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December
2003/January 2004
Volume XXIX, Number 8 (PDF version)
President’s Page:
Why I'm a Believer
Frank A. Thomas III
VBA Annual Meeting Preview
Marbury v. Madison Bicentennial:
John Marshall Revisited on Marbury’s 200th Anniversary
Justice Donald W. Lemons’ reflections on the life and character of
“The Great Chief Justice”
Legal Focus/Needs of Children:
Guardian ad litem performance standards promulgated
Professor Robert E. Shepherd Jr.
Many Thanks to the VBA Patrons for 2003
Young Lawyers Division:
Mountains of projects reviewed at Wintergreen meeting
Stephen D. Otero
Across the Commonwealth
VBA plans for 2004 General Assembly • Virginia Business
announces “Legal Elite” for 2003 • New schedule for VBA
News Journal • Spring conferences planned • VBA/YLD slate
for 2004
News in Brief
Professional Announcements
Calendar
President's
Page:
Why I'm a Believer
Frank A. Thomas III
The last President’s Page of the bar year has traditionally been
a combination of Garrison Keillor and Douglas MacArthur — a retrospective
and an inspiring farewell. My tendencies have always been more in the direction
of Keillor, so I will spend my last page reviewing the past year.
Much of our work this year has carrying on the programs and projects of
which we are justifiably proud. Our legislative program was a success, as
we were able to get 30 of the 36 bills we sponsored enacted into law. The
Young Lawyers Division continued to shine and received national recognition
once again. Our seminars, conferences and meetings served an estimated 1,525
people. Our members continue to be recognized as outstanding lawyers representing
73 percent of the Virginia lawyers listed in The Best Lawyers in America
and 80 percent of the lawyers in Virginia Business’ “Legal Elite.”
Our public service programs continue to serve the Commonwealth and particularly
those of its citizens who might not otherwise have an effective voice.
Most of what I have described is plainly evident from even a cursory review
of our publications and newsletters. What may not be so evident is the work
the VBA leadership has been doing. Our focus this year has been in bringing
to fruition the planning process we began three years ago under the Presidency
of Anita Poston and continued through the terms of Jeanne Franklin and Ed
Betts.
The plan has brought a restructuring of our Board to reflect both operational
considerations and program issues. The last piece of this restructuring
is falling into place with the creation of the Community Service Program
Council which will encourage and support both traditional pro bono service
as well as service to our communities in general. This organization will
foster the commitment of our members to public service of which we have
been justifiably proud.
Our restructuring and program growth has not been without cost. While our
staff has an uncanny ability to make silk purses out of sows’ ears,
even they have not been able to pull this off within the existing budget.
The impact of this expansion, together with a change in policies on dues
and other expenses of some of our larger law firms, has caused us to begin
a serious consideration of our sources of revenue.
One of the results of this focus is the creation of our Membership Committee
and its constituent Regional Advisory Committees. Membership has traditionally
received less attention from the Board than other matters. It has now become
a priority. Advocacy for membership has moved from the staff to the membership
as we are casting a broad and ambitious net for new members. We all can
be very grateful to Greg St Ours, the chair of this committee, for all the
energy and enthusiasm he brings to it.
A second result was a restructuring of the Patron program. While the Patron
program gave VBA members the chance to do something over and above dues
to support us, it was a modest program without a particular focus.
Beginning in 2004, Patron contributions will support the work of the VBA
Foundation, which will assume appropriate public interest programs of the
Association. The program will be expanded to three levels of giving: the
traditional $100 level, as well as additional levels of $250 and $500.
Donors at each level will receive appropriate recognition. All Patron dues
at every level will be eligible for a tax deduction as charitable contributions.
You will see the first evidence of this new opportunity on your dues statement
for 2004.
We have also spent a significant amount of time exploring non-dues revenue
projects. We have examined our existing affinity programs. One result is
an improvement to the benefits we can offer our members through the VBA
credit card and its World Points program.
Another result is the insurance program of the Virginia Barristers Alliance.
This insurance program offers comprehensive group and individual coverages
with costs and quality comparable to any coverages available to our members.
In the case of some individual products, discounts are available to VBA
members that bring the cost of coverage below what you might otherwise expect
to pay. These programs offer our members the ability to both help themselves
and help the VBA.
And yes, we have also looked at dues. The dues statements for 2004 will
show an increase. Our first since 1998. In making the change, we have tried
to be sensitive to younger lawyers and keep the line at the existing level
of $150 for lawyers with five or fewer years of practice. Public service
lawyers and law school faculty will still pay half the normal dues. The
rest of us will have annual dues of $200.
How do you justify paying dues to a voluntary bar organization in the face
of all the other organizations that vie for your dollars? It’s easy.
The VBA is worth it.
Worth it in the value it brings to its members through the Law Practice
Management Division; participation in Section and Committee work; providing
an opportunity to give back through public service; and in creating the
opportunity to work and interact with the best lawyers in the Commonwealth,
to name but a few.
It is also worth it for the contributions our Association makes to society
and public service. Who else can speak for those who have no effective voice
than the only statewide bar organization without any agenda or specific
affinity?
We hope you will do more than simply sigh and sign the check for the new
dues when your membership statement comes. Think about how you can get more
for your dues by becoming more deeply involved with Section or Committee
work or something else we are doing that interests you.
Reach out to a good lawyer who is not a VBA member and get him or her to
join. Both the VBA and the new member will be the better for it.
Think about the Barristers Alliance for your insurance needs.
Check out the VBA credit card.
Put the VBA Foundation on the list of the charitable organizations you support.
We will only be as good an organization as you help us to be.
As you can tell, I am a believer. The experience of the past year has confirmed
and deepened my belief. I have had the opportunity to watch our members
carry on the good work of which we are so proud. I have been humbled by
the depth of their involvement and commitment. I am profoundly grateful
for the work they are doing.
While Ted Ellett will have this job next year, I look forward to supporting
the work of our Association in the years to come. Thank you very much for
giving the opportunity to do so this year as your President. Return
to Top
Marbury v. Madison Bicentennial:
John Marshall Revisited on Marbury’s
200th Anniversary:
Reflections on the Life and Character of ‘The Great
Chief Justice’
Presented by Justice Donald W. Lemons, Supreme Court of
Virginia, to the Joint Meeting of The Virginia and West Virginia Bar Associations,
at The Greenbrier on July 11, 2003
How did a man, born and raised on the frontier of America, influenced by
agrarian principles and dependent upon family and local governance for order
and protection, become one of a handful of leading Federalists, committed
to the establishment of a strong national government? The answer is more
complex, of course, but surely the influences and ideas that formed John
Marshall’s federalism, at least symbolically, came to early fruition
in a tent at Valley Forge during the desperate encampment of the winter
of 1777 –78.
The declaration of American freedom had been made and the determined resistance
of the mother country to emancipation of her colonies had resulted in two
years of war. By December 1777, the prospects of American military victory
were bleak. European nations that might have become American allies had
not yet done so. American soldiers were essentially an assembly of state
militia units, more likely to obey the orders of an officer they knew from
their own state or community. The Continental Congress had demonstrated
discord and quarrel among its member colonies and had proven ineffective
in their provision of material support for the army of America.
