

The laws establishing these fees will take effect July 1.

The Office of the Executive Secretary of the Supreme Court has put together a very nice explanatory guide for the public. It should be a good starting point for a lawyer having to explain to a client charged with DUI why said client will be paying a total of $2,250 to the Department of Motor Vehicles should he be convicted.

In praise of our way of picking judges

Virginia remains only one of two states where the legislature elects judges. Critics complain, sometimes with justification, about our system. Some argue that it has become a way to dispense political patronage (as if that element hadn’t always been part of the scheme). Bar groups, whose members may know candidates best, seemingly have been marginalized in the selection process.

It could be a lot worse.

Ruth Marcus has a column in this morning's Washington Post that indicates that nasty attack ads have been on the uptick in states that hold popular elections for judges. A candidate for the Kentucky Supreme Court was savaged with an ad Marcus calls “Willie Horton Goes to Court.”

And the races are getting costly. Chief Justice Sue Bell Cobb of the Alabama Supreme Court spent just $5,000 in her first race in 1982, running for a lower-level judgeship. But for seeking a seat on the high court this past year, Cobb’s tab was a cool $2.6 million.

Tuesday, May 29, 2007

Missing painting nets minimal damages in Fairfax

It looks so easy when they do it on Antiques Roadshow.

Experts on the popular public television series who examine stuff brought down from the attic appear to take their cues from certain elements of a painting or an objet d’art, and then fill in the blanks to come up with an estimated value.

But unfortunately for two federal employees who sued over a missing painting, it takes more to recover damages in a court of law.

Richard and Donna Riney had a painting stored when they were assigned to positions abroad. When they observed mold on the stored painting upon their return, the storage company hired a mold remediation company to treat the mold. The remediation company later admitted that it had not restored the painting, but instead had discarded it.

In Riney v. Park Moving & Storage Co. (VLW 007-8-140), the Rineys argued the painting had a value of $80,000. They also argued in a companion case (VLW 007-8-139) that the destruction of the painting entitled them to certain assumptions in proving the worth of the painting.

But Fairfax Circuit Judge Arthur B. Vieregg rejected expert testimony based on assumptions that the painting had been created by a European master of the top tier within a 200-year period between the late 17th and 19th centuries, and therefore had a value of at least $80,000.

Noting that the plaintiffs apparently never bothered to have the painting appraised or insured, Vieregg said the owners simply presented no authority to support the requested damages, absent the owners’ groundless testimony of what the painting was worth.

Instead, the Rineys were entitled to $2,500, the value conceded by the remediation company, plus costs, the court held.

Friday, May 25, 2007

Richmond J&DR judge to leave bench in September

Kimberly B. O’Donnell, a judge of the Richmond Juvenile and Domestic Relations District Court since November 1994, has announced her resignation, effective Sept. 9.

Before taking the bench, O’Donnell worked in Richmond as an assistant public defender and as an assistant commonwealth’s attorney. She was admitted to the bar in 1985 after graduating from Mary Baldwin College and the University of Richmond law school. She also holds a master’s degree in pastoral studies from Loyola University.

She has served on several judicial committees and working groups and taught new judges in the court system’s pre-bench orientation programs. She served from 2003-06 on the John D. and Catherine T. MacArthur Foundation’s Research Network on Adolescent Development and Juvenile Justice.

O’Donnell said she plans to return to her childhood home in Floyd County.

Thursday, May 24, 2007

The Weekly Recap

The following selected stories appeared in the Virginia Lawyers Weekly Daily E-Mail Alert from May 21 to May 25. The originating source of a story is indicated within the item. Please note that not all links may remain active. If you are not presently receiving the Daily Alert, please click here to sign up.

May 21

Lawsuit filed over Pittsylvania hunting accident

A man hurt in a 2005 hunting accident has filed a $1.3 million lawsuit, reports the Danville Register & Bee. According to the suit, one hunter fired his 12-gauge shotgun at in deer standing in the direction of the injured man.

Moderate Republican tapped to run for Chichester’s seat

Westmoreland County lawyer Richard Stuart has won the GOP nomination to run for the Senate seat held by retiring Sen. John Chichester, reports The Free Lance-Star. Stuart was the most moderate Republican in a field of four; he had the backing of both Chichester and House Speaker Bill Howell. Stuart will face Democrat Albert Pollard Jr., a former delegate, in November.

FAA: Proposed Arlington high-rises a problem for airport

The Federal Aviation Administration has ruled that proposed high-rise building projects in Arlington could imperil air travel in and out of Reagan National Airport, reports the Washington Post. The FAA has no legal authority to stop the projects, but local officials say they will work to address the agency’s concerns.

Frederick County Circuit Clerk will run again

Rebecca P. Hogan, who has served as Frederick County Circuit Clerk since 1997, will seek reelection, reports the Winchester Star. Hogan has worked in the clerk’s office since 1970, starting as a secretary.

Trial set for grocer’s claims against distributor

Grocer and entrepreneur Johnny Johnson claims that Supervalu Inc., the country’s largest grocery wholesale distributor, wrecked his small chain of Community Pride stores. The trial in his lawsuit begins today in Richmond Circuit Court, according to the Richmond Times-Dispatch.

Trial of Episcopal Church suit begins today in Fairfax

The trial of an extensive lawsuit filed by the Episcopal Church and its Virginia Diocese against 11 churches that voted to leave starts today in Fairfax Circuit Court, reports the Washington Times.

