Thursday, April 17, 2008

The VLW Blog has moved!

The VLW blog has moved to its new home on Virginia Lawyers Weekly's brand new Web site!

To continue following our blog coverage of the latest legal news from across the commonwealth, make sure to update your bookmarks to this link:

Brownlee to resign

John Brownlee, the U.S. Attorney for the Western District of Virginia, has announced his resignation, according to WDBJ. The resignation is to be effective on May 16.

Brownlee was appointed to the prosecutor's job by President Bush in 2001. He has been mentioned as a possible G.O.P. contender for Virginia Attorney General.

A link to a news release on Brownlee's resignation is here.

Wednesday, April 16, 2008

Lethal injection upheld

As reported on SCOTUSblog: In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution.

The Washington Post notes that Governor Kaine acted quickly to reinstate the death penalty in Virginia.

It’s all oxycodone to the court of appeals

To say that Jimmy Roger Lane was caught with the goods would be an understatement.

In one pants pocket he had 62 tablets of oxycodone , 17 tablets of hydrocodone and two plastic bags with a total of $4,128 in cash. In the other, he had $181 in cash and 28 tablets of Endocet, a combination of oxycodone and acetaminophen. In his garage, police found a plastic bottle with a dropper lid that contained 7.8 milliliters of liquid oxycodone.

Lane didn’t contest that he was guilty of one count of possessing oxycodone with intent to distribute it, but he was convicted of three counts on the theory that he had different types of the drug in three different locations.

That was a bit much for the Virginia Court of Appeals on Tuesday. The relevant double jeopardy inquiry is whether the defendant had a different intent for each stash, the court said in Lane v. Commonwealth. There was no evidence on that point and, “[w]ithout such evidence, we could only speculate as to whether location, packaging or different physical appearance would prove three separate intents,” the court said.

The question remains as to how much good a remand for resentencing on one count rather than three will do Lane. He did not appeal his conviction of four counts of distributing oxycodone.

He lost on the point that might have exonerated him on all the possession with intent counts. He contended that the search warrant that led to his arrest was defective because the only assertion in the affidavit as to an informant’s reliability was that he had “given information in the past that has led to the seizure of illegal narcotics.”

The court of appeals found that the “good faith” exception to the Fourth Amendment applied, although its analysis listed factors that appeared to go more to the observations alleged by the informant than to his reliability.

Tuesday, April 15, 2008

Bell unrung

Scratch one name from the list of potential candidates for Attorney General. According to this item from the Daily Progress, Charlottesville delegate Rob Bell will trade a campaign for the pleasures of fatherhood.

Not to be outdone, Republican State Senator Mark Obenshain of Harrisonburg also chooses not to run for A.G., citing family concerns, according to his e-mail to supporters.

Monday, April 14, 2008

Dodd speaks at Holocaust Museum

In reinforcing the rule of law, the Nuremberg Trials established and highlighted the fact of the Holocaust, Sen. Christopher J. Dodd, D-Conn. said Saturday evening at the Virginia Holocaust Museum.

Dodd is the son of Thomas J. Dodd, the late senator who is generally regarded as the most effective prosecutor at the trials. Christopher Dodd published last year “Letters from Nuremberg,” which includes much of the daily correspondence that his father sent to his mother during the trials.

The senator was in Richmond to attend a policy retreat of Senate Democrats at the Jefferson Hotel. He signed copies of the book with the recently completed replica of the Nuremberg courtroom to his right. Senatorial colleagues Harry Reid of Nevada, Carl Levin or Michigan and Patrick Leahy of Vermont stopped by briefly for the festivities.

Dodd said his father believed that World War II “was about fundamental rights.” If the defendants had not been accorded those rights, vengeance would have been all they produced, he said.

As the primary force behind the trials, the United States accumulated moral authority from them, Dodd said.

He said he believes that decisions of the Bush Administration – from condoning torture to its policies involving the terrorists at Gu├íntanamo and weakening privacy rights through warrantless surveillance of telephone conversations and e-mail – have undermined that authority.

“You don’t become stronger by giving up your rights,” he said. “You become weaker as a people.”

The Nuremberg Courtroom will be formally dedicated on May 1 in a ceremony that will include a speech by Justice Rosalie Silberman Abella of the Supreme Court of Canada.

Programs earlier in the day at a Rule of Law Conference at the museum will include appearances by Gov. Timothy M. Kaine, Virginia Chief Justice Leroy R. Hassell Sr. and Richmond Mayor L. Douglas Wilder.

The Richmond Bar Association will hold its Law Day luncheon at the museum with remarks from Virginia Supreme Court Justice Donald W. Lemons.

Court hears R-MWC arguments

An attorney told the Supreme Court of Virginia today that the court has never addressed the relationship between a college and its students.

Wyatt B. Durrette Jr., representing alumnae and students of Randolph-Macon Woman’s College, contended that the relationship is essentially contractual. The contract is determined by the material sent to its students by a college and what the student should understand from the material.

Before the R-MWC decided in 2006 to admit men and changed its name to Randolph College, students reasonably believed they had a contract for four years of liberal arts education at an all-woman school, he said.

Edward J. Fuhr, representing the college, countered that the trial court had properly granted a demurrer because such documents as the academic catalog and the admissions letter did not come close to establishing an enforceable contract.

In a related case, many of the same plaintiffs, represented by William H. Hurd, also contended that the college’s board of trustees exceeded its authority by taking assets for one charitable purpose – operation of an all-woman college – and using them for another such purpose – a coed school – without court approval.

Fuhr responded that charitable institutions often change and evolve without court approval. Because charitable trusts don’t have beneficiaries, “public officials must enforce them,” he said. The attorney general has that authority in Virginia and he has refused to intervene in the case, Fuhr said.

The court is expected to issue a decision in the cases, Record Nos. 070843 and 071248, on June 6.

Friday, April 11, 2008

Bad dog

The pit bull that belonged to the son of Elsie Campbell was a bad dog all right.

So bad, in fact, that Campbell wouldn’t get out of her car when she went to the house that she owned and allowed her son to live in rent-free. When Campbell stayed in the car, the dog would bite the tires of the vehicle. Knowing that the dog had bitten someone, Campbell told her son to get rid of it.

Predictably, the dog seriously mauled a friend of the son at the house, and the friend sued. The jury awarded him $175,000 in damages from the estates of Campbell and her son.

The Supreme Court of Virginia awarded Campbell an appeal, but affirmed the verdict today in an unpublished order, King, executrix v. Meyer, Record No. 070570. She had failed to object to an instruction aimed at establishing the duty of a property owner to protect a licensee from a known danger, the court said. Under Rule 5:25, it couldn’t consider that assignment of error, the court held.

The court also found the evidence sufficient to support the verdict. “Campbell was aware that the dog had previously bitten someone. Campbell’s knowledge of the dog’s dangerousness was confirmed when she demanded the removal of the dog from the premises. Campbell was aware of the violent tendencies of the dog and did not remove the dog or post any warning signs.”

SCC ruled properly on rate increase, Supreme Court holds

State law and a memorandum of understanding did not require the State Corporation Commission to give Allegheny Power a rate increase, the Supreme Court of Virginia ruled today in an unpublished order.

The Supreme Court said that Allegheny had asked the SCC to rule as a matter of law that it was entitled to the rate increase. The SCC properly found that it was not obligated to grant one, the court said in Potomac Edison Co. d/b/a Allegheny Power v. SCC, Record No. 071566.

However, the court noted, “Whether AP is entitled to a modification of the rate based upon financial distress, present circumstances, confiscation, or any other legal theory engaging the Commission’s legislative function was not before the Commission and is not before the Court.”

Amendments to Virginia Code § 56-582 in 2004 “invoke[] the Commission’s legislative discretion but do[] not compel adjustment of capped rates as a matter of law,” the court said.

The order indicates that much of Allegheny’s argument was based on its contention that it had invoked the SCC’s ratemaking authority, but the commission and the court found that the utility had not done so. while the case was on appeal, AP filed a request for a rate increase under the SCC's ratemaking authority and were awarded a lesser increase than the utility tought it was due. It has appealed that case as well.

Allegheny’s demand for the rate increase is in the context of the abandonment of the effort to provide electricity customers with the opportunity to buy power from more than one retailer. Allegheny and other utilities in the state agreed in 2000 to forego rate increases if the they were allowed to separate power generation and the retail transmission and distribution of power.

The retail competition envisioned by the legislation never developed, and the General Assembly voted to end the capped rate at the end of 2008, rather than in 2010as contemplated by earlier legislation.

Supreme Court limits notice of disciplinary actions

The Supreme Court of Virginia has told the Virginia State Bar not to put any information about disciplinary complaints on its Web site “until a decision has been made adverse to the lawyer and the the time for filing an appeal from that decision to the Supreme Court has expired.”

“The Supreme Court would like this policy implemented immediately,” Chief Justice Leroy Rountree Hassell Sr. said in a letter to VSB President Howard W. Martin Jr. last month that included other topics.

“That creates some issues for us,” VSB President Howard Martin told the agency’s executive committee yesterday. He said the a response is being prepared that will explain the ramifications of the new policy.