Eleven thousand soldiers camped in the winter snow under the command of
General George Washington. Over three thousand would die, not from British
hostilities, but from freezing to death, starving to death, or succumbing
to virulent disease raging through the encampment. The carcasses of hundreds
of dead, rotting horses lay unburied on the frozen ground. Smallpox, typhus,
dysentery, and scurvy were commonplace. The lack of basic clothing required
men to sit by fireside through the night to keep from freezing to death.
Bloody footprints in the snow attested to the lack of shoes. One morning,
the Virginia Brigade recorded that only 149 privates were fit for duty,
with 257 rendered unable to perform for lack of clothing. The reluctance
of soldiers to walk barefoot and inadequately clothed through the snow to
a distant latrine created sanitary problems and fostered the spread of disease.
John Marshall was 22 years old, and he was there. He later observed, “At
no period of the war had the American army been reduced to a situation of
greater peril than during the winter at Valley Forge.”
It was not that the colonies had no food or financial ability to support
the troops; rather, it was a failure of government. The Continental Congress
had no power to command the provision of supplies from the various colonial
governments; it had only the ability to request. Surely, the morale of American
forces faltered at the knowledge that clothing, food, supplies and munitions
were hoarded in the colonies and even in some cases sold to the British
in exchange for gold. The utter ineffectiveness of the loose confederation
of colonies was never more apparent than at Valley Forge. George Washington
pleaded with the Congress, “unless some great and capital change suddenly
takes place in that line, this Army must inevitably be reduced to one or
other of these three things. Starve, dissolve, or disperse, in order to
obtain subsistence in the best manner they can; rest assured Sir this is
not an exaggerated picture . . .”
John Marshall was there. And it was there that he learned that a strong
national government was necessary for the survival of the American experiment.
He said it was then that he came to consider “America as my Country
and Congress as my government.” It is not too fanciful to suggest that
John Marshall, “the Federalist,” was born in a tent at Valley
Forge.
The election of 1800 was one of the most momentous events in American history.
The first election involving real distinction between political parties
cast incumbent John Adams along with Charles Cotesworth Pinckney as Federalist
candidates for President and Vice President, and Thomas Jefferson and Aaron
Burr as Republican candidates for President and Vice President. The electoral
college system required the electors to meet in their respective state capitols
to cast their votes. Without distinction between the office of President
or Vice President, each elector was to vote for two candidates. The candidate
with the highest number of votes won the Presidency and the runner up was
Vice President.
In this fateful election, when the electoral ballots were cast, the two
Republican candidates were ahead of their Federalist rivals, but they each
garnered the same number of electoral votes. Jefferson and Burr had run
with the understanding that Jefferson was the Presidential candidate, but
Burr refused to defer. The official count of electoral votes would await
a formal tally in February 1801. The Constitution provided that in the case
of a tie the deadlock was thrown to the House of Representatives where each
of the 16 state delegations had one vote.
In this tumultuous atmosphere involving the first transition of political
power from the Federalists to the Republicans, President Adams was confronted
with a vacancy in the office of Chief Justice of the United States. Knowing
that he had lost reelection and that either Jefferson or Burr would be his
successor, Adams sought to fill the position during his lame-duck interregnum.
Marshall, who was Adams’ Secretary of State, was the President’s
chief advisor and urged the elevation of Justice William Paterson. Adams
rejected this advice and instead offered to reappoint John Jay, the first
Chief Justice, to the position. Jay declined. With Jay’s letter in
hand, Marshall conferred with Adams. He later recalled that Adams asked,
“who shall I nominate now?” Marshall again made reference to Paterson,
but the President resolutely stated, “I shall not nominate him.”
In the silence that followed this exchange, Adams looked to Marshall and
said, “I believe I must nominate you.” Marshall recorded that
he was surprised at this turn of events, but bowed his head silently in
an act of acquiescence. He was confirmed by the Senate and took the oath
of office on February 4, 1801.
Seven days later the official tally of the electoral votes occurred. The
bitterly disputed contest would be resolved in the House of Representatives
only after 36 successive ballots over six days. It was resolved when the
Federalist Congressman from Delaware announced that he would abstain on
the 36th attempt to elect a President.
In all of American history, there could be no political event to rival the
scene at the Capitol on March 4, 1801, when at noon on that day, the leading
Federalist of the nation, John Marshall, administered the oath of office
to the new President, the leading Republican of the nation and Marshall’s
cousin, Thomas Jefferson. The distrust between these two men was palpable,
but they both rose above it to confirm the orderly transition of power.
The political warfare over the soul of the Constitution soon became focused
upon the judiciary. With Jefferson in the White House and Marshall at the
helm of the Courts, it was inevitable. The Judiciary Act of 1801 had been
forced through Congress in the waning days of Federalist control of the
legislature. The Act expanded the jurisdiction of the federal courts, added
16 new circuit judges, reorganized the district courts, and provided for
the reduction in size of the Supreme Court from six to five when the next
vacancy occurred. The Act was an offensive thorn in the side of the newly
ascendant Republicans, and its repeal was high on the agenda of the new
Republican Congress. But the repeal of the Act seemed directly contrary
to Constitutional provisions guaranteeing that judges shall hold their offices
during “good behavior” and assuring that their compensation not
be diminished during their terms of office. Federalists wanted the repeal
tested before the Supreme Court. Republicans worried that the repeal might
be found constitutionally infirm. So the Republican Congress passed its
own legislation reorganizing the federal judiciary and cleverly altering
the immediate terms of the Supreme Court such that it would not meet for
a period of 14 months. The prospect of immediate review of the repeal was
temporarily avoided.
The new legislation revived the practice under the Judiciary Act of 1789
of Supreme Court Justices “riding circuit” as trial judges. The
even-tempered and ever-cautious Marshall persuaded his colleagues to quietly
acquiesce to demands of Congress rather than provoke a crisis by refusing
to comply. It was in this heavily charged political atmosphere that a simple
petition by a man named William Marbury changed the course of the American
judiciary.
Much to the consternation of incoming President Jefferson, Adams had been
busy signing judicial commissions on the night of March 3, 1801, literally
in the last hours of his presidency. The obvious packing of the federal
judiciary with last-minute appointments of Federalist partisans was bound
to create controversy, but no one could have predicted that it would provide
Marshall with the opportunity to enhance the power of the Court.
On Adams’ last day in office, William Marbury had been appointed a
Justice of the Peace for the District of Columbia. The commission had been
signed by President Adams and sealed in the office of the Secretary of State,
John Marshall. John Marshall had already taken the oath of office as Chief
Justice of the United States, but he was still serving as Secretary of State.
A clerk in the State Department delivered the commissions to James Marshall,
John Marshall’s brother, who was also Adams’ private secretary
and had just been rewarded with a last-minute appointment to the newly created
Circuit Court for the District of Columbia. James Marshall delivered a number
of commissions to newly appointed Justices of the Peace but he could not
account for the lack of delivery to Marbury. Upon taking the oath of office,
Jefferson instructed his acting Secretary of State, Levi Lincoln, not to
deliver the commissions. Two weeks after Jefferson’s inauguration,
John Marshall wrote his brother James that in his opinion, even without
delivery, the appointments were nonetheless valid, having been signed by
the President and appropriately sealed.
