President's Page: Spheres of Influence
Jeanne F. Franklin

I learned from a documentary about President Harry Truman that he had been quite close to and influenced by his father, a hard-working farmer who had nonetheless died in debt. When President Truman was asked years later whether he considered his father to have been a failure, he reportedly answered along the lines that, if his son had become the President of the United States, how could he ever be considered a failure? (“Give ‘em hell, Harry!”)

Consider the simple wisdom, not to mention the love, in Truman’s remark. Upon hearing it, I was suddenly struck by this epiphany — how many parents (often unknown beyond their own families and communities) have lived their lives in such a way as to produce so many good people who are active in the law. I marveled at what these parents did to influence sons and daughters to act on a sense of justice, a penchant for doing the right thing, a respect for honesty, and a solid work ethic. It is appropriate to recognize their influence (tangible and intangible) in a column so close to Mother’s Day and Father’s Day.

But this fascinating and undeniable influence of parents — the “right stuff” that goes into the formation of those who eventually become solid citizens — is also a good example of how influence is had by each of us, willingly and unwillingly, as a result of how we deal with others in our personal, community and workday worlds — our spheres of influence. Perhaps having inculcated in us the values our parents did, they did not think when we became lawyers that simply practicing law would be the only goal — the sum of all our strivings. Perhaps they also expected that we would go on to influence our communities somehow for the better.

But are lawyers doing that as much as lawyers once did or were once perceived to have done? Jim Dator, the futurist who spoke to us at the VBA’s Williamsburg 2001 Annual Meeting, stated that members of the bench and the bar are still perceived as among the most influential members of society. And so he urged that as such, we should help to develop “preferred futures” for our communities. A survey published by Prof. Jayne Barnard in our March News Journal studied why lawyers are serving in disproportionately large numbers in community leadership positions.

Yet, I still wonder. As a group (and it seems so much easier for people to dislike groups rather than individual members of a group), our public approval rating is lower than it should be. We also are not serving in our legislature in the numbers we once did. I wonder if we are being shunted aside, or if for practical reasons we are taking ourselves out of the policy picture.

Perhaps as the laws and regulations we practice with proliferate and become increasingly complex, our different areas of concentration isolate us from each other to some degree as well as from the general community. Thus we may be overlooked as policy leaders — as role players in the parsing of the issues of the day. Furthermore, there is no getting around the time factor. Attorneys seem to be working harder. Our time for and access to solid information and good discussion of public policy questions have shrunk considerably.

The VBA has assumed a role in shoring up lawyers’ influence by helping our attorneys to stay abreast and stand ready to serve as valued policy leaders. We can assist our members (and their family members) to be informed citizens and leaders, prepared to step up to the challenges of current and future societal problems.

Specifically, the VBA is now doing this in several ways. Our tradition of sponsoring the inaugural debates in Virginia’s gubernatorial and senatorial elections is well-known. Second, in our two semi-annual meetings, we attempt to include at least one general session per meeting relevant to all citizens on public policy questions.(In some meetings we have been able to present more than one such panel).
Consider the topics of a few of them — the Internet as a tool of hate groups, physician-assisted suicide, cyberterrorism, Virginia’s Standards of Learning, and cloning. The presentations about controversial topics are intended to be balanced so that different sides of an issue can be explored and the listener’s ability to form his or her own opinion is respected. Presenters often include persons from other fields so that we can have access to their expertise and perspectives.

This service has been formalized within the VBA under the leadership of former President David Landin, who asked former Governor Gerald Baliles to revitalize the VBA’s Committee on Special Issues of National and State Importance. Governor Baliles did so with great success. This committee is a multi-disciplinary group drawn from leaders around the Commonwealth — a small think tank, if you will, within the VBA — appointed to identify, sift through and focus on a few public policy and government issues about which they will provide for us educational presentations.

The VBA’s Executive Committee has recently committed to continuing the development of the Special Issues Committee. We are delighted that the Honorable Tayloe Murphy has stepped forward to assume the committee’s reins, with the assistance of Co-Chairmen David Landin and Lane Kneedler. Together they will not only continue topic development, study and education but they will also explore how to expand our spheres of influence — how to bring this kind of balanced, informative presentation of public policy matters to wider audiences.

I have spoken of two important characteristics of the VBA’s policy examinations; balance and respect for different points of view. We expect that our members will have differing views on difficult topics. (After all, we are lawyers!) But are not collegial disagreement and respect for our diverse opinions important grist for the mill? Are not different viewpoints the raw resources that can be eventually processed into compromise and new, perhaps even inspired, solutions? What indeed is the United States Constitution, if not the product of such process of debate and deliberation?