Martin said he understood the action was in response to a complaint by an attorney who had a disciplinary citation dismissed on appeal.

Under VSB rules, disciplinary matters become public only after a disciplinary committee finds probable cause that a disciplinary violation has occurred. Once that happens, the VSB publishes hearing dates for the attorney before the Disciplinary Board or three-judge panels on the Web site.

When a finding of misconduct that warrants at least a public reprimand is made, the VSB posts the case on the “Disciplinary Actions” page of the site. Appeals and other matters that occur after the posting appear at the bottom of the posting with an asterisk and an explanation in contrasting red type.

Since Martin received the letter, no new listings of pending disciplinary actions have been posted on the Web site. The information remains public at the bar offices.

That bothered Theophani Stamos, a Fairfax prosecutor who is a member of the EC. “If it’s a public record, it’s a public record” and ought to be readily available, she said.

Comeback story

Bruce C. Britton has been without a valid Virginia law license for 19 years. According to this announcement, on June 27, the State Bar disciplinary board will hear his request for reinstatement. Mr. Britton told the VSB that he wants to return to practice as a solo to help clients who would otherwise lack the aid of an attorney.

Finger splint infringement

A new copyright law opinion from U.S. District Judge Norman Moon gains our notice for several reasons. It sheds light on a niche market -- "fine quality jewelry" finger splints. It includes a citation to Green Eggs and Ham. And it underscores what we all learned in grade school -- paraphrasing someone else's words and passing them as yours can get you into trouble.

We just hope that this book cover image constitutes fair use.

Coaches wearing blinders?

High school coaches in Harrisonburg are under scrutiny for allegedly turning a blind eye to student criminal activity, according to the Daily News Record. The article claims that state law requires teachers and coaches to report substance abuse activity, but a criminal defense attorney said that the law has no teeth. A law professor is quoted on the procedures for firing school personnel.

Bar stays out of judicial appointments

Judy Rosenblatt wanted her colleagues on the executive committee of the Virginia State Bar to send a letter to General Assembly members stating the committee's displeasure at the failure of the legislature to fill judicial vacancies.

Almost 30 appointments are pending, but Rosenblatt was most upset yesterday about Court of Appeals Judges Robert J. Humphreys and Jean Harrison Clements. All the other appointments involve open seats, but Humphreys will go off the bench for at least eight days on April 15. Clements' term doesn't expire until June.

The General Assembly will reconvene April 23 and is expected to take up the appointments then.

EC member Irv Blank disagreed with Rosenblatt. “The best thing we can do is not put our foot in that tar baby. . . . That is a lose-lose situation” for the VSB, he said.

“I think we need to support our own judiciary,” Rosenblatt insisted.

Blank responded, “If it's not taken care of on the 23rd, we ought to raise holy hell. It's really silly juvenile politics.”

VSB President Howard Martin sided with Blank and, with that, the committee moved on to another topic.

Thursday, April 10, 2008

CRESPA bond is doubled

The CRESPA bond requirement is being increased, according to this announcement from the Virginia State Bar.

An amendment to Code § 6.1-2.21 increasing the minimum CRESPA surety bond from $100,000 to $200,000 will be effective on July 1, 2008.

- - - - - - - - - - - - - - -

UPDATE: Here's an update on Thursday afternoon, direct from the VSB. Bar leaders anticipated that they would be able to provide a grace period for compliance, but the bar has determined that that's not possible.

The VSB site now contains this statement: "An original rider or a replacement bond must be received in the office of the Virginia State Bar by July 1, 2008, or your CRESPA registration will be revoked, and you will not be able to perform residential real estate closings."

As the poet once said, govern yourself accordingly.

Va. Tech families settle, AP says

Lawyers for families of 21 of the Virginia Tech shooting victims said today they have agreed to an $11 million settlement with the Commonwealth of Virginia, according to an AP account in The Roanoke Times and other newspapers.

At least 20 families earlier filed notice with the state that they might sue. Published accounts of the settlement talks said settlement was contingent on a waiver of that right.

The $11 million figure includes attorneys' fees and a fund for charities.

In October, the families and surviving victims received payments ranging from $11,500 to $208,000 from the Hokie Spirit Memorial Fund, which will remain open for contributions to scholarships for five years.

Next Wednesday, April 16, is the first anniversary of the attack by deranged student Seung-Hui Cho.

Inquiring nostrils want to know

For suspects who weren’t sure, you have no privacy interest in the way you smell.

The Virginia Court of Appeals didn’t have to hold its nose to embrace the “plain smell” doctrine, which gives cops the right to go into your pockets if you smell like marijuana.

“While some have questioned our willingness” to embrace the doctrine, sniffed Judge D. Arthur Kelsey in Bunch v. Commonwealth, it’s clear to the court that an individual “has no privacy interest in his odors. He cannot broadcast an unusual odor” and “reasonably expect” others to take no notice.

“We concur with the accepted view that there is no reasonable expectation of privacy from lawfully positioned agents with inquisitive nostrils,” Kelsey quoted in the court's published opinion April 8.

So be careful who’s standing downwind.

Wednesday, April 9, 2008

One injury, one recovery

As we reported recently, it's an open issue in Virginia whether a plaintiff's lawyer has to choose between a wrongful death and a survival action before trial. In case we needed reminding, here comes a Maryland federal court decision (by way of the Maryland Daily Record) that clarifies the importance of that issue: Virginia allows only one recovery for a single injury.

That finding means disappointment for the mother of a man shot to death by a Maryland police officer in Virginia. She could have recovered on her survival action under Maryland law. Because the fatal encounter happened in Virginia, however, and because the victim's estate already recovered under Virginia's wrongful death statutes, the mother's survival claim is barred.

Scalia in Charlottesville Thursday

According to this website, Supreme Court Justice Antonin Scalia will speak at UVA Law School Thursday on "The Wall of Separation." Apparently, he will address Jefferson's view of church and state, although it is not known if he will comment on the recent Virginia decision in the Episcopal Church property dispute.

Scalia is to speak at 4 p.m. in Caplin Auditorium.

The event is free and open to the public. As usual, however, certain restrictions apply for techno types: Recording devices are not allowed during the lecture except for note-taking purposes. Videotaping will not be permitted.

Justice Scalia has a long history of discomfort with electronic media, although he apparently has overcome that discomfort to some extent in recent days to promote his forthcoming book.

Roanoke child advocacy agencies to merge

Two nonprofit agencies that work with courts as advocates for abused children have announced plans to merge, according to this item from the Roanoke Times.

The merger will join the Children's Advocacy Center of the Roanoke Valley and the Roanoke Valley chapter of Court Appointed Special Advocates for Children to form Children's Trust Roanoke Valley.

Tuesday, April 8, 2008

Picking our own bosses?

State Senator Ralph Smith of Troutville thinks lawyers have too much say in who becomes a judge in Virginia. He sees bar endorsements as a conflict of interest for those who have to practice before the judge. Today, he ventured to defend that opinion before the Roanoke Bar Association. "It's like getting to pick your own bosses," he told the gathering.

His main concern, he explained after the bar meeting, is the appearance of conflict when lawyer-legislators appear before the judges they helped put on the bench.

The freshman Republican says that he is not lobbying for elected judges, and he acknowledges that he does not have an alternative to Virginia's method of legislative appointment of judges. He just wants to limit the influence of those who will practice before the judges they help to select.

Friday, April 4, 2008

‘Kiss my sanctions’ may not be enough

Once again, when trial judges and lawyers convene, the talk turns to Benitez, the Virginia Supreme Court sanctions case. The venue this time? A panel of circuit court judges at the Virginia Trial Lawyers Association annual meeting on March 28, moderated by Arlington Circuit Court Judge Joanne Alper.

The subject is irresistibly personal.

“Sanctions motions are different and more difficult because they’re personal,” said Albemarle County Circuit Judge Cheryl Higgins. Basically, “you want a finding that the other attorney is a jerk.” You’ve got to use “e-mail, faxes, voice-mail, letters,” all kinds of lawyer-to-lawyer communications to prove your point.

Higgins is seeing more sanctions motions, but she cautions against filing just because you think you’ve got grounds.

Some lawyers see a flimsy claim or defense and fire off a “kiss my sanctions” motion, without any cite to authority. Higgins, who took the bench in Albemarle County in 2007, said “you would not believe what I’ve read in the last year.”

Higgins said it’s important to “think strategically before you file a motion for sanctions. What is it you’re trying to accomplish for your client,” given the time and expense of pursuing a sanctions motion.

“When you bring a sanctions motion, you’re putting your credibility on the line,” Alper said.

What about giving opposing counsel a chance to back down? The consensus among this group, which also included Richmond Circuit Judge Brad Cavedo, seemed to be it’s not necessary under the current statute, but it might be as a matter of professional courtesy.

In practice, “you try to work it out,” said Hampton Circuit Judge Wilford Taylor Jr. “We don’t want to sanction lawyers.”

Word is, a Boyd-Graves committee is looking at drafting a “safe harbor” provision for Va. Code § 8.01-271.1, similar to the one in Fed. R. Civ. P. 11, that requires a warning shot over the bow before a sanctions motion is filed.