Some months later, Charles Lee, who had been Adams’ Attorney General,
appeared before the Supreme Court to request the Court to issue an order
directed to the new Secretary of State, James Madison, requiring him to
show cause why he should not be compelled to deliver judicial commissions
to four of Adams’ appointees, including William Marbury. Jefferson’s
Attorney General, Levi Lincoln, was present when the request was made, but
when asked if he had a position on the matter, declined to participate in
the absence of directions from the President or Secretary of State. What
an extraordinary scene – Adams’ former Attorney General is requesting
the Court headed by Marshall, who sealed Marbury’s commission but did
not deliver it, to compel the new Secretary of State to deliver the commission
that had not been delivered by the acting Secretary of State, Levi Lincoln,
who was now Jefferson’s Attorney General. And moreover, the Chief Justice’s
brother had been complicit in the failure to deliver the commissions and
the Chief Justice had already privately opined concerning their validity!
One must wonder aloud whether Marshall ever considered recusing himself
from the case.
Although James Madison was named as a defendant in this proceeding purporting
to invoke the original jurisdiction of the Supreme Court, he refused to
participate. At a hearing before the Court in February 1802, Lee called
his first witnesses, two State Department clerks. They refused to answer
questions citing executive privilege. The Court ruled that the clerks were
public ministerial officers and they were compelled to testify although
their testimony was not particularly helpful. Next, Lee called his adversary,
Attorney General Levi Lincoln, as a witness. Lincoln was understandably
reluctant to testify. He protested that he should not be called to testify
about matters concerning his conduct as Secretary of State and further that
he was particularly compromised by his current position as Attorney General.
The impasse was broken by the Court’s compromise. Lincoln would testify,
but it would be upon written questions and answers. The Court distinguished
between confidential political communications and facts that were not confidential,
namely whether the commissions were in his office when he was Secretary
of State. Lincoln’s answers were not particularly helpful and the Court
would not compel him to answer the most important question of all –
what happened to the undelivered commissions. Finally, Lee established the
existence of the signed, sealed commissions through an affidavit of a sitting
circuit judge, none other than James Marshall, the Chief Justice’s
brother. Now the issues were joined: did the Court have jurisdiction to
award a writ of mandamus; could mandamus issue against a Secretary of State;
and could the court order the new Secretary of State to deliver the commission
to Marbury?
Two weeks after closing arguments in the case, Marshall delivered the unanimous
opinion of the Court. Because of the illness of Justice Chase, the Court
convened in the living room of the boarding house where the Justices were
staying. There Marshall read aloud to the assembled crowd the 11,000-word
opinion that would state the Court’s authority to declare an act of
Congress unconstitutional and assert the Court’s power to review certain
acts of the executive branch of government. The Court ruled that Marbury
had a legal right to his commission and that mandamus was a proper remedy
to compel an official of the executive branch of government to perform a
ministerial duty. But the Court ruled that it did not have power to issue
the writ because the jurisdictional predicate for it was found in the Judiciary
Act of 1789 and, that legislative provision was in conflict with the provisions
of Article III of the Constitution. While Congress could enlarge the appellate
jurisdiction of the Court, its original jurisdiction was circumscribed by
the Constitution, and Congress did not have power to enlarge the original
jurisdiction of the Supreme Court.
Of course, having decided that the Court had no power to issue a writ of
mandamus, the remainder of the opinion was “dicta,” unnecessary
to the resolution of the issue decided. But what powerful “dicta”
it was. Marshall faced an extraordinary political dilemma. If he failed
to assert the Court’s power to review acts of Congress and certain
conduct of the executive branch, the judiciary would remain the weakest
branch of the tripartite system. And if he ordered Madison to deliver the
commission to Marbury, the Court would be ignored and confirm that the judiciary
had no power. His solution has been thought by most to be masterful. At
once lecturing President Jefferson and Secretary of State Madison on the
illegality of their acts, Marshall asserted the right to review certain
executive conduct, the right to “emphatically declare what the law
is,” and the right to invalidate an act of Congress repugnant to the
text of the Constitution. And he did so without risking lack of compliance
with the orders of the Court. In a sense, in Marbury v. Madison, Jefferson
won the battle, but he lost the war.
In Marbury v. Madison, Marshall staked out judicial turf. He distinguished
between the executive’s prerogative to make the appointment, a political
act beyond judicial review, and the delivery of the commission, a ministerial
act subject to judicial review. Marbury had no property right in being appointed
a Justice of the Peace, but once appointed, he had a property right in the
office and the failure to deliver his commission was unlawful. Furthermore,
there was a remedy for Marbury. The opinion stated that
in cases in which the executive possesses a constitutional or legal discretion,
nothing can be more perfectly clear than that their acts are only politically
examinable. But where a specific duty is assigned by law, and individual
rights depend upon the performance of that duty, it seems equally clear
that the individual who considers himself injured, has a right to resort
to the laws of his country for a remedy.
Marbury v. Madison, 5 U.S. 137, 166 (1803).
The Court further stated that
The province of the court is, solely, to decide on the rights of individuals,
not to enquire how the executive, or executive officers, perform duties
in which they have a discretion. Questions, in their nature political, or
which are, by the constitution and laws, submitted to the executive, can
never be made in this court.
Id. at 170.
The Federalist-dominated judiciary was accused by the ascendant Republicans
of using the judiciary for partisan purposes. Prosecutions under the Alien
and Sedition Acts were only one of many abuses laid at the feet of Federalist
judges. The genius of Marshall’s delicate navigation of this political
minefield was that he retreated from the political question while boldly
establishing the authority to decide actual controversies involving the
property rights of citizens when abridged by the executive branch. In marking
a perceived “retreat,” Marshall was establishing the exclusive
territory of the judiciary.
He declared that “[i]t is emphatically the province and duty of the
judicial department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that rule. If
two laws conflict with each other, the courts must decide on the operation
of each.” Id. at 177. Declaring it “the very essence of judicial
duty,” Marshall wrote that, “[i]f then the courts are to regard
the constitution; and the constitution is superior to any ordinary act of
the legislature; the constitution, and not such ordinary act, must govern
the case to which they both apply.” Id. at 178. In the process, Marshall
declared the right to review, in certain cases, the acts of the executive
and the ability to decide if executive privilege must be honored. He even
slipped in the declaration that the power behind the Constitution was a
grant from “the people” as opposed to the Jeffersonian Republican
view that the Constitution was an agreement among the states.
Of course, Marbury v. Madison is cited as the case that established the
doctrine of judicial review over acts of Congress. To be sure, it is the
first declaration of the principle in the opinions of the United States
Supreme Court. But the concept was not new and its articulation surprised
no one at the time. State and lower federal courts had utilized the doctrine
before. Marshall had referred to this power of the courts in his defense
of the Constitution during the ratification debates in Virginia. By 1803,
there was little doubt that the Court had such power. With the federal judiciary
under attack, the assertion of the power of judicial review in Marbury v.