I have come to value deeply these characteristics. As a college freshman, attending her first convocation ceremony, suitably ignorant and awed, I listened as our college President, an historian, urged us in his clipped British accent, to learn two things in our college studies — how to develop a point of view, and having done so, how to express it with style. I remember those words clearly because they were among the few I could understand, and also because I came to know over the next four years the rigor and difficulty of the charge he had given. Indeed such skills require nurturing over a lifetime!

This chosen activity of the VBA, helping our members develop their points of view and expand their spheres of influence, does fit within our mission. While previous columns have explored ways in which we aim for tangible impact, as with specific legislation, I believe that contributing to the public debate is another way of having impact. It is just that such impact is not necessarily tangible or measurable. It is similar to the stone thrown in the pond. It is similar to the intangible influences of parents who must wait to see the fruits of their hard work and even then, the results might not be so clear. Like parenting, it is also hard to see where such influence will end. The effort is like an act of faith — a gesture toward the future.

Having begun this column with mention of one parent, I would like to conclude with mention of another. Some time ago I called my mother, a reserved, wise and intelligent woman, for advice as to whether I should undertake presidency of this association. I poured out to her my doubts, fears and all the reasons why it would not make any sense to do so. I paused. There was a silence. And then my mother simply said, “ Well, Jeanne, Ad astra per aspera.” Translation: she saw that there was work to be done and spheres of influence explored, and she was telling me to get on with it.

Ad astra! Return to Top

Spotlight on Sections:
Construction & Public Contracts Law
Fred R. Kozak

Founded in 1992, the Construction and Public Contracts Law Section now stands at over 150 members. One of the smaller substantive sections in the VBA, the Section is also one of the most active in monitoring, initiating, and promoting legislation. Historically, most of the work of the Section has been done by the 15-member Executive Council. Now, however, the general membership has the opportunity to become more active in the Section through our website, which may be accessed through the VBA website at www.vba.org.

The most important work of the Section is in the legislative arena. The Section has the ability to effect legislative changes that promote fairness and clarity in matters affecting the construction industry and public procurement of construction services.

In the 2001 General Assembly, for example, four of the Section’s six legislative proposals became law, including (1) a bill preventing subcontractors from waiving their rights under a project payment bond until after work was performed (2) A bill allowing contractors to recover attorneys and expert fees for a public body’s bad faith denial of a legitimate delay claim (3) a bill requiring public bodies to incorporate into their contracts any local procedures affecting the submission and prosecution of claims, and (4) a bill that clarifies, in the case of a tie bid, the preference for Virginia goods and services.

The legislative work of the Section is a year-long process. The Executive Council met on May 2, 2001, to discuss ideas for legislation in the 2002 General Assembly. The minutes of the Council meeting, containing the initiatives discussed, are posted on the Section website. Please visit the website and give us your comments on the ideas proposed. Or, suggest other proposals to correct or address problems you’ve encountered in your practice. The Council will meet on September 20, 2001, to finalize our legislative agenda.

You can also check the website for other Section projects and programs. We are searching for a topic for a CLE program at the next Annual Meeting in Williamsburg January 17-20, 2002. Topics being discussed are construction defect claims, handling OSHA inspections and violations, and subcontractor pass-through claims. Please give us some feedback on these topics, or suggestions for other topics of interest.

The Spring 1997 issue of the VBA Journal was dedicated to our Section. The March 2002 issue of the VBA News Journal will also be dedicated to Construction and Public Contracts Law. If you would like to submit an article, contact Billy Mauck through the Section website.

So, get involved, let us hear from you. And anyone who is not a member can remedy that situation by sending $15 to the VBA, 701 East Franklin Street, Suite 1120, Richmond, VA 23219. Return to Top

— Fred R. Kozak, Chair

Legal Focus:
Using the Statutory Employer Defense
D. Stan Barnhill

Several years ago the author of this article defended a general contractor in a personal injury suit stemming from construction work the contractor had previously performed for a public owner. The project in question involved renovation of a building at Virginia Tech used for faculty offices and instruction. The injury did not occur until after the contractor completed the renovations project and Virginia Tech resumed building occupancy. The injury was caused by a light fixture that fell from the ceiling and struck a Virginia Tech faculty member in the head while she was working in her office. The faculty member allegedly suffered brain damage as a result and brought the negligence suit against the contractor. The faculty member contended that the light fixture had not been installed by the contractor’s subcontractor in accordance with the plans and specifications and applicable code.

The contractor prevailed in the suit without ever addressing the issue of whether it (or its subcontractor) had been negligent relative to installation of the light fixture. Based on a prudent application of prior case law, the trial court held that the faculty member and the contractor were fellow statutory employees of Virginia Tech, and thus the faculty member’s exclusive remedy was recovery under Virginia’s Workers’ Compensation Act.1 This article will address the basis for that decision, which demonstrates that the Workers’ Compensation Act provides a valuable pre-emptory defense to contractors and design professionals sued for personal injuries occurring on a public construction project.

