President's Page: Taking a Longer Look
J. Edward Betts

One of the reasons practicing law is exciting is that each day brings the unexpected. Thinking that we are in control of our well-planned days is illusory. Remember the times you have come to the office with a things-to-do list, only to be totally disrupted by an unexpected client telephone call. Or recall the times you have labored to construct a cogent argument on a point of law, only to have the symmetry of your argument blown to smithereens by aggressive questioning from the bench.

Evidently, this same phenomenon is true of writing a President’s column. In planning for my year as President, I had some ideas about which I planned to write. However, an issue has been unexpectedly thrust upon the bar that I believe needs immediate attention. This is the suggestion that for fiscal reasons some of Virginia’s law firms may impose some constraints on paying dues of voluntary bar associations and may curtail the activities of their lawyers in the organized bar, both voluntary and mandatory.

Thus, I plan to use the next few President’s columns to address this issue, utilizing some bar history, including some of my own personal reminiscences, my thoughts about the importance and role of bar associations, the consequences of undermining their activities, some business considerations, and the potential effect on an ever-increasing population of young lawyers. Although my comments will address the organized bar in general, I will emphasize this Association. Thus begins this “unexpected” series of columns.

To put this issue in context, we should take a longer look at the rationale for the creation of bar associations in America in the late 19th century. In a word, it was “reform.” During the first half of the 19th century, our profession had lost considerable prestige. Most earlier bar associations had folded, and standards of admission to the bar were greatly diminished compared with former times, with a much smaller percentage of states having a mandatory period of preparation for admission to the bar existing in 1860 than in 1800. As Dean Roscoe Pound stated in The Lawyer from Antiquity to Modern Times:

[I]n this era of decadence it was assumed... that the bar was not to be regarded as a profession, with requirements for admission such as public policy may prescribe, but as a mere private, moneymaking occupation.

See also A. Marston, “Guiding the Profession: The 1887 Code of Ethics of the Alabama State Bar Association,” 49 Ala.L.Rev.471, 472-75 (1998).

The movement to create bar associations in America began in earnest in the 1870s. Thus, when in 1888 over 100 lawyers met in Virginia Beach to form this Association (then the Virginia State Bar Association), we were part of a national wave of legal reform.
And our purpose, as set forth in the 1890 Charter — “Cultivating and advancing the science of jurisprudence, promoting reform in the law and in judicial procedure, facilitating the administration of justice in this state, and upholding and elevating the standard of honor, integrity and courtesy” — also typified that national trend.

As an aside, it is interesting to note that the vehicle of associations was the one utilized throughout the country, because of the failure of individual lawyers or law firms to lift themselves out of the abyss into which lawyers had fallen from an earlier, more professional day.

That earlier, better day for our profession is reflected in the words of John Adams. In his recent biography of Adams, David McCullough writes of the privilege Adams felt in being a lawyer, and quotes Adams as stating:

Now to what higher object, to what greater character, can any mortal aspire than to be possessed of all this knowledge, well digested and ready at command, to assist the feeble and friendless, to discountenance the haughty and lawless, to procure redress to wrongs, the advancement of right, to assert and maintain liberty and virtue, to discourage and abolish tyranny and vice?

At the time I began practicing law in Richmond in 1966, the seeds of the organized bar planted in the late 19th century had come to fruition. The leaders of the bar were among the foremost lawyers in Virginia, and sentiments expressed about practicing law were closer to those of Adams than those Dean Pound expressed about the “era of decadence.” I came to a firm that had three founders, one of whom had been president of this Association, another of the Virginia State Bar, and two of them were presidents of the Richmond Bar Association. It was assumed that all lawyers, old and young alike, would be members of the various bars, and their activity in them was encouraged.

Interestingly, as the years have passed I am proud to say that my firm has continued to provide leadership to the organized bar and, more to the point, most of our lawyers leading these efforts have been among our most profitable. Moreover, this was not a phenomenon peculiar to my firm. Great lawyers such as Justice Powell and Dean Spong come readily to mind, and there were myriad others. By being hardworking practicing lawyers first and foremost, and by managing well their time and priorities, these lawyers struck that difficult, critical balance, allowing them to become whole lawyers, leading both their firms and the organized bar as well.

In the context of this bit of history and of my personal reminiscing, in my next column I plan to discuss the reasons for a continuing need for full lawyer support of this Association and the organized bar, and the possible consequences of the withdrawal of such support. Rest assured, there will be consequences. Beyond the potential of returning to the abyss in which our profession found itself in the mid-19th century, I believe that we lawyers, who treasure our independence, could have imposed upon us mandatory this or mandatory that, undermining our ability to regulate ourselves as a profession.

Who knows? We might even be done away with altogether as were French lawyers when the French government decreed on October 24, 1793, “the office of attorney-at-law is abolished....”!

But more about these matters in the next issue. Return to Top

An Introduction to the VBA Law Practice Management Division
Heman A. Marshall III

It is my privilege to introduce you to the newly-created Law Practice Management Division. As you are probably aware, the creation of a Division within the VBA is not a usual or frequent occurrence. During the VBA’s long history, it has created only one other, which all will agree has been extremely successful: the Young Lawyers Division. I am honored to have been asked to chair this new Division, and I can assure you that the Board of Governors and all others connected with the decision to create this Division are excited and enthusiastic about its potential.

The Division will be built on a strong foundation developed by the Law Practice Management Section. Created in 1992, the Section focused on the operation and management of law firms, both large and small, and the solo practitioner. It developed signature programs such as the Managing Partners Roundtable and the Small Firm Practice luncheon conducted at each Annual Meeting for the last several years. Its focus also included technological advancements as they affected the practice of law, which resulted in the LawTech conference conducted successfully for several years.

Under the chairmanship of Janet Thomas in 2000, the Section began a strategic planning process to establish long-term goals. At the same time, the VBA Executive Committee had begun its own strategic planning initiative which identified, as an element of the promotion of professionalism, a need to focus on the balance between a successful and rewarding practice and other lifestyle issues such as health, family relationships and intellectual development.

The result of these two parallel processes was a recommendation from the Law Practice Management Section, approved in the fall of 2001 by the VBA Executive Committee, that the Section be converted to a Division which would house the initiative on practice/lifestyle balance.

As an integral part of this step, each of you will automatically become members of the Law Practice Management Division without the necessity of separate dues. The Board of Governors has approved bylaws similar to those of the Young Lawyers Division which provide for an Executive Committee of 11 individuals to be selected from diverse geographic areas and practice settings. However, the real work of the Division will be carried out through its substantive committees which will provide an opportunity for interested VBA members to become involved with the Division and to contribute to its operation and programs.

The focus of the Division has expanded from that of the Law Practice Management Section. While continuing to stress firm and other organizational aspects of law practice management, the Division will add equal emphasis on the individual and personal aspects of law practice management, such as personal time management, professional skills development, personal marketing, achieving an appropriate practice/lifestyle balance, and promoting overall professionalism.

The operation of the Division will initially be directed at three areas:
•providing education;
•providing a resource base for its members; and
•providing recognition to those firms, organizations and individuals who make outstanding contributions in the area of law practice management.

