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.