The Workers’ Compensation Scheme Applicable to Private Projects
Virginia provides by statute a method of employee recovery from the employer for work-related injuries which eliminates any requirement that the employee show negligence on the part of the employer to recover benefits. In return, Virginia employees waive any right to sue the employer in tort to recover damages arising out of the personal injury.2

The Workers’ Compensation Act further bars an employee’s personal injury claim against other parties who are pursuing the employer’s trade, business or occupation at the time of the injury. Under the Act, the injured employee and such other contractors are deemed fellow statutory employees of the common statutory employer.3

The Act, however, imposes no limitation on an injured employee’s right to sue a negligent entity responsible for the injury that is not engaged in the employer’s trade, business or occupation. Such “other parties” (a phrase used in the case law to distinguish them from “fellow statutory employees”) may be sued by the injured employee under any theory afforded by Virginia law.4

The application of these principles to injuries arising out of private construction projects in Virginia requires a fact-specific analysis of whether the injured employee and the negligent party are both engaged in the trade, business, or occupation of the owner. For private projects, the test is straightforward: a private owner’s trade, business, or occupation is defined by what the entity typically has its own employees do.5 Where the facts show the tort defendant is engaged in the type of work normally performed by the owner’s own employees, the defendant is a fellow statutory employee of the injured employee and thus cannot be sued in tort for the injuries caused.6 Where, however, the facts show that the defendant is not engaged in the owner’s trade, business or occupation, the injured employee may prosecute a tort claim against such “other party.”7

The Workers’ Compensation Scheme for Public Projects
The same general principles applicable to private projects are applicable to public projects, with one important exception. The determination of a public entity’s trade, business or occupation is not solely governed by what the employer does with its own employees. A public entity’s trade, business or occupation also includes whatever additional activities enabling statutes may define as its trade, business or occupation.

This exception was first recognized in Virginia in a case decided by the Virginia Supreme Court in 1959, Anderson v. Thorington Construction Co.8 In Anderson, an employee of a firm providing consulting engineering services to the Richmond-Petersburg Turnpike Authority was injured during the course of a turnpike construction project.The employee thereafter brought a personal injury tort claim against the independent contractor the Authority had hired to do the construction work.

The Virginia Supreme Court affirmed the trial court’s granting of the contractor’s special plea, holding that the Workers’ Compensation Act barred the injured plaintiff’s tort claim against the contractor. The Court agreed that both the injured plaintiff and the defendant contractor were engaged in the trade, business or occupation of the Authority, and thus were statutory “fellow servants” under the Act. The Court predicated this holding on the fact that the General Assembly had vested the Authority with the power to construct, operate, and maintain the turnpike, and this legislative authorization put the Authority in the trade, business or occupation of construction as a matter of law.9

Subsequent to the Anderson decision, the Virginia Supreme Court has consistently held that public entities are statutory employers of the contractors they retain to assist them in the pursuit of their public functions. In Henderson v. Central Telephone Co.,10 for example, the Supreme Court held that a public utility was the statutory employer of the independent contractor the utility hired to install telephone equipment at the utility’s offices. The Court expressly distinguished in this decision between the private owner, which can be “self-defining in terms of its trade, business, or occupation” and a public utility, which “has duties, obligations, and responsibilities imposed upon it by statute, regulation, or other means.”11

Similarly, in Ford v. City of Richmond,12 the Supreme Court held that a city was the statutory employer of an independent contractor’s employee injured while repairing a roof at the City’s water reservoir. The Court observed that the City’s legislative mandate included maintaining its public facilities. Thus, the contractor’s construction work was part of the City’s trade, business, or occupation and the injured employee could not sue the City, his statutory employer, for his injuries.13

The public entity exception has within it an exception. Public authorities which are created by the General Assembly and vested with the general power to define the business they will pursue must comply with the private entity rule applicable to determining statutory employer status. The Supreme Court created this exception to the public entity exception in Nichols v. VVKR.14 In Nichols, a general contractor’s employee was permitted to sue the project’s design professional for injuries allegedly arising out of defective design. The Supreme Court based the holding in Nichols on the fact that the owner, the Greater Roanoke Transit Authority, was free by enabling legislation to create and amend its own charter and bylaws to take on any business it may choose. There was no public law or regulation that specifically defined that business.15

In the case involving the Virginia Tech faculty member referred to at the outset of this article, the trial court predicated its granting of the general contractor’s special plea on the fact that Virginia Tech by statute is not only commissioned to provide education services, but also is required to “erect projects.”16 The General Assembly has statutorily defined “to erect” to include both initial construction and subsequent renovation — a conclusion bolstered by the definition of “project” which likewise includes both initial construction and later renovation.17 Thus, as the trial court concluded, Virginia Tech by statute is engaged in the trade, business or occupation of both education and construction, even if it never uses its own employees to provide construction services. The faculty member hit by the light fixture installed by the general contractor, therefore, could not bring a tort suit against the contractor because they were as a matter of law fellow statutory employees jointly engaged in the trade, business or occupation of Virginia Tech, their common statutory employer.18

This case, and the other published cases cited in this article, points out vividly the importance of counsel for contractors and design professionals who are sued for injuries occurring on public projects to look carefully at the laws and regulations that define the public entity’s purpose and enabling powers. The Workers’ Compensation Act may provide the basis for a successful plea in bar which will result in a favorable dismissal of the case.