May 22

Man enters Alford plea on charges arising from manhunt

Last October, a man named Elvis G. Shifflett led Albemarle County police on a week-long manhunt that ended when he was shot trying to steal a truck. The Daily Progress reports that he entered Alford pleas to a number of charges related to the incident, including eluding police and possession of a weapon as a felon. He will be sentenced in July in Charlottesville, where he faces other charges.

High court: Stafford appeal filed too late

The Supreme Court of Virginia has upheld a circuit judge’s ruling that residents and Stafford County officials waited too long to file an appeal of a decision of the local zoning board, reports The Free Lance-Star. The appellants wanted to challenge an administrator’s ruling that an anti-terrorist training facility called The Crucible should be classified as a school.

Surry officials confer on dogfighting case

Surry County officials met Monday to discuss the possible dogfighting at a home owned by Atlanta Falcons quarterback Michael Vick, but no charges have been filed yet, reports The Virginian-Pilot.

Bolt-in-neck case from Roanoke settled

The Roanoke Times reports that a confidential settlement has been reached in the case of a Bassett woman who claimed that her doctor left a bolt-like object in her neck after emergency surgery. She hit her head on a glass bedside table; the bolt, removed by another doctor a year later, had been part of that furniture.

May 23

Northern Virginia Senate candidate indicted

Mark Tate, a candidate for the GOP nomination for the Senate seat of retiring Sen. H. Russell Potts Jr., has been indicted in Loudoun County on charges of election fraud and perjury, reports the Washington Post. His lawyer decried the indictments, handed down three weeks before the June 12 primary.

Caroline’s Latney draws opponent for first time in 29 years

Harvey Latney has been commonwealth’s attorney in Caroline County for more than 29 years without facing a challenger in an election. No longer. Yesterday, Tony Spencer, a former deputy prosecutor in Richmond now living in Caroline, filed the papers to run for the seat in November, reports The Free Lance-Star.

Liberty U. student arrested for bombs before Falwell funeral

The News & Advance reports that a 19-year-old Liberty University student has been arrested for manufacturing homemade bombs after his family told police he made them in preparation for yesterday’s funeral of the Rev. Jerry Falwell. Police are investigating a motive; the man apparently had issues with members of a Kansas church who came to Lynchburg to protest at the funeral.

May 24

Leighty, Kaine’s chief of staff, to step down

Bill Leighty, Gov. Tim Kaine’s chief of staff, will leave his post on Friday, reports the Richmond Times-Dispatch. Leighty served in the same position for the full term of Kaine’s predecessor, Gov. Mark Warner. Wayne Turnage, the current deputy chief of staff, will succeed Leighty at the governor’s top lieutenant.

Liberty U. student now faces federal charge

The Liberty University student apprehended with homemade bombs in the trunk of his car at the Rev. Jerry Falwell’s funeral now faces a federal charge of possessing an explosive device, reports the Roanoke Times. State charges were dropped; he remains in custody.

Two men charged with building meth lab in Orange County

Orange County authorities have arrested two men they say were putting together a methamphetamine lab in an empty barn at a farm, reports The Daily Progress. No drugs had been manufactured yet.

Fairfax supervisors want to close additions loophole

Fairfax County supervisors will seek to close a local loophole that they say allows a builder essentially to erect new a house while calling it an addition, reports the Washington Post.

May 25

Supremacist accused of harassing child

A self-proclaimed white supremacist facing child pornography charges previously harassed a local 9-year-old girl, according to a revealing pre-trial motion filed Thursday by federal prosecutors, The Daily Progress reports.

Nursing home dropped from Medicare program

Carriage Hill Rehabilitation and Nursing Center was dropped from the federal Medicare program this month, 10 days after a resident strangled to death on a nurse-call cord, The Free Lance-Star reports.

Supreme Court to hear Norfolk voting case

The state Supreme Court has agreed to hear a case seeking access to voting applications that were rejected by Norfolk’s voter registrar, The Virginia-Pilot reports.

Former Henry sheriff pleads guilty

In the recorded conversations played Thursday in federal court, disgraced former Henry County Sheriff Frank Cassell seemed almost grandfatherly as he reached out to reassure a one-time employee down on his luck, The Roanoke Times reports.

Goode criticizes Mexican flag displays

Rep. Virgil Goode says he’s riled by restaurants in his region that display a Mexican flag, and he thinks President Bush is wrong on the new immigration bill, the Richmond Times-Dispatch reports.

Legislative hearings set for Virginia Tech shootings

The Virginia House of Delegates will hold hearings this summer to consider solutions to problems in the mental health system exposed after Seung Hui Cho’s shooting rampage at Virginia Tech, The Washington Post reports.

Wednesday, May 23, 2007

Fins to the left, fins to the right?

In this afternoon’s e-mail: a solicitation from a necktie company called Capital Ties. The headline screamed out: “Every litigator will enjoy this new Sharks necktie!”

Uh oh, you say, another lame lawyer-shark professional-courtesy joke. Ha ha ha. Like we haven’t heard this one before. Or before that.

The copy burbles, “Sharks is being targeted - tongue firmly in cheek - to the legal community. On our web site, we explain that ‘Shark’ comes from the German ‘schurke,’ meaning greedy parasite and that ‘while no brave soul has gotten close enough to determine where lawyers come from, logic and common sense dictate a similar derivation.’

Then it continues: "I trust that lawyers will accept this design in the spirit in which it is intended," says designer Nick Hotchkiss. "If they don't, then I suppose we'll have to switch gears and go after the subprime lending industry."

Take a look at the tie, pictured above. (Photo credit: Detail taken from the picture of the tie that came in the e-mail). It has little sharks chasing dollar signs. Perhaps an ambulance was too hard to stitch on there.

A quick thought while pausing at the “Delete” key: Just what were they thinking?