Madison was more defensive than offensive. Were Marshall to see the scope
of judicial encroachment under the guise of judicial review today, he would
most assuredly be shocked. It would seem that Marshall’s defensive
effort to stake out the Court’s turf has been replaced by a more intrusive
application of judicial review involving supervision of the social, political
and economic policy of the United States. The shield has become a sword.
Chief Justice Charles Evans Hughes once made the curious observation that
“Marshall’s preeminence was due to the fact that he was John Marshall.”
What he meant was simply that the force of Marshall’s personality,
character and intellect is the source of his contributions to a nation.
Marshall was born on the frontier of Virginia. Formal educational opportunities
were unavailable in Fauquier County, so his father, Thomas Marshall, sent
his son 100 miles from home at the age of 14 to receive training under the
tutelage of a respected clergyman. At the end of one year, Marshall returned
home and his father hired a tutor to live with the family and educate the
children. His father assembled a respectable library with many volumes borrowed
from Lord Fairfax. Marshall himself attests to the influence of Horace,
Livy and particularly Alexander Pope in his formative years. There is little
doubt that Marshall’s crisp style of writing and penchant for the memorable
phrase had its origins in his early education.
By the time he was 18 years old, the controversy with Great Britain had
reached the point of inevitable hostilities. His father had been present
in Richmond at St. John’s Church when Patrick Henry threw down the
rhetorical gauntlet, proclaiming his preference for death over enslavement.
The call to arms resonated throughout Virginia and the mobilization of local
militia in preparation for defense of the colony swept the young Marshall
into the role of revolutionary soldier. Marshall was a first lieutenant
in the Fauquier Rifles and they would see first blood in Virginia at the
battle of Great Bridge, 12 miles to the south of Norfolk, a Tory stronghold.
Marshall would later see battle in the northeast at Monmouth, Brandywine
and Cooch’s Bridge. And he would endure the winter encampment at Valley
Forge.
Marshall’s leadership skills were first honed in the military. He led
by example and was known by his troops as the most cheerful and optimistic
man they had encountered. In the face of unspeakable deprivation, Marshall
did not complain and encouraged his men with a wealth of anecdotes and athletic
games. Throughout his life, Marshall was known for his athletic ability.
It was reported that he could high jump over six feet, an accomplishment
that could not be matched by any of his competitors. His daily habit of
walking six miles each morning was pursued throughout his adult life.
During a furlough after Christmas 1779, Marshall visited his father in Yorktown.
Thomas Marshall’s residence was next door to the residence of Jaquelin
Ambler, a leading revolutionary in the colony. And better yet, Ambler was
the father of three daughters eligible for marriage. The daughters had heard
of the heroic service of now Captain Marshall and anxiously awaited his
arrival. It was the youngest of the three, Mary – known as Polly –
not yet 14 years old, who announced to her sisters that Captain Marshall
was to be her prize. Marshall had not succumbed to the British but he appeared
to surrender to Polly.
During this absence from the war, Marshall enrolled in law classes in nearby
Williamsburg under the supervision of Professor George Wythe. His classmates
included Bushrod Washington, who would later serve with him on the Supreme
Court, and Spencer Roane, who would become a Judge of the Court of Appeals
of Virginia and would assume the mantel as Marshall’s chief judicial
antagonist. Marshall’s law notes survive. The otherwise well-organized
notes are littered with Polly’s name written randomly in the margins.
Apparently, even the formidable George Wythe could not keep Marshall’s
attention from wandering to thoughts of Polly.
As family legend tells it, after the conclusion of the war, Marshall proposed
to Polly and she refused. Marshall mounted his horse and rode away toward
Fauquier County. A distraught Polly, regretting her refusal, wept uncontrollably.
Her brother John Ambler snipped a lock of Polly’s hair without her
knowledge and rode after Marshall and gave him the lock. Marshall, supposing
it had been sent by Polly, returned and they were later married. Polly placed
the snippet of hair in a locket and wore it around her neck for the rest
of her life. When she died, Marshall wore it until his death. The locket
was given by Marshall’s great-great-great-granddaughter Mary Douthat
Higgins to the John Marshall House in Richmond as a gift in honor of Chief
Justice Harry L. Carrico, and it can be seen as a visible reminder of the
love affair that was the marriage of John Marshall and Polly Ambler.
In the years that followed his marriage to Polly and leading up to his appointment
as Chief Justice, Marshall established a prosperous law practice, became
the leading citizen of the City of Richmond, engaged in politics and elective
office, became a leading spokesman and advocate for the ratification of
the Constitution, and served his country as a diplomat and as Secretary
of State.
He noted that on his wedding day, after paying the minister, he had but
one guinea in his pocket. He was a member of the Virginia General Assembly,
but his pay for such public service was inadequate. Marshall knew that his
financial future was dependent upon law practice and land speculation and
he vigorously pursued both. Edmund Randolph turned his law practice over
to Marshall when Randolph was elected Governor in 1786. Randolph’s
law practice had received a similar boost when Thomas Jefferson decided
to pursue politics on a full-time basis and turned his law practice over
to Randolph. It is certainly a strange irony that Thomas Jefferson’s
law practice eventually became Marshall’s.
As a lawyer, Marshall was brilliant. One of the lawyers in Richmond described
Marshall as having a mind “so creative, so well organized by nature,
or disciplined by early education, and constant habits of systematick thinking,
that he embraces every subject with the clearness and facility of one prepared
by previous study to comprehend and explain it.” Even his political
adversaries never doubted his skill. Thomas Jefferson once commented upon
his rival’s ability to reason logically from a particular premise and
trap his rhetorical opponent. Jefferson said, “Why, if he were to ask
me whether it were daylight or not, I’d reply, ‘Sir, I don’t
know, I can’t tell.’ ”
Marshall’s speech was eloquent, but his personal appearance was not
as polished. Some commentators have described him as “slovenly”
in matters of dress. But of course the criticism cannot be judged by contemporary
understanding of the term. By comparison to other lawyers and public figures
of the age, Marshall certainly was not preoccupied with matters of dress.
He was no dandy, but he hardly deserves the description as “slovenly.”
One of the stories often told about Marshall involves an older gentleman
who needed a lawyer and was advised that Marshall was the best in Richmond.
The man took one look at Marshall and decided to hire someone else. On the
day his case was to be called, he sat in the gallery watching the performance
of lawyers in other cases. He observed Marshall arguing against the lawyer
he had hired instead of Marshall. During a recess, the man approached Marshall,
admitted he had made a terrible mistake and asked Marshall if he would agree
to represent him. Unfortunately, the other lawyer had taken $95 of the $100
the man had with him. Marshall agreed to take the case for the remaining
$5. Surely, the ability to tell the story was worth the loss of the larger
fee.
In the realm of politics, Marshall was engaged in practically every major
debate of his time. He had an uncanny knack of knowing when to stand his
ground despite intense criticism and when to reach practical compromise.
Marshall’s conduct as one of three envoys to France solidified his
reputation for honor and integrity. It also gave him greater stature as
a Federalist, although a moderate one. In the XYZ Affair, as it was called,
Marshall refused to be swindled by the French government. He refused the
invitation to bribe French officials and would not bow to demands to humble
the nation with a Presidential apology for remarks made by Adams. Marshall
was lauded by the American people for the depth of his nationalism, patriotism,
personal virtue and character.
