Monday, July 30, 2007

Trainer at ‘Bad Newz Kennels’ pleads guilty

A co-defendant of Michael Vick has acknowledged spending most of his time taking care of and training the pit bulls fought by “Bad Newz Kennels” through September 2004.

Tony Taylor, a 34-year-old Hampton man, pleaded guilty today to a felony count of conspiring to engage in interstate dog fighting beginning in early 2001. Taylor faces a maximum penalty of five years in prison and a $250,000 fine when he is sentenced on Dec. 14. As part of his guilty plea, he agreed to cooperate with the government.

The guilty plea was accompanied by a “Summary of the Facts” available on the Web site of the Richmond Times-Dispatch. In it, the government alleges that the “Bad Newz Kennels” operation in Surry County and gambling monies were almost exclusively funded by Vick. Winnings were split among the other three co-defendants, and Taylor admitted using a large portion of his share for living expenses.

The summary lists 14 dog fights, with Vick present at nine of them. The fights involved dogs from Virginia and five other states.

Taylor acknowledges executing two dogs that did not perform well in testing sessions and alleges that two co-defendants, Purnell A. Peace and Quanis L. Phillips, each executed a dog. The summary says nothing about Vick killing an animal. Vick, Peace and Phillips have pleaded not guilty and are scheduled for trial in November.

Taylor said he left the operation in September 2004 after “a disagreement with Phillips and others.”

Thursday, July 26, 2007

Judge to rule Thursday on civil fees

A Henrico County General District judge said today that he will rule next Thursday on the constitutionality of the civil remedial fees for abusive drivers.

Anthony O. Price pleaded no contest before Judge Archer L. Yeatts III to a misdemeanor charge of driving on a suspended license. The plea subjected Price to the payment of $750 in civil penalties over the next 26 months under the law that took effect July 1.

Price’s court-appointed attorneys, Craig S. Cooley and Esther J. Windmueller, contended that the fees violate the Equal Protection Clause of the U.S. Constitution because they apply only to Virginia residents.

Virginia Code § 16.1-131.1 requires a judge who finds a law unconstitutional to stay the proceedings and provide a written statement of his findings of law and relevant facts in support of his ruling to the circuit court. The law requires the circuit court to give the case priority on its docket and provides for an interlocutory appeal to the Virginia Court of Appeals if the circuit court also finds the law to be unconstitutional.

Although he referred to the statute, Yeatts did not indicate how he will rule on the issue.

The fees received scant attention during the legislative session when they were included in a major transportation funding package. They are expected to eventually generate about $65 million annually. Publicity about them as they were about to take effect has created a firestorm of criticism about their high cost and the failure of the law to cover out-of-state drivers.

Price’s case was moved from Aug. 8 to Tuesday at Windmueller’s request, but Price did not get word of the change and did not appear. The case was rescheduled for today once he learned of the change.

Wednesday, July 25, 2007

Reporter analyzes collapse of Reciprocal investigation

Marisa Taylor of McClatchy Newspapers Washington Bureau has an extended article on the U.S. Justice Department’s abandonment of the criminal investigation of the implosion of Reciprocal America, first reported in Virginia Lawyers Weekly on April 2.

The article elicited more than 40 comments on the liberal blog. the Daily Kos, most of which view it, not surprisingly, as further evidence of the incompetence and corruption of the Bush Administration.

Taylor emphasizes the frustration of those who worked on the case and thought that General Reinsurance and officials of ROA should have been indicted but also notes that the abandonment came when DOJ was taking some hits for overzealous prosecution of corporate officers.

Tuesday, July 24, 2007

Judge: GDCt not place for 'fees' challenge

Henrico General District Judge Archer L. Yeatts III today rejected an attempt to challenge Virginia's new scheme of "abusive driver" fees, according to the Richmond Times-Dispatch.

Yeatts ruled that a general district court didn't have the jurisdiction to stop the fees, which took effect July 1 and establish harsher financial penalty for certain traffic offenses.

Richmond lawyers Craig Cooley and Esther Windmueller, who put together the challenge, said they would make their motions in circuit court later this week.