At this newspaper a few years back, we had a potential advertising client, a caterer interested in reaching the legal audience. We were all set to sell him a full-page ad until he insisted on advertising his food as “shark bait.” When we gently, then firmly, declined to run that copy, explaining that maybe it wasn't a good idea to insult someone you're trying to sell to. Didn't work. The deal fell through.

We’ll wait and see whether this tie company ever shows up at one of the commonwealth’s bar meetings. Until then, the “Delete” key works wonders.

Plaintiffs’ attorneys not giving up on Isbell

Undaunted by a unanimous opinion from the Supreme Court of Virginia last month in Isbell v. Commercial Investment Associates Inc. (VLW 007-7-044), Richmond attorney Roger T. Creager has asked the court to rehear the case, and the Virginia Trial Lawyers Association has filed a friend-of-the-court brief in support of the request.

The Supreme Court held that the Virginia Residential Landlord and Tenant Act does not create a personal injury action for damages to tenants that result from violations of the act by landlords. The General Assembly did not clearly abrogate the common law that a landlord is not liable in tort for injuries caused by the landlord’s failure to repair premises under the tenant’s control, Justice Cynthia D. Kinser wrote. She said the act applies only to contractual remedies.

The briefs of Creager and the VTLA contend that the court erred in writing the word “contract” to restrict provisions of the act where the legislature expressed no such limitation. The court also incorrectly gave a narrow interpretation of such words as “action” and “person” to limit the declared legislative intent to “revise and modernize” the law, the briefs say.

Tuesday, May 22, 2007

Northern Virginia Senate candidate indicted

A Middleburg man running for the Republican nomination for a state Senate seat has been indicted in Loudoun County on charges of election fraud and perjury. The Washington Post reports that the indictments were made public today, three weeks before voters go to the polls.

Mark Tate, a restaurateur and the former vice mayor of Middleburg, faces Jill Holtzman Vogel, a Warrenton lawyer, for the GOP nod for the seat of retiring Sen. H. Russell Potts Jr., I-Winchester. The seat’s district covers parts of Loudoun and Fauquier counties, all of Clarke and Frederick counties and the City of Winchester.

Tate’s lawyer, Ed MacMahon, told the Post that Tate would plead not guilty to the charges. MacMahon blasted the timing of the indictments, so close to the June 12 primary date. The prosecutor who brought the charges, Jim Plowman, said politics had nothing to do with it. He added that a special prosecutor, King George County Commonwealth's Attorney Matt Britton, will handle the case from now on.

Friday, May 18, 2007

JIRC recommends discipline for SW Va. judge

The Judicial Inquiry and Review Commission recommended on Wednesday that the Supreme Court of Virginia censure or remove Juvenile and Domestic Relations District James Michael Shull.

JIRC found that Shull on Dec. 15 twice directed a woman involved in a custody dispute to twice lower her pants in the courtroom, while at least six other people were present. The woman contended that the father of her two children had stabbed her thigh, while the father responded that he had not done so and alleged that any such wound was self-inflicted.

In addition to examining the injury, Shull recessed the hearing and called from his chambers the emergency room where the woman said she had received stitches.

The commission also concluded that Shull had violated judicial ethics by tossing a coin to decide which parent would have the preferred custodial time for their children on Christmas Day.

In a formal response to the commission’s initial allegations, Shull acknowledged that he should have handled the first hearing in a more sensitive manner. But he emphasized that only court personnel, the father and his attorney were in the courtroom at the time and that the nature and severity of the mother’s injury were “absolutely critical to resolve the factual and credibility issues before the Court.”

Shull said he decided the Christmas custody by a coin toss because “the equities were in equipoise” and he wanted to illustrate to the parents there were in the best position to resolve such issues. He usually sits in Scott County in the state’s 30th Judicial District, but both of the cases cited by JIRC were in Wise County. He was appointed to the bench in April 2003.

JIRC suspended Shull with pay shortly after the December hearing and held hearings in the case in January and in April.

Va. Supreme Court upholds $8M verdict

The Supreme Court of Virginia has let stand an $8 million verdict for the family of a high school senior who was killed in a car wreck in Fairfax County in September 2002.

The court heard arguments last month in Mongold v. Chu, Record No. 061390, and concluded in an unpublished order on Friday that there was no reversible error in the case.

David Chu was a passenger in a car that had stopped at a stoplight when the driver of truck owned Danella Companies Inc., a Pennsylvania based trucking company, fell asleep and crashed into the rear end of the teenagers’ vehicle.

The company admitted liability to ward off testimony that its policies almost guaranteed sleep deprivation and fatigue in its employees. Its principal argument on appeal was that the Chu family’s attorney, Gregory L. Murphy of Alexandria, had insisted on presenting such evidence, even though it was irrelevant and highly prejudicial to the company.

The Supreme Court held, however, that the trial judge struck a proper balance between evidence that was probative of the family’s level of grief and testimony that was unduly prejudicial.

Search for VSB executive director delayed

The committee appointed to recommend a replacement for Virginia State Bar Executive Director Thomas A. Edmonds had hoped to have a candidate by the VSB’s annual meeting next month.

But the committee has decided to re-advertise for the position, said Phillip V. Anderson, the immediate past VSB president and chairman of the committee.

The first advertisements produced 14 candidates, seven of whom were interviewed to narrow the field to three finalists, Anderson said. However, one of those finalists received a private-sector offer that the VSB can’t match, and the committee decided to start over.

“We’ve had some really good applications,” he added. “It’s just that we weren’t quite ready to pull the trigger.”