So how do we start this ambitious undertaking? The Board of Governors has given us an excellent springboard through the appointment of the members of the initial Executive Committee:

A. Pierre Jackson, Law Office of A. Pierre Jackson, PC, Hampden-Sydney;
Virginia W. Powell, Hunton & Williams, Richmond;
Gant Redmon, Redmon, Boykin & Braswell, Alexandria;
W. Taylor Reveley III, Dean of the Marshall-Wythe School of Law, College of William and Mary, Williamsburg;
Robert D. Seabolt, Troutman Sanders LLP, Richmond;
David H. Sump, Crenshaw, Ware & Martin, PLC, Norfolk;
Janet S. Thomas, Hirschler Fleischer, PC, Richmond;
Jackson S. White Jr., The White Law Office, Abingdon;
John E. Whitfield, Blue Ridge Legal Services, Harrisonburg;
Mary Catherine Zinsner, Troutman Sanders LLP, McLean; and
Heman A. Marshall III, Woods, Rogers & Hazlegrove, PLC, Roanoke.
In addition, Beth V. McMahon of Kaufman & Canoles, PC, in Norfolk has been appointed as the liaison from the VBA Young Lawyers Division.

At its initial meeting in February the following committees were established:

Administrative Committees:

Nominating
Finance
Education
Publications
Bar Liaison

Member Services Committees:

Lifestyle Balance
Technology
Business Practices
Human Resources/Recruitment/Retention
Professional Skills Development
General Professionalism
Practice Marketing

Our next step is to staff each of the committees with an initial chairperson and membership. Committee chair positions filled to date are:

Professional Skills Development: Bob Seabolt
Finance: Dave Sump
Lifestyle Balance: Mary Zinsner
Education: Beth McMahon
Bar Liaison: Jan Thomas and Gant Redmon
Technology: Jack White

The other purpose of this introduction, as you might have now guessed, is to solicit your interest in serving on the various committees and then to invite you to join us in the development of the Division’s programs and objectives. I ask that each of you who have an interest in participating with any committee let me know or advise the chairperson of the committee, if one has been appointed. While there is, of course, some practical limit on the size of a working committee, we hope to be able to accommodate all of those VBA members who wish to become more involved in the Division’s activities either through committee membership or other means of active participation.

I also solicit your thoughts on methods by which we can make the Division a source of added value to you individually and to all members of The Virginia Bar Association and the practicing bar in Virginia. Give us your suggestions on desirable program topics and educational vehicles, methods of communication and issues of concern. As a Division, we have a primary mission to bring to our membership needed and valuable services. Each of you can help us fulfill that mission, as it relates to both personal practice management and organizational practice management, by telling us how we can best serve you and your practice.

Thank you on behalf of the Law Practice Management Division for your support and interest. Return to Top

Legal Focus/Construction & Public Contracts Law:
Is the Failure to File an Itemized Statement of Account Jurisdictional?
M. Melissa Glassman and John Wilburn

The question of whether a mechanic’s lien claimant who fails to file an itemized statement of account with its original bill of complaint may later move to amend the bill of complaint to include such statement more than six months after the mechanic’s lien was originally recorded is an issue that remains unclear. Va. Code Ann. §§ 43-17 and 43-22 both touch on this issue. Va. Code Ann. § 43-17 provides that a bill of complaint to enforce a mechanic’s lien must be brought within six months of the date that the memorandum of lien was recorded. After six months, the mechanic’s right to enforce the lien expires. Neff v. Garrard, 216 Va. 496, 219 S.E.2d 878 (1975).

Va. Code Ann. § 43-22 requires that the bill include an itemized statement of account.

The plaintiff shall file with his bill an itemized statement of his account, showing the amount and character of the work done or materials furnished, the prices charged therefore, the payments made, if any, the balance due, and the time from which interest is claimed thereon, the correctness of which account shall be verified by the affidavit of himself, or his agent.

In interpreting the mechanic’s lien statutes, the Virginia Supreme Court has repeatedly held that because mechanic’s liens are statutory remedies, the existence of liens, as well as the jurisdiction of the court to enforce them, rest upon compliance with the mechanic’s lien statutes. Wallace v. Brumback, 177 Va. 36, 40, 12 S.E.2d 801, 802 (1941). Statutes governing perfection of mechanic’s liens are strictly construed. American Standard Homes Corp. v. Reinecke, 245 Va. 113, 425 S.E.2d 515 (1993). Statutes governing the enforcement of mechanic’s liens are more liberally construed. See Thompson v. Air Power, Inc., 248 Va. 364, 376, 448 S.E.2d 598 (1994).

Most of the decisions interpreting Va. Code § 43-22 involve the contents and sufficiency of a lienor’s statement of account. See e.g. Knight v. Ferrante, 202 Va. 243, 117 S.E.2d 283 (1960) (respondent challenged the particularity of lienor’s statement of account); Herbert Bros., Inc. v. McCarthy Co. of Virginia-Maryland, 220 Va. 907, 265 S.E.2d 685 (1980) (respondent moved to dismiss bill of complaint on grounds that statement of account was not verified); Rust v. Indiana Flooring Company, 151 Va. 845, 145 S.E. 321 (1928) (lack of particularity in statement of account was not jurisdictional); Northern Virginia Drywall, Inc. v. Raymond F. Lower, 32 Va. Cir. 251 (Loudoun County 1993) (defects in the statement of account are not fatal to the enforcement of the mechanic’s lien.); Springfield Engineering Corp. P.C. v. Three Score Development Corp., 29 Va. Cir. 218 (1992) (lienor’s attached contract, invoices, and job tickets satisfied the itemized statement of account requirement); RGM Erectors Inc. v. John L. Fuog, Inc., 6 Va. Cir. 283 (Fairfax County 1985) (the failure to verify a statement of account can be cured by amendment.) While these decisions make clear that technical defects in a lienor’s statement of account are not jurisdictional, the effect of a lienor’s failure to provide any statement of account with its bill and the lienor’s ability to amend more than six months after the lien is recorded is less clear.

The few circuit courts that have addressed this issue have reached inconsistent results. See Orndorff Masonry, Inc. v. Fox-Seko Construction Co., Inc., 38 Va. Cir. 480 (Warren County 1996) (a statement of account my be filed after six months); Allwine & Associates, Inc. v. Scott-Long Construction, Inc., 31 Va. Cir. 46 (Loudoun 1993) (statement of account may not be filed after six months); W.C. Cochran Construction Co., Inc. v. University Center Residential Associates Limited Partnership, 31 Va. Cir. 548 (Loudoun County 1992) (statement of account may not be filed after six months); and Astro Remodeling and Construction Inc. v. Pinto, 25 Va. Cir. 399 (Fairfax County 1991) (statement of account may be filed after six months).

In Orndorff Masonry the Circuit Court for Warren County held that the failure to include an itemized statement of account was not jurisdictional. In that case, the lienor filed an action to enforce its mechanic’s lien within six months of the filing of its lien, as required by Va. Code Ann. § 43-17. The lienor failed, however, to include with its pleading an itemized statement of account as required by Va. Code Ann. § 43-22. Respondents moved to dismiss the action. Lienor sought leave to amend its action to include an itemized statement of account.

The Court overruled Respondent’s motion to dismiss and granted Complainant leave to amend its pleadings to include an itemized statement of account. The Court reasoned that the purpose of Rule 1:10 and Rule 1:8 are to avoid dismissals for purely technical reasons of what otherwise might be meritorious claims. As a result, the Court held that the failure to include the statutorily required verified statement of account rendered the bill of complaint demurrable, but did not mandate dismissal.

In Becker v. Capital Sun Land, Ltd., 23 Va. Cir. 495 (Fairfax County 1991), the Circuit Court for Fairfax County reached a similar conclusion. Although the facts of Becker are not stated in the Court’s opinion, the Court concluded that the obligation to file an itemized statement of account is not jurisdictional. The Court further held that a statement of account filed with a bill to enforce a mechanic’s lien can be amended so long as it does not make a new demand.