Thursday, April 3, 2008

Judge sees parents as key to preventing underage drinking

Salem and Roanoke County Juvenile Court Judge Philip Trompeter says, in his perfect world, parents would have to undergo training in the dangers of alcohol and drugs before their children move up to middle school and beyond. Speaking to a meeting on underage drinking prevention Thursday night, Trompeter emphasized parental responsibility: "There's not a child who does anything that a parent does not let them do," he said.

Trompeter wishes parents would tell their children two things each day: I love you, and the use of alcohol and drugs will not be tolerated.

A certification program for parents would help, Trompeter said. "That's my dream if I were king."

The event in Roanoke was one of a nationwide series of town hall meetings on prevention of underage drinking.

Obenshain ponders run for AG

State Senator Mark Obenshain of Harrisonburg is considering a run for the G.O.P. nomination for Attorney General, according to the Daily News Record.

The perils of lawyering

A Richmond lawyer representing plaintiffs in a racial discrimination lawsuit claims that he and his wife were threatened with harassment by a Roanoke hate group leader, according to this item in The Virginian-Pilot. Troutman Sanders attorney Kevin Mottley is seeking a criminal contempt finding against the white supremacist who posted internet items about Mottley.

Ironically, Mottley's web biography indicates that he defended an apartment complex against allegations of racial discrimination in a 1998 case.

File pass-off can’t pump fee award

As March Madness wanes, like a hoopster’s fadeaway jumper, indulge us please in one more basketball reference. We can’t let a good one get away.

Charlottesville’s U.S. Magistrate Judge B. Waugh Crigler already had decided to award fees to lawyers for Pacel Corporation in Calkins v. Pacel Corp. for its opponent’s violation of federal discovery rules and the parties’ own joint discovery plan. But the amount the lawyers asked for on March 25 made Crigler blow the whistle.

Pacel’s lawyers requested $23,498.60, based on hourly rates ranging from $215 to $370. The hourly rate was the first sticking point. Crigler pointed out that Western District courts generally find $250 to be a reasonable hourly rate. Beyond that, he was “concerned with how many attorneys were reasonably necessary to pursue discovery compliance” in the case, especially in light of the $155 per hour spread in lawyer rates.

“While in basketball, the ‘three touch’ rule may lead to effective scoring opportunities, such a practice raises substantial issues of reasonableness in the context of fee shifting. In other words, a party’s default in providing discovery does not, ipso facto, expose that party to all that could be billed to a client who voluntarily engages the services of a well-stabled law firm,” Crigler wrote. Paring the hourly rate, he ultimately awarded $18,850.

So if you’re feeling like a Harlem Globetrotter, save it for that other court.

Tuesday, April 1, 2008

Kaine stops executions

As reported here and here, Governor Kaine has ordered a temporary halt to executions in Virginia pending a United States Supreme Court ruling on lethal injections.

Douglass named UR law dean

John G. Douglass, the acting dean at the University of Richmond law school who at first said he wasn’t interested in the permanent job, has been named dean of the school.

In announcing the appointment, UR President Edward L. Ayers said, “Dean Douglass has provided strong interim leadership, and I am delighted that he has agreed to lead the school for the longer term and build on its ever-increasing momentum.”

A graduate of Dartmouth College and Harvard Law School, where he was editor of the law review, Douglass joined the UR faculty in 1996. He had worked for 15 years before that as a federal prosecutor and as a civil litigator for two Richmond law firms.

He teaches evidence and criminal law and procedure and received UR’s distinguished educator award in 1999.

Douglas was named interim Dean after his predecessor, Rodney A. Smolla left UR to become dean of the Washington and Lee University law school.

Monday, March 31, 2008

Tales from the past

At the Virginia Trial Lawyers Association annual gathering, the Criminal Law section meeting is a time for war stories, anecdotes and general hilarity. Last week, New Kent Circuit Judge Thomas Hoover recalled a session from the courtroom of federal district Judge D. Dortch Warriner.

As Hoover told it, Jimmy Morris was arguing a point with partner Bill Woods at his side. As Morris pressed on, Woods passed him a note: "The old goat is agreeing with your argument. Don't blow it. Shut up and sit down."

Morris persisted regardless, stuffing the note in his pocket. Finally, Judge Warriner stopped him and asked if the note concerned the case at bar. Advised that it did, Warriner then demanded to see the note. Reluctantly, Morris relinquished the paper. Warriner read it, looked down from the bench and stated, "Mr. Morris, this note is well written and you ought to read it again."

‘Break in service’ unlikely for Humphreys

Granted, the General Assembly’s treatment of Court of Appeal Judge Robert J. Humphreys is shameful.

No one seems to suggest that he is unworthy of appointment to a second eight-year term, but he has fallen victim to political infighting that resulted in the failure of the legislature to fill about 30 vacancies and reappoint him and fellow CAV Judge Jean Harrison Clements.

Although technically still in session, the legislature can’t do anything about filling those vacancies until April 23 when it reconvenes. Humphreys’ term expires April 15, so he will be off the bench at least a week.

Assuming that the General Assembly comes to its senses and takes action on the pending judicial appointments, as it is expected to do by the end of May at the latest, there will be no effect on his retirement benefits.

Dire consequences for a “break in service” are largely a myth, according to Brian Goodman, legal affairs and compliance coordinator for the Virginia Retirement System. Humphreys will get credit for any month in which he is employed by the state. Even if he were to have a month with no service, he would lose only that month, and his benefits would continue to accrue with his reappointment, Goodman said.

Friday, March 28, 2008

Foodgathering begins Monday

The second annual Legal Food Frenzy starts Monday and runs through April 11.

The competition among law firms for the Attorney General’s Cup is aimed at raising a million pounds of food, a substantial increase over the 679,000 pounds raised last year.

The drive is being coordinated by the Young Lawyers Division of the Virginia Bar Association and regional foodbanks in the state.

Attorney General Bob McDonnell has issued a statement supporting the competition that includes Web links to the foodbanks.

Block: Juveniles caught in adult system

Andy Block of Charlottesville thinks that too many children accused of crime are getting caught up in the adult justice system, only to be handed juvenile sentences when they emerge from court. Block – a much-honored child advocate – will address the Virginia Trial Lawyers Association this morning at the group's annual convention at The Homestead.

Block questions “whether Virginia is getting what it wanted” when it dramatically changed the juvenile code in the mid 1990s. The changes of the '90s were designed to see that the “worst of the worst” juvenile offenders were put on trial as adults. Block suggests that the adult-trial net is being cast too broadly.

Block is the Virginia State Bar’s 2007 Legal Aid Attorney of the Year. He is the founder of the JustChildren advocacy project in Virginia and the Child Advocacy Clinic at the University of Virginia School of Law.

Block says that most youths who are convicted in adult court end up being sentenced as juveniles. While that means they get opportunities for education and rehabilitation, they still are branded as adult offenders. The consequences are significant, according to Block.

Young people convicted of felonies as adults lose their right to vote; they are barred from some student loans; they have difficulty finding jobs. If the crime is a sex offense, the young defendant is required to register as a sex offender. “It creates obstacles,” said Block.

“My hope is that, presented with the right information and given the opportunity to consider and discuss the matter, people might think that there is a better way to do it,” Block said.

Thursday, March 27, 2008

Governor signs repeal of abusive driver fees

It’s official. The civil remedial fees for motorists convicted of driving crimes ended today with the signature of Gov. Tim Kaine on Senate Bill 1 and House Bill 1243.

The emergency legislation provides for refunds for those who have already paid a portion of the fees and excuses them from further payment. It even provides that a license can’t be suspended for failure to pay the fee. Motorists are still liable, however, for the fines and costs associated with the underlying criminal offense.

The law required motorists convicted of traffic felonies and misdemeanors to pay $750 to $3,000 over 26 months in three installments. The fees drew little notice when they were enacted as a relatively small part of a package to fund state transportation projects but was attacked after publicity when it took effect in July. They generated a firestorm of opposition over their high cost and their application to Virginians but not to out-of-state drivers.

It also became obvious that they would generate only a fraction of the $65 million annually they were originally expected to produce.
“In the earnestness of trying to solve the transportation issue, a mistake was made,” said Senator Edd Houck, the sponsor of SB 1. “This was simply the wrong way to go about funding transportation. And today is the day we correct all that.”

The governor issued a press release and another statement explaining it all.

Wednesday, March 26, 2008

Home stripped of fixtures after foreclosure

As reported lately, some disgruntled mortgage customers react to foreclosure notices by burning down their homes. A Floyd County woman was not so vindictive, but still ended up facing felony theft charges. According to the Floyd Press, Elizabeth Ann Ledger was accused of yanking light fixtures, appliances, a bathroom vanity and a claw-footed bathtub from her foreclosed home. A misdemeanor plea deal was reached when the parties clashed over how to value the missing fixtures.

Chuck Norris to speak at Liberty U graduation

Frankly, I am scared to try to say anything funny here. Insert your favorite Chuck Norris fact. Here's the news item from the Lynchburg News & Advance.

O'Connor weighs in on law and war

Former Supreme Court Justice Sandra Day O'Connor lately has been offering pointed public opinions on various topics, most often on the judicial selection process in the states. Today, at Virginia Military Institute, she turned her sights on military justice. According to this item from the Roanoke Times website, she "chided America's political leaders for not doing more to establish more clear cut military rules of conduct...."