After the XYZ Affair, Federalists enjoyed a period of ascendancy and Marshall
was one of their most visible public figures. In Virginia, however, the
Republicans were in control of Congress and were under the considerable
influence of Jefferson and Madison. George Washington invited his nephew,
Bushrod Washington, and Marshall to Mount Vernon to confer on matters of
significance. The matter most on Washington’s mind was the election
of Federalists to the Congress. His nephew could not resist Washington’s
entreaty, but Marshall held out for four days. On the last morning, Marshall
rose early, determined to leave before another confrontation with Washington.
Much to his surprise, Washington had anticipated Marshall’s attempted
escape and greeted him on the porch in full military dress. In the ensuing
conversation, Marshall succumbed to Washington’s request. How could
he fail to do so? Seeing Washington clothed in the visible symbol of his
own sacrifice for the nation, Marshall became a candidate for Congress.
Ultimately, Marshall could not have turned down this earnest request from
Washington. If Marshall engaged in idol worship, George Washington was the
object. Upon learning of his death, Marshall eulogized Washington on the
floor of Congress with these words: “Our Washington is no more! The
hero, the sage and patriot of America—the man on whom in times of danger
every eye was turned and all hopes were placed, lives now only in his own
great actions and in the hearts of an affectionate and afflicted people.
… He was first in war, first in peace, and first in the hearts of his
country.”
During the campaign, there were concerted efforts to undermine the credibility
of candidate Marshall. Spencer Roane conspired with other Republicans to
cast doubt upon Marshall’s motive and character. He was vilified as
an “enemy of free speech,” a “monarchist,” and a “British
agent.” Even his amiable social habits received some negative comment.
He did not publicly respond, but he privately seethed at the pointed personal
attacks. None other than Roane’s father-in-law, Patrick Henry, came
to Marshall’s defense with a letter written for the purpose of being
leaked to the public and published in newspapers. Henry defended Marshall
and attested to his high moral character and patriotism. Despite their political
differences, Henry always admired Marshall’s personal attributes. He
ended the letter with a touching personal request: “Tell Marshall I
love him, because he felt and acted as a republican, as an American.”
When John Marshall assumed the office of Chief Justice of the United States,
the Court had little prestige and less authority. Hamilton’s declaration
in Federalist 78 that under the Constitutional scheme, “the judiciary
is beyond comparison the weakest of the three branches” was most certainly
true. But John Marshall changed the course of American history.
When Marshall took the helm, it had been the practice of the Justices to
render separate opinions in each case. Marshall began the practice of writing
one opinion expressing the decision of the Court in one voice. It would
be simplistic to assume that Marshall simply overwhelmed his colleagues.
By the force of his personality he was most certainly persuasive in his
leadership of the Court. After all, he had been a revolutionary war hero,
a military and political leader, and a diplomat. His personal qualities
of good humor, tact, patience and his desire to reach consensus brought
forward the best qualities of all the Justices on the Court.
The members of the Marshall Court lodged together and dined together during
the sessions of Court. Justice Story recalled the habit of the Court to
indulge in the moderate drinking of Madeira together, but only in wet weather.
Story confessed, “it does sometimes happen that the Chief Justice will
say to me, when the cloth is removed, ‘Brother Story, step to the window
and see if it looks like rain.’ And if I tell him that the sun is brightly
shining, Judge Marshall will sometimes reply, ‘All the better, for
our jurisdiction extends over so large a territory that the doctrine of
chances makes it certain that it must be raining somewhere.’ ”
He was pragmatic and practical, possessed with patience, good judgment,
modesty and a healthy dose of good humor. His leadership skills were honed
in his experiences as a soldier, a member of Congress, an Ambassador, and
Secretary of State. His collegiality won friends among his colleagues as
well as those who would oppose him politically. He was uniquely suited for
the leadership of the United States Supreme Court at a time when its survival
as a co-equal branch of government was in jeopardy. Often referred to as
“The Great Chief Justice,” he deserves the praise afforded him
by Justice Oliver Wendell Holmes Jr., who said,
If American law were to be represented by a single figure, skeptic and worshipper
alike would agree without dispute that the figure could be one alone, and
that one, John Marshall.
BIBLIOGRAPHY
Baker, Leonard, John Marshall: A Life in Law, Macmillan Publishing Co.,
Inc., 1974.
Hobson, Charles F., The Great Chief Justice: John Marshall and the Rule
of Law, University Press of Kansas, 1996.
Newmyer, R. Kent, John Marshall and the Heroic Age of the Supreme Court,
Louisiana State University Press, 2001.
Simon, James F., What Kind of Nation, Simon and Schuster, 2002.
Smith, Jean Edward, John Marshall, Definer of a Nation, Henry Holt and Company,
Inc., 1996.
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Legal Focus/Needs
of Children:
Guardian ad litem performance
standards promulgated
Professor Robert E. Shepherd Jr., Chair, VBA Commission on the Needs of
Children
On July 7, 2003, the Supreme Court of Virginia approved the action taken
by the Judicial Council the month before and gave the final imprimatur to
proposed Standards to Govern the Performance of Guardians ad litem for Children,
ruling that they would become effective on September 1, 2003. A revised
juvenile and domestic relations district court form, DC-514, has been used
since that date, and it specifically states that the failure of an attorney
so appointed to comply with the duties specified in the Standards “may
result in the appointing court’s refusal to authorize payment of the
fees requested by the guardian ad litem or a reduction of the payment requested,
removal from the assigned case or removal from the court’s Guardian
Ad Litem Appointment List.”
Since the revised form order refers specifically to appointment in either
the circuit or juvenile court, similar sanctions presumably would apply
to a GAL appointed in any court, and the Standards specify that they apply
in “child protection, custody and visitation, juvenile delinquency,
child in need of supervision, child in need of services, status offense
and other appropriate cases” in all those courts. Thus, there are now
in place the first statewide performance standards for lawyers appointed
as guardians ad litem in a wide range of cases in Virginia’s courts
with meaningful sanctions to enforce them.
Although standards for the qualification of guardians ad litem have been
in force since 1995, the only performance standards had existed at the local
level, such as in the Juvenile and Domestic Relations District Court for
the City of Richmond. However, The Virginia Bar Association’s Commission
on the Needs of Children had heard frequent complaints about the uneven
performance of GALs across the state, and even within individual jurisdictions,
and thus it undertook a project in 2001 with the principal aims of ascertaining
the extent of any problem and then improving the quality of practice by
attorneys serving as GALs in abuse and neglect cases.
The Commission obtained a Virginia Law Foundation grant to assist its inquiries
into the effectiveness of the GAL system and it established a broad-based
advisory committee to assist it which was composed of attorneys serving
as GALs, lawyers representing local departments of social services, juvenile
and domestic relations district court and circuit court judges, court appointed
special advocates, foster parents, child protective services workers and
other professional experts in the areas of court administration, juvenile
law and services to troubled families.
The Commission and advisory committee conducted an extensive review in the
summer and fall of 2001 of similar efforts conducted by national organizations,
such as the ABA and the National Association of Counsel for Children, and
other states, and they also examined Virginia’s current statutes, policies
and rules. The group determined that Virginia needed to address the performance
of GALs, and it proposed that the Judicial Council of Virginia adopt standards
of performance for guardians ad litem in order to assure more vigorous,
effective and competent representation for all children.