He said he expects to set a July 1 deadline for the second round of applications, with the committee’s recommendation put back to late summer or fall. VSB Council and the Supreme Court of Virginia have the final say on the appointment.

Edmonds' retirement is effective at the end of the year.

Thursday, May 17, 2007

Norment honored again … this time by VMI

It is good to be Sen. Tommy Norment this month.

In the past few weeks, the College of William and Mary, where he went to law school, laid two big awards on him.

This afternoon’s e-mail says that now Virginia Military Institute, the senator’s undergraduate alma mater, is saluting him as well.

The board of trustees of the VMI Foundation has announced it will bestow its Distinguished Service Award on Norment, VMI ’68. The award is the foundation’s highest honor, and it is presented to those alumni and friends of the Institute who have displayed exemplary dedication to the Institute and its mission and worked diligently on behalf of the foundation and VMI.

Norment served as a trustee of the foundation from 1997 to 2005. He will receive the Distinguished Service Award and address the Corps of Cadets at VMI’s annual Founders Day Convocation on Nov. 9 at Cameron Hall.

Wednesday, May 16, 2007

W&L’s Morant named dean at Wake law school

Blake Morant, who has been a member of the Washington and Lee law faculty for 10 years, has been named dean of the Wake Forest University law school. He starts his new job July 1.

Morant's teaching specialties are in contracts, administrative law and communications law. He is the current associate dean for academic affairs at W&L Law and served as director of the school’s Frances Lewis Law Center from 2001 to 2006. During his tenure as director, Morant organized a celebration of the 25th anniversary of the law center, featuring a keynote address by the late U.S. District Judge Robert R. Merhige Jr.

He is a member of the Commonwealth of Virginia Gender Bias Task Force. In 2000, he sponsored a colloquium on the findings of the Virginia Supreme Court’s taskforce investigating gender bias in the courts of the Commonwealth; the remarks from that colloquium were published in the Washington and Lee Law Review the following year.

A seven-year man at the University of Virginia, Morant worked in several capacities for the Office of the U.S. Army Judge Advocate General before entering academia. He taught law at American University and the University of Toledo before joining the W&L faculty in 1997.

Tuesday, May 15, 2007

London, we have a problem

Lawyers’ business clients have used arbitration for years to resolve commercial disputes.

But there’s business, and then, there’s bidness.

Senior U.S. District Judge Robert G. Doumar had a case in Norfolk federal district court last month, Al-Haddad Commodities Corp. v. Toepfer Int’l Asia PTE Ltd. (VLW 007-3-147), that pitted an international commodities trader against an agricultural commodity trading business based in Hamburg, Germany.

The parties’ contract dispute over a shipment of “US No. 2 Long Grain White Rice” to Iraq went to arbitration before the U.S. Rice Millers’ Association. That trade group is headquartered in Arlington, but the arbitration was conducted before a five-member panel at the Houston, Texas offices of American Rice Inc. The panel ordered Toepfer to pay ACC a $2 million-plus award.

Apparently English law governed the contract. Toepfer’s lawyer claimed the panel chair at one point said he was “not interested in ‘all that fancy lawyer stuff.’” The losing side called the panel hearing “painfully farcical” and a “complete sham.”

But Doumar said he detected “something of a culture clash in this case, in which an arbitration panel of American businessmen who apparently pride themselves on providing quick commercial decisions held a hearing in Houston, Texas, over a contract governed by English law.”

Toepfer’s lawyer practiced arbitrations extensively in England, according to Doumar’s opinion. The attorney said he had “never before (and hopefully will never again) experience[] anything quite like the arbitration before” the Rice Millers’ Association.

“Of course, Houston is not London,” Doumar observed in understatement. “In Texas lore, cowboys and Indians long ago replaced the knights and dragons of English lore.”

He confirmed the arbitration award for ACC.

Federal court as defense haven - Update

Yesterday, VLW posted a blog item entitled “Federal court as defense haven.” The item reported remarks made at a seminar held at the Spring Section meetings of the Virginia Association of Defense Attorneys at Keswick Hall May 11.

Over many years, reporters from Virginia Lawyers Weekly have attended numerous meetings held by Virginia bar groups, including the VADA. Our reporters frequently have filed stories and news items after attending these meetings. This is what we do.

In the normal course of business, such meetings are public and comments made from a podium can be, and frequently are, reported.

While we maintain that the May 11 Keswick seminar in question was public and that any remarks made there are no different from statements made at other open meetings, the speaker in question subsequently stated that she believed that the meeting was private.

We can agree to disagree on whether the meeting was public or private. But as a courtesy to the speaker, we have withdrawn the blog item.

When Glenn met Phil …

Glenn Lewis, president of the Virginia Bar Association and divorce law expert, is no stranger to television.

Lewis (pictured at right) had his own cable TV gig in Fairfax for years. During the Bush-Gore ballot count in 2000, he was a stateside commentator for the BBC.

Lewis has taken his game to a new level.

Last week, he was on Dr. Phil. Really. Dr. Phil, the enormously popular TV shrink. Big bald guy from Texas. Just look in any bookstore. You can’t miss him.

Dr. Phil highlighted a case from Virginia that, frankly, is a little creepy. In a feature called, “Obsessive Love,” a guy named Jeffrey is so obsessed with his wife Jennifer that he follows her every move. He agrees to seek treatment, but won’t let go.

Lewis is the woman’s lawyer and appeared on Dr. Phil’s show with her. Lewis managed to get a “No Contact Order” entered against Jeffrey. Jeffrey wouldn’t play ball with the “Dr. Phil” crew after a while, revoking the consent he granted to his counselors to talk to the show. He traveled from California to Virginia and was arrested “just miles from Jennifer.”