NOTES
1. Novascone v. Avis Construction Co., No. CL 95-389 (Roanoke Cir. Ct. 1996). The current version of the Workers’ Compensation Act is at Virginia Code §§ 65.2-100 et seq. The pre-1991 version of the Act applied in Novascone. That version was not materially different regarding the provisions that controlled the trial court’s decision in Novascone.
2. The exclusivity of remedy under the Workers’ Compensation Act is made clear in the statutory waiver provision, Virginia Code § 65.2-307, which reads:
The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee... at common law or otherwise, on account of such injury, loss of service or death.
This provision bars an employee from bringing a personal injury action against its employer. Brown v. Reed, 209 Va. 562, 165 S.E.2d 394 (1969); Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582 (1963).
3. Evans v. Hook, 239 Va. 127, 387 S.E.2d 777 (1990); Smith v. Horn, 232 Va. 302, 351 S.E.2d 14 (1986); Evans v. B. F. Perkins Company, 166 F.3d 642 (4th Cir. 1999).
4. Virginia Code § 65.2-309 preserves an injured employee’s common law rights against an “other party.” The term “other party” is defined in Virginia Code § 65.2-800 as a “person other than an employer or statutory employer, or a person employed by either, whose acts results in such injury or death.” Thus, the injured employee can sue any entity on a construction project not engaged in the owner’s trade, business, or occupation. Nichols v. VVKR, Inc., 241 Va. 516, 403 S.E.2d 698 (1991). The employee of a general contractor or subcontractor can also sue the owner if the owner is not engaged in the trade, business, or occupation of construction and thus does not qualify as a statutory employer. Johnson v. Jefferson National Bank, 244 Va. 482, 422 S.E.2d 778 (1992).
5. Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972).
6. Anderson v. Thorington Construction Co., 201 Va. 266, 110 S.E.2d 396 (1959), app. dismissed, 363 U.S. 719 (1960); Vess v. Davis Electrical Constructors, Inc., 613 F. Supp. 1047 (W.D. Va. 1985), aff’d, 818 F.2d 30 (1987).
7. Johnson v. Jefferson National Bank, 244 Va. 482, 422 S.E.2d 778 (1992); Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972); Bassett Furniture v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976).
8. 201 Va. 266, 110 S.E.2d 396 (1959), appeal dismissed, 363 U.S. 719 (1960).
9. Id. at 271-72, 100 S.E.2d at 400-01. In a companion case, the Virginia Supreme Court reached the same result in barring an employee of the Chesapeake Bay Ferry District who was injured during the course of construction from suing in tort the contractor responsible for the construction. The Court found that the legislative mandate to provide ferry services rendered maintenance of the ferry’s facilities part of this public entity’s trade, business or occupation. Williams v. E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498 (1959).
10. 233 Va. 377, 355 S.E.2d 596 (1987).
11. Id. at 383, 355 S.E.2d at 599-600.
12. 239 Va. 664, 391 S.E.2d 270 (1990).
13. Id. at 669, 391 S.E.2d at 273. For other cases applying the public entity exception first announced in Anderson, see Roberts v. City of Alexandria, 246 Va. 17, 431 S.E.2d 275 (1993) (city was statutorily authorized to provide medical services to city jail’s inmates and thus was statutory employer of independent contractor hired to provide those services); Best v. Washington Metropolitan Area Transit Authority, 822 F.2d 1198 (D.C. Cir. 1987) (transit authority was statutory employer of independent contractor hired to repair escalators and thus could not be sued by contractor’s injured employee); Pendley v. United States, 856 F.2d 699 (4th Cir. 1988), cert. denied, 490 U.S. 1005 (1989) (U. S. Air Force was statutory employer of contractor’s deceased employee killed in rocket fuel explosion as employee was engaged in activity Air Force was mandated by statute to perform—the development of space weapons); Garcia v. Pittsylvania County Service Authority, 845 F.2d 465 (4th Cir. 1988) (service authority was statutory employer of contractor’s employee who was injured during installation of sewer line as such construction was by statute part of the authority’s trade, business, or occupation); Hyman v. United States, 796 F. Supp. 905 (E.D. Va. 1992) (U. S. Navy was statutory employer of independent contractor’s employee who was injured during repairs of ship; Navy is responsible by statute for the construction and maintenance of naval vessels); Kreinbrock v. Virginia Power, 49 Va. Cir. 159 (Surry Co. 1999) (VEPCO was statutory employer of contractor’s injured employee because the contractor was engaged in refueling activity