Likewise, in Astro Remodeling, the Circuit Court for Fairfax County again held that the itemized statement of account is not jurisdictional. Although not necessary to its decision, the Court noted that it would permit a lien claimant to amend its pleadings to file an itemized statement of account after the six-month period from the filing of the lien had run. The Court relied upon the Virginia Supreme Court’s statement in Ferrante that the lack of particularity in a statement of account is generally not jurisdictional.
The decisions in Allwine and W.C. Cochran, both decided in Loudoun County, reach an opposite result. In W.C. Cochran, the lienor filed its bill of complaint to enforce mechanic’s lien within six months of its lien, as required by Va. Code Ann. § 43-17. However, the lienor failed to file an itemized statement of account within that same six-month time period. Respondent demurred to the bill of complaint on the ground that the failure to file an itemized statement of account within six months left the Court without jurisdiction over the lien. The Court agreed and dismissed the bill of complaint.

Each bill of complaint lacks a necessary element, i.e. the statement of account, absolutely required to be filed with the bill of complaint by Section 43-22. The statute is mandatory. It is an integral part of the statutory process of the enforcement of a mechanic’s lien. If the statement of account was not filed with the bill of complaint within the six-month limitation period, then the defect is jurisdictional, the procedural prerequisites to enforcement have not been met and no amendment can cure the deficiency. As such, it is subject to attack at any time during the pendency of the litigation.
Id.

In reaching its decision the Court distinguished the Ferrante and Herbert Brothers decisions on the grounds that in both those decisions, the lienor had filed a statement of account, albeit defective in some respect.

In Allwine the mechanic’s lien claimant failed to file a statement of account within the six-month time period, as required by Va. Code Ann. § 43-22. As a result, the Court sustained defendant’s demurrer to the bill of complaint. In doing so, the Court noted that the effect of sustaining the demurrer might be a bar to further enforcement.

“While the result of the sustaining of a demurrer may be a bar to enforcement, such a bar results not from jurisdictional fact, but the passage of time. Id.

“Although not expressly stated in the opinion, the decision in Allwine implicitly recognized that a lien claimant cannot correct its bill of complaint by filing an itemized statement of account after six months has expired.”

The decisions cited above illustrate the inconsistent approaches that the Circuit Courts have taken regarding whether a mechanic’s lien claimant that fails to file an itemized statement of account within six months of the date of its lien, may later move to amend its bill to include such statement of account. As a result, the issue remains unclear. Therefore, there is strong, although not determinative, authority for litigants on both sides of this issue. Return to Top

Legal Focus/Construction & Public Contracts Law:
Liability to the Owner for Latent Defects: It Ain’t Over ’Til It’s Over
Shannon J. Briglia

Construction contracts are primarily designed to equitably allocate risk. One of the key risks that contractors should address in their contracts is when the contractors’ exposure to liability for defective workmanship to the owner will expire.1 Despite use of a standard form contract and a contractor’s best efforts, exposure for latent defects may enjoy a preternatural life, well beyond the contractor’s wildest expectations. This article will discuss the liability of contractors and their sureties for latent defects in Virginia and provide guidance on how contractors and their sureties can manage this risk.

Contractors in the private realm typically utilize standard form contracts developed by industry groups such as the American Institute of Architects (AIA) or the Design Build Institute of America (DBIA). These standard forms are useful in many ways, not the least of which is that they clearly and definitively address concepts impacting the contractor’s exposure for defective workmanship. For example, they define events including “substantial completion”2 and “final acceptance”3 which, taken together, trigger the contractor’s warranty obligations.4 Contractors working on public projects also enjoy the benefit of defined terms establishing when the warranty period begins and ends.5 Many contractors view their obligations to the owner under a contract over once the warranty period has expired.

This restrictive view of the contractor’s liability exposure is too simplistic. Upon completion of the warranty period, typically one year from the owner’s final acceptance of the work,6 the contractor no longer has the obligation to return to the project to correct or replace work which is deemed defective.7 Notwithstanding the expiration of the warranty period, the contractor is still liable to the owner for latent defects until the expiration of the applicable statute of limitations.8 Latent defects are claims for defective work that existed at the time of final acceptance but which were unknown to the owner and not detectable by observation or reasonable inspection.9

The existence of a latent defect gives rise to an owner’s right to revoke acceptance of the work.10 After revocation, the owner can demand that the contractor return to the project to correct the defect and, if the contractor refuses, the owner can place the contractor in default and exercise all of its remedies under the contract, including making demand on the contractor’s surety. The only limitation on the owner’s rights to pursue latent defects is the statute of limitations which, for actions based on a written contract, is five years.11

The crucial question then becomes, when does the five-year limitations period begin? By statute, a cause of action for breach occurs not when the resulting damage is discovered but when the breach occurred.12 Theoretically, an owner’s cause of action for latent defects would seem to accrue either when the defective work was actually performed, when the contract was substantially completed or when final acceptance occurred.13 And to confuse the issue even more, latent defects in goods or products incorporated into a construction project may be covered by the four-year statute of limitations contained in Virginia’s commercial code with accrual dating from discovery of the defect or when the defect should have been discovered.14 The resulting inability to accurately predict when the owner’s cause of action for latent defects accrues prohibits a contractor from establishing a clear termination point for liability.

While an argument can be made that a claim for a latent defect is a tort with a two-year limitation period accruing upon discovery of the defect,15 logically, a claim for latent defect should be a breach of contract because the owner is asserting that the contractor failed to comply with the contract documents — the drawings and specifications for the project.16 Extending this logic, the statute should begin running upon the date when the contract establishes that the contractor no longer has the right to correct his defective work. This is usually either substantial completion, completion of the warranty period or final acceptance. None of these dates is easily determined, each is highly dependent on facts and they are all often hotly disputed in litigation. For example, if the contract requires the owner to issue a certificate of final acceptance but the owner never actually issues the certificate, it is quite possible that a court could find that the statute never starts to run.17

The protection afforded by the statute of limitations is also illusory on public contracts because, by statute, claims by the state and its agencies are never barred by the statute of limitations.18 Moreover, unlike in other areas, there are no special statutes of limitations or other limitation contained in the Virginia Public Procurement Act (VPPA)19 restricting the rights of public bodies to initiate suit against a contractor. Thus, contractors performing public work are, absent contract limitations, subject to limitless liability to the state or its agencies for latent defects.

This confusion has led some contractors to plead protection of Virginia’s five-year statute of repose20 in defense of claims that work is defective. A statute of repose is an attractive defense because it legislatively immunizes the contractor from liability starting five years after completion of construction.21 The defense is even more attractive because the state and its agencies are not immune from operation of the statute of repose.22

Courts faced with this defense, however, have routinely refused to apply the statute of repose to ordinary claims for defective workmanship. In rejecting the statute of repose defense, these courts typically view claims for defective workmanship as contract actions, not torts, and therefore find the statute of repose in applicable.23 Alternatively, courts will fit the facts into one of the exclusions contained in the statute of repose to find that the statute does not bar the claim.24 Thus, the only sure protection a contractor faced with a latent defect claim has is the statute of limitation and that protection is not susceptible of ready determination.

This statutory protection is even more problematic for the contractor’s surety. The VPPA creates an independent statute of limitations for actions against a performance bond surety on public projects.25 The VPPA states that no action against a surety on a public project shall be brought more than five years after completion of work on the project if the owner is the Department of Transportation.26 This special statute of limitations is enforceable against the Department and cannot be overcome.27 On Department of Transportation projects, then, the special limitation creates co-extensive liability exposure for the surety and the contractor for latent defects.