No word yet on reaction from the VMI Superintendent or Board of Visitors.

Circuit judge read lower court transcript before hearing custody appeal

What part of de novo don’t you understand?

That was the question the Virginia Court of Appeals had for Colonial Heights Circuit Judge Timothy J. Hauler.

A mother appealed a juvenile and domestic relations district court’s award of custody of her minor child to its father. At the beginning of the custody hearing Hauler told the mother’s attorney, Neil Kuchinsky, that he had read the transcript of the juvenile court proceeding and the result would be the same unless he presented new evidence. And if it is the same, Hauler said, “it is going to cost you client an awful lot of money” in attorney’s fees.

Kuchinsky objected to Hauler’s having read the transcript and unsuccessfully asked him to recuse himself. Hauler noted that the transcript was in the record, “inexplicably” so, appellate Judge Sam W. Coleman III noted, but Kuchinsky said he had not had a previous opportunity to object to its inclusion.

Hauler also awarded custody to the father and assessed attorneys’ fees of $16,918.50 and $2,507.15 in costs, including an award of fees and costs that was higher than the amounts originally awarded in juvenile court.

The CAV panel reversed and remanded the case for trial before a different judge. “[T]he trial judge abdicated his responsibility to independently weigh the evidence, make his own credibility determinations, and decide in the exercise of his sound discretion in which parent custody should be vested so as to serve the best interest of the child,” Coleman wrote in Alexander v. Flowers. “Instead, as a punitive measure for pursuing her right to a trial de novo the court imposed a punitive award of attorney’s fees.”

Tuesday, March 25, 2008

2009 GOP ticket apparently two-thirds set

Yesterday’s announcement by Lt. Gov. Bill Bolling that he will seek reelection next year instead of fighting Attorney General Bob McDonnell for the gubernatorial nomination means that the Republican statewide ticket is probably two-thirds set.

Only the race for Attorney General remains unsettled.

The Richmond Times-Dispatch notes that four names are currently being floated for the GOP nod for that office: Sen. Ken Cuccinelli, Sen. Mark Obenshain, Del. Rob Bell and former Del. Paul Harris.

From "The Office" to your office...

"Dunder Mifflin" sounds a lot like the name of a law firm, but any fan of NBC's "The Office" knows that they don't practice law at Dunder Mifflin, they sell paper.

U.S. News & World Report publishes an annual career guide, and this year, they use the Scrantonians from the TV show to illustrate a number of career pointers. And if you happen to see Michael, Dwight or Kevin (or their equivalents) in the halls of your law firm, keep it to yourself.

Enjoy the video. And please be patient. It takes a few minutes to load once you click.

No SOX shelter for bouncing your boss

Here is today’s tip for a happy workplace: Don’t threaten to have police remove the company HR director, your superior, from a company-funded holiday lunch.

If you do deny admission to the festivities, don’t expect Sarbanes-Oxley to provide protective cover if you’re fired.

In Livingston v. Wyeth Inc., a 4th Circuit case reported March 24, plaintiff Mark Livingston was a training director at Wyeth’s Sanford, N.C. facility. The company had agreed to overhaul staff training procedures for safe manufacturing practices after the FDA seized adulterated products from Wyeth plants in New York and Pennsylvania. Livingston had an ongoing dispute with Sanford plant management over its readiness to implement the new training and compliance procedures.

Livingston had butted heads with management before and the local HR director had placed him on a “personal improvement plan” with specific expectations for upgrading his performance. Livingston alleged the director began “stalking” him at staff meetings.

The conflict came to a head on Dec. 13, 2002, at an off-site company-funded holiday party when the HR director showed up to extend seasonal greetings. Livingston told the hapless HR guy (think “Toby” on “The Office”): “You’re not invited. We have a gift exchange. You have no gift. We have limited food.” Although there was some factual dispute about how the request to leave was phrased, it was undisputed that Livingston threatened to call the cops. Six days later he was fired.

Livingston sued the company under SOX’s whistleblower protections in 18 U.S.C. § 1514A, claiming he was fired because of his complaints about Wyeth’s inability to timely implement new training procedures.

The 4th Circuit affirmed summary judgment for Wyeth.

“[N]ot one link in Livingston’s imaginary chain of horribles was real or was in the process of becoming real,” wrote Judge Paul Niemeyer. Livingston’s prediction that delays in training would not allow for timely verification by internal compliance auditors proved wrong, and no reasonable employee in Livingston’s position could have believed these matters would be a violation of securities laws.

Not so fast, said dissenting Judge Blane Michael.

“Livingston formed a reasonable belief that Wyeth was intentionally failing to comply with a consent decree that arose out of regulatory action against Wyeth” by the FDA, Michael wrote. Company management threatened Livingston with termination unless he retracted critical statements and stopped reports of noncompliance at the Sanford facility. He made an internal complaint to the company’s ethics and regulatory compliance office, saying he was concerned about the effect of a cover-up on company shareholders.

That should have been enough to get Livingston past summary judgment, Michael said.

Monday, March 24, 2008

Adventures in Divorce Law

Stop me if you’ve heard this one before: Really, really rich older guy marries a much younger woman. His relatives don’t like the situation so they take legal action. Acrimony ensues.

Okay, the late Anna Nicole Smith isn’t starring in this particular movie. It’s a just-completed case in South Florida. A lawyer friend of mine who was on the winning side sent along the item from the Miami Herald.

How many first marriages take place at age 92? Alfred Kreisler, a life-long bachelor, a lawyer and an industrial-claims judge worth more than $22 million, waited a long time to walk down the aisle. So long that when it finally happened, they had to wheel him down the aisle.

Last October, he married a woman named Yvette Penichet, who was 43 and described by the Herald as “a Miramar divorcee.” Alfred’s older brother Seymour, age 95, was in the other room when the officiating rabbi wed the happy couple and signed the Florida marriage license.

Just two days before the wedding, Alfred parked $7.7 million in a joint bank account with Yvette. According to court testimony, Yvette sought on her wedding day to withdraw $400K to buy a Rolls-Royce, but the bank wouldn’t clear the funds. Right after she and Alfred said “I do,” she wired $30,000 to her son.

Two of Alfred’s nieces went to court, aided by my buddy and three other lawyers. They claimed Alfred “did not have the capacity to manage his own affairs or marry.” A judge appointed the nieces as their uncle’s co-guardians and took Yvette off the bank account.

Last week in a document called an “agreed final judgment,” a different Miami-Dade circuit judge pulled the plug, declaring the marriage void. The parties settled out the dispute. Yvette got to keep the 30 grand; she returned her wedding ring and waived any claim to Alfred’s millions.

The nieces signed a “non-prosecution form,” pledging not to press charges or to call in the authorities to investigate any claims of elder abuse.

And all is well that kind of ends well: The brothers Kreisler, Alfred and Seymour, are now the residents at an assisted living facility in South Florida, reports the Herald.

AP: Bolling to seek second term as Lt. Gov.

The Associated Press reports that Lt. Gov. Bill Bolling will announce this afternoon that he will seek reelection as lieutenant governor in 2009.

Bolling’s announcement will leave Attorney General Bob McDonnell an open field for the Republican nomination for governor. Former Gov. and Sen. George Allen announced earlier that he would take a pass on the race.

Two Democrats are seeking their party's gubernatorial nod: Sen. Creigh Deeds of Bath County and Del. Brian Moran of Alexandria.

Thursday, March 20, 2008

Crack prosecution policy criticized

How does a lawyer know when a judge is annoyed at him? Maybe it's when the judge lays out his beef in a first-page footnote in a published opinion. In this decision, Chief U.S. District Judge James Jones pointedly criticizes the policy of the Western District prosecutor of opposing every single crack sentence reduction.

The judge notes that the Western District is fourth in the nation in defendants qualifying for crack sentence reductions (the Eastern District is first) and states, "[T]he government's blanket objection in all cases does not assist the court ... and, in fact, hinders it."


Wednesday, March 19, 2008

A new twist in noncompete cases

Noncompete cases always seem to generate a great deal of interest when we feature them in the paper.

This week, we got a case that has a new twist. It was decided by Virginia Beach Circuit Judge Joe Canada.

The case involves three guys who partnered to start a martial arts studio.

Their cooperative agreement featured a clause that required two of them to pay a penalty for breaching the agreement with the third. If the two guys started their own martial arts school, without giving the third guy an opportunity to participate, they agreed to pay him $15,000.

Not surprisingly, the two guys did just that and the third guy sued, seeking $750,000.

Judge Canada found that while the clause did not neatly fit the definition of a noncompete clause, it nonetheless was valid and enforceable as a covenant not to compete.

To get a free copy of the full-text opinion in Miran v. Merullo, Today’s Top Opinion, please visit the Virginia Lawyers Weekly home page,

When in doubt: read the rules, then work around

Two sisters from Chesapeake found a gem in a box of Kellogg’s Frosted Flakes. It was a corn flake that was shaped like the state of Illinois.

So as any entrepreneur might, they put it up for sale on eBay, the grand online swap meet. The Daily Press has an account this morning.