mandated of the utility by statute); Miller v. Department of Youth and Family Services, 49 Va. Cir. 208 (Loudoun Co. 1999) (The Commonwealth of Virginia, Loudoun County, and defendant agencies of each were statutory employers of injured deputy sheriff); Tarreto v. Tetarian, 45 Va. Cir. 136 (Norfolk 1998) (City of Norfolk was by statute in the business of operating water treatment plant, thus it was the statutory employer of the injured employee of the contractor hired to perform construction work on such plant); Lincecum v. Alrod Enterprises, Inc., 44 Va. Cir. 4 (Norfolk 1997) (U.S. Navy’s Public Works Center was statutory employer of both cashier at officer’s club and independent contractor hired to wax floors in the facility, thus cashier’s personal injury claim against contractor was barred); Chetti v. Algernon-Blair, 9 Va. Cir. 160 (Richmond 1987) (airport commission was statutory employer of on-site restaurant employee, as enabling legislation required commission to provide for comfort and convenience of airport passengers).
14. 241 Va. 516, 403 S.E.2d 698 (1991).
15. The Nichols’ holding presents an interesting question that is to date unresolved in Virginia. What if a private owner were to state in its articles of incorporation and bylaws that construction of the facilities it needed to operate was part of that owner’s trade, business or occupation? Would such wording render that private owner a statutory employer for any future construction projects it may pursue through independent contractors, even if the owner never used its own employees for that purpose? A credible argument can be made based on the public entity cases that an owner is engaged in whatever trade, business or occupation that it defines itself to be in (or that the General Assembly defines it to be in) regardless of whether it uses its own employees to pursue that business purpose. Private owners who engage in construction projects with any frequency would be wise to consider including in their enabling documents (articles and bylaws) an express statement that construction of facilities is part of their trade, business or occupation. By means of such draftsmanship, such owners may avoid liability to employees of firms performing their construction work who may be injured during the course of such work and who may be looking for “other parties” to sue to supplement what they may receive from their immediate employer’s workers’ compensation policy.
16. Virginia Code § 23-17. This provision defines one of Virginia Tech’s purposes to be “to erect any project as defined in § 23-15.” Another section of Title 23 of the Code expressly states that Virginia Tech may perform any of its powers “through or by means of its own officers, agents or employees, or by contracts with private corporations, firms or individuals.” Virginia Code § 23-16(e).
17. Virginia Code § 23-15.
18. The trial court rejected the faculty member’s argument that the Fourth Circuit decision in Farish v. Courion Industries, 722 F.2d 74 (4th Cir. 1983), aff’d on other grounds en banc, 754 F.2d 1111 (1985), required a different result. In Farish, the Fourth Circuit held that the University of Virginia was not in the trade, business, or occupation of maintaining the elevators in its buildings because it did not typically use its own employees for that task. Therefore, an injured university employee could sue the elevator maintenance company in negligence because the employee and the maintenance company were not fellow statutory employees of a common statutory employer.
Apparently, the defendant elevator maintenance company did not cite to the Fourth Circuit the statutes in Title 23 which arguably do put the University of Virginia in the trade, business, or occupation of elevator maintenance repair. Moreover, the Fourth Circuit did not perceive the Virginia Supreme Court’s Anderson case as creating a public entity exception to the normal test for determining trade, business or occupation. The D.C. Circuit, in a later case construing Virginia law, held in contrast to Farish that the Washington Area Transit Authority, which had been granted a broad statutory mandate, was in the business of escalator repair, thereby rendering it the statutory employee of the contractor hired to perform those repairs. Best v. Washington Area Transit Authority, 822 F.2d 1198 (D.C. Cir. 1987). In his concurrence, Judge Mikva observed that the Henderson case, decided by the Virginia Supreme Court after the Fourth Circuit’s Farish case, established the rule that the D. C. Circuit must follow, which differed from the private entity rule followed earlier in Farish. Id. at 1202.Return to Top

