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April 2000 Listing of articles from the VBA Journal, 1975-98 |
June 2000
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This column is being devoted to Lawyers Helping Lawyers, a program of The Virginia Bar Association which is important not only for its members but for all the attorneys of Virginia. Lawyers Helping Lawyers should be a major focus during any year of the Association, but particularly one such as the Year 2000 which is oriented to planning for the future.
In 1985, The Virginia Bar Association and the Virginia State Bar formed a joint committee to examine the issue of substance abuse among those in the legal profession and to recommend methods of addressing the problem. After extensive study, the committee concluded that a non-disciplinary program would provide the greatest potential for encouraging substance-abusing attorneys to enter into a recovery program. Because of its disciplinary responsibilities, the VSB then ended active participation, and the VBA agreed for the program to be organized under its wing. This initial joint committee became the Substance Abuse Committee of The Virginia Bar Association and the program it formed, now known as Lawyers Helping Lawyers, has continued to grow and refine its approach.
From its inception, a primary policy of LHL has been absolute confidentiality between the attorney and LHL personnel and volunteers. Another policy which guided the early days of the program was the need to maintain a wall of separation between LHL and the VSB disciplinary process; in the words of the statement adopted by the VSB and VBA in 1986, locating an office outside of the VSB serves “to avoid to the fullest extent possible the chilling effect that could result from a perceived tie to the bar’s disciplinary arm….” Along with these policies, there has always been a recognition of the value in a continual examination of whether Lawyers Helping Lawyers is fulfilling its mission and whether the mission is in keeping with current realities. We have just such an opportunity for examination today as we face changing realities including a national trend toward assisting attorneys who are impaired because of emotional and psychological problems and a growing interest in creating mechanisms for disciplinary systems to better utilize programs like Lawyers Helping Lawyers in their mission of protecting the public. These evolving realities underlie and validate our continuing evaluation of the program from year to year.
An attorney who comes to the attention of LHL because of substance abuse is almost certainly impaired. The bar, individually and collectively, is obligated to protect the public by insuring that the attorney has an opportunity to enter recovery. We also have a professional and humanitarian obligation to assist our colleagues at the bar who are suffering from addiction. Those experienced in working with addiction uniformly report that external motivations optimize recovery possibilities, especially when the patient faces losses and consequences causing him to conclude that recovery is a better choice. For attorneys, a consequence may well be losing the privilege to practice law if addiction leads to incompetence of practice.
Respecting and protecting the privacy and confidentiality of the individual who is working to recover from the disease of addiction is, without doubt, humane and important; however, the need for confidentiality occasionally runs up against a number of competing interests. These include the need to protect the public from the incompetence of an impaired attorney while maintaining his right to confidential health care. These competing factors have led the organized bars in Virginia and throughout the country to modify their lawyer assistance programs to promote cooperation with the lawyer disciplinary system. Our program is not tied directly to the disciplinary system, but the use of rehabilitation agreement contracts and monitoring allows the State Bar disciplinary system and Lawyers Helping Lawyers to work together. All of this means that an addicted attorney who has committed no serious infraction can agree to terms with the disciplinary authorities that insure certain actions will not be taken so long as he complies with the recovery program required by Lawyers Helping Lawyers. We need to examine other opportunities for cooperation between Lawyers Helping Lawyers and the State Bar disciplinary system.
In addition to this cooperation with the State Bar, to be fully successful in its efforts, LHL needs the strong involvement of the bench. Often an attorney’s undivided attention is more easily obtained when a judge is involved in the discussion about his future. Judges are obligated to protect the public and the judiciary from misconduct or incompetent practice by attorneys. For that reason, Lawyers Helping Lawyers has been continually reaching out to include judges in its actions. Judges can provide that additional encouragement and motivation needed to optimize recovery potential by withholding formal action against the attorney so long as he complies with the recovery monitoring program.
There is another group of impaired attorneys for whom no program currently
exists within the organized bar — those who are emotionally or psychologically
ill, whether or not suffering from substance abuse. The attorney suffering from
an emotional disorder such as severe clinical depression, for example, may be
just as incapable of practicing law as the cocaine addict. Should we wait until
his illness results in disciplinary violations before offering assistance? LHL
or some similar program may be equipped to assist these attorneys and their
families to recognize the need for treatment and to assist them in arranging
appropriate care. We could, in these cases, again provide a source of help to
the attorney as well as protection for the public.
Thus, we should continue our ongoing review of Lawyers Helping Lawyers and consider
these and other ideas. We should look closely at the program’s funding
and determine the best way to provide LHL with the resources required to meet
its mission. It has functioned well. It can function even better.
During his term, my predecessor, David Craig Landin, established a working group
with the Virginia State Bar and the Judicial Inquiry and Review Commission to
look at some of these issues. A subcommittee of the Substance Abuse Committee
chaired by R. Edwin Burnette, Jr., a past State Bar President, is pursuing a
similar path. More broadly, as the VBA Executive Committee develops a strategic
plan for the future, it should include a long-range look at the Lawyers Helping
Lawyers program with appropriate input from other interested parties such as
the VSB, the judiciary and others. The Substance Abuse Committee itself has
already shared some of its aspirations in a report last year. That report and
the current study efforts will give us a basis on which to proceed.
Among the many service roles of The Virginia Bar Association, none is more important
than the work of the Substance Abuse Committee and its dedicated volunteers
who provide the foundation of the Lawyers Helping Lawyers program. They deserve
our support. Return to Top
Overview
As the Virginia Supreme Court has pointed out, “The law favors compromise
and settlement of disputed claims.”1 In support of this
mantra, the Virginia legislature has codified the Virginia Uniform Arbitration
Act,2 specific mediation provisions,3 and,
more recently, guidance concerning other dispute resolution proceedings.4
Further, paragraph 6 of section 16.1-69.35 of the Virginia Code provides that
“the chief judge of a general district court or the chief judge of a juvenile
and domestic relations district court may establish a voluntary civil mediation
program for the alternate resolution of disputes.” With many options —
other than traditional litigation — available to an attorney today to help
resolve disputes, a basic knowledge of each is necessary to facilitate making
the choice that ultimately is in the best interests of the client.
The purpose of this chapter is to alert practitioners to the broad array of alternative dispute resolution (ADR) proceedings available in Virginia. In deciding whether, and what type of, ADR proceeding is most appropriate to the unique circumstances of a given case, the practitioner must be aware of: (1) the basic definition of ADR; (2) the advantages of ADR; (3) the obstacles to ADR; (4) the various ADR methods available; (5) factors to be considered when selecting an ADR method; (6) the role of the court in ADR proceedings; and (6) the role ADR plays in the recent revisions to the Virginia Professional Guidelines.
Definition
“Alternative Dispute Resolution” refers to the various techniques or procedures available to resolve disputes short of a trial in a public court. According to section 8.01-576.4 of the Virginia Code, a dispute resolution proceeding is “any structured process in which a neutral assists disputants in reaching a voluntary settlement by means of dispute resolution techniques such as mediation, conciliation, early neutral evaluation, nonjudicial settlement conferences or any other proceeding leading to a voluntary settlement . . . . The term includes the evaluation session.”
The intent of ADR is not to deprive citizens of their right to a trial, but rather to resolve the dispute in the most appropriate manner. As stated in section 8.01-576.5 of the Virginia Code, “While protecting the right to trial by jury, a court, on its own motion or on motion of one of the parties, may refer any contested civil matter, or selected issues in a civil matter, to a dispute resolution evaluation session in order to encourage the early settlement of disputes through the use of procedures that facilitate (i) open communication between the parties about the issues in the dispute, (ii) full exploration of the range of options to resolve the dispute, (iii) improvement in the relationship between the parties, and (iv) control by the parties over the outcome of the dispute.” Section 11-71.1 of the Virginia Code makes it clear that public bodies are authorized to enter into agreements to submit disputes arising from a Virginia Public Procurement Act contract “to arbitration and to utilize mediation and other alternative dispute resolution procedures” provided that the outcome is non-binding.