Apparently Jeffrey is now “in jail, without bond, awaiting trial,” according to Dr. Phil’s team.

William and Mary honors Norment … twice

Sen. Tommy Norment, R-James City County, and the College of William and Mary have quite a thing for each other.

Norment, a graduate of the W and M law school and a partner in the Williamsburg office of Kaufman & Canoles PC, represents an area that includes the school’s Williamsburg campus. He is one of the college’s staunchest supporters on Capitol Hill.

Norment worked to secure $5.4 million for the W and M School of Education, which will be getting a new building, thanks to the General Assembly. With that money, the project now can move forward with planning and design.

The ed school showed its appreciation by honoring Norment with the Jo Lynne DeMary Award last month. Named for a William and Mary alumna who served as state superintendent of schools, the DeMary award recognizes individuals for leadership in education.

And tomorrow, William and Mary President Gene Nichol will present the college’s Prentis Award to Norment at a reception in his honor.

Prentis Awards are given annually to community members whose civic involvement benefits the community and the College.

And for whom is this award named? The Prentis family owned an 18th-century shop on Duke of Gloucester Street that was a hub of colonial life. Members of the Prentis family have been friends of the College and the community since 1720, when the store was first established in Williamsburg.

Monday, May 14, 2007

Fiduciary duty claim kicked out of court

The lead story in this week’s issue of Virginia Lawyers Weekly presents a case with a first-impression issue of corporate law.

In WAKA LLC v. Humphrey, a case involving an adult kickball league, Fairfax Circuit Judge Leslie M. Alden found that members of an LLC owe no fiduciary duty to one other.

Roanoke, Charleston, W.Va., firms to merge

Spilman, Thomas & Battle PLLC, a 102-lawyer firm based in Charleston, W. Va., has offices in Pennsylvania and North Carolina but not in Virginia.

That will change July 1 when Spilman absorbs the seven-lawyer Roanoke firm of Melchionna, Day, Ammar & Black PC.

The combined firms will take the Spilman name, and the four shareholders of Melchionna Day will become members of the firm. All associates and staff will join Spilman as well.

Michael J. Basile, managing member of Spilman, said, “With Spilman offices currently in West Virginia, North Carolina and Pennsylvania, the addition of an outstanding office of Virginia attorneys creates geographic continuity and greatly enhances our strategic vision for serving the legal needs of the Mid-Atlantic region.”

Olin Melchionna, senior member of the Roanoke firm, said, “With Spilman’s resources, we can provide our clients with access to a wider range of legal fields as well as the resources and staffing to help in the larger matters of our clients.”

Sunday, May 13, 2007

Fairfax Judge Maxfield’s investiture set for Friday

The official investiture of Fairfax Circuit Judge Charles J. Maxfield is set for this Friday, May 18. The ceremony will be held at 4:00 p.m. in Courtroom 5E of the courts building.

The Fairfax Bar Association will hold a reception in Maxfield’s honor following the investiture.

The judge actually went on the Fairfax circuit bench in February, succeeding Judge M. Langhorne Keith, who retired. Maxfield had been a J&DR judge in Fairfax since 1994.

Friday, May 11, 2007

The Weekly Recap

The following selected stories appeared in the Virginia Lawyers Weekly Daily E-Mail Alert from May 7 to May 11. The originating source of a story is indicated after the item. Please note that not all links may remain active. If you are not presently receiving the Daily Alert, please click here to sign up.

May 7

Cops who were disciplined after Vegas trip lose lawsuit

Police officers who called in sick to make a trip to Las Vegas sued the police chief and captain who met them at the airport when they returned, but a federal judge has dismissed the lawsuit. The plaintiffs claimed an unconstitutional show of force by their superiors at the airport; they were stripped of their badges in an open area. But the defense argued, and the judge agreed, that the defendants were bosses handing out discipline to employees.
Washington Post

Chesterfield prosecutor to seek clerk’s job

Chesterfield County prosecutor Dennis Collins has announced he will seek the Republican nomination for county circuit clerk. Incumbent Judy Worthington has held the post for nearly 16 years.
Richmond Times-Dispatch

May 8

Harassment case against former sheriff settled

A confidential settlement has been reached in a sexual harassment case filed by a Portsmouth deputy against the city’s former sheriff.
The Virginian-Pilot

Metro-Richmond detectives make progress in cases from early ’90s

Police detectives in the metro Richmond area have made headway in two unsolved murders from the early 1990s. An indictment was obtained in a 1991 Richmond case and Chesterfield County detectives have leads that could solve a 1990 double slaying there.
Richmond Times-Dispatch

May 9

Lynchburg’s City Hall not in compliance with ADA

An independent state agency says that Lynchburg’s City Hall building is not in compliance with the Americans with Disabilities Act. The Virginia Office of Protection and Advocacy in April sent three people – two in wheelchairs and one with walking difficulties – into the 1930s-era building to see if there were problems with accessibility.
The News & Advance

Williamsburg eatery remains open despite salmonella link

The Peninsula Health Department has linked salmonella contamination to the illnesses of dozens of people who have fallen ill after eating food from Williamsburg’s popular Green Leafe CafĂ©. Among those who got sick: members of the band My Chemical Romance, which played at the College of William & Mary in April. The Green Leafe remains open while the investigation continues.
The Daily Press

OxyContin maker settles complaint from states

Purdue Pharma LP, the maker of the pain-killer OxyContin, will pay $19.5 million to 26 states and the District of Columbia to settle complaints about its aggressive marketing of the drug. Virginia will see $949,500 of that money.
Richmond Times-Dispatch