Legal Focus:
When Regulatory Agencies Twist Arms to Get Things Done
Prof. Lars Noah, edited by Ellen Firsching Brown

Editor’s Note: Traditional “notice and comment rulemaking” may be a thing of the past. An increasingly common trend in administrative law is for agencies to impose their regulatory agenda through more informal means, such as negotiated rulemakings, licensing and permitting proceedings, and enforcement actions.Some recent example are EPA's TMDL rulemaking, EPA's new source review enforcement imitative targeting the paper, oil and utility industries and the Virginia DEQ's confined animal feeding operation enforcement initiative. Many of these new initiatives have been hailed as creative and efficient governance at its best. Detractors, however, assert that many of these initiatives should be properly characterized as coercive and perhaps even unlawful. The answer probably lies somewhere in between. In either event, all lawyers practicing administrative law need to be aware that there is a new game in town with an entirely new (and still evolving) set of rules.

To that end, the Administrative and Environment, Natural Resources & Energy Law Sections will co-sponsor a CLE at the VBA Summer Meeting entitled “Sic Semper Tyrannis: Is the use of negotiated rulemakings and creative enforcement strategies by administrative agencies a welcome result of streamlined government, or a modern example of unrestrained, heavy-handed abuse of government power?”

The program will consist of a panel discussion led by Professor Lars Noah, an administrative law scholar, who has written and spoken extensively on this controversial issue. As a means of introducing the topic to our membership, this column reproduces a slightly modified version of his testimony before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, U.S. House of Representatives, at a hearing on “Novel Procedures in FCC License Transfer Proceedings,” held on May 25, 1999.
—Edited by Ellen Firsching Brown,Vice Chair, VBA Administrative Law Section.

Thank you for the invitation to testify before your subcommittee today. My interest in the subject of your hearing is purely academic—I am in no way associated with any of the parties. Let me also note that I’m not an expert in telecommunications law; I focus instead on administrative procedure.

A few years ago, I published a law review article about “administrative arm-twisting,” a common but rarely studied aspect of the interaction between federal agencies and regulated parties (Lars Noah, Administrative Arm-Twisting in the Shadow of Congressional Delegations of Authority, 1997 Wis. L. Rev. 874-941). In this context, “arm-twisting” refers to an agency’s use of threats either to impose a sanction or to withhold a benefit in hopes of encouraging nominally voluntary compliance with a request that the agency could not impose directly on a regulated entity. This informal method of regulation often saddles parties with more onerous regulatory burdens than Congress had authorized, accompanied by a diminished opportunity to pursue judicial challenges.

Arm-twisting may be even more insidious than the frequently discussed tendency of agencies to develop informal but essentially binding policies without adhering to APA notice-and-comment rulemaking procedures. The use of informal mechanisms to evade increasingly burdensome procedural requirements and searching judicial scrutiny-the so-called “ossification” of the informal rulemaking process-has attracted significant scholarly attention in recent years. In contrast, the use of informal mechanisms to evade the substantive limitations on an agency’s delegated authority has gone largely unnoticed. Because the problem often is not amenable to judicial control, greater agency self-restraint and congressional oversight may offer the only realistic prospects for curbing improper uses of administrative arm-twisting.

Administrative agencies enjoy numerous opportunities to pursue indirectly ends that they could not impose directly. Arm-twisting may occur during licensing, government contracting, and enforcement proceedings. It may reflect formally announced agency policy or instead result from informal, ad hoc bargaining. Agencies may threaten to deny licenses, refuse to enter into procurement agreements, disseminate adverse publicity, or impose other sanctions against uncooperative parties. Often such threats simply represent a more efficient method of achieving ends explicitly authorized by Congress, but in some cases they may allow agencies to pursue extra-statutory goals, seemingly in contravention of the limits on their delegated authority.

Without going into details, my article catalogued examples of arm-twisting by more than half a dozen federal agencies (in contexts ranging from licensing and government contracting to product recalls and settlements of enforcement actions by consent decrees); it then drew comparisons to similar behavior in securing land use exactions and criminal plea bargaining (as well as economic regulation in Japan); and, finally, it suggested various procedural and substantive reforms designed to counteract the risk of administrative overreaching. I was invited to present this paper at last fall’s meeting of the ABA’s Section on Administrative Law & Regulatory Practice, and my thesis seemed to strike a nerve: some of the academics in the audience were intrigued, some of the agency officials were naturally quite defensive, and private practitioners offered wonderful anecdotes about their experiences in bargaining with regulatory officials on behalf of their clients (more than once I heard a lawyer use the word “extortion”).

It comes as no surprise that the FCC might be trying to exercise some leverage in this case. Indeed, licensing provides one of the most powerful opportunities for extracting concessions (because the government effectively exercises monopoly power over the issuance of permits), and the Commission has long been in the arm-twisting business, though in the 1970s their behavior was denominated as “jaw boning” or “raised eyebrow technique” aimed at influencing program content (see Noah, supra, at 877 n.10). There is nothing necessarily wrong with this form of bargaining. Indeed, differentiating inappropriate inducements or threats from entirely legitimate (“win-win”) offers represents one of the most difficult tasks in identifying and perhaps attempting to restrain administrative arm-twisting.