On all other public projects, the owner has one year from the date of completion of the contract or discovery of the defect in which to bring suit.28 The right of the public body to sue the surety for latent defects under a performance bond could thus accrue many years after the five-year contract statute of limitations would normally run against the contractor. In private contracts, the surety is faced with a 10-year statute of limitations29 that will be strictly applied, even where the principal’s liability exposure has been eliminated by operation of the shorter five-year contract statute of limitation.30 Thus, as to a surety, there is no statutory period of repose, no discharge after the principal is immune from suit and there are still substantial questions about when the statute begins to run.

Consistent with its policy of enforcing the terms of arms’ length contracts, Virginia will enforce contractual limitations on the parties’ rights to pursue claims against one another so long as the limitations are not against public policy and are not unreasonably short.31 These shortened timelines will even be enforced against public bodies.32 Similarly, Virginia courts will hold sureties strictly to the letter of their bond, and will enforce shortened limitations provided in bonds.33 Therefore, it is clear that a proactive contractor or surety can create some certainty for itself by including limitations in the contract and bond that commence upon a date certain.

In the absence of a statute of repose for contract claims for latent defects, what, then, can a contractor do to better control its risk?

First and foremost, the contractor must ensure that the contract sets forth in precise terms the definitions of substantial completion and final acceptance and the trigger for warranty obligations.

Second, the contractor should attempt to incorporate shorter limitations and a repose period or outside date upon which the owner’s rights to pursue latent defects are extinguished. Obviously, this option will not generally be available to a contractor seeking public work where the contract terms are pre-ordained and unchangeable. Nor will it be available where the contractor has little bargaining power.

Third, the savvy contractor will offer a surety bond that contains limitations on suit.

Finally, the contractor should ensure that the owner actually issues the certificate of substantial completion and otherwise complies with the close-out provisions of the contract. While it is not entirely certain that any of these precautions will provide the type of definitive protection that a statute of repose could offer, the contractor will be in a better position with them than without them. For certain, without them, it is extremely difficult to predict from a risk management perspective when exposure for latent defects will terminate. In other words, it ain’t over ‘til its over.

NOTES
1. Because of space limitations, this article focuses on liability to the owner for latent defects and does not address in any detail liability for breach of warranty or liability to third parties for injuries resulting from latent defects.
2. See, AIA Standard Form General Conditions Document A201, Paragraph 9.8.1. (1997 Ed.) and DBIA Standard Form General Conditions Document 535, Article 1.2.11 (1998 Ed.).
3. AIA Document A201 at Paragraph 9.10.1; DBIA Document 535 at Article 6.7.3.
4. AIA Document A201 at Paragraph 3.5 (warranty) and 9.8.4 (warranties commence upon the date of substantial completion of the work); DBIA Document 535 at Article 2.10.1.
5. See, General Conditions of the Contract for Capital Outlay Projects (12/01/91 Ed.) issued by the Virginia General Services Administration at Title I.
6. AIA Document A201 at Paragraph 12.2.2.1 (one year correction period following substantial completion) and Article 13.7.1 (commencement of statutory limitation period); DBIA Document 535 at Article 2.10.1, Capital Outlay Manual at Title 45(a) (providing for one-year guarantee).
7. Under the AIA documents, the contractor has an obligation to correct defective work before substantial completion, Paragraph 12.2.1.1, for one year after substantial completion, Paragraph 12.2.2.1, and then the contractor is liable from substantial completion for the designated warranty period through expiration of the limitation period for liabilty for failure to comply with the Contract Documents, Paragrpahs 3.5, 12.2.5 and 13.7.1.3.
8. Latent defects which cause structural failures and personal injuries subject to the contractor to liability for personal injury damages. See, Hess v. Snyder Hunt Corp., 240 Va. 49, 392 S.E.2d 817 (1990) (balcony of building collapsed suddenly, injuring two women standing upon it at the time of collapse). These types of personal injury claims are subject to a two-year statute of limitations under Va.Code Ann. § 8.01-243 and a five-year statute of repose which commences upon completion of construction, Va.Code Ann. § 8.01-250.
9. Saul Perloff & Hal Perloff, Latent Defects in Government Contracts Law, 27 Pub.Con. Law Journal 87, 88 (1997). A defect is considered latent only if the owner can show: (1) the contractor breached the contract by failing to perform in conformance with the plans and specifications; (2) the owner was unaware of the defects at the time of acceptance of the work and could not reasonably have become aware of the defect; and (3) the defect caused the failure giving rise to the owner’s claim for damages. M.A. Mortenson Co. v. U.S., 29 Fed.Cl. 82, 95-96 (1993).
10. Perloff & Perloff at 105-111.
11. Va.Code.Ann. § 8.01-246.2.
12. Virginia has legislatively rejected a “discovery” rule in contract cases, Va. Code Ann. § 8.01-230.
13. There are no reported decisions by either the Virginia Supreme Court or any Circuit Court on this issue.
14. Va.Code Ann. § 8.2-725.
15. City of Richmond v. Madison Management Group, Inc., 918 F.2d. 438, 444-45 (4th Cir. 1990) (In finding a fraud suit by City against contractor and manufacturer of defective pipes not barred by the statute of repose because of the statutory exclusion of manufacturers or suppliers of equipment or machinery, the court left open the question of whether a latent defect claim can be presented as a tort).
16. Delon Hampton & Associates v. WMATA, 943 F.2d 355,361 (4th Cir. 1991)(claims for negligence and breach of warranties against an architect were contract actions not subject to the statute of repose because they arose out of an act of omission or non-feasance of contractual obligations).
17. Fidelity and Deposit Co. v. Bristol Steel & Iron Works, Inc., 722 F.2d 1160, 1162 (4th Cir. 1983)(commenting in dicta that the surety’s argument that the suit is timely because the statute of limitations never began running because the owner failed to issue an acceptance certificate as required by the contract “may be meritorious.”); Stern Realty Corp. v. Van Doren, 13 Va. Cir. 409, 416 (1967)(payment of contract price and for extra work upon completion of work was not “final payment” and did not waive owner’s claims for defective work).
18. Va. Code Ann. § 8.01-231; Commonwealt v. Owens-Corning Fiberglas Corp., 238 Va. 595, 385 S.E.2d 865, 867 (1989)(statute of limitations at common law did not run against the state and this rule of nullum tempus occurrit regi was codified by the legislature).
19. Va.Code Ann. § 2.2-4300-4377.
20. Va.Code Ann. § 8.01-250.
21. School Bd. v. United States Gypsum Co., 234 Va. 32, 360 S.E.2d 325 (1987).
22. Owens-Corning Fiberglas, 385 S.E.2d at 868.
23. Tate v. Colony House Builders, Inc., 257 Va. 78, 508 S.E. 2d 597, 600-01 (1999) (Section 8.01-250 is only applicable to those torts specified in the statute); Fidelity and Deposit Co. v. Bristol Steel & Iron Works, 722 F.2d at 1162 (the statute by its express terms is restricted in its application to torts).
24. Madison Management Group, 918 F.2d at 445 (water transmission pipes were not ordinary building materials, therefore claim for defects was not barred by the statute of repose); But see Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596, 33 S.E. 2d 476 (1985)(exterior wall system consists of ordinary building material and therefore claims for latent defects are barred by the statute of repose).
25. Va.Code Ann. § 2.2-4340.
26. Id.
27. Owens-Corning Fiberglas, 385 S.E.2d at 868 (holding that the rule nullum tempus occurrit regi, as codified at Va.Code Ann. §8.01-231, does not overcome express statutory limitations).
28. Id. In what is sure to create a controversy in the future, the one-year limitation for non-Department of Transportation contracts is offered in the alternative, without specifying whether the public body has the longer or the shorter of the two potential durations in which to bring its suit.
29. Va.Code Ann. § 8.01-245.A. (“No action shall be brought upon the bond of any fiduciary except within 10 years next after the right to bring such action shall have first accrued.”)
30. Fidelity & Cas. Co. v. Lackland, 175 Va. 178, 8 S.E.2d 306, 309 (1940)(refusing to release surety from liability even after the claim against the principal has been barred by the statute of limitations because the statute of limitations did not extinguish the debt, it merely barred the creditor from pursuing it).
31. Bd. of Supervisors v. Sampson, 235 Va. 516, 369 S.E.2d 178, 180 (1988)(enforcing the parties’ agreement to shorten limitations on filing of suit).
32. Id.
33. See, In re 1616 Reminc Ltd. P’ship, 9 B.R. 679, 682 (Bankr. E.D. Va. 1981) (enforcing one-year limitation in bond); Hanson Pipe and Products, Inc. v. Falcon Constr. Corp., 55 Va.Cir. 347,349 (2001)(enforcing one-year limitation in bond); But cf., Federal Ins.Co. v. Starr Electric Co., 242 Va. 459, 410 S.E.2d 684, 686-87 (1991)(declining to enforce one-year limitation in bond because of negligence of surety in providing incorrect copies of bond to claimant after expiration of one year). Return to Top