May 10

McDonnell to NYC’s Bloomberg: Stop gun stings

Attorney General Bob McDonnell has written New York City Mayor Michael Bloomberg, telling him to stop sending private investigators into Virginia to look for illegal gun sales. Come July, a new law takes effect that would let Virginia charge the mayor and his agents with a felony.
Washington Post

Mariners Museum sues former archivist

The Mariners Museum in Newport News is suing a former archivist, claiming that he took and then sold items from the museum on eBay.
The Daily Press

Two death suits filed by hit-and-run victims in Norfolk

Two separate wrongful death lawsuits have been filed in Norfolk Circuit Court by the families of pedestrians killed by hit-and-run drivers. Each suit seeks $1 million.
The Virginian-Pilot

Nine U.Va. students indicted for Hokie Bird damage

Nine University of Virginia students have been indicted for felony destruction of property for taking a fiberglass Hokie Bird statue in March. A U.Va. official confirmed that the young men were fraternity pledges.
Roanoke Times

May 11

Frederick County seeking a new county attorney

Lawrence Ambrogi has served as county attorney for Frederick County since 1969. The Winchester Star reports that he has announced he will retire when a successor is found. The county has started the search, but it has retained Robert T. Mitchell Jr. in the interim for legal advice on planning and development.
Winchester Star

Judge sets aside first-degree murder convictions, plea deal not disclosed

An Orange County circuit judge has set aside two first-degree murder convictions obtained last September, reports The Free Lance-Star. The commonwealth’s attorney did not disclose to the defense that the star witness against the defendant had reached a plea agreement with the state.
The Free Lance-Star

Chicago ‘divorce’ billboard yanked down

The Chicago divorce law firm’s billboard that advised viewers, “Life’s short. Get a divorce,” is no more (See item below).

City workers yanked it down earlier this week.

But not on account of taste and not on account of objections by other lawyers.

The local alderman determined that Corri Fetman’s law firm didn't have the proper permit to post the billboard, reports the Chicago Tribune.


Spotsylvania puts deadbeat parents on pizza boxes

You read that headline right.

In an effort to round up parents who fail to pay child support, Spotsylvania County will start putting their names on a flyer tacked onto a pizza delivery box, reports The Associated Press.

When a newspaper publishes the names of men arrested for soliciting, they call it a “John list.” Maybe they’ll call the names on the pizza box flyers the “Papa John list.”

A woman who heads a local nonprofit dedicated to child support enforcement came up with the idea. She previously lived in Ohio, where local police used this method. Spotsylvania is apparently the first Virginia jurisdiction to try the tactic.

Will area businesses cooperate? So far, three local pizza joints have agreed to post the names; two Asian restaurants will put the flyers on takeout bags.

Supreme Court will hear charitable immunity cases

The Supreme Court of Virginia apparently will decide whether foundations set up to support teaching hospitals have charitable immunity.

The court had scheduled arguments before three-justice writ panels for May 18 in two cases from Charlottesville Circuit Court that had reached opposite conclusions on the issue. However, the court notified the lawyers this week that they need not present oral arguments because the court has decided to hear the cases.

Last year, Judge Edward L. Hogshire ruled that the University of Virginia Health Services Foundation did not have immunity, but earlier this year Fairfax Circuit Judge Randy I. Bellows, sitting by designation in Charlottesville, ruled that it did.

Another judge who sat in Charlottesville by designation, H. Thomas Padrick Jr. of Virginia Beach provided the first opinion on the issue in that court and also ruled for the plaintiff.

Judges in Norfolk and Portsmouth appear to have been unanimous in holding that physicians who work for EVMS Health Services Inc. have immunity, although Norfolk Circuit Judge Everett A. Martin Jr. said he might well have ruled otherwise if he had been the first judge there to consider the issue.

Plaintiffs’ attorneys have insisted that the foundations are not true charities because they were set up to funnel money to doctors who treat patients largely as private physicians in addition to teaching at the hospitals.

The foundations have countered that their role in providing education, research and medical care for indigents makes them charities.

VLW had an account of the dispute in March.

Tuesday, May 8, 2007

Billboard: ‘Life’s Short. Get a Divorce’

It hasn’t been a good month so far for the image of lawyers.

First there was the judge in DC who filed the $67 million lawsuit over a lost pair of pants. Amazingly, his claim is going forward, with a June trial date. The latest on that story: Supporters have rallied around the Korean couple that runs the defendant cleaners, starting a defense fund in their behalf.

Now there is a billboard in Chicago that counsels, “Life’s short. Get a divorce.” The billboard is located in an upscale area known as “Viagra Triangle” for its trendy singles bars and restaurants. It features two hot bodies: A babe with heaving cleavage and a hunk with rippling abs.

For the record, lawyers and bar leaders in Chicago have blasted Corri Fetman, the divorce lawyer behind the billboard. Fetman counters criticism by saying lawyer advertising is boring and that her billboard “promotes happiness.”

So what would the Virginia State Bar’s advertising committee do if someone posted one of these here?

And what would lawyers here think if it showed up in Virginia Beach or Alexandria or Richmond? The floor’s open.

Legal Food Frenzy results announced

And the winner is …

The Norfolk office of McGuireWoods, which won the Attorney General’s Cup by donating 42,824 pounds of food—1,338 pounds per person in the office—in the Legal Food Frenzy competition among Virginia law firms.

The competition raised 679,000 pounds of food, well above the goal of 500,000, between April 2 and 13.

Attorney General Robert F. McDonnell provided the trophy and announced the results Wednesday of the competitions based on total amount of food donated by an office and the amount per person in the office.