Such bargaining carries with it obvious risks of abuse, especially because courts are rarely in a position to supervise it. When private parties settle disputes, they bargain in the “shadow” of the law, with the prospect of judicial review serving to constrain the range of potential outcomes. When administrative agencies bargain with regulated entities, it is less clear that they operate in the shadow of the law, in particular the constraints on the power delegated by Congress. Arm-twisting succeeds, and often evades judicial or other scrutiny, in part because companies in pervasively regulated industries believe that they cannot afford to resist agency demands. For these reasons, I wanted to commend you for engaging in some oversight in this case-congressional inquiries of this sort may provide the only meaningful opportunity for disciplining agencies that overreach. (It is not, for instance, clear that the opportunity for public proceedings will counteract these tendencies—on the contrary, they may facilitate a whole different form of gamesmanship, in this situation between regulated parties, a subject about which I have also written. See Lars Noah, Sham Petitioning as a Threat to the Integrity of the Regulatory Process, 74 N.C. L. Rev. 1, 58-59, 66-69, 72 (1995).)

Among other things, my article urged that agencies adopt guidelines to limit their range of bargaining. Undue reliance on individualized negotiations undermines consistency and invites the standardless (and largely unaccountable) exercise of administrative discretion. Unlike other federal agencies, it appears that the FCC does not have any such guidelines about how and when to seek voluntary conditions during licensing. The now-defunct Administrative Conference of the United States (ACUS) once recommended that the Federal Reserve Board publish guidelines describing the sorts of conditions and commitments it may request in the course of reviewing proposed mergers under the Bank Company Holding Act (53 Fed. Reg. 26,028, 26,029 (1988)). The FDA long ago promulgated regulations governing voluntary recall procedures (21 C.F.R. pt. 7(C)), and the EPA has published guidelines for its “Supplemental Environmental Projects” policy, identifying the sorts of voluntary eco-friendly actions that might lead the agency to reduce a civil sanction (60 Fed. Reg. 24,856 (1995)). OSHA had announced a similar policy, in its “Cooperative Compliance Program,” but the U.S. Court of Appeals for the D.C. Circuit invalidated that initiative for failing to comply with the APA’s notice-and-comment rulemaking requirements (Chamber of Commerce v. United States, 174 F.3d 206 (D.C. Cir. 1999)).

The more interesting question (which wasn’t resolved by the D.C. Circuit in the OSHA case) is whether an agency may legitimately extract voluntary concessions from regulated parties that it cannot impose directly. In other words, can regulatory officials get around statutory limits on their power by cutting deals that license applicants can’t refuse? One rather unforgiving position would limit agencies to the precise terms of their enabling statutes, not allowing them to use bargaining as an opportunity to take short cuts or introduce flexibility unless Congress so specified in advance (some statutes invite agencies to impose “any other conditions deemed necessary,” as does the Communications Act, 47 U.S.C. § 214(c), or else to waive otherwise applicable requirements). Although such a clear statement approach seems appealing as an abstract matter,* the result may be undesirable from the perspective of both the agency and a regulated party-after all, applicants for a license may dislike the all-or-nothing option when making some minor concession might have reassured the agency, and they often take the initiative in seeking to bargain. Companies no doubt prefer negotiated outcomes (with strings attached) to the outright denial of a license, the rejection of a contract bid, or the imposition of a formal sanction.

My article staked out a middle position. To oversimplify, the test that I proposed would ask whether the ends pursued were “germane” to the enabling statute. This standard resembles the “essential nexus” and “rough proportionality” requirements applied by the U.S. Supreme Court in land use exaction and other unconstitutional conditions challenges. Thus, in this case, one might conclude that the FCC may request concessions that are germane to the licensing standard even if not specifically authorized by statute, but that it could not seek to impose conditions that have no relevant relation to the statute (for instance, promises to set aside additional green space in the course of constructing new transmission facilities or donate equipment and services to the public schools), no matter how malleable the “public interest” standard. I do not mean to suggest that the FCC had such non-germane conditions in mind, but other agencies have crossed this line in the past. Because extra-statutory bargaining seems inevitable, it would be unrealistic to condemn it altogether (the best we can hope for, I think, is channeling negotiations away from impermissible deals).

Professor Noah will be a panelist for the “Sic Semper Tyrannis” CLE program at The Greenbrier on Friday, July 13, from 8:30 to 10 a.m.Return to Top

Personal Profile:
Embarking on New Adventures
Hon. W. Tayloe Murphy Jr.
Caroline Bolte Cardwell

In his rare free moments, former Delegate W. Tayloe Murphy Jr. of Warsaw enjoys a relaxing sail with his wife Helen on the waters surrounding Virginia’s Northern Neck.

Unfortunately, he’s charting the courses of so many land-based ventures these days that there isn’t much time left to savor the real thing.

Since retiring from the House of Delegates in 2000, after 18 years of service, Murphy’s schedule has grown even more hectic.