Advantages of ADR
ADR offers many potential advantages to practitioners, their clients, and the courts. The most frequently cited reason to opt for ADR is to save the client money and time by avoiding protracted litigation. Because ADR focuses on the big picture, it facilitates an early settlement. Concomitant with this is reduced docket loading, which will assist in relieving the mounting burden on the courts that has resulted from an increasingly litigious society. By making ADR voluntary, a citizen is not deprived of the right to a trial, and the dispute can actually be heard by a more expert hearing panel; in fact, a persuasive argument can be made that ADR provides the disputant a “day in court” by guaranteeing a trial of some sort, and possibly resulting in a win-win situation that might not have been possible otherwise. Even if the ADR proceeding does not prevent the eventuality of a public trial, the dispute resolution proceeding undoubtedly will assist in preparing for trial. ADR therefore can be viewed as broadening the access to justice.
ADR also offers the advantage of flexibility. The parties to an ADR proceeding can determine, among other things, whether the proceeding will be binding or non-binding, the extent of discovery, the type of ADR proceeding to be used, the nature of the rules of evidence to be used in the resolution of the dispute, whether to request an opinion from a third-party neutral, and whether to have appeal provisions.
From a corporate or business perspective, ADR does not result in a legal precedent, thereby avoiding the risk of adverse judicial precedent. This does not mean, however, that a court will not uphold the terms of an ADR settlement if the parties fully agree and intend to be bound, even if the settlement is not reduced to a writing.5 Certain forms of ADR also involve the business executive (i.e., the real decision-maker) early in the dispute resolution process. Because there is no “settlement,” which traditionally could be viewed as a sign of weakness, ADR helps guard against criticism from superiors. Finally, by avoiding the adversarial nature of litigation, the use of ADR can preserve ongoing business relationships.
Further, ADR proceedings are generally confidential, ensuring that any subsequent litigation — should it be necessary—is not adversely affected by the attempt at dispute resolution. As stated in section 8.01-576.10 of the Virginia Code, “Any communication made in or in connection with the dispute resolution proceeding which relates to the controversy, whether made to the neutral or dispute resolution program or to a party, or to any other person if made at a dispute resolution proceeding, is confidential.” Similarly, in the context of mediation, section 8.01-581.22 of the Code states, “All memoranda, work products or other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with the mediation which relates to the controversy being mediated, whether made to the mediator or a party, or to any other person if made at a mediation session, is confidential.” The mediated agreement, however, is not confidential unless the parties otherwise agree in writing. Further, confidential mediation-related materials and communications may be disclosed at a judicial or administrative proceeding: where confidentiality is waived by all parties; in a subsequent action between the mediator and a party for damages arising out of the mediation; or pursuant to discovery if “not prepared specifically for use in and actually used in mediation.” Although Virginia courts have recognized these ADR confidentiality provisions, the intentional informality of ADR proceedings makes the question of when the provisions can be invoked a contentious one.6
Obstacles to ADR
Depending upon the circumstances of a given case, some obstacles to ADR may be present. Most of these so-called obstacles, however, stem from inaccurate perceptions regarding ADR or from considerations that do not necessarily support public policy.
Some of the “advantages” discussed above could be seen as obstacles.
Some perceive that ADR’s abbreviated hearings are inferior to the paradigmatic
drawn-out trials associated with traditional litigation, and they therefore
question the credibility of ADR. Others actually prefer the delay of litigation,
perhaps because they are the stakeholders of the property in dispute. If one
party is financially superior to the other, there may be little incentive to
save money; rather, the financially superior party may prefer (or demand) to
outspend his opponent into submission. In “big case” litigation, the
advantage of any ADR-associated cost-savings may be minimal when compared to
the damages sought. More sobering, it has been suggested that some attorneys
oppose ADR because they wrongly perceive that ADR results in less money for
the lawyers; although attorney fees for the individual case undergoing ADR may
be reduced, increased client satisfaction due to “successful” results
will likely lead to future legal work and referrals, benefiting both clients
and attorneys.
The intricacies associated with traditional litigation may actually be preferred
by some disputants. Because ADR is primarily oriented to resolving factual disputes,
it usually will not address substantial legal issues; hence, ADR is inappropriate
if a legal precedent is desired. Based on the fact that participation in an
ADR proceeding is voluntary, getting the other party (or multiple parties) to
agree to ADR—and to a specific ADR method—may be difficult. Some believe
that the protracted discovery associated with litigation will reveal “smoking
gun” documents that might be overlooked during the limited discovery of
an ADR proceeding. Finally, one of the parties may simply desire a jury trial.
Some of the obstacles to ADR stem from inaccurate perceptions of the dispute resolution processes involved. Some, unable to see “outside the box,” still perceive ADR as a signal of weakness. Others fear that ADR is some sort of quick, hush-hush settlement that might encourage others to sue, increasing the pool of prospective plaintiffs. Finally, because ADR requires a certain amount of trust, some attorneys feel that their clients will perceive ADR as befriending the enemy.
ADR Methods
As section 8.01-576.4 of the Virginia Code points out, a dispute resolution proceeding is “any structured process in which a neutral assists disputants in reaching a voluntary settlement by means of dispute resolution techniques.” Although there are a myriad of possible ADR proceedings — with the number continually increasing — some of the more popular ones include: (i) negotiation; (ii) mediation; (iii) conciliation/settlement conference; (iv) mediation-arbitration; (v) appraisal; (vi) early neutral evaluation; (vii) minitrial; (viii) special master/referee; (ix) arbitration; and (x) summary trial with binding arbitration.
Negotiation. Negotiation is often overlooked as an ADR proceeding because almost all conventional litigation goes through some phase of negotiation. Some ADR treatises, however, cite negotiation as the most frequently used dispute resolution method. The process is voluntary, and there is no need for a third-party neutral. Based on the latter element, negotiation arguably does not qualify as ADR in the Commonwealth of Virginia, as the Virginia Code requires the assistance of a neutral in a dispute resolution proceeding.
Mediation. According to section 8.01-581.21 of the Virginia Code, mediation “means the process by which a mediator assists and facilitates two or more parties to a controversy in reaching a mutually acceptable resolution of the controversy and includes all contacts between the mediator and any party or parties, until such time as a resolution is agreed to by the parties or the parties discharge the mediator.” Generally, the attorney’s role is to prepare the client for the mediation, serve as an advocate during the mediation, and advise the client regarding the process and the form of any binding agreement reached. The parties may either select a mediator of their own choosing, or if the parties desire, the Court will either assist the parties in choosing a mediator or will appoint an ADR provider or mediator from the list of mediators approved by the Supreme Court of Virginia. Generally, the parties will be required to share the cost of mediation on terms with which the ADR provider or mediator agrees. In some cases, the parties may qualify for a reduced cost or free mediation. Section 8.01-581.23 of the Virginia Code provides for civil immunity to mediators and mediation programs from acts or omission associated with mediation unless done in bad faith, with malicious intent, or in a manner exhibiting a willful, wanton disregard of the rights, safety, or property of another.
Conciliation/Settlement Conference. Conciliation is a proceeding in which a conciliator or judge facilitates a settlement between the parties. A “settlement judge” is an active or retired judge of the Court who will not hear or have any formal or informal decision-making authority in the case and who is appointed for the purpose of facilitating settlement. In many circumstances, settlement can be fostered by a frank, in-depth discussion by the parties and counsel of the strengths and weaknesses of each party’s position with the settlement judge. The agenda for the proceeding is flexible, with the conciliator/judge meeting with the parties jointly or individually, and the proceeding results in a non-binding decision.