Monday, July 23, 2007

VSB committee withdraws controversial opinion

Political reality outweighs a nuanced view of legal ethics.

The Standing Committee on Legal Ethics of the Virginia State Bar reached that conclusion last week in withdrawing advisory Legal Ethics Opinion 1829, which would have eliminated the bright-line guidance that generally bars members of a law firm from appearing before a public body on which another member of the law firm sits.

The proposal created a political firestorm during the 2007 General Assembly session, and 19 of 22 comments submitted to the committee opposed the opinion.

James McCauley, VSB ethics counsel, said the committee still has concerns about the lack of authority in the Code of Professional Responsibility for the earlier opinions and will convey those apprehensions to VSB Council in October. “It’s a political issue as much as it is a legal ethics issue,” he said.

The concept of the appearance of impropriety was eliminated in the adoption of the Code of Responsibility in 2000. The Virginia State and Government Conflicts of Interest Act also has been adopted since the earlier rules and requires disclosure of potential conflicts and recusal of a legislator if a conflict exists.

Those concerns and the potential loss of public service of members of large law firms prompted the recommendation for the adoption of LEO 1829.

Several legislators responded that the change would increase the possibility of collusion and improper conduct.

Friday, July 20, 2007

Richmond juror strike OK in federal court

Litigators who like to catalogue race-neutral bases for striking prospective jurors can add another one that has worked in federal court in Richmond: being a veteran of a Richmond jury.

A 1986 case, Batson v. Kentucky, and its progeny protect parties against an exercise of peremptory strikes based on race or gender. In U.S. v. Williams, an unpublished opinion released last week by the 4th U.S. Circuit Court of Appeals, a defendanct convicted on a firearm charge said the prosecution had illegally struck black jurors from the venire.

When challenged under Batson, the government “explained that it struck the first two jurors because they appeared uninterested and looked like they were falling asleep,” according to the per curiam opinion. The third juror was struck because he “appeared to be leering, smirking and not taking the proceedings seriously.”

And the fourth strike?

The prosecutor expressed a dislike for working with jurors who previously served on Richmond juries, saying, “If I see a Richmond juror, I just usually want to strike them. … Richmond jurors tend to have not great experiences, and I don’t like dealing with Richmond jurors.”

The Richmond bias was not a racial bias, under the district court ruling. The 4th Circuit panel of Judges J. Harvie Wilkinson, Paul Niemeyer and Roger Gregory, affirmed the lower court.

Colorado Springs launches blog

Our colleagues at the Colorado Springs Business Journal have become the latest Dolan Media Company operation to join the blogosphere.

They launched their blog, the CSBJ Blog, this past Monday. Previously the CSBJ had maintained a local golf league blog.

Congrats to their publisher, Lon Matejczyk, and their editor, Mike Boyd. Cheers, gentlemen!

Wednesday, July 18, 2007

Benton to retire from Court of Appeals

Judge James W. Benton Jr., the last of the original members of the Virginia Court of Appeals, will retire Oct. 1.

Benton (photo at right) turns 64 in September. He is also the state’s senior appellate judge.

A native of Norfolk and a graduate of Temple University and the University of Virginia law school, Benton was appointed to the court of appeals when it was created in 1985. He had been in private practice in Richmond before the appointment. He was and is the only black member of the court.

Benton generally is regarded as the most liberal member of the court and dissents far more often than any other judge, usually on behalf of criminal defendants. Despite his frequent disagreement with his colleagues, he is well respected by the other members of the court for his intelligence, work ethic and pleasant demeanor.

Because Benton’s retirement will occur when the General Assembly is not in session, Gov. Timothy M. Kaine will choose his successor. The legislature will fill the position next year, so Kaine is expected to confer with Republican legislators about the appointment.

Bush taps NC judge for 4th Circuit

President Bush yesterday nominated U.S. District Judge Robert J. Conrad Jr. to a seat on the 4th U.S. Circuit Court of Appeals.

Conrad (photo at right) is a judge in the Western District of North Carolina; he sits in Charlotte. He was nominated by Bush for his district court seat and confirmed unanimously in 2005. He became Chief Judge of the district last year.