With the able assistance of its consultant, Harriet Russell McCollum, proposed
standards for GALs in child protection proceedings were drafted. The Judicial
Council met in October 2002, adopted the Commission’s proposed standards,
and urged the group to continue its study to cover other proceedings where
guardians ad litem were appointed for children in Virginia.
During the Commission on the Needs of Children’s study, guardians ad
litem became an issue in the 2002 Session of the General Assembly, and several
efforts were made to impose a cap on GAL fees. That effort was forestalled,
largely by the efforts of the VBA and several local bar groups, through
the passage of a study resolution establishing a Joint Subcommittee to Study
the Effectiveness and Costs of the Guardian Ad Litem Program composed of
eight legislators, chaired by Delegate H. Morgan Griffith, the majority
leader of the House of Delegates, who had introduced the resolution establishing
the study, HJR 76.
The study raised a number of issues that related to the role of GALs generally,
but especially in custody and visitation cases and concerning their role
in the circuit court as well as the juvenile court. The study also focused
on issues of compensation for GALs, but in the fall of 2002 the study committee
ended its work by commending the Commission, and The Virginia Bar Association,
for their work on the standards. It urged the Association to continue its
work in developing performance standards for custody and visitation cases,
and requested that the Association present a further report on its progress
to the study group members in 2003.
The Commission and the advisory committee, enhanced by the addition of several
distinguished family law specialists from across the Commonwealth and a
Court of Appeals judge, concluded their work on the broader task in the
spring of 2003 by drafting comprehensive performance standards at a meeting
where the participants spent considerable time discussing the definition
of the role of the GAL and the tension between acting in a traditional attorney
role, primarily presenting evidence and arguing the case for the child’s
best interest, versus serving as a reporter to the court, presenting information
in the form of reports not necessarily supported by evidence and perhaps
containing hearsay.
The group was aided significantly during its final deliberations by the
action of an ABA Family Law Section subcommittee which drafted and approved
Standards for Child Representation in Custody Cases under the chairmanship
of John Crouch of the Arlington bar.
The final report of the Commission on the Needs of Children reached several
general conclusions about the representation of children by guardians ad
litem. It concluded that many of the competencies required to represent
children are the same as those required for other types of litigation —
skills, abilities and actions expected of attorneys in all cases, such as
conducting interviews, framing and evaluating pleadings, engaging in discovery
techniques, thoroughly preparing for trial, and negotiating on behalf of
a client.
Representing children, however, is also different from other forms of litigation,
and the importance of the dispositional process and the potential for court
proceedings to affect the very nature of a family provide the basis for
these distinctions. The long term consequences to the child client make
the role of a GAL as crucial at disposition as at any other phase of the
case. These consequences demand full attention to the formulation and articulation
of well-supported arguments and appropriate recommendations, as well as
a critical evaluation of plans proposed by others.
The group recognized that attorneys who serve as GALs are subject to the
Rules of Professional Conduct as they would be in any other case, except
when the special duties of a GAL conflict with such rules. But unlike the
normal Rules governing confidentiality, there may be times when attorneys
serving as a GALs must, in furtherance of their role, disclose to the court
information communicated to them by the child.
The role and responsibility of the GAL is to represent, as an attorney,
the child’s best interests before the court, a view which follows the
lead of the ABA Standards. The GAL is a full and active participant in the
proceedings who independently investigates, assesses and advocates for the
child’s best interests, both at trial and on appeal.
In fulfilling the duties of a guardian ad litem, the new “black letter”
Standards prescribe that an attorney should:
A. Meet face to face and interview the child;
B. Conduct an independent investigation in order to ascertain the facts
of the case;
C. Advise the child, in terms the child can understand, of the nature of
all proceedings, the child’s rights, the role and responsibilities
of the GAL, the court process and the possible consequences of the legal
action;
D. Participate, as appropriate, in pre-trial conferences, mediation and
negotiations;
E. Ensure the child's attendance at all proceedings where the child's attendance
would be appropriate and/or mandated.
F. Appear in Court on the dates and times scheduled for hearings prepared
to fully and vigorously represent the child’s interests;
G. Prepare the child to testify, when necessary and appropriate, in accord
with the child’s interest and welfare;
H. Provide the court sufficient information including specific recommendations
for court action based on the findings of the interviews and independent
investigation;
I. Communicate, coordinate and maintain a professional working relationship
in so far as possible with all parties without sacrificing independence;
J. File appropriate petitions, motions, pleadings, briefs, and appeals on
behalf of the child and ensure the child is represented by a GAL in any
appeal involving the case;
K. Advise the child, in terms the child can understand, of the court’s
decision and its consequences for the child and others in the child’s
life.
These simple standards are to be printed on the reverse of the order appointing
a guardian ad litem, but they are supported by Commentary in the full document
approved by the Judicial Council and the Supreme Court, which may be found
at www.courts.state.va.us/gal/gal_standards_children_080403.html.
Return to Top
Young Lawyers Division:
Mountains of projects reviewed at Wintergreen
meeting
Stephen D. Otero
The Young Lawyers Division was scheduled to have its annual Fall Meeting
at Wintergreen Resort on the weekend of September 19- 21. Of course, Hurricane
Isabel put those plans on hold, as it did with so many plans throughout
the Commonwealth. In any event, approximately 30 young lawyers and their
families joined VBA President-elect Ted Ellett for the rescheduled Fall
Meeting at Wintergreen on the weekend of November 7-9. It was a little cooler
in the Blue Ridge in November than it would have been in September. Nevertheless,
the timing of the meeting may have turned out to be a blessing in disguise,
as it gave the Division the chance to meet as a group in the heart of its
busiest season. The result was a very productive meeting, and some added
momentum for the many YLD projects that come to fruition during the fall.
The YLD Executive Committee kicked off the weekend with a meeting on Friday
afternoon, followed by a dinner with their families. On Saturday morning
at the Joint Meeting of the YLD Executive Committee and Executive Council,
Ted Ellett provided an excellent explanation of how the VBA is in the process
of implementing its long range plan. The rest of the meeting revealed what
a great job the various Division committees have been doing this year. For
instance:
•As reported in the September VBA News Journal, the YLD enjoyed great
success in this year’s ABA Awards of Achievement. The YLD’s New
Lawyers’ Survival Guide, Video Series Project and Comprehensive Application
each won first place in the the Service to the Bar, Service to the Public
and Comprehensive categories, respectively. In addition, the Wills for Heroes
Project, a joint effort of the VBA/YLD and the VSB Young Lawyers Conference,
received special recognition in the VSB’s division. Lastly, the YLD’s
video on the reporting requirements for child abuse received the American
Bar Endowment’s Outstanding Public Service Award for all projects from
all bar associations in all divisions!
•Richard Ottinger reported that the Emergency Legal Services project
has teamed with its VSB/YLC counterparts to help coordinate the organized
bar’s response to Hurricane Isabel. Dozens of volunteer lawyers have
provided pro bono legal assistance to more than 50 victims of Hurricane
Isabel both by staffing some of the more than 24 FEMA Disaster Recovery
Centers (DRCs) in person or through a telephone hotline number available
at the DRCs.