The 2002 General Assembly:
Triumph, successes and surprise punctuate Assembly session for VBA

For The Virginia Bar Association, the 2002 General Assembly session was punctuated by a long-sought triumph, a number of successes and a major surprise.

After several years of dogged study and advocacy, a bill providing for limited interlocutory appeals passed both houses (H.B. 257, sponsored by Del. Michele B. McQuigg, R-Woodbridge).

The Virginia Business Trust Act (S.B. 512, Sen. Walter A. Stosch, R-Henrico), a proposal of the VBA Business Law Section, also passed both houses, as did three of four proposals developed by the VBA Construction and Public Contracts Law Section and two of three bills proposed by the VBA Wills, Trusts & Estates Section. In addition, an assortment of the objectives of the Civil Litigation, Criminal Law and Domestic Relations Sections fared well.

The Virginia ADR Joint Committee supported amendments to the Virginia Administrative Dispute Resolution Act, which passed both houses. Revisions to the Uniform Arbitration Act were continued to 2003.

One of three bills proposing merit selection of judges and the major VBA proposal regarding the insanity defense in juvenile criminal proceedings were also carried over.

H.B. 151, which provides for an increase of $1 in court fees for legal aid, was introduced by Del. L. Preston Bryant Jr., R-Lynchburg, with support from the VBA and others in achieving passage in both houses.

But the greatest surprise, one which resulted in an all-out VBA effort to fight it, was a proposal included in the House version of the state budget that would have capped guardian ad litem fees at $395 per case — a cap that would have limited the amount of time a lawyer could spend with a child and ultimately could have left many young Virginians without an adequate voice in legal matters.

When the proposal, by Del. H. Morgan Griffith (R-Salem, House Majority Leader) was discovered during the session, resisting the cap went to the top of the VBA’s legislative priorities. As quoted in Virginia Lawyers Weekly, the issue at stake was that the GAL money was needed “for the children, not for the lawyers.”

The VBA campaign had a strong leader in the person of Robert E. Shepherd Jr., professor emeritus of law at the University of Richmond, chair of the VBA Commission on the Needs of Children, and longtime legal advocate for children nationally recognized as an expert on juvenile justice issues.

This was the first budget-related item Shepherd had dealt with in 37 years of working with Assembly members on children’s issues, but he and his forces successfully advised lawmakers of the ill effects such a cap would have on Virginia’s children, and convinced them that Virginia attorneys were not getting wealthy through GAL work.

Other local and specialty bars from across the Commonwealth joined the fray with letters, calls and e-mails to legislators, particularly the House and Senate budget conferees.

In the end, the cap was removed, although parents may be ordered by the court to pay for their child’s guardian ad litem. The current GAL hourly rates of $55 for out-of-court and $75 for in-court work will remain in effect.

Del. Griffith also introduced H.J.R. 76, which calls for a legislative study of the costs and effectiveness of the GAL program. The Division of Legislative Services will supervise the study by a joint subcommittee and the Supreme Court of Virginia will provide technical assistance. The VBA will participate in the study. The study report will be presented to the General Assembly for the 2003 session.

At the same time, the VBA Commission on the Needs of Children is already well in the midst of its own study of the GAL process, funded by the Virginia Law Foundation.

A full “report card” may be found below. For complete bill information, please visit leg1.state.va.us.

Return to Top

Young Lawyers Division

'Stop the Violence' training set for May 1
“Stop the Violence: A Training Program for Legal Advocates for Victims of Domestic Violence,” the nationally-recognized training program for attorney-volunteers who wish to serve as advocates for victims of domestic violence, will be offered on Wednesday, May 1, 2002, at the Prince William County Courthouse, located at 9311 Lee Avenue in Manassas.

The program, co-sponsored by The Virginia Bar Association Young Lawyers Division Domestic Violence Project, Legal Services of Northern Virginia and Hogan & Hartson L.L.P., will feature such topics as obtaining a civil protective order, enforcing an out-of-state protective order, recognizing immigration issues relating to domestic violence, and a moot court demonstrating civil protective order hearings.

Speakers will include Judge Janice Brice of the Prince William County Juvenile and Domestic Relations District Court.
Registration will begin at 4:30 p.m., followed by the training session and moot court from 5 to 9 p.m. A light supper will be served at the training program.

The program and supper are free. Volunteers will receive four continuing legal education credits and are asked to represent three victims of domestic violence in civil protective order hearings within the next 12 months.

Susanne H. Carnell of Hogan & Hartson L.L.P. in McLean and Marli J.P. Kerrigan of the Office of General Counsel, Federal Bureau of Prisons, in Washington, D.C., co-chair the VBA/YLD Domestic Violence Project Committee, which has received national recognition for its efforts to help victims of domestic violence.

Interested lawyers are asked to pre-register for the training program by contacting Eric Moe, (703) 538-3954, or Maria Smith, (703) 246-4085, at Legal Services of Northern Virginia before April 24.

“Stop the Violence” training programs are periodically presented in Northern Virginia and in Richmond. The program has received the American Bar Association Young Lawyers Division’s Award of Achievement for service to the public. Return to Top

Model Judiciary Program
On February 28, 27 students representing 11 Virginia high schools appeared before the Supreme Court of Virginia in the 27th Annual Model Supreme Court, the grand finale to the annual Model Judiciary Program, co-sponsored by the VBA Young Lawyers Division and the Virginia YMCA.

The purpose of the program, created in 1975, is to provide high school students with an opportunity to learn about Virginia’s judicial system by playing the citizenship roles of attorneys, jurors and witnesses in simulated trials.

Approximately 2,000 Virginia students participate in the Model Judiciary Program each year. The program begins on the local level in September, with students participating in mock trials before actual judges in November and December. The student-attorneys may then appeal to one of three panels of Virginia Court of Appeals judges, who hear appellate arguments in January. At the conclusion of the appellate arguments, teams are chosen to argue their cases before the Supreme Court in the final round.

David J. Ervin of Collier Shannon Scott PLLC in Washington, D.C., chairs the Model Judiciary Committee. Hon. Harry L. Carrico, chief justice of Virginia, serves as the committee’s honorary chair.

Members of the Model Judiciary Committee include Robert A. Boester, Hampton; Dan Campbell, Norfolk; Bryan A. Fratkin, Glen Allen; Michael J. Holleran, McLean; Benjamin D. Leigh, Leesburg; Suzanne M. Perka, Winchester; Ann Powell, Fredericksburg; John Robertson, Christiansburg; Dawn Wine Ruple, Harrisonburg; Elizabeth L. White, Newport News; and Mark Coward and Eric R. Maschal of the Virginia YMCA in Lynchburg.