The flake was going for 50 bucks when someone noticed the auction item. It was getting fat, probably phony, bids that drove the price to about $200,000.

Then eBay pulled the auction, citing rules against the sale of food. Who knew?

In a move that shows these young women might well have legal careers ahead of them, they read the rules and figured out a way around the problem, allowing them to sell their flake and stay this side of eBay’s requirements. Now you can go on the auction site and buy a coupon that entitles you receive their Illinois corn flake. Pretty clever. Right now the flake coupon is going for $138.50; the auction ends March 21, so you better hurry.

By the way, the Illinois flake has spawned a number of copycat auctions. For example, you can get a different corn flake shaped like Ireland or a Cheeto shaped like a dinosaur.

Tuesday, March 18, 2008

Judicial Council recommends rules on evidence, privacy

The Virginia Judicial Council sent to the Supreme Court of Virginia today a formal set of Rules of Evidence and a proposed Part Nine to the Supreme Court’s rules that would regulate access to private information in court records.

The proposed Rules of Evidence are the result of more than 20 years of off and on effort to develop a formal evidence code for Virginia. Massachusetts and Virginia are the only two states without such a code.

The proposed rules generally adopt the format of the Federal Rules of Evidence adopted in the mid-1970s, but most of the language of the rules, and the comments proposed for adoption with them, are from Virginia case law.

Kent Sinclair, the University of Virginia law professor who is chairman of the council’s advisory committee on rules, said the law of evidence in Virginia is buried in more than 1,000 published cases and scattered over a dozen sections of the Virginia Code.

The proposed Part Nine of the Rules of Court is likewise largely a synthesis of existing case and statutory law, according to Leslie M. Alden, the Fairfax Circuit Judge chaired the special committee appointed by Chief Justice Leroy Rountree Hassell Sr.

The rules start from the premise that “[court] cases are, as a general proposition, public.” However, much of their language focuses on exceptions to the general proposition and to concerns raised by the increasing availability of court records, and the often private information in them, over the Internet.

Hassell told the council that he expects the court to take some time before acting on the proposed rules

Deshabille dooms divorce defense

It’s tough to prove adultery as a ground for divorce in Virginia.

It helps to catch the wayward spouse emerging from his girlfriend’s home in his underwear.

In Toth v. Toth (VLW 008-8-071), a Fairfax Circuit Court said a wife proved adultery with evidence from a private investigator who observed the husband grocery shopping with his alleged paramour, coming and going from her home, staying late, and twice emerging from her home partially dressed, once in pants and no shirt and once in a t-shirt and boxer shorts.

As Judge Michael McWeeny recounted, the husband and his girlfriend went into her home at 5:54 p.m. on Sept. 3, 2006. Less than 45 minutes later he was seen coming out in only tee-shirt and boxer-style underwear. His wife “confirmed and identified the clothing as his underwear,” wrote the judge.

The husband took the Fifth.

Although the husband hadn’t appeared in the all-together, McWeeny put it all together and said the wife’s circumstantial evidence proved adultery.

What difference did it make? The husband, who was retired, wanted spousal support, but the court denied that request.

Friday, March 14, 2008

The return of Ray Harron

Ray Harron is back. Dr. Harron is well-known to lawyers who handle asbestos cases. He's the West Virginia radiologist who made a fortune and a reputation as a reader of mass quantities of lung x-rays for asbestos and silicosis claimants. (This is Ray Anthony Harron of Bridgeport, WV -- not to be confused with Roanoke neurologist Raymond V. Harron.)

According to the West Virginia State Journal, Harron this year finally filed responsive pleadings in a federal case where he is accused of racketeering and fraud. He had been "missing" for months as defendants sought to serve him with the suit papers. The Madison Record suggests that his "reappearance" took place in November.

Supreme Court will consider disclosure of settlement terms in death cases

The Supreme Court of Virginia has granted an appeal to litigants in Spotsylvania County who want to keep the terms of their wrongful death settlements a secret. The cases involve allegedly tainted heart medicine blamed for six deaths and four injuries. The Fredericksburg Free Lance-Star is pressing to have the dollar amounts of the settlements made public. Circuit Judge Ann Hunter Simpson agreed that the settlements should be public, but delayed disclosure pending appeal.

Legislature can’t agree on judges

Virginia Court of Appeals Judge Robert J. Humphreys apparently will be off the bench – at least temporarily – because of an impasse in the General Assembly over the appointment of judges.

The legislature had an opportunity to fill more than two dozen vacancies when it met last night to complete work on the 2008-10 state budget. Instead, after completing most of the work on the budget, it voted to hold a special session for consideration of a bond issue and the appointment of the judges. Under the Virginia Constitution and legislative rules, that can’t happen until April 23. Humphreys’ term expires April 15

Senate Republicans on Monday tried to get their Democratic colleagues to agree to the reappointment of Humphreys and another CAV judge, Jean Harrison Clements, but the Democrats rejected the proposal. Clements’ term expires June 30.

Some legislators, such as Del. Bill Janis, R-Henrico, and Sen. Ryan McDougle, R-Hanover, have pressed to have the legislature fill the vacancies for which there is no controversy, but others have insisted that the action occur in a block vote.

The positions on which legislators have been unable to agree are a State Corporation Commission seat, circuit judgeships in Virginia Beach and Norfolk and a general district position in the circuit that includes Roanoke and Salem.

An article written before last night’s legislative session that will appear in Monday’s Virginia Lawyers Weekly has an analysis of the situation.

Agee tapped for 4th Circuit seat

President Bush yesterday nominated Virginia Supreme Court Justice G. Steven Agee to a seat on the 4th U.S. Circuit Court of Appeals.

Agee would take the seat vacated by Judge J. Michael Luttig in 2006 when he left the court to take a job a Boeing.

Bush previously nominated Richmond lawyer E. Duncan Getchell for the post, but Getchell withdrew his name earlier this year when it became clear the nomination would not succeed.

According to the Richmond Times-Dispatch, both of Virginia's U.S. senators, John Warner and Jim Webb, hailed the Agee nomination.

Nichol to leave W&M, rejoin UNC law faculty

Former College of William & Mary president Gene Nichol and his wife, Glenn George, are headed to Chapel Hill, NC, to rejoin the faculty of the University of North Carolina law school, reports The Daily Press.

Nichol resigned the W&M presidency abruptly last month after learning his contract would not be renewed; he and George have remained on the W&M law faculty.

Nichol was dean at the UNC law school from 1999 to 2005.

Thursday, March 13, 2008

Safety report admissible, 4th Circuit says

The family of a Dickenson County coal miner killed in a 2003 mining accident will get another chance to prove their products liability claims against the manufacturers of a mining machine’s remote control device that was strapped to the miner’s body.

On March 12, the 4th U.S. Circuit Court of Appeals reversed Judge Jim Jones’ grant of summary judgment to the defendants in Kennedy v. Joy Technologies Inc.

Miner Gregory Kennedy was fatally crushed by a continuous mining machine. On appeal, his widow Mollie argued for the estate that the district court should not have excluded from the evidence a portion of the accident investigation report made by the federal Mine Safety and Health Administration, as well as opinions of the plaintiff’s causation experts.

The MSHA report concluded that the most likely explanation for continued operation of the mining machine that fatally pinned Kennedy was “a build up of debris in the left side track operating lever’s socket.”

After the parties tussled over experts at a motions hearing, the defendants apparently got an unexpected bonus when the district judge – sua sponte – excluded the MSHA report’s conclusion and then granted summary judgment to the defendants.

In its unpublished opinion reversing exclusion of the government report, the 4th Circuit said that it was clear from the record that the defendants “had not contemplated the possibility that the MSHA Report’s conclusions might be deemed inadmissible.”

The Big Stone Gap district court abused its discretion by failing to apply a public-record presumption of admissibility to the MSHA report under Fed. R. Evid. 803(8)(C), or to find factors that undermined the report’s reliability, according to the appellate panel.

The panel upheld exclusion of the causation expert’s opinion, saying the expert’s report merely summarized the existing evidence, without providing any specialized analysis.

Drug courts to get $6 million

Virginia’s 14 drug courts survived the General Assembly budget battle and will get a $6 million allocation under the agreement just hammered out. But a new $2 million program to help inmates re-enter society after prison was gutted.

The Daily Progress has this account, which includes comment from local drug court officials.

And The Virginian-Pilot offers some of the back-and-forth trading that prompted a budget deal between the House of Delegates and the Senate.

Dentist, guilty of fraud, still practicing

A federal jury in Abingdon on March 6 found Roy Shelburne, a Lee County dentist, guilty on 10 counts, including health-care fraud and racketeering. Sentencing is set for June.

The Bristol Herald Courier has reported he is still seeing patients and practicing dentistry.

U.S. Attorney John Brownlee wants to put a stop to that, and has filed a motion with U.S. District Judge James P. Jones.

This is one of those cases about what the meaning of is is.

An official at the Department of Health Professions says it can’t suspend Shelburne. The department got some legal advice, and it can act on a “conviction.” But the dentist has not been fully “convicted” yet; the conviction won’t be complete until the sentencing.

The Board of Dentistry can suspend a licensed member who poses a “substantial danger” to patients, but an official there declined to say whether it is investigating.