He would take the position vacated by U.S. District Judge James Dickson Phillips Jr. in 1994. This seat on the 4th Circuit has been open longer than any other judicial position in the country. Bush has had trouble getting a nominee confirmed due to politics, as did President Bill Clinton before him.

A Clemson graduate, Conrad earned his law degree from the University of Virginia law school. He practiced law in Charlottesville from 1983 to 1986 with the firm now known as Michie, Hamlett, Lowry, Rasmussen & Tweel. He was in the U.S. Attorney’s office in North Carolina from 1989 to 2004, including three years as the head prosecutor. He practiced with a North Carolina firm until he went on the bench.

Tuesday, July 17, 2007

Vick, three others indicted on dog fighting charges

Atlanta Falcons quarterback Michael Vick and three other men were indicted today in Richmond federal court on federal charges related to dog fighting.

U.S. Attorney Chuck Rosenberg announced the charges late in the afternoon.

Vick and the others are accused of running a dog fighting enterprise called “Bad Newz Kennels” on Vick’s Smithfield property from 2001 until April of this year. The indictments allege they engaged in dog fighting in other locales up and down the Atlantic coast as well.

State ranks 2nd in business favorability

Read it and weep if you’re a plaintiff’s trial attorney—or take credit if you’re a Republican attorney general.

Directorship magazine has ranked Virginia as having the second-best liability climate in the country for business. Nebraska ranked first.

The magazine says Virginia has the second lowest insurance loss ratio and labels the Supreme Court of Virginia as a “rule-of-law court” because it respects the will of the legislature and resists regulating through litigation.

Moreover, “[s]ince 1993, Virginia has elected attorneys general who were all active legal reform leaders, including the incumbent, Attorney General Bob McDonnell. As a member of the House of Delegates, General McDonnell introduced several liability reform bills that were signed into law.”

McDonnell touts the ranking in a release from his office.

Monday, July 16, 2007

Buddy Allen gives $2.6M to Randy Mac

Richmond lawyer Everette G. “Buddy” Allen and his wife Ann have given gifts totaling $2.6 million to Randolph-Macon College.

Allen attended the Ashland school on several scholarships, earning his degree, Phi Beta Kappa, in 1962. He played on the college basketball, baseball and football teams; Allen was inducted into the R-MC Athletic Hall of Fame in 1997.

Allen, a native of Richmond, wanted to emphasize local students. Some $1.25 million of their donation will establish the Buddy and Ann Allen Scholarship Fund. Scholarship preference will be given to Richmond-area students or those participating in metro-area programs.

Another $1 million was pledged for the creation of the Randolph-Macon College Athletic Endowment. The balance of the Allens’ donation goes to the annual fund for the unrestricted use by the college and the athletic program.

Allen, a partner with LeClair Ryan, earned his law degree from the University of Virginia law school in 1965. His practice areas include business litigation, tort defense, environmental, administrative agency, local government and land use.

In Memoriam: Harold H. Purcell

Retired Louisa County Circuit Judge Harold H. Purcell died July 14 at the age of 87.

Judge Purcell served in both the House of Delegates and the Senate before he went on the bench in 1966. In 1958, he patroned the bill that established Virginia's uninsured motorist laws. When he retired from the bench in 1979, he joined his son Charles in the firm of Purcell & Purcell, where he was the senior partner until his death.

The Richmond Times-Dispatch has the full story.

Friday, July 13, 2007

Lawyer provides abusive driver fees motion to colleagues

McLean lawyer Corinne Magee has a legal argument that the new civil remedial fees for abusive drivers are unconstitutional, and she isn’t keeping it a secret.

She has made it available to her colleagues in the Virginia Association of Criminal Defense Lawyers — and to Virginia Lawyers Weekly. Click here for a copy of her draft motion, which includes argument and citations.

The motion contends that the fees are unconstitutional for two reasons: they are a separate punishment and therefore violate the Double Jeopardy Clause, and they violate the Equal Protection Clause because they apply only to Virginians and not to out-of-state residents.