The competition was based on an event sponsored by Norfolk-Portsmouth Bar Association for the Foodbank of Southeastern Virginia, which has raised about 175,000 pounds of food annually for that area.

Monday, May 7, 2007

New group reviews mediator ethics

With so many mediators out there mediating, ethical issues are bound to arise.

Over the past few years, mediator complaints and ethics issues have prompted governing bodies to consider revisions to the various guidelines, standards and procedures related to certification of mediators, mentors and training programs, according to the Virginia Supreme Court’s Office of the Executive Secretary.

The Executive Secretary’s Office of Dispute Resolution Services has appointed an Ethics Committee to consider the need for revisions to governing procedures. Members of the new committee include: Lawrie S. Parker and lawyers Ernest W. DuBester, Lawrence H. Hoover Jr., Samuel S. Jackson Jr., Frank W. Morrison, Jeannette P. Twomey and Paula M. Young.

The committee first met in late March and plans to meet monthly to study the scope of the pertinent standards of ethics, the impact of convictions or loss of license on mediator certification, grounds and procedures for removal of a mediator from a court-certified roster, and possible adoption of model standards for mediators.

Friday, May 4, 2007

Poor English no bar to arbitration

Poor English skills did not keep two Hispanic union members from being bound by their union contract’s mandatory arbitration clause for complaints of discrimination, the 4th Circuit ruled yesterday in Aleman v. Chugach Support Services (VLW 007-2-070).

The two Hispanic members of a D.C.-area carpenters’ union worked for Chugach Support Services, a construction company that was working on government projects in Bethesda, Md. When the laborers were fired, they sued the company for discrimination under Title VII and 42 U.S.C. § 1981. Among its defenses, the company said the laborers' complaints were subject to arbitration under a collective bargaining agreement.

But the plaintiff union members said they were not bound by the contract’s arbitration clause. They argued that the employer’s failure to provide translations of the agreement to employees with deficient English skills voided the union contract’s arbitration provision.

The appellate panel refused to recognize such a duty for employers.

Even if employers could determine when they’re subject to this new translation duty, it’s not clear what steps they would have to take to make negotiated union contracts “fully comprehensible and thus enforceable,” wrote Judge J. Harvie Wilkinson III.

Felon with firearm gets new sentencing

A Richmond federal judge didn’t follow a stair-step approach in sentencing a felon with a firearm, so the defendant gets a second shot at sentencing.

Earlier this week, the 4th Circuit released an unpublished opinion in U.S. v. Tinsley, vacating the statutory maximum sentence of 10 years that Zachary Tinsley got for the .25 caliber pistol found in his glove compartment.

Even assuming that Tinsley should been assigned a criminal history score of category VI, the appellate court said, “the district court’s failure to move incrementally down the sentencing table and to explain why the intervening offense levels did not yield a sufficient sentence” supported Tinsley’s claim that U.S. District Judge Henry Hudson did not adequately explain the sentence.

Tinsley’s 10-year sentence was nearly three times the high-end of his advisory sentencing range, the 4th Circuit panel said in a per curiam opinion. The judge’s reference to Tinsley’s “terrible” criminal record – including five prior firearms convictions – did little to distinguish him from the run-of-the-mill category VI offender.

Saying it needed a better explanation in order to perform the necessary post-Booker reasonableness review, the court remanded for “a more rigorous sentencing analysis.”

Replacements for Ellis, Payne recommended

Virginia Senators John Warner and Jim Webb have recommended candidates they say are “outstanding Virginians with exemplary qualifications” for federal judgeships in the Eastern District of Virginia:

● Joanne F. Alper of Arlington, a Virginia circuit judge in Arlington County
● Mark S. Davis of Portsmouth, a Virginia circuit judge in Portsmouth
● Dennis W. Dohnal of Richmond, a U.S. magistrate judge in Richmond
● David J. Novak of Montpelier, an assistant U.S. attorney in Richmond
● Jeri K. Somers of Arlington, a judge on the Civilian Board of Contract Appeals at the U.S. Department of Transportation
● Jonathan C. Thacher of Fairfax Station, a Virginia circuit judge in Fairfax County
● Anthony J. Trenga of Alexandria, a lawyer with the Miller & Chevalier Chartered firm in Washington

The vacancies were created when Judge T.S. Ellis III, who sits in Alexandria, and Judge Robert E. Payne, who sits in Richmond, took senior status. Both have said they expect to continue to carry a substantial caseload.

Absent from the list was John Brownlee, the U.S. attorney for the Western District of Virginia. He had the advantage of a personal relationship with Warner and a disadvantage in that he is not practicing law in the Eastern District. Two bar groups were underwhelmed by his credentials as well. The Roanoke Times has an analysis of his candidacy.

Thursday, May 3, 2007

Judge rejects ‘deepening insolvency’ theory

In case you’ve been waiting for a Virginia court to weigh in on the theory of “deepening insolvency,” that time has come.

The theory is a way of holding corporate directors liable for operating a financially strapped company in a way that only digs a deeper hole – penalizing them for not knowing when to quit.

“Deepening insolvency” has drawn a fair amount of academic debate since it first cropped up in the early 1980s, but the theory has been on the wane since a Delaware court rejected it last year.

U.S. Bankruptcy Judge Kevin Huennekens threw out the claim in a new case, In re James River Coal Co. (VLW 007-4-003). In JRCC, a coal company and its 21 subsidiaries sought to reorganize under Chapter 11. The trustee of a liquidating trust sued First Reserve, an entity that included major shareholders of the coal company and the managing general partner of the shareholder funds.