Rule 16(a)(5) of the Federal Rules of Civil Procedure support such a dispute resolution process, which is usually referred to as a settlement conference: “In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as . . . facilitating and settlement of the case.” Rule 16(c)(9) of the federal rules specifically anticipates the use of ADR: “At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to . . . settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or local rule . . . .” Although there is no parallel rule in Virginia, typically the scheduling order entered by the Norfolk Circuit courts in complex matters requires such a conference with a settlement judge.
Mediation-Arbitration. Mediation-arbitration is a mixed dispute resolution process, beginning with mediation and ending with arbitration if the mediation is unsuccessful. In theory, the “threat” of arbitration creates a greater incentive to successfully mediate the dispute. This proceeding is usually used in labor-management disputes.
Appraisal. Appraisal involves the valuation or estimation of the value of property in dispute by disinterested persons with suitable qualifications. The proceeding, by its very nature, relies upon expert opinion and only resolves the specific issue of valuation. It is frequently used in probate and condemnation proceedings.
Early Neutral Evaluation. In early neutral evaluation, attorneys present the salient points of the case to a neutral advisor in the presence of the parties. A neutral advisor may be an active judge, retired judge, member of the bar, or other person agreed by the parties. Based on the presentations, the advisor provides a candid assessment of the strengths and weaknesses of each side. Unlike mediation, the evaluation is couched in terms of the legal issues. If there is no settlement, the advisor may help narrow the disputed issues and manage discovery. In a highly technical case, an advisor with particular experience and/or qualifications may be used. This proceeding is typically used prior to conducting discovery.
Minitrial. A minitrial is a highly flexible, expedited, but structured procedure (resembling an abbreviated trial) before a neutral advisor. The neutral advisor is an active judge, retired judge, or member of the bar. The proceeding was originally developed in the corporate setting, and involves a procedure in which principals of the parties (who have full contractual authority to settle the dispute) are present. The parties agree to the exact procedure and rules of evidence to be used, and usually agree that the proceedings will be confidential and that no statements can be used as evidence in other proceedings. Settlement negotiations are conducted at the conclusion of the presentation. The neutral advisor may assist in negotiations, but any recommendations by the advisor are non-binding. The parties usually share the expense of the neutral advisor.
Special Master/Referee. A special master, or referee, is a person to whom a cause pending in a court is referred by the court to take testimony, hear arguments, and make a special report to the court. The special master/referee is an officer of the court who exercises judicial powers and aids the judge in the performance of special functions. This proceeding is often used in complicated or highly-specialized litigation, with fees usually fixed by the court but paid by the parties.
Arbitration. In an arbitration proceeding, the parties submit the dispute to an impartial person (i.e., the arbitrator) or an arbitration board for a final, binding decision. The arbitrator makes a decision following a hearing, and the arbitrator’s decision is final and binding on the parties. The procedure is less formal than a judicial trial. The arbitrator, who is selected by the parties, is not bound by the strict rules of evidence (e.g., he may base his decision on custom/practice, technical insight, or broad principles of equity and justice). Commercial arbitration proceedings are normally governed by the rules of the appointing authority (e.g., the American Arbitration Association). Once confirmed, an arbitrator’s award is enforceable in the same manner as a court judgment.
Virginia has adopted a version of the Uniform Arbitration Act, Virginia Code sections 8.01-581.01 through 581.016, which recognizes the validity of arbitration agreements. Consistent with the language of the Act, the Virginia Court of Appeals has held that these agreements should be upheld unless they are against public policy or are unconscionable.7 Although the Act authorizes the trial court to resolve issues of arbitrability, the Virginia Supreme Court has held that the parties, in their contract, can agree that the arbitrator should decide those issues.8 According to section 8.01-262.1 of the Code, the forum for any arbitration proceedings related to a Virginia construction contract that involves a contractor whose principal place of business is in Virginia shall be in Virginia. Any agreement to arbitrate outside of Virginia is unenforceable. If an out-of-state contractor and a Virginia subcontractor/supplier provide contractually to arbitrate outside of Virginia, however, the Federal Arbitration Act may preempt the Virginia Code provision, based on federal constitutional provisions regarding interstate commerce.9 Further, at least one Virginia court — the Circuit Court of Fairfax County — has held that the Virginia Act cannot be construed to encompass the confirmation of arbitration awards entered into outside of Virginia.10
Since jurisdictions have adopted arbitration statutes, the judicial trend has been to favor arbitration “as a shortcut to substantial justice.”11 As the Circuit Court of Loudoun County stated, “Public policy favors arbitration settlement with a minimum of court interference.”12 Of note, because the Virginia Arbitration Act is modeled closely after the Uniform Arbitration Act, Virginia courts have relied on the comments associated with the Uniform Act, as well as the case law of other adopting jurisdictions, when interpreting the Virginia Act.13
Summary Trial with Binding Decision. A summary trial with binding decision is an expedited proceeding in which the parties try the case informally before a judge. A bench decision is issued at the end of the trial, or a summary written decision is handed down within 10 days following the later of the conclusion of the trial or the receipt of a trial transcript. Any decisions, rulings, or orders are non-precedential, and the parties must agree in advance that such decisions/rulings/orders are final, binding, non-appealable, and may not be set aside (except for fraud in the proceeding). The length of trial and the extent to which scheduling of the case is expedited will be tailored to the needs of each particular matter. Pretrial, trial, and post-trial procedures and rules applicable to cases generally will be modified or eliminated to expedite resolution of the case.
Factors to Consider When Selecting an ADR Method
Similar to the decision regarding whether to take advantage of ADR, the decision regarding what ADR method to use is based on the unique circumstances surrounding the dispute. First, the goals and interests of the parties must be considered to determine if they are consistent with an ADR procedure and settlement. The applicable ADR obstacles then must be looked at. Finally, the financial status of the parties must be considered.
Role of the Court
Despite the fact that dispute resolution proceedings are an alternative to traditional litigation in a public court, the court still often plays an important role when parties opt for ADR. Any requests to utilize ADR instead of litigation should be made jointly to the court by the parties. Based on such a request, or upon the court’s own motion, the court may refer a civil dispute to a dispute resolution evaluation session in accordance with section 8.01-576.5 of the Virginia Code. Upon this referral, the parties must attend one evaluation session, unless the dispute resolution process has been explained to the parties and one or both object to the use of ADR. Further participation in a dispute resolution proceeding shall only be by consent of all parties.
In light of the Virginia Uniform Arbitration Act, Virginia courts have spoken with greater specificity regarding the role of the court in reviewing arbitration proceedings. In Ertel v. Mountain Home Builders, Inc.,14 the Circuit Court of Spotsylvania County pointed out the three ways a court exercises ultimate supervision and control over the arbitration process: (1) if the arbitration award is in proper order, the court should confirm the award and enter judgment; (2) if there are minor problems with the award, the court may modify the award or correct any problems; and (3) if there are major problems with the award (i.e., it meets one of the five grounds upon which a court can vacate an arbitration award under section 8.01-51.010 of the Virginia Code), the court may vacate the award.
If ADR does not resolve the dispute, the case is restored to the active docket; however, unsuccessful ADR findings are not admissible in court and the settlement judge/neutral advisor normally will not participate in any judicial proceeding associated with the dispute.
Rules of Professional Conduct
As of January 1, 2000, Virginia attorneys are governed by a version of the Model
Rules of Professional Responsibility. Similar to the old Disciplinary Rules,
Rule 1.2(a) of the new Model Rules states, “A lawyer shall abide by a client’s
decisions concerning the objectives of representation ... and shall consult
with the client as to the means by which they are to be pursued.” According
to comment [1] of Rule 1.2, however, “a client also has a right to consult
with the lawyer about the means to be used in pursuing [the objectives of representation].