The following students participated in the final round:
Thomas Cogliano and Sara Rouhi, Bishop Ireton High School, Alexandria;
Jenni Adair and Craig Whisenhunt, Broad Run High School, Ashburn;
Sammy Dhaliwal and Danielle Varughese, Chantilly High School, Chantilly;
Mary Reid Ervin and Jeff Hale, Norfolk Collegiate School, Norfolk;
Shanel Barrett and Imran Kabir, Ocean Lakes High School, Virginia Beach;
Stephanie Perih and Leslie Thomas, Paul VI High School, Fairfax;
Dorothy Medina and Steven Neeley (Team A) and Samantha Bateman and Katrina Traub (Team B), Princess Anne High School, Virginia Beach;
Nicole Buxhoeveden and Desiree Tunstall, Robert E. Lee High School, Springfield;
Chris Campbell and Matt Young, Salem High School (Team A), Virginia Beach;
Nassim Hooshmandnia and Lee Sparks, T.C. Williams High School, Alexandria (Team B); and
Jim Bailey (Team A); Melissa Bailey and Chengyi Yu (Team B); and Sarah Rhodes and Steven Stone (Team C), Western Branch High School, Chesapeake.Return to Top

Virginia Lawyers for the Arts (VaLA) seeks volunteers
Virginia Lawyers for the Arts (VaLA) is a new program co-sponsored by the Washington Area Lawyers for the Arts and The Virginia Bar Association. Funded by the National Endowment for the Arts to provide legal assistance to artists and arts organizations throughout Virginia, VaLA will recruit and train Virginia attorneys who are interested in the arts to participate in and support the program.

VaLA is part of a national network of volunteer-lawyers-for-the-arts organizations, and will be run initially with structural support from Washington Area Lawyers for the Arts and the VBA Young Lawyers Division. VaLA will provide legal support for the arts and culture in Virginia with clinics, workshops and pro bono placements through alliances with arts organizations in Richmond, Roanoke, Hampton Roads and Charlottesville.

Last month, VaLA held its first monthly Art Law Clinic in Hampton Roads, and clinics in Roanoke and Charlottesville began this month. Artists and representatives of arts organizations meet with lawyer-volunteers in 30-minute consultations to discuss arts-related legal questions.

VaLA will develop a roster of lawyer-volunteers interested in advising clients at the clinics a few times each year or in taking on longer-term pro bono cases. Any attorney may participate, and a training course will be offered to new volunteers in each of the four Virginia locations, to give them the skills they need to advise clinic participants. VaLA will also hold continuing legal education programs throughout Virginia on subjects that will help lawyers to advise and assist artists and arts organizations.

Leigh Hudgins of Williams Mullen and Jennifer McClellan of Hunton & Williams, both of Richmond, co-chair the VBA Lawyers for the Arts Committee.

For more information about VaLA or to volunteer, contact VaLA Director Paige Conner Totaro at 1-888-223-4674. Return to Top

VBA/YLD sections and committee liaisons named
The following members of the VBA Young Lawyers Division have been named as VBA/YLD liaisons to VBA sections and committees for the 2002 bar year:

Ashley C. Beuttel, Woods, Rogers & Hazlegrove PLC, Richmond, Administrative Law Section.
Karen M. Crowley, Marcus, Santoro, Kozak & Melvin, PC, Portsmouth, Bankruptcy Law Section.
Cyane B. Crump, Hunton & Williams, Richmond, Business Law Section.
John C. Valdivielso, Kaufman & Canoles, PC, Williamsburg, Civil Litigation Section.
Steven M. Meade, Patten, Wornom, Hatten & Diamonstein, LC, Newport News, Construction and Public Contracts Law Section.
Rudolph Bumgardner IV, Dominion Resources, Richmond, Corporate Counsel Section.
Christopher Billias, Lynchburg, Criminal Law Section.
Jill A. Roseland, Kaufman & Canoles, PC, Virginia Beach, Domestic Relations Section.
Molly Shuttleworth Evans, Kaufman & Canoles, PC, Washington, D.C., Health Law Section.
Kristan B. Burch, Kaufman & Canoles, PC, Norfolk, Intellectual Property and Information Technology Law Section.
Thomas M. Winn III, Woods, Rogers & Hazlegrove, PLC, Roanoke, Labor Relations and Employment Law Section.
Katja H. Hill, LeClair Ryan, PC, Richmond, Real Estate Section.
John Bristow, Troutman Sanders LLP, Richmond, Taxation Section.
Kimberly M. Magee, Hunton & Williams, Richmond, Transportation Law Section.
Anne Bumgardner Wood, Edmunds & Williams, Lynchburg, Wills, Trusts & Estates Section.
Erica S. Beardsley, Watt, Tieder, Hoffar & Fitzgerald, McLean, Commission on the Needs of Children.
King F. Tower, Williams Mullen, Richmond, Committee on the Needs of the Mentally Disabled.
Cabell Evans Youell, Flippin Densmore Morse & Jessee, Roanoke, and E. Livingston B. Haskell, Williams Mullen, Richmond, Communications.
Beth V. McMahon, Kaufman & Canoles, PC, Norfolk, Committee on Federal Judgeships, Eastern District of Virginia.
Richard D. Scott, Woods, Rogers & Hazlegrove, PLC, Roanoke, Committee on Federal Judgeships, Western District of Virginia.
David I. Meyers, Hunton & Williams, Richmond, The John Marshall Foundation.
Eric Helms Monday, Stuart, Judiciary Committee.
Matthew Cheek, Williams Mullen, Richmond, Committee on Legal Education and Admission to the Bar.
Monica L. Taylor, Gentry Locke Rakes & Moore LLP, Roanoke, Committee on Nominations to Virginia Commissions and Appellate Courts.
Robert A. Angle, Troutman Sanders LLP, Richmond, Professionalism Working Group.
Ashley L. Taylor Jr., Troutman Sanders LLP, Richmond, Committee on Special Issues of National and State Importance.
Charles G. Meyer III, LeClair Ryan, PC, Richmond, Substance Abuse Committee (also chairs the committee).
Donna F. Bryant, LeClair Ryan, PC, Richmond, Substance Abuse Committee.
Michael W. Graff Jr., McGuireWoods LLP, McLean, Substance Abuse Committee.Return to Top

VBA Young Lawyers Division Seeks Volunteers! The VBA Young Lawyers Division is looking for volunteers to assist in coordinating new and current projects, including projects that seek to help children, immigrants and victims of domestic violence. If you are interested in volunteering, please contact Erica S. Beardsley at (703) 749-1068, ebeardsl@wthf.com, Kathy Harman-Stokes at (703) 610-6163, kharmanstokes@hhlaw.com, or Katja H. Hill, (804) 783-7543, khill@leclairryan.com, for more information. For a list of current VBA/YLD programs and projects, visit the Division’s page on the VBA website at www.vba.org. You’ll find contact information for each committee chair and descriptions of many committees. Since its founding in 1957, the VBA Young Lawyers Division has brought Virginia’s young lawyers together in service to the bar and public, in a spirit of collegiality and for professional growth and development through educational and leadership opportunities. A number of VBA/YLD projects have received statewide and national acclaim and are emulated in other states. Get involved today — you’ll be glad you did! Return to Top

Across the Commonwealth

The VBA’s Summer Meeting will be July 11-14 at The Homestead in Hot Springs
The Virginia Bar Association will hold its 112th Summer Meeting July 11-14 at The Homestead in Hot Springs. VBA sections and committees are currently working with staff to develop the general sessions and CLE workshops for the Summer Meeting. The June issue of the VBA News Journal will feature a complete schedule of events for the meeting, as well as registration and room reservation information, and all VBA members will receive a registration brochure later this spring. Summer Meeting information will also be posted on the VBA website.
Dates have also been set for the VBA’s 113th Annual Meeting, to be held January 16-19, 2003, at the Williamsburg Lodge & Conference Center.
A calendar featuring dates and locations of VBA meetings and events is featured on the back cover of every VBA News Journal, and is highlighted on www.vba.org, with links to relevant information.Return to Top

Leadership Conference highlights section, committee work
Each year, the leadership of The Virginia Bar Association gathers to welcome new section and committee chairs and review Association activities and procedures in a day-long conference, following the General Assembly session.