•Lori Thompson, Katja Hill, Greg Hunt and Sakina Paige reported that
VBA Law School Councils at UVA, UR and W&L had conducted or were conducting
programs at those schools on November 11, October 29, and November 13, respectively.
In addition, Kristan Burch organized the inaugural Law School Council at
William and Mary on November 12, and Matt and Sharon Kirsner are in the
process of organizing an inaugural event at George Mason Law School to take
place in January 2004. These Law School Councils have been successful enough
that the VBA is in the process of amending its bylaws to permit students
at the Virginia law schools to become members.
•Chris Boynton, Darren Marting and the rest of the Hampton Roads Town
Hall Committee organized a debate among the candidates in the Sixth and
Seventh State Senate Districts on October 29 at the Virginia Beach Contemporary
Arts Center.
•Dan Ortiz and Kathy Harman-Stokes organized a CLE on Professionalism
and Civility at the Fairfax Courthouse on October 22. Approximately 60 young
lawyers attended and heard Judges Keith, Smith and Roush of the Fairfax
Circuit Court and attorneys Tom Spahn and Rod Leffler address a series of
ethics hypotheticals similar to situations young lawyers are likely to encounter
in the first few years of their practices. Ortiz and the YLD Professionalism
Committee are planning to present this program to other parts of the state
in the coming year.
•Chris Jones, Eve Grandis Campbell, Elizabeth Horsley and the rest
of the National Moot Court Committee organized the annual Region IV National
Moot Court Competition November 7-8 at the federal courthouse in Richmond.
They were sorely missed at Wintergreen for the Fall Meeting, but their efforts
resulted in a very successful Moot Court tournament that weekend.
•Beth McMahon moderated the annual Pro Bono Hotline Summit, which took
place in conjunction with the meeting of the regional Virginia Legal Aid
societies in Virginia Beach on November 5. Attending the Summit with Beth
were regional YLD Hotline Chairs Coby Beck, Agustin Rodriguez, Cyane Crump,
Dinny Skaff, Webb King, Jim Harvey and Brian Sykes.
•Molly Shuttleworth Evans reported that the YLD Health Law Project
is working toward a program in Arlington to provide pro bono advanced medical
directives sometime around February 2004.
•King Tower reported that the YLD Nominating Committee has made the
following nominations: Lori Thompson of Gentry Locke Rakes & Moore for
Secretary-Treasurer, and Beth Colling of Petty Livingston Dawson & Richards,
Renee Esfandiary of the U.S. Securities and Exchange Commission, Molly Shuttleworth
Evans of Feldesman Tucker Leifer Fidell, Livy Haskell of Williams Mullen,
and Katja Hill of LeClair Ryan for the Executive Committee.
Executive Committee and Council members and their families had an informal
lunch after the meeting on Saturday morning. Everyone had Saturday afternoon
and Sunday free to take full advantage of the many recreational activities
at Wintergeen, such as hiking, golf, tennis and the ever popular spa and
fitness center. Crackerjack lawyer and rock star Matt Cheek secured his
place in the lifestyle-balance hall of fame with a bike trip along the Blue
Ridge Parkway on Saturday afternoon, before the group assembled one last
time for a social and dinner.
All in all, the YLD had a great Fall Meeting in the mountains, proving that
it will take a lot more than Hurricane Isabel to dampen our spirits! Return
to Top
Across the Commonwealth
VBA plans for 2004 General Assembly
Proposed sales tax on professional services not included in Governor’s
or GOP tax plans
The 2004 General Assembly convenes in Richmond on January 14, one day before
the VBA Annual Meeting starts in Williamsburg. This year’s “long”
60-day session will be marked by a number of new legislators and several
thousand legislative proposals to be sifted through before adjournment sine
die on March 13.
VBA leaders met on November 18 in Richmond to review the various proposals
developed by Association sections and committees. This year’s agenda
included proposals by the Business Law, Civil Litigation, Construction and
Public Contracts Law, Domestic Relations, Health Law, Intellectual Property
and Information Technology, Real Estate and Wills, Trusts and Estates Sections,
the AMES (Arts, Media, Entertainment and Sports Law) Committee, and the
Commission on the Needs of Children.
More details on bills of interest and how they fare during the Assembly
will be made available online at www.vba.org and in upcoming issues of the
VBA News Journal.
The proposed sales tax on professional services, which the VBA had publicly
opposed earlier in the fall, was not included in Governor Warner’s
tax plan and failed to arouse broad interest among Republican legislators
crafting their own package of tax proposals. The VBA will continue to monitor
any developments which may occur in that area.
Information on this year’s legislative proposals and other bills of
interest will be available on the legislation page at www.vba.org, which
also features a “window” on breaking Virginia political and governmental
news, through a special arrangement with StatePulse.com. Bill information
as far back as the 1994 session is available online at leg1.state.va.us.
The General Assembly website at legis.state.va.us includes contact information
and other tidbits on legislators. Another useful site is www.vipnet.org,
the Commonwealth of Virginia website, which includes directories of state
agencies and employees, links to state and local government websites, state
officials’ sites, and much more.
‘Legal Elite’ announced for 2003
Growing Virginia Business list includes 12 categories
Virginia Business magazine has released the results of its eagerly-awaited
“Legal Elite” poll for 2003. More than 500 lawyers, representing
12 categories of legal practice, were named to this year’s list.
“Big firms are getting bigger — can ‘Law-Mart’ be far
behind?” asked VB author Robert Burke in the introductory article which
accompanied this year’s list. Burke noted the growth of large law firms
and the continuing trend in law firm mergers, and included comments from
managing partners James P. Gallatin Jr. of Reed Smith and Robert L. Burrus
Jr. of McGuireWoods, as well as VBA Executive Vice President Breck Arrington.
First published in December 2000, the “Legal Elite” consists of
Virginia attorneys selected by their peers as the top lawyers in the Commonwealth.
Nearly 300 lawyers, representing 10 areas of law practice, made the initial
list, and the number has continued to grow with each successive roster.
The Virginia Bar Association, while not a sponsor of the survey, provides
advice and assistance to the Virginia Business staff, such as suggesting
a broadening of the survey population even further beyond the confines of
VBA membership and distributing surveys in areas outside of major metropolitan
centers.
As in previous years, strict rules were imposed. Lawyers could not nominate
themselves. They could nominate attorneys in their own law firms, but better
scores were given to lawyers they nominated from other firms.
While numerous VBA leaders, including President Frank Thomas and VBA/YLD
Chair Steve Otero, and Association members made the list, a sizable number
of non-member lawyers were also named by their peers to the list.
The list of practice categories changes annually to create more diversity
in the list, recognizing lawyers in both broad and narrow areas of law.
Space restrictions prevent the VBA News Journal from recognizing all attorneys
of the 2003 Virginia Business “Legal Elite”; we are, however,
pleased to publish the names of the lawyers who received the highest votes
in each of the 12 categories and were profiled in the magazine.
Bankruptcy/Creditors’ Rights: Frank J. Santoro, Marcus, Santoro &
Kozak, Chesapeake.