In that context, a lawyer shall advise the client about the advantages, disadvantages,
and availability of dispute resolution processes that might be appropriate in
pursuing these objectives.”15 This “new” attorney
responsibility represents one of the 10 Virginia ethics rules changes most likely
to affect an attorney’s practice, according to a Virginia State Bar Ethics
Counsel member in a recent article in Virginia Lawyer.16
Bibliography
1. Donovan Leisure Newton & Irvine, ADR Practice Book (John H. Wilkinson, ed., 1990 & Supp. 1999).
2. Jay E. Grenig, Alternative Dispute Resolution with Forms (2d ed. 1997).
3.John S. Murray, et al., Processes of Dispute Resolution: The Role of Lawyers (1996).
4.Kent Sinclair & Leigh B. Middleditch Jr., Virginia Civil Procedure (3d ed. 1998).
5.James M. McCauley, “New Rules of Professional Conduct: Ten Rule Changes Most Likely to Affect Your Practice,” Virginia Lawyer, Oct. 1999, at 55.
Notes
1. Bangor-Punta Operations, Inc. v. Atlantic Leasing, Ltd.,
215 Va. 180, 183, 207 S.E.2d 858, 860 (1974), quoted in Snyder-Falkinham
v. Stockburger, 249 Va. 376, 381, 457 S.E.2d 36, 39 (1995).
2. Va. Code §§ 8.01-581.01 through -581.016.
3. Id. §§ 8.01-581.21 through –581.23.
4. Id. §§ 8.01-576.4 through –576.12.
5. Snyder-Falkinham, 249 Va. at 385, 457 S.E.2d at 41.
6. See, e.g., Snyder-Falkinham, 249 Va. at 380-81, 457
S.E.2d at 38-39 (holding that, because plaintiff’s counsel did not cite
to the trial judge or rely on Va. Code § 8.01-576.10 or any other statute
dealing with dispute resolution proceedings, plaintiff could not invoke confidentiality
provision on appeal); Anderson v. Anderson, 29 Va. App. 673, 679-81,
514 S.E.2d 369, 372-74 (1999) (holding that, because a licensed clinical psychologist
acted as a therapist—and not a mediator—in a child custody dispute,
his testimony was not subject to Va. Code § 8.01-581.22 confidentiality).
7. Bandas v. Bandas, 16 Va. App. 427, 431, 430 S.E.2d
706, 708 (1993); Va. Code § 8.01-581.01.
8. Waterfront Marine Const., Inc. v. North End 49ers Sandbridge
Bulkhead Groups A, B and C, 251 Va. 417, 425, 468 S.E.2d 894, 898 (1996).
9. M.C. Constr. Corp. v. Gray Co., 17 F. Supp. 2d 541,
549 (W.D. Va. 1998).
10. Stevenson Engineering Assocs., Inc. v. Newlon, 1991
WL 835098, at *1 Va. Cir. Ct.).
11. Sargis & Jones, Ltd. v. Moran Assocs. Ltd. Partnership,
1992 WL 884414, at *2 (Va. Cir. Ct.).
12. Id. (citing Parsons v. Norfolk & Western
Ry., 310 F. Supp. 1197 (S.D. W. Va. 1970), aff’d, 442 F.2d 1075 (4th
Cir. 1971)).
13. See, e.g., Stevenson Engineering Assocs., Inc. v. Newlon,
1991 WL 834914, at *1 (Va. Cir. Ct.).
14. 1992 WL 885028, at *1-*2 (Va. Cir. Ct.).
15. Emphasis added.
16. James M. McCauley, “New Rules of Professional Conduct:
Ten Rule Changes Most Likely to Affect Your Practice,” Virginia Lawyer,
Oct. 1999, at 55, 55. Return to Top
Client targeting.
Business development.
Marketing.
No matter what they call it, it’s a tenet on the lips of most managing partners and the minds of individual attorneys these days.
They recognize life, for law firms, has irrevocably changed. The evidence is clear and the jury’s verdict is in: competition for clients is fierce and unceasing. Survival depends on gaining both share of market and share of mind. Despite the breakneck pace of new matters in many firms, the clarion call is for every lawyer to be bringing in more business.
The responsibility does not have to be overwhelming. Try this “once a day prescription.”
Getting and Keeping Clients Requires Daily Attention
Make a spot in every day to do a little business development and be disciplined about it. Put it on your calendar, write yourself a note, put a sign on your desk, do whatever it takes to keep this critical job in the forefront of your consciousness. Create a system that suits your style.
Once a day, focus on your marketing goal. Tackle it in stages. Management studies confirm that when a task is broken down into small steps, people are more successful at getting the work done.
Here are just a few of the kinds of small relationship-building actions that, when added together over time, will improve your results at getting and keeping business. You can probably think of a dozen others:
•Call a client, even if you’re not working on a matter currently. It might help to have a brief script prepared along the lines of “just checking in” or “wanted to make sure all your needs were covered,” but don’t try to sell. Just be in touch.
•Read a trade journal from an industry one or more of your clients are in and look for ways to pass information about their business back to them.
•Write a personal note to a client, referral source or friend who appears in the media. Clip and include the item, if printed.
•Invite a partner (or even an attorney from another firm) from a different practice area to meet for coffee or lunch and “just talk about what’s going on in your practice.”
•Take one or two of the business cards you were handed at the last seminar or professional group meeting you attended and follow up with a request to “exchange information on our firms” in person or by e-mail.
•If you don’t have any business cards from a networking event, sign up for one, volunteer at a local non-profit agency or attend a local business meeting. Making connections is the first step to business development. Most local newspapers carry a weekly or daily list of group meetings.
•Send a group of clients or business associates an e-mail or brief letter about your recent educational activities, along the lines of “I recently attended a very interesting session on (environmental regulation) at the (Bar Association). There are new issues in this area and, if you want to know the details, just give me a call. I’d love to let you know what I’ve learned.”
Take Small Steps To Make Big Advances
If you can make time for this personal activity once a day, every day, in a month you can have as many as 20 completed and be well on your way to having a regular and disciplined system of personal marketing. Over time, these efforts will enhance your relationships and keep your clients, prospects and business associates thinking about you, inevitably resulting in more requests for your services.
Suggested Additional Reading
Law Practice Management, September 1999 issue, American Bar Association.
The 22 Immutable Laws of Marketing, Al Ries and Jack Trout, Harper Business, 1993.
Selling the Invisible, Harry Beckwith, Warner Books, 1997.
Discovering the Soul of Service, Len Berry, Free Press, 1999.
Relationship Marketing, Regis McKenna, Addison-Wesley Publishing Co., 1991. Return to Top
The Lay of the Land
The Russian and American legal systems have similar surface features. Bar associations, lawyers, courts, law schools and prosecutors are key players in both systems.
Russian lawyers can be seen handling jury trials and arguing appeals in Moscow. In the forests of the Republic of Karelia near Finland, a clerk of the Petrozavodsk Court provides pro se litigants with model pleadings. A clinic program in Arkhangelsk up near the Arctic Circle provides legal aid to the poor. A veteran criminal lawyer in St.Petersburg lectures about legal ethics at a conference of law students from across Russia. Southeast of Moscow, in Samara on the shores of the Volga, 50 lawyers pay to attend a commercial law CLE. Exactly 107 hours by train from Moscow on the Trans-Siberian Railway (some six time zones to the east) a law school in Chita conducts a moot court.
While these seem like familiar legal practices to American lawyers, there are differences between the two legal systems. Some are fundamental and obvious while others are subtle. Context is also very different. While efforts to strengthen the rule of law in Russia continue apace since the demise of the Soviet Union almost 10 years ago, these efforts are tempered and shaped by other reform initiatives, economic instabilities, and Russia’s special history.
Jury trials are still infrequent in Russia and tend to be limited to only serious criminal cases in certain regions due to costs. Most of the trial courts still use Soviet-style three-judge tribunals (two of the members being non-lawyers). American lawyers would feel at home in a Russian-led discussion about practice ethics, including issues of client confidentiality and scope of representation. However, Russian attorneys are not subject to ethics-based rules of professional conduct.