This coming Monday’s paper (the 7/16 issue) has an article about the fees and the criticisms and tactics of a general district court clerk and traffic defense lawyers.

Judge denies motion to identify W&M Internet users

A Newport News federal district judge yesterday denied an ex parte discovery motion filed by music companies seeking to discover the names of seven Internet users at The College of William and Mary the companies allege violated copyright laws by Internet file-sharing.

The group of plaintiff music companies includes BMG Music, Elektra Entertainment, Arista Records, Sony BMG Music and Virgin Records.

In their lawsuit, Interscope Records v. Does 1-7, the music companies identify each defendant by the unique Internet Protocol address assigned to that defendant on the date and time of the alleged illegal activity. The complaint says the defendants violated copyright law by downloading and distributing copyrighted sound recordings owned by the companies, and by using a file-sharing network accessed via the same Internet service provider.

Judge Walter D. Kelley Jr. denied the music companies’ motion seeking immediate discovery of the identity of the seven John Doe users.

Users who can access the Internet through William and Mary may want to do their own investigation by checking out the ISP addresses listed as an exhibit to the complaint. In the alternative, potential defendants can check out the playlist for each user and see if they recognize their own tastes. It’s a pretty eclectic assortment – country, soft rock, oldies, a little Dr. Dre, and yes, even Celine Dion and M.C. Hammer.

Challenge to fees filed in Henrico County

An early test of the constitutionality of Virginia’s civil remedial fees for abusive drivers could come as early as July 24 in Henrico General District Court.

Attorneys Craig Cooley and Esther Windmueller have filed a writ of prohibition seeking to bar the court clerk from collecting the fees because they are a violation of equal protection. The fees apply to Virginia residents but not to out-of-state drivers.

Cooley said he and Windmueller originally filed the writ on behalf of “all prospective clients,” but Windmueller has since been appointed to represent a client who faces imposition of the fees. Both the writ and the client’s case are on the July 24 docket.

The attorney general’s office contends that jurisdiction for the writ is in circuit court, not general district court where it is pending, Cooley said.

“I haven’t talked to a judge yet who doesn’t think it’s a violation of equal protection,” Cooley said. “I don’t know that I’ve talked to one who’s coming up for re-election.”

The fees are part of a $3 billion transportation funding package adopted by the General Assembly this year. They range from $750 to $3,000 over 26 months for such traffic-related misdemeanors and felonies as reckless driving, drunken driving and driving with a suspended operator’s license. They are expected to produce about $65 million annually.

They generated little controversy during the extended efforts to reach a compromise on highway spending but drew outrage as the effective date of July 1 due near and they received extensive publicity.

Thursday, July 12, 2007

In Memoriam: Thomas D. Taylor

Warsaw lawyer Thomas D. Taylor died of cancer July 6. He was 72.

Mr. Taylor was the first black lawyer in the town, according to his family, and he served Warsaw and Richmond County for more than 30 years, they said.

The Richmond Times-Dispatch has the story.

In Memoriam: Herman T. Benn

Retired Suffolk lawyer Herman T. Benn passed away on June 29 at the age of 95. in 1962 Mr. Benn won a case in which the U.S. Supreme Court declared segregation of courtrooms to be unconstitutional.

The Suffolk News-Herald has the story.

In Memoriam: Eugene Derryberry

Roanoke business lawyer Eugene E. Derryberry died on July 5 after a long battle with prostate cancer. He was 64. Colleagues remembered him as a mentor who loved teaching the younger lawyers at his firm, Gentry Locke Rakes and Moore.

The Roanoke Times has the story.

Wednesday, July 11, 2007

Let me entertain you – but first get the court’s OK

Elder law is a growing field of practice, and we all know why. What lawyers don’t always know is how to balance the different hats they may have to wear when serving elderly or incapacitated clients.

A new Fairfax case highlights one issue of concern: Should a lawyer appointed as a guardian and conservator draft the trust instrument that provides the foundation for future care of an incapacitated adult?

The lawyer appointed as guardian/conservator in February 2004 in In re Larry Banton (VLW 007-8-163) paid a law firm $5,000 to draft the special needs trust her ward required.