The trustee claimed that First Reserve and its directors, “by virtue of their overreaching, domination and control” over the debtors’ businesses, fraudulently or negligently “prolonged the corporation’s existence for more than three years.”

Huennekens said that application of the theory “would fundamentally transform Virginia law,” which does not require a financially challenged company to abruptly wind up its business and liquidate its assets.

“Simply because a business may be failing does not make the directors personally responsible for insuring the success of the business strategies they decide to pursue,” the bankruptcy judge said.

Wednesday, May 2, 2007

Lawyers allowed back in Norfolk jail

The Norfolk jail has changed its lawyer visitation policy … again.

Now, lawyers can visit their clients behind bars in the cell blocks, so long as they sign a waiver form acknowledging the jail’s safety policies, reports The Virginian-Pilot.

The sheriff changed the policy last year to require lawyer-client meetings in visitation rooms after female attorneys complained about lewd comments and gestures. Under this latest policy, lawyers are required to report any "offensive language or behavior" to the jail.

Tuesday, May 1, 2007

AG’s brief not persuasive in lesbian case

Virginia Solicitor General William E. Thro unsuccessfully asserted the sovereignty of the commonwealth in urging the U.S. Supreme Court to hear the appeal of a lesbian mother who is attempting to sever the parental rights of her former partner.

In an amicus brief in the case of Miller-Jenkins v. Miller-Jenkins, Record No. 06-1110, Thro cited four reasons the high court should hear the case: to reaffirm the sovereign power of the states over domestic relations, to reaffirm the public policy exception to the Full Faith and Credit Clause, to reaffirm the limits on congressional power to enforce the Constitution, and to provide guidance on the application of the Parental Kidnapping Prevention Act in the context of same-sex unions.

The couple left Virginia to get a civil union in Vermont in 2000. Lisa Jenkins-Miller was artificially inseminated in Virginia, and the couple moved to Vermont for a time before they separated and Lisa Jenkins-Miller returned to Virginia. She filed in Vermont to have the union dissolved and courts there awarded Janet Jenkins-Miller visitation rights.

Lisa then filed suit in Virginia to have the Vermont order invalidated as contrary to Virginia’s public policy against same-sex unions and adoptions. The Virginia Court of Appeals ruled that Vermont had jurisdiction over the custody case and that the parental kidnapping act controlled. That ruling is on appeal to the Virginia Supreme Court.

On Monday, the U.S. Supreme Court rejected the appeal from Vermont with no further comment.

Judges’ complaint, prosecutor’s response detailed

The Virginian-Pilot has obtained the ethics complaint that Virginia Beach circuit judges filed against Commonwealth’s Attorney Harvey L. Bryant III and Bryant’s formal response to the complaint.

The judges said they were concerned about reports that Bryant had said at a Republican breakfast in February he was keeping a record of “illegal conduct” by Virginia Beach judges “until I need it.”

That wasn’t quite what I said, Bryant responded, and the comments were a small part of a broad-ranging discussion of his office’s activities and answers he gave to questions about the criminal justice system.

Bryant said in his response that he does keep track of when judges defer a finding of guilt “without statutory authority” when the evidence would support such a finding and that he would consider it appropriate to convey that information when judges come up for reappointment.

Judges and prosecutors long have been at odds over whether a judge can defer judgment in cases other than where there is specific statutory authority to do so. First-time drug offenses are one category in which the legislature has granted such authority.

Some judges contend that they have the inherent authority to take such action in the absence of an explicit prohibition. Drunken driving, theft and trespass are three categories of cases in which judges sometimes defer judgment and dismiss a charge if a defendant has no further legal difficulty. In February 2003, the Virginia Supreme Court rejected a request by a Roanoke prosecutor for a writ of mandamus or prohibition that would have required a judge to make a finding of guilt in such cases.

Bryant noted that comments at the breakfast were in the context of his observation “that I wouldn’t trade our bench for any other bench I knew of or had heard of my 32 years of practice in Virginia.”

Virginia’s viatical settlements law upheld

Virginia’s law regulating viatical settlements has been upheld by a panel of the 4th U.S. Circuit Court of Appeals.

In a viatical settlement, a terminally ill patient sells a life insurance policy to a third party that picks up the premium payments and collects the proceeds when the patient dies, notes The Associated Press.

Virginia’s law requires a company buying policies to pay 60 to 80 percent of face value. A Texas-based company that paid 26 percent of a policy’s face value to a dying AIDS patient unsuccessfully challenged the Virginia regulatory scheme in Life Partners Inc. v. Morrison (VLW 007-2-067).

The panel affirmed a decision by U.S. District Judge Henry E. Hudson.

In memoriam: James W. Renney Sr.

James W. Renney Sr. will be remembered by many people as the longtime master of ceremonies at the annual shad planking in Wakefield. That time-honored Virginia political event has attracted politicians and candidates from both parties for years.

Mr. Renney, a former mayor of Wakefield, died April 26 at the age of 80. A graduate of the Unversity of Richmond and its law school, he began practicing law in Wakefield in 1958. The Richmond Times-Dispatch has details.

323 pass February bar exam

The results are in for the February 2007 bar exam. There will soon be 323 new Virginia-licensed attorneys, as reported by the Virginia Board of Bar Examiners.

A total of 596 candidates took the February exam, for a pass rate of 54 percent. This figure is consistent with years past.

Nearly 80 percent of the bar passers are Virginia residents, while 16 percent hailed from Maryland and D.C. Twelve additional states boasted successful candidates.

A complete run-down of new attorneys and their locations will appear in an upcoming edition of Virginia Lawyers Weekly.

Congratulations to all the new lawyers!