This year’s VBA Leadership Conference was held at The Jefferson Hotel in Richmond on March 12.

Frank W. Morrison, chair of the conference, welcomed participants and explained the purpose and structure of the event.

Following introductions, VBA President Ed Betts greeted the audience. He reviewed the recent reorganization of the VBA Board of Governors and offered aspirations for section and committee chairs in the year ahead.

Legislative Committee Co-Chair Sharon Pandak, with assistance from Executive Vice President Breck Arrington, led a presentation of the VBA’s 2002 legislative activities (see pages 13-15 for more information).

Specific accounts of VBA law reform activity were presented by selected section and committee chairs. Bob Shepherd, chair of the Commission on the Needs of Children, discussed the VBA’s campaign to resist the proposed cap on guardian ad litem fees;
Chair David Greenberg reviewed the Business Law Section’s development of the Virginia Business Trust Act proposal; Jack Donohue, chair of the Judiciary Committee, told of the “long march” of the limited interlocutory appeals bill, which was passed this year after several years’ effort; and Immediate Past President Jeanne Franklin described the current status of the VBA’s proposal regarding the insanity defense in juvenile criminal proceedings.

Pandak reminded the assembled section and committee chairs of the accelerated schedule for preparing proposals. Instead of submitting their work to the VBA Board of Governors for review in the fall, groups will now be expected to have proposed legislation ready for review in early summer, before the Summer Meeting.

“Soon means June,” Pandak quipped.

Participants also heard presentations on the VBA administration and staff, VBA communications, the VBA Young Lawyers Division, the new VBA Law Practice Management Division, plans for community service/pro bono work, the roles of Board and VBA/YLD liaisons, and the roles and responsibilities of section and committee chairs. Return to Top

Elder Rights Conference is April 30-May 1
“Elder Rights: Coming of Age,” a statewide conference for advocates, attorneys and professionals in the fields of aging and law, will be held April 30-May 1, 2002, at the Holiday Inn Central in Richmond.

The conference, hosted by the Virginia Elder Rights Coalition, will offer 5.5 hours of CLE credit (1 hour Ethics) and 5.5 hours of GAL credit.

The Virginia Elder Rights Coalition is a network of organizations, agencies and individuals working together to promote the rights and autonomy of older Virginians. This conference is co-sponsored by The Virginia Bar Association, American Association of Retired Persons (AARP), the Korean-American Society of Greater Richmond, Legal Services Corporation of Virginia, National Committee to Preserve Social Security and Medicare, Northern Virginia Aging Network, United Way Services, Virginia Association of Area Agencies on Aging, Virginia Coalition for the Aging, Virginia Coalition for the Prevention of Elder Abuse, Virginia Department for the Aging, Virginia Department of Social Services, Virginia Poverty Law Center and the Virginia State Bar.

On Tuesday, April 30, topics of programs include elder rights and elder abuse from national and state perspectives, legal and practical aspects of elder rights in eldercare, legal ethics in serving older clients and elder rights websites.

Wednesday’s program subjects include current topics in elder rights, the proclamation of Elder Law Day and Older Americans Month, assisted living residents' legal rights, a Medicare rights update, and legal and judicial access for older Virginians.

The schedule also features a luncheon and networking reception on Tuesday and breakfast roundtables on Wednesday.

The Honorable Jane H. Woods, Virginia Secretary of Health and Human Resources, will speak at the conference at a time to be announced.

Conference speakers with VBA connections include Paula Peaden, chair of the VBA Elder Law Section; Brenda J. Vieregg, co-author of Fourteen Friends' Guide to Eldercaring, who spoke at the VBA Annual Meeting in January; Jay Speer of the Virginia Poverty Law Center; and Mark Braley of the Legal Services Corporation of Virginia.
Registration information is available on the VBA website at www.vba.org.Return to Top

Administrative Law Conference will be May 16 in Richmond
The Eighth Annual Administrative Law Conference, co-sponsored by The Virginia Bar Association Administrative Law Section and the Administrative Law Advisory Committee (ALAC), will be held Thursday, May 16, at the Omni Richmond Hotel.

The day-long conference will feature sessions on a variety of current issues of interest to administrative law attorneys.

Program topics include lessons that Virginia can take from APA reforms in other states, an update on ALAC’s 2001 rulemaking reports and legislative recommendations, the new administration’s view of administrative law and process, judicial review of the administrative process and ethical issues in agency practice.

Lunch will be provided to registrants and will feature remarks by Delegate William J. Howell (R-Fredericksburg), chair of the Virginia Code Commission. Former Virginia Attorney General Stephen Rosenthal, now of Troutman Sanders LLP in Richmond, will present the afternoon program on ethics.

John M. Holloway III of Hunton & Williams in Richmond chairs the VBA Administrative Law Section.

Registration information will be mailed to all VBA Administrative Law Section members and will be posted at www.vba.org. Return to Top

Journalists honored by VBA for coverage of law and justice issues
Four Virginia journalists have received The Virginia Bar Association Award for Journalism in the Field of Law and Justice for 2001. The awards were presented during the Virginia Press Association Winter Conference at the Hotel Roanoke on March 16.

The objective of the award is to recognize published articles that foster greater understanding of the inherent values of the American legal and judicial system; inform and educate citizens as to roles in society of the law, the courts, law enforcement agencies and the legal profession; disclose practices or procedures needing correction or reform so as to encourage and promote efforts to improve our laws and the administration of justice; and aid the legal profession and judiciary in attaining the goals set by the Model Rules of Professional Conduct and the Code of Judicial Conduct. This year’s competition was open to all writers employed by Virginia Press Association member newspapers at any time during 2001.

Frank Green of the Richmond Times-Dispatch received the award in the Group II category of newspapers with a circulation of 40,000 or more. Green, who has previously received the award three times, was honored for his reporting on capital punishment and corrections issues.

Ron Brown, Michael Hewlett and Josh Slocum of The News & Advance in Lynchburg received the award in the Group I category of newspapers with a circulation of 40,000 or less. Brown, Hewlett and Slocum used a series of freedom of information requests as the basis for a series of stories that showed the chairman of the Lynchburg Board of Elections was misusing his position to charge a city credit card with expenses unrelated to his position. Their reporting led to the chairman’s resignation, several inquiries and investigations of his transactions, and a change in the city’s oversight policy for all city-issued credit cards.
Reporters receiving honorable mention include Matthew Dolan, Tim McGlone and Bill Sizemore, all of The Virginian-Pilot (Group II), Carrie Ellen Gauthier of Leesburg Today (Group I), and Shannon Brennan, Michelle Brummitt, Darrell Laurant and Jeff Sykes, all of The News & Advance (Group I).Return to Top

Bankruptcy Law Conference will be at The Sanderling
The Bankruptcy Law Section of The Virginia Bar Association holds its Fifth Annual Conference April 19-20 at The Sanderling in Duck, North Carolina.