Wednesday, March 12, 2008

Happy Birthday (to us)

The VLW Blog celebrates its first anniversary today.

On March 12, 2007, Virginia Lawyers Weekly became the first member of the Dolan Media Company law group to enter the blogosphere. We launched the blog to provide a means to get legal news from across Virginia out to our readers and users as quickly as it happens.

During the past year, you’ve seen a wide variety of items – Virginia’s civil remedial fees, judgeship controversies, law firm mergers and General Assembly actions – to name just a few. You'll continue to see the latest from our blogging team - Paul Fletcher, Deborah Elkins, Alan Cooper, Sarah Rodriguez and our new Legal Editor, Peter Vieth.

We want to say “Thanks!” to the many readers who have visited and revisited the blog. As always, we appreciate your thoughts, comments and input.


Tuesday, March 11, 2008

Bar counsel to step down

George A. Chabalewski, the head of the Virginia State Bar’s disciplinary system since June 2006, has submitted his resignation, effective July 9.

Chabalewski joined the bar staff after 20 years as a civil litigator in the Virginia attorney general’s office. He had worked earlier as a prosecutor and public defender in Kane County, Ill.

In an e-mail sent to some of those involved in the disciplinary system, Chabalewski said, “I trust that the time period between now and then will permit the bar sufficient time in which to hire my replacement. It is my intention to continue to have the Professional Regulation Department perform to the best of its capabilities until my replacement comes on board, and to afford my successor as smooth a transition as possible. It has been a pleasure working with all of you.”

He said he is leaving for personal reasons.

Southside judge injured

Powhatan County District Judge Paul W. Cella reportedly is hospitalized with multiple injuries following a motorcycle accident yesterday. The Richmond Times-Dispatch reports that Cella's BMW motorcycle collided with an automobile on U.S. Route 360 near Central Garage. A state trooper told the paper that the driver of the auto pulled into Cella's path. The auto's driver was charged with failure to yield.

Cella is at VCU Medical Center.

Norfolk's Griffith will not be reelected

Norfolk Circuit Court Judge Charles E. Griffith has lost his bid for another eight-year term, reports The Virginian-Pilot. One House Republican leader acknowledged that Griffith, who served as commonwealth's attorney before going on the bench, will not be reelected.

A new approach to 3L

The Washington & Lee University law school has unveiled a new program, entitled “The New Third Year,” designed to make the last year of law school meaningful.

Students will participate in a curriculum that is entirely experiential, using the final year of school to prepare them for actual law practice.

The Associated Press has a lengthy article in several newspapers across the region this morning.

Monday, March 10, 2008

Doctor's noncompete decision withdrawn

In the March 3 issue of Virginia Lawyers Weekly, we reported an interesting twist in a doctor's noncompete case out of Winchester Circuit Court.

The case is General Surgery Specialists v. Bowers.

A judge held that a noncompete prohibiting a surgeon from practicing in Winchester and Frederick County was reasonable in its terms. But the court said the noncompete was unenforceable because it violated the federal Stark Law as the surgeon, a provider under federal Medicare and Medicaid programs, also received payments under a hospital physician recruitment agreement.

According to information provide by the court, on a joint motion by the parties, the court entered a final order today in which Winchester Circuit Judge Jay Wetsel vacated the findings and conclusions in his Feb. 11 opinion, and dismissed the case as settled.

Sunday, March 9, 2008

Judicial elections in OT?

The General Assembly will extend its session by three days, reports the Richmond Times-Dispatch.

Disagreements remain on the budget, but legislators apparently can’t agree on judicial choices, either. Some 36 seats – including a spot on both the State Corporation Commission and the Workers’ Compensation Commission – could go empty by adjournment if deals aren’t worked out.

The T-D says that the open SCC position is causing some friction. Republican Del. Bill Janis and Democratic Sen. Donald McEachin have cut a deal to elevate Henrico Circuit Judge Catherine Hammond to the SCC, in return for an African-American lawyer’s taking her seat on the circuit bench. But other legislators in the Richmond area, namely Sens. Walter Stosch and John Watkins, have objected.

Stay tuned.

Thursday, March 6, 2008

Kitten thief convicted of misdemeanor

A man who stole a kitten from the SPCA because he couldn’t afford the $100 adoption fee was convicted of a misdemeanor in Richmond General District Court on Tuesday. The judge gave Carlos Marshall a 12-month suspended sentence, fined him $250 and ordered him to do 100 hours of community service.

House Bill 334, a proposal to upgrade the theft of a cat to a felony, died in the 2008 General Assembly, and proponents said they will cite this case as support for the bill next year.

That measure bill now has a name. The kitten, who later was adopted by Chesterfield teenager, is named Ernie. In the 2009 Assembly, the felony cat-theft proposal will be “Ernie’s Bill.”

The Richmond Times-Dispatch has details.

Wednesday, March 5, 2008

McGuireWoods to grow to almost 900 lawyers

McGuireWoods LLP will merge the Helms Mullis & Wicker PLLC, a Charlotte-based firm with 145 lawyers, on March 31.

McGuireWoods Chairman Richard Cullen said the firms’ “complementary expertise in capital markets, business litigation and corporate law … is a natural fit that will benefit the clients of both firms.”

Peter J. Covington, chairman and managing member of Helms Mulliss, said Charlotte’s emergence as the country’s second largest financial center and North Carolina’s prominence in technology and life sciences “are driving demand for the sophisticated tax, banking business and regulatory services that our combined firm will be able to provide.”

The expanded firm will have almost 900 lawyers. Here is the firm's press release.

The Charlotte Observer had an analysis of the legal market there today.

Tuesday, March 4, 2008

J&DR judge from Wytheville charged with DUI

Wythe County Juvenile & Domestic Relations Judge Michael K. Blankenship was charged with drunken driving on Saturday, reports the Roanoke Times.

Blankenship was stopped in Smyth County after police were told to be on the lookout for a Subaru driving erratically on Interstate 81.

Griffith makes case for reappointment

Norfolk Circuit Judge Charles D. Griffith Jr. acknowledged to members of the Senate and House Courts of Justice Committees yesterday that there’s usually “a kernel of truth” to any complaint about a judge’s performance or demeanor.

He said he believes that criticisms of him to legislators come from his view of himself as “a firm but fair judge.” Firmness might have outweighed fairness at times, he said, but he has taken to heart the criticisms that have delayed – and perhaps – derailed his appointment to a second eight-year term.

He was one of only two judges interviewed by the committees yesterday not to be certified today by House Courts as qualified. Under legislative rules, a judge cannot be considered for appointment unless the committees certify them as qualified. Senate Courts had not taken a certification vote by late this afternoon.

Griffith brought prominent friends yesterday to vouch for him – Norfolk Mayor Paul Fraim, Circuit Court Clerk George E. Schaefer, a representative from an organization of ranking Norfolk police officers and Virginia Beach Commonwealth’s Attorney Harvey L. Bryant III.

He also brought upwards of 50 people who stood in support after sitting through almost six hours of hearings, most of them on judicial vacancies they had no interest in.

Griffith’s principal obstacle to reappointment appears to be the rebuke the Supreme Court of Virginia delivered in Wilson v. Commonwealth in reversing a drug conviction.

The court said Griffith’s response to what he viewed as judge-shopping by defense attorney Allan D. Zaleski “raised concerns about the judge’s impartiality in the case and about the public’s perception of fairness in the case.” Some criminal defense attorneys believe that Griffith, who was the city commonwealth’s attorney when he was appointed to the bench, remains too prosecution-oriented.

Zaleski spoke against the reappointment, but he was the only person to do so. He blamed the absence of critics on fear of retribution by Norfolk judges. The committee got bogged down in deciding whether to hear testimony about cases pending before state appellate courts. An effort to override the chair and allow it lost on a 12-7 vote, which appeared at the time to be a good sign for Griffith.

The legislature is expected to fill more than 20 vacancies tomorrow.

The local delegations appeared to have reached a consensus on most of those vacancies, but it was not clear yesterday whether there is a consensus on a general district seat in Roanoke or a seat in the circuit that includes Charlottesville and Albemarle County or in a few other circuits.

Monday, March 3, 2008

General Assembly: Judges and more judges

The General Assembly is scheduled to adjourn this weekend, but there is some currently unfinished business on selection of judges.

With the House of Delegates in the hands of the Rs and the Senate controlled by the Ds, it will take plenty of horsetrading to get the seats filled.

The two Courts of Justice committees are scheduled to conduct judicial interviews this afternoon; Norfolk Circuit Judge Chuck Griffith is to appear, explaining why he should be given another term on the bench.

The judicial selection process, including the political tinge, is making its way into the daily newspapers:

Several open or pending judgeships in South Hampton Roads could remain vacant after the General Assembly adjourns, if a political stalemate between the parties isn’t resolved, reports The Virginian-Pilot.

And out west there is another disagreement that could end up falling on party lines:

Two candidates for a seat on the Roanoke general district court – Chris Clemens and Donald Caldwell – will be in Richmond this afternoon for interviews with legislators, reports the Roanoke Times. The new judge will succeed Judge Julian Raney, who is retiring.