In a later dispute over the first guardian’s reimbursement of her expenses and fees from the trust, a successor guardian claimed the first guardian “should have put the Trust together herself, using CLE materials,” Judge Kathleen H. MacKay wrote.

But an expert witness who testified against the first guardian said that for her to hire herself was “ethically questionable.” MacKay said she agreed with this view, but cited the dispute as “just one example of how difficult this field of practice is for attorneys.”

The case raised other questions about the former guardian’s alleged charging of legal fees for non-legal services, including her “planning and attendance at a birthday party for her ward which took place at Hooters – his express wish.”

An expert witness for the former guardian acknowledged that perhaps one-half the lawyer’s normal rate would be appropriate for such activities, and the opposing expert said that “entertainment services” could have been provided by a vendor at the rate of $70 per hour.

MacKay said the former guardian worked very hard in the case and her ward “probably benefited from her kind attention, and the Trust anticipates such expenditures.” MacKay found no bad faith and allowed a fee of $70 per hour for certain entertainment expenses.

Although the first guardian’s original petition alleged expenses and fees of $26,920, MacKay determined the former guardian was justified in taking $7,646 out of the trust over and above the normal one-percent fee of $1,910, and conservatorship fee of $1,893. The judge agreed with the successor trustee that if administrative time exceeds one percent, the prudent thing for a guardian to do is go to court and explain the situation.

Tuesday, July 10, 2007

LeClair Ryan expands to Boston

Richmond-based LeClair Ryan will open an office in Boston with 10 partners from the firm of Donovan Hatem LLP.

The partners include A. Neil Hartzell, who leads the Boston firm’s business litigation practice group, and Kevin Kenneally, who heads its health care and insurance and tort litigation practice groups. Kenneally will head the office at 2 International Place when it officially opens on July 23.

Gary D. LeClair, chairman and co-founder of the Richmond firm, said LeClair Ryan and the new lawyers “have a lot of clients in common.” He said his firm is “very deep in the financial services industry,” and the Boston office and the New York City office the firm opened last fall will strengthen its position in that market. “There are a lot of good opportunities in New England and the Northeast,” he said.

The 10 Boston lawyers are all litigators, with about half involved in commercial litigation and the rest defending products liability, construction and professional liability cases, LeClair said.

Donovan Hatem had about 70 lawyers before losing the 10 to LeClair Ryan, and the lateral hires will give LeClair Ryan about 70 shareholders and 90 associates, LeClair said. The firm has an office in Washington and 11 offices throughout Virginia, including three in the Richmond area.

Tuesday, July 3, 2007

No privacy expectation in friend’s apartment

Home is not where your Nintendo is, according to the 4th U.S. Circuit Court of Appeals.

Two men who sold cocaine together in Huntington, W.Va., were more than business partners. Joshua Gray and Terrence Askew hung out together at Gray’s apartment, watching TV and playing video games. Askew even kept a change of clothes and a toothbrush at Gray’s apartment.

But the business relationship was paramount, according to the 4th Circuit in its July 2 decision in U.S. v. Gray. Because the buddies also spent their time selling cocaine base from the apartment, Askew had no reasonable expectation of privacy in the apartment.

That meant that when police pushed their way into Gray’s apartment on July 3, 2003, in response to a neighbor’s complaint about the drug dealing, they could not use the drugs and drug paraphernalia spread out on tables in the apartment against Gray, but they could use the drug evidence against Askew, who had no standing to contest the illegal search.

Writing for a panel majority, Judge J. Harvie Wilkinson III declined to “create a toothbrush or Nintendo rule that would inflexibly mark a relationship as social in the face of testimony of extensive drug operations, replete with scales, large amounts of cash, neighborhood complaints and multiple customers.”

Wilkinson also said the district court was entitled to reinforce its view of the defendants’ business relationship with information from a presentence report.

Judge M. Blane Michael dissented with a lengthy critique of the majority for becoming “the first court to hold that facts from a defendant’s sentencing investigation and proceeding may be used in deciding a suppression appeal.”