Business Law: Allen C. Goolsby III, Hunton & Williams, Richmond.
Civil Litigation: James C. Roberts, Troutman Sanders, Richmond.
Criminal Law: Anthony F. Anderson, Roanoke.
Environmental Law: Paul R. Thomson Jr., Woods Rogers, Roanoke.
Family/Domestic Relations: Andrea R. Stiles, Williams Mullen, Richmond.
Health Law: Patrick C. Devine Jr., Hofheimer Nusbaum, Norfolk.
Intellectual Property: James R. Creekmore, Woods Rogers, Roanoke.
Labor/Employment: Harris D. Butler III, Butler, Williams & Skilling,
Richmond.
Legislative/Regulatory: Anthony F. Troy, Troutman Sanders, Richmond.
Real Estate/Construction: Joseph W. Richmond Jr., Richmond & Fishburne,
Charlottesville.
Taxes/Estates/Trusts: Timothy H. Guare, Richmond.
The full list may be viewed online at www.virginiabusiness.com.
Mark spring meeting dates on your calendar
The VBA’s 2004 spring calendar is already dotted with significant
dates, including the VBA Bankruptcy Law Conference (April 23-25 at The Sanderling)
and the VBA/YLD Executive Committee and Council Spring Meeting (April 30-May
2, also at The Sanderling). And, looking ahead, the VBA Summer Meeting will
be held July 15-18 at The Homestead.
A calendar appears on the back cover of the VBA News Journal and
is posted at www.vba.org.
New schedule for VBA News Journal
The VBA News Journal will be published on a slightly different schedule,
starting with this issue.
While the frequency will remain the same — eight issues a year —
the timing of the issues will change. Instead of publishing issues shortly
before the VBA Annual and Summer Meetings, the VBA will publish issues following
the meetings, reflecting events and actions at those meetings. Issues will
be dated as follows: February, March/April, May, June/July, August, September/October,
November and December/January.
The VBA will continue to utilize its website to provide additional public
and member information, in addition to material published in the News
Journal.
VBA Young Lawyers Division nominators announce proposed 2004 slate of
officers
The VBA/YLD Nominating Committee is pleased to announce the following nominees
for the 2004 slate of officers: Chair, Stacy M. Colvin, Hunton & Williams,
Richmond; Chair-elect, R. Braxton Hill IV, Christian & Barton LLP, Richmond;
and Secretary-Treasurer, Lori D. Thompson, Gentry Locke Rakes & Moore
LLP, Roanoke. Five persons have been nominated for election to seats on
the VBA/YLD Executive Committee: Beth G. Colling, Petty Livingston Dawson
& Richards, Lynchburg; Renee C. Esfandiary, U.S. Securities and Exchange
Commission, Washington, D.C.; Molly S. Evans, Feldesman Tucker Leifer &
Fidell LLP, Washington, D.C.; E. Livingston B. Haskell, Williams Mullen,
Richmond; and Katja H. Hill, LeClair Ryan, P.C., Richmond.
Other nominations for the VBA/YLD Executive Committee may be made by any
VBA/YLD member by notifying the chair of the Nominating Committee in writing:
King F. Tower, Williams Mullen, P.O. Box 1320, Richmond, VA 23218.
Elections will take place during the VBA/YLD’s annual business meeting
and luncheon on Friday, January 16, during the VBA Annual Meeting in Williamsburg.
All VBA/YLD members are invited to attend and participate in Annual Meeting
activities, including an after-hours social for VBA/YLD members following
the banquet.
News in Brief
Former VBA Board of Governors
member Anne Marie Whittemore of McGuireWoods LLP in Richmond has
been named as the recipient of the 2003-04 Hunter W. Martin Professionalism
Award by The Bar Association of the City of Richmond.
Prince William County Attorney and former VBA Board of Governors member
Sharon E. Pandak has received the Arthur W. Sinclair Professionalism
Award for 2003 from the Prince William County Bar Association.
VBA member Patrick R. Hanes of Williams Mullen in Richmond has been
named an Outstanding Young Virginian by the Virginia Jaycees. Hanes served
as co-chair of the VBA/YLD Model Legal Services Project for the Mentally
Ill from 1997 to 2000.
Does the VBA have current contact information for you? Please let us know
if you have moved and/or changed employment by sending your information
to Judy King at the VBA office, jking@vba.org.
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 version of the 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.
Return to Top
Professional Announcements
Keeler Obenshain PC announces a recent addition to the firm’s employment
law practice. Bob Hahn, a Shenandoah Valley native, has joined the firm
following several years of practice with the employment law firm of Wimberly
Lawson Seale Wright & Daves in Tennessee. Hahn’s areas of expertise
include counseling a wide variety of clients on matters ranging from the
Family Medical Leave Act, the Americans with Disabilities Act, Title VII,
wages and hours, and workers’ compensation defense. In addition, Hahn
has represented clients on matters before both regulatory agencies and in
proceedings before all levels of state courts. Hahn earned his MBA from
James Madison University in 1992 and a law degree from the University of
Tennessee at Knoxville in 1997. Hahn’s educational experience has provided
him with a unique vantage point on employment matters from both a business
and a legal perspective.
Keeler Obenshain PC, with offices in Charlottesville and Harrisonburg, offers
legal representation and services to business and individual clients throughout
Virginia and West Virginia. Keeler Obenshain’s employment law group
has worked closely with Fortune 500 companies, midsize employers, family
businesses, nonprofit and institutional clients, manufacturers, start-up
companies and professional services firms.
The law firm of Christian & Barton, L.L.P. is pleased to announce that
J. Suzanne Sones and W. Brian McCann have become associated with the Firm
and that Samantha S. Otero has joined the Firm as Counsel.
Sones is a 1994 graduate of the College of William and Mary, where she received
a B.S. degree in environmental science. She graduated from the University
of Richmond School of Law in 2000 and served as a law clerk to Hon. M. Langhorne
Keith in the Fairfax County Circuit Court. Prior to joining the firm, Sones
worked at the Internal Revenue Service in the Chief Counsel’s Office,
where she was appointed to the Internal Revenue Service Chief Counsel Honors
Program. She will concentrate her practice in the firm’s business law
department.
McCann is a 1998 graduate of the College of William and Mary, where he received
his A.B. degree in economics, cum laude. He graduated from William and Mary
School of Law in 2003 where he was a member of the William and Mary Law
Review, Moot Court, and the Order of the Coif.
Otero is a 1991 graduate of Wake Forest University, where she received a
B.A. degree in art history with a minor in Italian. She received her J.D.
degree from the William and Mary School of Law in 1995, where she served
as Articles Editor of the Bill of Rights Journal. Prior to joining the firm,
Otero was Counsel to Morris & Morris, where she gained experience in
all facets of employment litigation in both state and federal courts. She
will concentrate her practice in the firm’s employment and labor law
department.
The law firm of Feil, Pettit & Williams in Charlottesville is pleased
to announce that Michael E. Derdeyn, formerly of McGuireWoods LLP, has joined
the firm, concentrating primarily in commercial litigation, employment law,
and related general business matters. Derdeyn serves as co-chair of the
VBA Young Lawyers Division’s Charlottesville Town Hall Meeting Committee.
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