Bar associations in Russia (“collegia”) are more like membership clubs which offer special privileges. To be a trial lawyer, you need to belong to one of the 150 or so “collegia” in Russia. However, unlike mandatory bars in the U.S., these “collegia” — with only about 25 percent of lawyers in Russia as members — are not vehicles for self-regulating the profession or insuring public accountability for lawyer conduct through a licensing system. There have been efforts in Russia to move in this direction, but most “collegia” oppose them. Many of these associations are concerned that the creation of a widespread disciplinary system would undermine the power and stature of their own professional organizations, even if each region had its own self-regulating system.
It is not surprising that many Russian law students aspire to work at international law firms when they graduate. Americans are surprised to learn, however, that many new Russian lawyers seek careers as notaries, which involves drafting documents as well as authenticating signatures. There are now 11,000 such lawyer-notaries in document-intensive Russia.
Court systems in Russia are often confusing to Americans. There is no Russian analog to the parallel federal-state court systems in the U.S. There are two major court systems in Russia but both are federal. One three-tier system (the Arbitration Courts) handles just commercial cases. All other cases arise in the regular court system which includes more than 2000 district courts, high courts (regional appellate courts with some original jurisdiction) and a Supreme Court in Moscow. The Russian Supreme Court does not review constitutional questions. All constitutional challenges from lower courts are automatically referred to a single, separate Constitutional Court in Moscow. The Supreme Court does, however, have some extraordinary powers. It can initiate legislation, subject to the approval of the Federal Assembly (Russia’s Congress) and it can issue binding instructions to lower courts on the “administration of justice” relating to any field of law.
I enjoyed meeting and working with many Russian lawyers and law teachers during my six months in Russia. They were very affable and always anxious to learn as much as they could about the practice of law in the States. Americans share many values in common with them, but the Russians are not crafting a new legal system which mirrors the American model. Russian jurisprudence has long followed the European civil law tradition with its emphasis on written codes and statutes and the absence of judicial case decisions as a source of law. While there is an effort underway in one region to compile the written decisions of judges, reformers are not promoting a shift to a common law-like system.
During the Soviet era the legal profession had many conflicts with the government. Lenin once said that “one must rule the advocate with an iron hand and keep him in a state of siege, for this intellectual scum often plays dirt.” The Communists impressed political controls into Russian legal system in order to regulate the work of lawyers and limit judicial independence and the stature of judges. Lawyers in Russia faced legal nihilism until the profession was finally and firmly integrated into the Soviet order in the late 1930s.
Not surprisingly, Russian law reformers and their international allies struggled with plenty of Soviet baggage during the 1990s. The legal system was perceived by many as moribund and the excesses of privatization and the shortcomings of the new economic reforms tested rule of law advocates almost immediately. The unfettered rush to a market economy brought a blizzard of kiosks to the cities where you could buy anything from pirated Microsoft software to live monkeys.
For visiting Americans, Moscow now has some familiar creature comforts. Western pop culture has flooded Russia and there is no shortage of top fashions and high-tech electronic gadgets in stores in major Russian cities. The old GUM department store in Moscow now looks like a Tysons Corner mall. You can catch CNN, the “Turner Classic Movie Channel” and MTV on Russian cable. Turn the radio on and Elvis lives (in Irkutsk, Ulan-Ude, Vladivostok, and et al.). Moscow is also awash in billboard advertising. One product uses the famous Marilyn Monroe picture from the movie “Seven Year Itch” in its ads. I am sure there are more of these pictures posted on the streets of Moscow this spring than you can find anywhere else in the world.
But this consumer frenzy and lack of controls also launched the age of Russian robber barons. The freewheeling economy provided ample opportunities for remnants of the soviet legacy to adapt and attach quite easily — like a virus — to the new reform efforts. While the euphoric market tidal wave which carried Christian Dior, Big Macs, and the Marlboro Man into Russia in the early 1990s has subsided, the “new Russians” and their well-publicized excesses remain. Party bosses have gone or transformed themselves into new “democrats” and joined a select but dominant group of business moguls, tycoons, oligarchs, gangsters and their assorted allies in government. Powerful regional governors will openly eschew the rule of law as “bad for business” in cities where economic cronyism has replaced party elitism. Official bribery — where you get a receipt — is well entrenched. Just try to get back into Russia with a defective visa, like I did this past March.
Given the media attention, most Americans and Russians began to see “law reform” as synonymous with anti-corruption efforts. In a 1997 U.S. Information Agency survey, many of the Russian lawyers and other professionals interviewed still felt that “not very bright judges” continue to be “dependent de facto” on local authorities as in Soviet times and — nowadays — dependent also on the Russian underworld. That survey also reported that “Russians by overwhelming majorities think their country has made little or no progress achieving the rule of law.”
This is a harsh judgment. It’s not a balanced assessment. There have been quantum leap improvements in the training and selection of judges. Court systems — from technology applications to consumer access — are improving and expanding. There are new codes of conduct for judges as well as provisions in the law to protect their independence. The rapidly developing law school clinic movement, as discussed below, has enhanced both the teaching of law and the provision of needed legal services to the public. Nevertheless, USIA survey results are understandable. For many, public corruption has become the litmus test for measuring the success or failure of efforts to strengthen the rule of law in Russia. Also, success stories are often overwhelmed or obscured by other grim realities facing Russia. Despite the trappings of the good life for some Russians, day-to-day living in Russia is still very hard for most people. Petty criminals go to jail – where thousands die each year of drug-resistant tuberculosis. The life expectancy of the average Russian male is only 56 and has decreased since Soviet times. Unfortunately for their widows — who can be seen begging on Moscow streets and in pedestrian underpasses — there are no bar-sponsored pro bono publico programs or a network of legal aid staff program advocates to help them survive a diminishing social safety net.
Every day you can read or hear in the media similar depressing stories about life in Russia and systems that seem aberrant. Reform assessments and reassessments engage many pundits. Russia is a land of offsetting contrasts. Nice law offices can be found in dilapidated office buildings. Metro and Russian train systems are excellent but chaotic traffic situations exist in the cities. Some of the world’s most spectacular museums can be found in lovely St. Petersburg, a city with dangerous drinking water. Time passes, but hard images of corruption, political chicanery, impenetrable bureaucracies, nagging poverty, and an anemic ruble remain.
Such images feed pessimistic assessments about the future and buttress conclusions by impatient critics that reform efforts have run their course with little to show. More vested parties, particularly international funders who have fueled these reform efforts, also sense an inevitable disengagement but would like to make an honorable retreat and look for evidence that supported reform programs are now “self-sustaining.” Many who believe that much has been accomplished are concerned that these changes are fragile and could reverse if major reductions in foreign funding, investment, and expertise occur. Russians themselves are also impatient for the reforms to pay tangible dividends.
Reforms take time. They can create new problems and setbacks, as Russia has experienced with efforts to establish a market economy. What is an acceptable timeframe for reinventing a country the size and complexity of Russia? The reforms, including those relating to the rule of law, are interlocked. But there are no blueprints or benchmarks for measuring some sort of “progress” on this macro scale. Having to reform the reforms may be evidence of failure to some observers, but it also is strong proof of an emerging democracy recognizing and coping with some of excesses of economic freedom, as well as dealing with the baggage of the past.
Despite international ambivalence and public pessimism, I am confident that Russian leaders will continue efforts to strengthen the rule of law and will not abandon other reforms. Democracy has put Russia — warts and all — under a very public microscope. Sometimes that microscope misses important success stories. One such story — which supports my optimism — is the emergence and impact of law school clinic programs in Russia.
The Emergence of Law School Clinics in Russia
Traditional law teaching in Russia involved prepared lectures read to students by professors. There was no effort to develop or test the analytical skills of students. Interactive teaching was unknown and there were no programs using students as providers of actual legal assistance to the public. Mock trials for students were uncommon.