The weekend begins with a welcome reception Friday evening for meeting attendees and their families. Saturday morning's program starts with a continental breakfast and concludes with lunch for participants and their families.

Four hours of continuing legal education programming, including one hour of ethics, is on the Saturday morning schedule.

Topics to be covered include recent developments in bankruptcy, federal and state court receiverships, and ethical considerations in bankruptcy law. There will also be a panel discussion on "Tenants by Entirety Property; and Award of Damages for Breach of Stay."

Registration information was mailed to all members of the VBA Bankruptcy Law Section in February and posted on the VBA website.

Leighton S. Houck of Caskie & Frost in Lynchburg chairs the VBA Bankruptcy Law Section.

Hotel arrangements should be made directly with The Sanderling at 1-800-701-4111. Questions may be directed to the VBA office at (804) 644-0041. Return to Top

Fall conference dates set
Dates and locations have been announced for the following VBA conferences in fall 2002:

VBA Labor Relations & Employment Law Conference, September 26-28, Kingsmill, Williamsburg;
Lawyers Helping Lawyers Conference, September 27-28, Omni Richmond;
VBA Virginia Tax Practitioners Roundtable, October 25, Farmington, Charlottesville;
Boyd-Graves Conference, October 25-26, Norfolk Waterside Marriott; and
VBA Capital Defense Workshop, November 21-22, Richmond Marriott.

More information on each conference will be available later in the year.Return to Top

News in Brief

VBA member and William & Mary law professor Walter S. Felton Jr. is the newest appointee to the Court of Appeals of Virginia. Felton received his undergraduate and law degrees from the University of Richmond. Among other career highlights, he has been deputy attorney general of Virginia, deputy counselor to the governor and deputy director of policy, and serves as W&M’s legislative counsel. He will succeed Hon J.M.H. Willis Jr. of Fredericksburg, who has announced that he will retire August 31. His was one of three names recommended by the VBA Committee on Nominations to Virginia Commissions and Appellate Courts and forwarded by the VBA to the General Assembly, which elected Felton.

Former VBA President John M. Ryan of Norfolk has been selected as the 2002 recipient of the Eggleston-I’Anson Professionalism Award of the Norfolk and Portsmouth Bar Association. Ryan, a partner in the law firm of Vandeventer Black LLP, is a graduate of Dartmouth College and the University of Virginia School of Law, and is also a fellow of the American Bar Foundation, the American College of Trial Lawyers and the Virginia Law Foundation. He will receive the award during the bar’s annual meeting on May 4.

VBA President-elect Frank A. Thomas III of Orange attended the American Bar Association’s Bar Leadership Institute in Chicago March 7-9, as did VBA Communications Coordinator Caroline Bolte Cardwell.

VBA Young Lawyers Division Coordinator Regina J. Moss (a.k.a. “Sprinkles”) received a first-place in the whiteface clown category at the recent Circus Magic competition.

The Virginia Alliance of Legal Assistant Associations is hosting its third statewide legal assistant/paralegal training seminar in Roanoke on April 26 and 27. The Alliance will offer advanced seminars and workshops in areas of litigation, real estate, bankruptcy, FLSA, mediation, ethics, environmental law, and Internet research and technology. There is a reception from 6 to 8 p.m. on Friday evening, and other activities, including a networking luncheon on Saturday, are planned. For a brochure, please contact Suellen Honeychuck by phone at (703) 246-4379, by fax at (703) 273-6476, or by e-mail at shoneychuck@cox.rr.com.

The VBA News Journal needs articles from Association members for upcoming issues. For more information, visit the “Writers’ Guide” on the VBA website, or contact Caroline Cardwell at (804) 644-0041.

The Virginia Lawyer was first published in 1966 by the VBA Young Lawyers Division. In 2000, Virginia CLE and the VBA/YLD joined in a cooperative effort to produce a new two-volume guide for practitioners designed to assist attorneys in dealing with unfamiliar areas. Details are available on the Internet at http://www.vacle.org/wn111.htm#valawyer.

The American Judicature Society will hold a half-day symposium in Washington, D.C., on May 17 to examine the role and responsibilities of the executive and legislative branches of government in the federal judicial selection process. The first part will feature an historical overview of the federal judicial selection process, informed by the experience of past and present White House counsel and Justice Department officials. The second part of the program will provide an examination of the Senate’s role of advice and consent and of the formal and informal procedures used by senators during the nomination phase. For more details, contact Allan Ashman at aashman@ajs.org or (312) 357-8825.

Information for lawyers who are assisting deployed service personnel, their employers and their families is available on the American Bar Association’s website at www.abanet.org.

Lawyers Have Heart, a 10K run and 3K fun walk that raises funds for the American Heart Association/National Capital Area Council, will be held Saturday, June 15, beginning at 8 a.m. at Washington Harbour on the Georgetown waterfront in Washington, D.C. For more details and registration information, visit www.RUNLHH.org or contact Lauren Frank at (202) 686-6888.Return to Top

Lawyers Helping Lawyers Program

Oregon study finds recovering lawyers have low claim rates
A recent study by the Oregon Attorney Assistance Program (OAAP) has demonstrated the truth of a belief long held by most insurers, state bars and assistance programs: that getting lawyers into recovery saves lives and dollars. The OAAP, which is funded by the Oregon State Bar Professional Liability Fund, provides a broad range of services to attorneys, including assistance with alcoholism and chemical dependency.

The OAAP study involved 55 recovering lawyers who were in private practice for five years before and five years after their sobriety dates. The first portion of the study examined the incidence of malpractice claims for that 10-year period, while a second portion looked at discipline complaints.

During the five years before sobriety, these lawyers had 83 malpractice claims filed against them, whereas the number dropped dramatically — to 21 claims — in the five years after sobriety. This represents a 30 percent annual malpractice claim rate before sobriety, and an eight percent rate after sobriety.

The same lawyers had 76 discipline complaints during the five years before sobriety and 20 discipline complaints during the five years after sobriety. This represents a 28 percent annual discipline complaint rate before sobriety and a seven percent complaint rate afterwards. These statistics show that malpractice and discipline complaint rates for lawyers before recovery are nearly four times greater than those in recovery.

Lawyers in recovery also have lower malpractice and discipline complaint rates that the general population of lawyers. In Oregon, the current annual malpractice claim rate for lawyers in private practice is 13.5 percent, compared to eight percent for lawyers in recovery. The current annual discipline complaint rate for Oregon lawyers is nine percent, compared to seven percent for lawyers in recovery.

Lawyers Helping Lawyers provides confidential, non-disciplinary help for members of the legal profession in Virginia who are dealing with substance abuse. If you yourself are wrestling with substance abuse, or have a friend or colleague who needs help, call Lawyers Helping Lawyers at (804) 644-3212 or 1-800-838-8358.

Lawyers Helping Lawyers Conference set for fall 2002
The biennial Lawyers Helping Lawyers Conference has been scheduled for September 27-28 at the Omni Richmond.
Plans are already underway for speakers, workshops and opportunities for networking and collegiality among LHL volunteers.
Schedule and registration information will be mailed this summer and will be posted on the VBA website when it is available.

Educational programs available from Lawyers Helping Lawyers
In addition to confidential, non-disciplinary help for members of the legal profession in Virginia who are dealing with substance abuse, Lawyers Helping Lawyers provides educational programs for bar associations, practice groups and law firms.
If you are interested in arranging such a program for your law firm or local bar, call Lawyers Helping Lawyers Program Director Susan Pauley at (804) 644-3212 or 1-800-838-8358. Return to Top

Copyright 2007 The Virginia Bar Association