Friday, February 29, 2008

Spammer’s nine-year sentence upheld

A divided Supreme Court of Virginia has affirmed the computer crime conviction and nine-year prison sentence of a North Carolina man who sent mass quantities of spam – unsolicited bulk e-mail – through AOL servers in Northern Virginia.

Defendant Jeremy Jaynes of Raleigh was considered among the top 10 spammers in the world when he was charged in 2003 in the nation’s first felony prosecution against illegal spamming.

A Loudoun County jury convicted him of three counts of violating the Virginia Computer Crimes Act for spamming AOL users with offers to sell products such as a “Penny Stock Picker,” a “History Eraser” and a FedEx refund claim.

The state high court upheld the conviction today in Jaynes v. Commonwealth. The majority opinion by Justice G. Steven Agee rejected the notion that Jaynes, whose conduct clearly was criminal under the statute, had standing to challenge the statute on First Amendment grounds that might cover other kinds of protected speech.

Agee said a criminal defendant such as Jaynes could not invoke First Amendment protections for some hypothetical defendant not charged with a crime in order to win a “Get Out of Jail Free” card in his own case.

But three dissenting justices said the court’s precedent granted Jaynes standing, and the statute is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails,” including political, religious or other speech protected by the First Amendment.

Criminal cases divide court

The Supreme Court of Virginia split sharply today in deciding three criminal cases – one affirming the procedure in state law for submitting certificates of analysis at trial, a second upholding admission of the items seized in a search under the “good faith” exception to the Fourth Amendment, and the third reversing a drug conviction that stemmed from the “plain feel” of capsules in the defendants pocket.

In Magruder v. Commonwealth, consolidating three cases, the court said the failure of the defendants to subpoena the technician who prepared the certificate amounted to a waiver of the constitutional right to confront the defendant articulated in Crawford v. Washington, 541 U.S. 36 (2004). The dissenters, Justice Barabara Milano Keenan, Chief Justice Leroy Rountree Hassell Sr. and Justice Lawrence L. Koontz Jr., responded that the waiver of a statutory right under Code § 19.2-187.1 could not be extended to a wavier of the Sixth Amendment right to confrontation.

In Adams v. Commonwealth, the same justices dissented to the court’s holding the “good faith” exception excused the failure to specify in the search warrant affidavit that the defendant lived in the house that was the subject of a search for a murder weapon. The affidavit was detailed in other respects, and it could be read without realizing that it did not mention that the defendant lived in the home, Justice Cynthia D. Kinser wrote for the majority.

The dissenters responded that the affidavit should have been seen as defective by any properly trained police officer because it did not mention any particular suspect or state any connection between the defendant. Justice Kinser also wrote the majority opinion in Magruder.

In Cost v. Commonwealth, Justice Koontz wrote that the “feel” of the capsules in a pat-down of a passenger in an automobile was not enough for a policeman to remove them from the defendant’s pocket. Justice Donald W. Lemons, joined by Justice Kinser, countered the “feel,” bolstered by the defendant’s furtive gesture toward the pocket and the policeman’s training, provided the probable cause required for the search of the defendant’s pocket.

Foundation more like a business than a charity

The University of Virginia Health Services Foundation does not have charitable immunity, the Supreme Court of Virginia ruled unanimously today.

“HSF operates like a profitable commercial business with extensive revenue and assets. That portion of HSF’s services providing quality medical care to medically indigent patients is commendable,” Justice Donald W. Lemons wrote for the court in University of Virginia Health Services Foundation v. Morris. “However, when an organization is operated ‘in a manner calculated to produce a profit or gain,’ it is not entitled to charitable immunity.”

Judges in Norfolk and Portsmouth had granted charitable immunity to the HSF’s counterpart at the Eastern Virginia Medical Schools, but circuit judges sitting in Charlottesville Circuit Court had split on the issue with Judge Edward L. Hogshire of Charlottesville and H. Thomas Padrick Jr. of Virginia Beach, sitting by designation, finding it not to be charity, and Judge Randy I. Bellows of Fairfax, also sitting by designation, ruling that it is.

Supreme Court rejects transportation plan

The Supreme Court of Virginia ruled today that the regional transportation plan for Northern Virginia violates the state constitution.

The constitution bars the imposition of taxes by non-elected bodies such as the Northern Virginia Transportation Authority, Justice S. Bernard Goodwyn wrote for a unanimous court. It doesn’t matter that the all but two of the members of the authority are elected officials – representatives of the Northern Virginia localities, two members of the House of Delegates, a member of the Senate and two citizens appointed by the governor.

The designation of the seven taxes and fees and their rates by the General Assembly doesn’t save the proposal either because the authority still has the power to refuse to impose them, Goodwyn said.

The taxes and fees would have provided the revenue for $130 million in bonds designated for transportation projects in the area. They were part of a transportation plan that sharply divided the legislature in 2006 and 2007.

Goodwyn was appointed last year by Gov. Timothy M. Kaine and elected to a 12-year term as a justice earlier this month. Marshall v. Northern Virginia Transportation Authority is his first opinion for the court.

Effort to kill cash proffers fails for year

A comprehensive restructuring of the way localities pay for the costs of growth perhaps proved to be too comprehensive too soon.

Senate Bill 768 would have replaced cash proffers, the amount developers pay per unit to get a rezoning approved, with impact fees, an amount per unit when a building permit is approved, regardless of rezoning.

Sen. John Watkins, R-Powhatan, the sponsor of the bill, and the Home Builders Association of Virginia relied on a study by a George Mason University that concluded that the proposal would produce more money than proffers.

With some proffers topping $40,000 and the impact fees initially limited to $8,000 in Northern Virginia and $5,000 elsewhere, localities had trouble accepting that logic. The Virginia Association of Realtors and localities also were not fooled by an effort to label an increase in the grantor’s tax a “real property tax relief fee.”

Watkins got the bill through the Senate on a 21-19 vote by dropping the grantor’s tax increase and agreeing to increase the impact fees to $12,500 in Northern Virginia and $7,500 elsewhere.

Localities said they aren’t opposed to studying the issue but contended it was too much too soon. The House Rules Committee agreed yesterday and carried the bill over till next year.

Bill would give early disclosure of policy limits

The Virginia Trial Lawyers Association appears likely to get one of its principal legislative objectives for the year.

House Bill 172 allows plaintiffs’ attorneys to get the policy limits of a potential defendant before filing suit. The VTLA had to give a little, however. It accepted an amendment that would attorneys must give the insurer proof of medical bills or lost wages totaling at least $12,500 before the policy limits must be disclosed.

The measure cleared the House by a 55-43 vote before the $12,500 provision was added and passed 15-0 in the Senate Courts of Justice Committee yesterday. Chris LaGow, a lobbyist for insurers, said they did not oppose the bill.

VTLA President Chuck Zauzig said the measure is a common sense proposal that will let everyone know the practical limits of recovery and encourage early settlement.

Tuesday, February 26, 2008

Three candidates interview for SCC post

For the vacant seat on the State Corporation Commission, the House of Delegates wants Richmond lawyer/lobbyist Bernard McNamee. The Senate wants a former delegate, Barnie Day. The Richmond Times-Dispatch reports that yesterday, three new candidates for the post interviewed with the Senate Commerce and Labor Committee.

They are Henrico County Circuit Judge Catherine C. Hammond, Deputy Attorney General Frank Ferguson and Richard L. Savage, a lobbyist and former deputy attorney general.

The seat has been open since Feb. 1, when Judge Theodore V. Morrison retired.

Fairfax man can keep Declaration copy

Long before there were bloggers, there were preachers in pulpits charged with delivering momentous news.

Thus it was on July 17, 1776, that the Executive Council of Massachusetts took action to let colonists know that our nascent nation had severed its ties with England.

In order to broadcast the broadside, the council ordered that copies of the Declaration of Independence be printed and distributed to Massachusetts ministers to be read to their congregations, then delivered to town and district clerks to be recorded in local records “to remain as a perpetual Memorial thereof.”

Several years ago, a copy of one of those Massachusetts broadsides, rescued from an attic in 1995, came into the hands of Richard L. Adams Jr., who paid nearly a half-million dollars for the "Pownalborough Print." Documentation indicated the copy had been intended for the Town of Pownalborough, Massachusetts, which is now Wiscasset, Maine.

In 2004, the State of Maine sued for return of the document. But on Feb. 22, Fairfax Circuit Judge Terry Ney said that Maine failed to prove either that the document had been a public record or that it had been lost or stolen from town records before Adams bought it from reputable dealer.

Ney confirmed Adams’ ownership of the document in a 14-page opinion in Adams v. State of Maine (VLW 008-8-039).

LeClairRyan, Wright Robinson to merge

LeClairRyan will absorb Wright, Robinson, Osthimer & Tatum at the end of next month.

The merger of the two Richmond-based firms will give LeClairRyan a West Coast presence for the first time and increase the number of attorneys to more than 270. Wright Robinson has about 50 attorneys, with a quarter of them in Richmond.

It is perhaps best known for its representation of defendants in mass tort cases, and the firm’s emphasis on providing discovery solutions in large cases was a major attraction for LeClairRyan, according Gary D. LeClair, the firm’s chairman and co-founder.