All of these things are now changing. Some changes are prompted by the popularity of law as a profession among young Russians. Other changes are driven by reform-minded teachers and deans who are championing the development of clinical programs.
The number of students studying law has grown dramatically in the last few years, as has the spread of new law schools or “law faculties” throughout Russia. No one seems to have an accurate count of either. Three years ago, there were about 40 of these faculties. Now the number may be closer to 400 and climbing. The State still subsidizes the tuition and room/board of top students (students “on the budget”) but many more students are now willing to pay to get a legal education. This has sparked the growth of law schools in both state and private universities.
Unlike the graduate school model in the U.S., “law faculties” are basically academic departments within universities. A law degree is one of many undergraduate degrees in Russia, which is awarded after five years of study. In terms of accreditation, it is not difficult to establish law departments. Irkutsk, a city near Lake Baikal in Siberia, will graduate 1000 new lawyers from its various schools this year. From law student organizations to judges on Russia’s Constitutional Court, I spoke with people who are concerned with this new popularity and absence of jobs for new lawyers. Some law schools in Russia are reacting and have created job placement positions as part of the school’s administrative support structure.
While this popularity presents potential employment problems for some students, it generates more revenues for the schools and has helped stimulate support for new, more effective teaching methodologies and courses that provide strong practical skills training. These reform activities are the province of clinical programs and the clinical movement in Russia is an emerging bright light.
While it may be difficult to get a handle on the success of other law reform efforts, law clinical programs have accomplished much in a very short time frame and they hold great promise in terms of their future impact on the legal system and Russian society in general. In just five years, this clinical movement in Russia has already developed its own indigenous character. It has committed, talented leaders, unafraid of change and very willing to experiment with teaching modalities which empower students, inspire public service commitments, and tackle head-on a wide range of societal and equal access issues from ethics to pension benefits.
While the law school clinic movement is still small, it has attracted key government endorsements and is growing in popularity. Russian clinicians seek information and advice from foreign clinics and clinicians, but collectively they have demonstrated their own capacity to plan and implement training programs for teachers and students on a national scope, with a de facto organizational structure which has listserv and web site linkages.
While the American and Russian legal systems, generally speaking, are very different beneath the surface, the purposes of Russian law school clinics and their activities are very similar to those of their American counterparts. In both countries clinics are defined primarily by their interactive teaching methodologies, a practical skills focus, and legal services to the poor component(s). The similarities are not accidental: during the 1990s many young Russian clinicians visited law clinics in the United States. In turn, a number of American clinicians have visited Russia and many major international funders in Russia like SOROS, the Ford Foundation, and USAID (through ABA-CEELI and other contractors) have supported the development of clinic programs which mirror Western models.
I think it is quite possible that collectively, law clinics will eventually play major roles in helping effect law reform in Russia. But there are challenges facing this community. The current number of self-designated “clinics” is probably about 100 as this article is written, but no one has an accurate count. Whatever the actual number, “legal clinics” have been endorsed by the Russian Ministry of Education and within the next few years they may become mandated as part of each law faculties practicuum requirement.
While such developments might insure the full integration of clinic programs into law teaching curriculums, not all clinic leaders welcome this new attention by the State. They see the State offering its own definition of a “law clinic” and beginning to set standards – possibilities they view with great apprehension.
Some are apprehensive because they see standardization as opening the floodgates, and making clinic certification desirable and easy. Others fear dilution of the strength of the clinic movement: diverse programs tailored to local school, student and community needs. Still other clinic leaders see the State (Moscow) favoring certain public institutions over private schools, in terms of clinic support and recognition.
Sorting out the real roles and relationships will not be easy, but they will be addressed beginning this summer at a meeting in St. Petersburg between clinicians and Ministry of Education officials. A threshold issue at this meeting will be the vagaries of the term “clinic.” The Russian translation of “clinic” (“klinika”) suggests a mental health facility to the average Russian. Often the debate over what a clinic is or isn’t challenges one’s mental health.
As in the United States, the “clinic” label is used by, and applied to, disparate programs in Russia. “Clinic” or “clinical education” are elusive terms. Can you have a “clinical legal education program” without a live client “clinic”? Just what is the mission of law school sponsored clinic: training students or helping provide social justice?
The Ford Foundation in Moscow believes that a clinical program in a law school must, by definition, include a live client service component. But I have heard the counter-argument — from Americans in Russia — that practical skills training is not only the primary mission of clinics but that controlled simulation exercises are more cost-effective teaching methodologies than the experience gained from the provision of direct legal aid to the poor by law students. The SOROS Foundation in Russia funds clinics primarily for their practice skills training, not legal aid. Debates over clinic missions are ongoing in the U.S. and have been since the medical model analogy was first applied to law training.
There is no similar debate, however, among the clinics themselves in Russia. Practically all Russian clinics embrace some form of legal assistance to the poor — along with interactive teaching techniques — as the core elements of their programs. In Russia, as in the U.S., the nature of such advocacy can vary in scope and impact. Some clinics target their legal services to particular, needy groups like veterans or immigrants. Others focus on general services in areas of housing and/or family law. But whatever the choice and depth of the legal assistance provided by clinics, the nature of the services has not become a contentious issue with government and politicians as it sometimes is in the U.S.
There are a number of reasons for this difference. First, very little governmental money directly supports clinical programs in Russia. Secondly, there is a general recognition that law school clinics are often the only game in town, when it comes to legal aid. Other delivery models very common in the U.S. — pro bono and staff model programs — exist in very limited numbers in Russia. Finally, it is uncommon for a law clinic to take on a case against the government that involves systemic litigation that might have a broad impact.
I was told about a situation in Siberia where a decision was made to split off an environmental clinic from a law school since there was fear of retaliation against the school due to the nature of the cases they were handling against vested interests. However, this type of pressure or fear of retribution seems to be the exception.
For the most part, clinic leaders and local government officials generally view legal aid provided by a clinic as an adjunct to the social services mission of various State agencies. While the clinic operation is a junior partner in these ventures, its impact can be significant, particularly when the clinic program assists government agencies with their local legislative agendas or when law students train agency staff on applicable laws.
Is international funding an Achilles heel for these new clinic programs?
“Sustainability” is the current mantra of the main international funders in Russia. “Sustainability” is simply funder code for discouraging grant dependencies (i.e., grantor-grantee relationships based on presumptive annual funding for an indefinite period). It is widely assumed in Russia that international funding, including USAID funds, will decrease dramatically in the next few years and the message has gone out to current and prospective grantees to look for “alternative” funding sources.
But just where are these alternative funding sources? For many organizations, this may well be a life-or-death question. A significant number of law school clinics seek and receive international funds each year, but unlike the NGO (non-governmental organization) community, all clinics also receive direct and/or indirect financial support from their schools. Some clinics are entirely supported by their parent organizations and most of that money is indigenous. The loss of international funding would be felt by clinics, but it would not be a fatal blow.
Law school clinic programs have a short history in Russia and they are a very small part of the reform activity and the turmoil and challenge of giving birth to democracy in Russia. The clinic movement may need a longer track record before a real assessment of its impact can be made. Its promising start may be short-lived and soon forgotten, but I don’t think that is going to happen. The process of reinventing Russia has generated some heavy weather for many reform efforts. Some initiatives have sailed into fog-banks and become disoriented, others have run aground. The clinic movement — with its exceptional crew and valued mission — should be able to avoid these shoals and stay on course. The clinical movement has shown strength as a reform initiative. It has the potential to shape and influence positively the development of the rule of law in Russia. Here are some attributes of these new clinical programs, which suggest this kind of role and impact is very possible.
1. Dynamic local leadership is evident. Clinics have sparked the interest and energies of many young and capable lawyer-teachers in Russia. These educators have incorporated many modern teaching methodologies into their classrooms, brought contemporary issues like mediation, domestic violence, and human rights into clinical settings, and have created considerable public and government interest in their programs. Impressive cadre.
2. Strong support for clinics are provided by “inside” allies (deans, administrators, teachers, and students). The enthusiasm of students and administrators for such programs suggests that clinics will continue to grow in popularity.
3. Local judges and the bar are supportive of the work of clinics. Such supporters provide the clinic additional credibility and leverage with the school/university and in the local community. Lawyers and judges are also important teaching resources. They are also employers of law students. Longer term, it is likely that this nexus will enable clinic programs to deal with business ethics and public corruption issues both at a training level and in terms of joint projects to address these high visibility concerns.
4. Law clinic programs have positive relations with governmental agencies (state, regional, perhaps federal). A good working relationship with government agencies at the clinic level can benefit the entire school/university in terms of contacts and image. Clinic legislative or law training initiatives that involve government agencies as partners can be very effective in helping meet local community needs. Law students working in such joint projects are working with prospective employers.
5. Many communities support and recognize the value of the clinic programs. In part, this reflects good public relations by both the clinic and the school/university. It also may be an indicator of the success of the direct service legal aid component in meeting unmet legal needs in the community (see #10). Clinic programs which sponsor externships and other formal working relationships with advocacy NGOs in their communities are often leveraging both legal and scarce financial resources very effectively. Best examples in Russia — environmental advocacy NGOs supported by law schools.
6. A number of clinical programs have outside partners, such as U.S. law schools or bar associations. Such foreign partnerships can leverage funds to exchange teachers and students. The Rochester (New York) Bar Association, the Portland (Maine) Bar Association, and the Vermont Law School are three that have Russian law schools as partners. These relationships have strengthened the clinical programs and fostered international good will. Many more such partnerships are likely.
7. Law School Clinic programs attract indigenous funding support. Few universities have truly adequate facilities in Russia. But clinics are supported by their parent schools/universities. Clinics usually receive significant in-kind support (teachers paid to teach clinic courses, rooms, supplies, computers, etc.) and many operate without any international funding. All seek to have clinical courses and activities integrated eventually into the regular law curriculums. Clinics are less vulnerable to the vicissitudes of international funding.
8. Clinic leaders provide high quality practical skills training. Many clinic leaders in Russia have visited top clinical programs in the US. All are well-versed in interactive teaching methodologies. They use practicing local attorneys and local judges as trainers and mentors, and often foreign law professors and lawyers. A group of these Russian clinicians has developed an annual special trial skills training program for selected law students from across Russia. Given in two locations, it will expand to a third this summer.
9. Ethics and professional responsibility are taught in classes using interactive
teaching methodologies. This is a developing area of interest and focus for
clinical programs. I taught ethics — the American perspective — to
student classes in seven Russian cities and was impressed by the interest and
participation of students in analyzing various ethical dilemmas which lawyers
commonly face.
As stated above, I believe there is interest in expanding the usual focus of
legal ethics in these clinic programs to encompass problems of business and
public service ethics — the two areas of concern which threaten reforms
in Russia. Linking the law schools with other players who seek solutions to
these problems would help rule of law efforts in this regard, and give even
more visibility to the importance of clinical work and resources.
10. The Clinic supports and provides civil legal assistance to the poor and
disadvantaged through “live client” or externship programs. As stated
above, practically all Russian law school clinics are direct service providers
in some fashion. A major problem with economic reforms to date has been the
gap between those that have benefited substantially and those that have been
left behind. In terms of rule of law, the issue is one of access to justice,
protection of rights, and advocacy in support of a viable social safety net
for the elderly, disabled, and other dependent population groups.
While more assistance is needed, the clinics have responded. Clinic-provided
legal assistance to disadvantaged clients helps promote an image and a reality
that the law benefits all Russians, not just the privileged. These are pragmatic
not just humanitarian considerations, given the fragile nature of Russia’s
participatory democracy.
Russia is complex. Its economy struggles, but it is not a Third World country.
Russia is still a sophisticated nuclear power. American interests in having
a stable Russia are clear. That stability involves strengthening the rule of
law and continuing the various reform initiatives. While corruption and greed
dominate the attention of the media and raise clouds of doubt in the minds of
the Russian public and the international community as to value of these efforts,
there are real success stories emerging. The law school clinic story is one.
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VBA cosponsors White House Conference
On Wednesday, June 21, The Virginia Bar Association, the United States Critical
Infrastructure Assurance Office, the National Infrastructure Protection Center
and the College of William and Mary School of Law will cosponsor a conference
on legal issues involving the information infrastructure of the United States
at the White House Conference Center in Washington, D.C.
The VBA’s involvement came about through the work of its Committee on Special
Issues of National and State Importance, which has included national security
as one of its six areas of major interest. The Committee spearheaded a seminar
at William & Mary this year on cybercrime/cyberterrorism issues from the
legal standpoint and sponsored a general session CLE on cyberterrorism issues
at the VBA Annual Meeting in January.
Approximately 100 invitees are expected to attend the conference, which the
brochure describes as a “challenge for state lawmakers, academicians and
the private sector in the Commonwealth of Virginia.” Virginia’s burgeoning
information technology industry is particularly concerned with the issues being
considered in this conference, and a number of prominent IT leaders from Virginia
have been invited to join the gathering.
Cybercrime issues have a direct effect on the prosperity and security of the
United States, as illustrated recently by the brief but devastating attacks
of the “Melissa” and “Love Bug” computer viruses on business
and government computers. Private and public sector groups must work together
to protect the information infrastructure, and the legal profession must focus
on answering these basic questions of law and policy created by these issues.
The day-long, invitation-only conference will focus on three areas of concern:
liability from corporate and national security threats, legal tolls to manage
security threats, and privacy and civil liberty issues. For each topic, panelists
will raise issues and consider a series of questions; all participants will
then join in roundtable discussions.
Conference speakers include former Virginia Governor Gerald L. Baliles of Richmond,
chair of the VBA Committee on Special Issues of National and State Importance;
former Congressman and Secretary of the Army John O. Marsh Jr. of Winchester,
chair of the National Security Subcommittee of the VBA Special Issues Committee;
and Dean W. Taylor Reveley of the William and Mary School of Law.
Panelists will represent such diverse agencies and organizations as the National
Security Council, the Department of Justice, the Department of Commerce, the
National Academy of Sciences, the Federal Bureau of Investigation, the White
House, Citicorp, and PriceWaterhouseCoopers, in addition to the sponsoring organizations.
Representatives of the American Bar Association will also be present. This conference
may be used as a model for other state bars wishing to cosponsor their own conferences
on “cyber-issues.”—The Editor Return
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Lemons joins Supreme Court bench
In an investiture ceremony marked by thoughtful musings and good humor, The
Honorable Donald W. Lemons was sworn in as a justice of the Supreme Court of
Virginia on April 4 in Richmond.
He succeeds retiring Justice A. Christian Compton, who will be the guest of
honor at the Lexis Law Publishing reception on Saturday, August 5, during the
VBA Summer Meeting at The Homestead..
VBA President Anita Poston was among the dignitaries who participated in the
investiture ceremony. Tributes and comments ranged from a quotation from the
Book of Micah to Justice Lemons’ teenage daughter’s reaction to his
appointment: “Dad, that’s really hu-u-uge.”
The season of investitures continued with the swearing-in of new Virginia Court
of Appeals Judge Robert J. Humphreys on April 26 in Virginia Beach.
Judge Jean H. Clements of Leesburg, another new appointee to the Court of Appeals,
will be invested July 7.