The firm, which has expanded to Boston and New York in the last 18 months, also was interested in Wright Robinson’s offices in Los Angeles and San Francisco, which have a more traditional litigation practice.

Mark Yacano, a member of the Wright Robinson’s executive committee, said the LeClairRyan’s New York presence and its size and depth, especially in its litigation practice, were major attractions for his firm.

“We have a lot of complementary skill sets,” Yacano said. “It was a merger driven for all the right reasons, and we’re just as excited as we can be.”

Monday, February 25, 2008

Cook backed for circuit judgeship

The News & Advance reports this afternoon that the Lynchburg legislative delegation apparently has agreed upon a candidate for a pending circuit judgeship in the 24th Circuit: John Cook.

Cook would succeed Judge Sam Johnston of Campbell County, who is retiring June 1 after 30 years on the bench.

Cook, 50, is a partner with the firm of Caskie & Frost.

Mahoney to succeed Jeffries at U.Va.

Paul G. Mahoney, a corporate law expert at the University of Virginia, will become the 11th dean of the U.Va. law school on July 1.

In announcing the appointment today, U.Va. President John T. Casteen III had high praise for both Mahoney and the retiring Dean, John C. Jeffries Jr. Succeeding Jeffries, Casteen said, “is not a task for a timid mind or spirit.”

“Mr. Mahoney’s talents, wisdom, and capacity for visionary leadership assure that one of America’s great centers of scholarly excellence will continue to thrive,” Casteen said.

Mahoney, 49, is considered a pioneer in the use of empirical methods in legal scholarship, much of it focused on securities regulation, law and economic development, corporate finance, financial derivatives and contracts.

He is a graduate of the Massachusetts Institute of Technology and Yale Law School. He was a clerk for U.S. Supreme Court Justice Thurgood Marshall and practiced law with the New York firm of Sullivan & Cromwell before joining the law school faculty in 1990.

As academic associate dean from 1999 to 2004, Mahoney administered the school’s curriculum and academic policies. He is one of only five faculty members to hold the law school’s most prestigious teaching chair, the David and Mary Harrison Distinguished Professorship, and the youngest to have the title.

Friday, February 22, 2008

Full-text Circuit Court opinions free online

Virginia Lawyers Weekly is pleased to announce a new benefit for subscribers.

Starting today, you’ll be able to get a full-text copy of any Circuit Court opinion from 2007 onward that we digest in the paper for FREE.

Full-text PDF copies are available through the archives on our Web site,

The opinions will be available to any subscriber who has registered for the site.

If you have not registered, the process is easy. On our home page, select "Register for Web site benefits" in the left hand column and fill out the online form. You’ll need to have a copy of your newspaper with you when you sign up.

And if you do not presently subscribe, please take advantage of this great new benefit. Just use the coupon that appears on page 36 of this issue, or call 1-800-451-9998.

The VLW site already provides free full-text copies of opinions from the Supreme Court of Virginia and the Virginia Court of Appeals. Those opinions are available to everyone who comes to the site; the Circuit Court opinions will remain a subscriber-only feature.

VSB Council to consider mandatory insurance rule

The Virginia State Bar will seek comments on a proposal for mandatory legal malpractice insurance for attorneys who represent clients drawn from the public.

The VSB executive committee and council will get the proposal as an informational item at their meetings next week and is expected to vote on the proposal at its June 19 annual meeting. Comments on it are due by May 23.

Under the proposal, an attorney would have to purchase a policy on the open market with a minimum coverage of $100,000 per claim with a claim expense allowance of at least $50,000 outside the policy limits.

“While higher levels of per claim coverage would be desirable in most instances, as would an aggregate limit reflecting some multiplier of the pre claim limit, the Committee’s focus was on making the transition from uninsured to uninsured as economical as possible,” said Darrel Tillar Mason, the Richmond lawyer who chairs the Special Committee on Legal Malpractice Insurance.

The committee submitted the proposal to council this week without a recommendation on its adoption. That’s consistent with what Mason has said is a split on the committee over a “data driven” or “principle driven” view of the issue. Evidence of a serious problem for lawyers or their clients is slim, she acknowledges, but some lawyers believe that insurance against their own negligence is part of their fiduciary duty to their clients.

The committee has studied the issue for more than two years, and the VSB Council surprised many observers in October what it opted to continue the effort rather than to abandon it.

Thursday, February 21, 2008

New ERISA 401(k) claim

An employee who claims his 401(k) account lost value can sue the plan administrator for failure to follow the employee’s investment instructions.

On Feb. 20, the U.S. Supreme Court said in LaRue v. DeWolff, Boberg & Associates Inc. that the employee’s allegations stated a claim for breach of fiduciary duty in violation of § 502(a)(2) of the federal ERISA statute.

The high court reversed a 2006 decision by the Richmond-based 4th U.S. Circuit Court of Appeals that dismissed the employee’s suit. The Supreme Court rejected the 4th Circuit’s reasoning that the statute at issue did not provide a remedy for individual investors, only for an ERISA plan as a whole.

The retirement landscape has shifted from defined-benefit to defined-contribution plans, the Supreme Court said. Today’s 401(k) plans use individual investor accounts to fund retirement benefits. Under the Supreme Court’s ERISA interpretation, a plan participant’s individual account holds plan assets, so the individual can use the statutory remedy for an injury to the plan from a breach of fiduciary duty.

Griffith hearing set for next month

A hearing for Norfolk Circuit Judge Charles D. Griffith Jr. has been moved from tomorrow to March 3, when senators as well as delegates will participate.

Legislators had placed a hold on his appointment to a second term and gave him an opportunity to present his case for staying on the bench.

The earlier date was set by the House, and the refusal of Courts of Justice Chairman Henry L. Marsh III to bring his colleagues along that day was a source of irritation for his Republican predecessor, Sen. Kenneth W. Stolle of Virginia Beach.

Griffith’s principal obstacle to reappointent appears to be the rebuke the Supreme Court of Virginia delivered in Wilson v. Commonwealth in reversing a drug conviction.

The court said Griffith’s response to what he viewed as judge-shopping by defense attorney Allan D. Zaleski “raised concerns about the judge’s impartiality in the case and about the public’s perception of fairness in the case.” Some criminal defense attorneys believe that Griffith, who was the city commonwealth’s attorney when he was appointed to the bench, remains too prosecution-oriented.

Griffith’s appearance will coincide with interviews of candidates for more than 20 vacancies the legislature will have the opportunity to fill before adjournment on March 8. Election of the new judges is set for March 5.

Things could get hectic and acrimonious unless local delegations get much of their horse trading done the March 3 meeting.

Thursday, February 14, 2008

SCC rejects claims of retention groups

Read it and weep if you had a claim that you thought was covered by American National Lawyers Insurance Reciprocal or Doctors Insurance Reciprocal.

The State Corporation Commission ruled today that you have the same status as a general creditor in the receivership for Reciprocal of America, the parent of the retention groups. Because the commission estimates that ROA has a negative surplus of almost half a billion dollars, your chances of getting even a few cents on the dollar are minuscule.

ROA provided reinsurance for the risk retention groups, which are based in Tennessee, and they were declared insolvent shortly after ROA went under in January 2003.

Attorneys for the groups had contended that ROA and the groups were so closely related that they should be considered a single entity, with the policyholders of the groups having the same priority as those of ROA.

While acknowledging that irregularities probably occurred, the commission said it was powerless to change the priority status established in Virginia Code §38.2-1509.

Love stinks?

From the Love Stinks Department:

It’s not quite as provocative as the Chicago billboard last year featuring a buff dude and a scantily clad babe and proclaiming, “Life's short. Get a divorce.”

But the message is pretty much the same. The Associated Press reports that a radio station in Charleston, W.Va., is auctioning off a divorce. Today. Valentine’s Day. Love apparently doesn’t conquer all.

WKLC is taking applications from now until 4 p.m. this afternoon. A, um, “winner” will be drawn at 5 p.m.

Not mentioned is which divorce lawyer will acquire a client.

Food frenzy begins at end of March

Virginia Attorney General Bob McDonnell announced yesterday that the second annual Legal Food Frenzy will be held March 31- April 11.

The goal this year is a million pounds of food for the state’s foodbanks from Virginia law firms, a substantial increase over last year’s 679,000 pounds. The young lawyers division of the Virginia Bar Association is coordinating with the effort, with Katja H. Hill of LeClair Ryan and Christopher Gill of Christian Barton as co-chairs.

A press release from McDonnell’s office has the details about how firms can sign on for the event.

Tuesday, February 12, 2008

Nichol out at W&M

The Board of Visitors at the College of William and Mary announced in a statement this morning that President Gene Nichol had resigned following the board's decision not to renew his contract.

Nichol also released a statement, noting that he will return to the faculty of the William and Mary law school.

Nichol's 16-month tenure was marked by a number of controversies, including a dust-up over the presence of a cross in the school's historic Wren Chapel. This past week, several members of the board were called to appear before the General Assembly and to hear some members' displeasure with the recent Sex Workers' Art Show held on campus.

The board said that Dean W. Taylor Reveley of the law school will serve as interim president of the College while a search for a new leader begins.