The third Court of Appeals appointee, G. Steven Agee of Roanoke, will succeed
Judge Sam W. Coleman III, who has announced his decision to retire December
31. Return to Top
LHL Program honors Dougherty with seminar
On April 18, the Lawyers Helping Lawyers Program posthumously honored the late
Clifford Dougherty of Arlington, a former Lawyers Helping Lawyers volunteer
in Northern Virginia, by holding the first annual Dougherty Substance Abuse
Seminar and Reception at the offices of Watt, Tieder, Hoffar & Fitzgerald
in McLean.
The seminar and reception were hosted by the Northern Virginia Lawyers Helping
Lawyers Committee.
Dougherty’s widow, Virginia, and other family members were present to receive
a memorial resolution from the Substance Abuse Committee honoring Dougherty
for his Lawyers Helping Lawyers involvement.
Dougherty died in May 1999. Return to Top
It’s a centennial year for Norfolk & Portsmouth Bar
Happy anniversary! The Norfolk and Portsmouth Bar Association celebrated its
100th year of existence with a luncheon gala on May 3 at the Norfolk Waterside
Marriott.
VBA President Anita Poston — herself a past president of the NPBA —
brought greetings and presented a commemorative resolution to the bar on behalf
of the VBA.
VBA member Francis N. Crenshaw, a former Executive Committee member, received
the NPBA’s second annual Eggleston-I’Anson Award for Professionalism
during the luncheon.
Hon. William H. Rehnquist, chief justice of the United States Supreme Court,
was the guest speaker for the occasion. Return to Top
Engel receives 2000 John Marshall Teaching Award
Kurt Bryan Engel, an eighth-grade civics teacher at Sterling Middle School
in Loudoun County, has received the John Marshall Teaching Award, created to
recognize an outstanding middle or secondary school teacher of the United States
Constitution, for 2000.
The award was presented by Hon. Harry L. Carrico, chief justice of the Supreme
Court of Virginia, in a ceremony at the John Marshall House in Richmond on May
1, Law Day.
Engel, a graduate of George Mason University, has been teaching for 23 years
and has received awards each year since 1986. The following quotes from his
nomination provide an overview of his teaching prowess:
•“I teach students with mental retardation... One year six of my students
and I joined Mr. Engel’s honors civics [class]... Through Kurt’s knowledge
and methodology, “my” students became “our” students and
the honors students became not just their peers but their equals in the study
of the Constitution.”
•“Mr. Engel facilitates the learning of civics by creating an environment
that catches each student’s interest... Mr. Engel’s students have
utilized their knowledge of their [constitutional] rights and have brought change
to the Sterling community.”
•“I think of Kurt’s class as a citizenship laboratory, where
the great experiment we call ‘Democracy’ continues to inspire new
generations. Kurt’s classes have successfully influenced Virginia legislation...
The future of our Constitution, indeed the future of our democracy, rests in
the hands of people like Kurt Engel... by honoring Kurt, you [honor] that future.”
Return to Top
VBA leaders hold first of two planning retreats
Historic Stratford Hall on Virginia’s Northern Neck was the setting
for The Virginia Bar Association Executive Committee’s first planning retreat
of the year, May 12-13.
Consultant Ann Hagan, a partner in the organizational development firm of Cavanaugh
Hagan Pierson in Washington, D.C., served as facilitator for the retreat.
Executive Committee members opened the retreat by sharing their hopes and expectations
for the VBA in the future, then breaking for small group discussions of possible
issues and activities to advance the mission of the Association in the next
three-to-five-year period.
An evening discussion focused particularly on a potential role for the VBA in
helping members achieve a healthy balance of work and personal life, taking
into consideration such topics as retirement planning, value billing, office
management, stress and anger management, health care and lifestyle practices,
and other elements of modern law practice.
Four working groups were assigned to study and develop information relating
to key issues identified by the Executive Committee — professionalism,
law reform, collaborative partnerships and the fostering of public confidence
in the judicial process — for the next three to five years.
The VBA News Journal will continue to follow the planning process as
it continues throughout the year. Members are encouraged to submit their thoughts
on planning and key issues to the Executive Committee.
The Executive Committee will reconvene at Stratford Hall this fall for a second
retreat. Return to Top
Eighth-graders learn mediation techniques in Law Day program
Fifty eighth-graders, representing 20 middle schools in Henrico and Chesterfield
Counties, participated in an April 29 seminar on mediation at James River High
School in Midlothian.
The program was sponsored by The Joint Committee on Alternative Dispute Resolution
as a nontraditional observance of Law Day, the nationwide May 1 celebration
of American freedoms under law.
Committee members sought to persuade students to accept mediation as a viable
alternative to the traditional adversarial methods of resolving disputes. “We
guessed that eighth-graders were old enough to understand real-world disputes
and had not yet attained the adolescent cynicism that would make them difficult
to reach,” said committee member Terry Marsh.
First, students observed the arbitration of a personal injury case by committee
members Kevin McCray of Garrisonville and Deborah Russell of Richmond. The same
case was then mediated by Bob Garrity of Charlottesville, with Virginia Mediation
Network volunteers playing the roles of the participants. The students were
favorably impressed by the results of the mediation, as opposed to the arbitration.
After an hour of training and quickly honing the mediation skills of listening
and asking questions, students proceeded to conduct their own mediations, of
simple and complicated cases, under the supervision of VMN professionals. Return
to Top
Fall conference dates announced
While it seems as though summer has barely begun, dates and locations for The Virginia Bar Association’s fall conferences are starting to fill the calendar from September onward.
•The 30th Annual VBA Labor Relations & Employment Law Conference will be held September 15-16, 2000, at The Homestead.
•The Lawyers Helping Lawyers Conference is scheduled for September 29-30, 2000, at the Crowne Plaza in Richmond.
•The VBA Virginia Tax Practitioners Roundtable will be October 20, 2000, at Farmington in Charlottesville.
•The VBA Capital Defense Workshop is planned for October 26-27, 2000, at the Hyatt Richmond.
•The Boyd-Graves Conference will meet November 10-11, 2000, at the Boar’s Head Inn in Charlottesville.
And for those who plan ahead, the 2001 Annual Meeting of the VBA will be January 18-21, 2001, at the Williamsburg Lodge & Conference Center.
The Lodge will be leveled later in 2001 for the construction of a new hotel and conference center for Colonial Williamsburg. You won’t want to miss this last meeting at the old Lodge!
More details will be made available on these and other VBA events as plans
are finalized.
Registration information is mailed to section members before section-sponsored
conferences, and will be published in the VBA News Journal and online
at www.vba.org/.
And if you ever need to check a date or location of a VBA conference or event,
turn to the back page of each issue of the VBA News Journal, where a
full VBA calendar of coming events is always printed! Return
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News in Brief
Timothy J. Sullivan, president of the College of William and Mary, was elected to the board of directors of the American Arbitration Association at its annual meeting held April 27 in New York. President Sullivan is a VBA member and serves on the VBA Committee on Special Issues of National and State Importance.
The Virginia Bar Association’s Commission of the Needs of Children will serve as a cooperative participant for the National Association of Counsel for Children’s 23rd National Children’s Law Conference, to be held November 2-5 at the Crystal Gateway Marriott in Arlington.
Former VBA President Phillip C. Stone, president of Bridgewater College, is one of 13 college and university presidents whose essays have been published in a new monograph on managing change in higher education. The monograph, Presidential Essays: Success Stories — Strategies that Make a Difference at Thirteen Independent Colleges and Universities, was compiled by the Council of Independent Colleges and published by the USA Group Foundation as part of its New Agenda SeriesTM.
Congratulations to Sharon Brooks, executive director of the Virginia Law Foundation, on her graduation from Virginia Commonwealth University on May 13.
The VBA News Journal seeks articles from Association members for upcoming issues in 2000. We are looking for short (1,000 words), practice-related articles on a variety of topics. For more information, visit the “Writers’ Guide” on the VBA website at www.vba.org, or contact Caroline Bolte at (804) 644-0041. Return to Top
Copyright 2000 The Virginia Bar Association