This spring, his law partner, Henry T. Taliaferro III, was elevated to a circuit court judgeship, succeeding retiring Judge Joseph E. Spruill Jr. Murphy and Taliaferro had to dissolve the partnership within two months, resulting in a higher volume of cases for Murphy to handle.

In January, Murphy succeeded former Governor Gerald Baliles as chair of the VBA Committee on Special Issues of National and State Importance.

The blue-ribbon committee, which counts a number of members who have distinguished themselves in law, government, education and business (click here for a complete list), held its first meeting of the year at the U.S. Supreme Court Building in Washington, through the offices of Court Public Information Director and committee member Kathleen L. Arberg. Members discussed the committee’s areas of focus for the coming year under gilt-framed portraits of steely-eyed 19th-century justices, then enjoyed a sandwich buffet and a tour of the Supreme Court Building.

While Murphy admits that following in the footsteps of Governor Baliles, who led the committee for the past two years, seems like a “daunting responsibility, a challenge in and of itself,” he relishes the committee’s dynamic approach to current issues and public policy.

“It is a great committee,” he says. “I couldn’t ask for a better one. The enthusiasm of everyone who was asked to serve on the committee has been rewarding. All seven subcommittee chairs who have been asked to serve this year agreed to do so. It is gratifying to find people willing to give the time to make the committee effective.”

According to Murphy, the Special Issues Committee differs from most VBA sections and committees. “Most of our sections and committees are dealing with narrowly drawn issues, particular areas of law. The Special Issues Committee deals with broad issues, with input from persons with a variety of backgrounds. Sections and committees focus on specific subjects; the Special Issues Committee is about nothing but public policy. Lawyers deal mostly with the judicial branch of government; the Special Issues Committee allows lawyers to explore their interests in the executive branch, where policy is established, and the legislative branch, where policy is implemented.”

He is proud of the committee’s diversity and the fact that it includes nonlawyer members, a feature that he considers beneficial. “Bringing people together like this helps improve the image of lawyers. Working in association with others, we can help show the good that we do. Lawyers have historically made tremendous contributions to the welfare of the nation and state, and such activities as this committee give us a way to illustrate these contributions.”

For almost two decades, Murphy was at the Commonwealth’s epicenter of power as a member of the House of Delegates. He chaired the House Labor and Commerce Committee and won seats on such high-profile committees as Appropriations, Courts of Justice, and Corporations, Insurance and Banking.

“I got good appointments fairly early and had the opportunity to participate in the legislative process in ways most people never experience. Those were all issues important to my district [the 99th]. And I got appointments to commissions as well, such as JLARC, the Virginia Code Commission, the Commission on Virginia’s Future, the Coal Slurry Commission, and the Commission on Population Growth and Development. I was chief patron of the Rainy Day Fund legislation, which got me the appointment to JLARC [which he later chaired]. A great thing was getting to work with the staffs of all these groups. They are really capable people and one can learn so much from them.

“In 1982, I received an appointment to the Chesapeake Bay Commission, which was new then. It remains the most important state agency working to protect the bay.” Murphy went on to serve as the group’s chair.

Murphy’s commitment to the bay— and to the environment—is a near-legendary and active one. He serves as a trustee and Executive Committee member of the Chesapeake Bay Foundation, a director of the Virginia Conservation Network and the Virginia Institute of Marine Science. This August, he will begin teaching a course for Ph.D. candidates and law students at the School of Marine Science/Virginia Institute of Marine Science in Gloucester.

“If I should be remembered,” he said, “it should be for environmental issues.”

Issues are the major element he misses about the legislature. “I miss the challenges. There was always some new issue that came along. I’m not sorry that I retired, however. The process of getting elected was not difficult when I started, but it grew more so as the years passed, with the time one had to devote to campaigning and the cost escalating with each election. I miss the legislature, but I don’t miss the politics.”

Despite his active schedule, Murphy remains the epitome of the gracious Virginia gentleman, with his unhurried demeanor, crisp bow ties and melodious Tidewater accent. He is a graduate of Hampden-Sydney College and the University of Virginia School of Law, and has been active in such local groups as the Northern Neck Historical Society, Cople Parish of the Episcopal Church, and the Westmoreland Ruritan Club, of which he is a past president. He is a director of both Union Bankshares and its subsidiary, Northern Neck State Bank.

Helen Turner Murphy, his wife, is a past president of the Garden Clubs of Virginia and has served on a number of key boards of state and local organizations.

With increased demands on his time, Murphy doesn’t have as much time for sailing on his 14-foot sailboat or playing tennis, another favorite pastime, on weekends. “I usually don’t take time off during the week, and I’m generally at the office on Saturday mornings, particularly now with the changes in our practice. My wife and I do like to save our Sundays.” The Murphys’ daughter, Anne Murphy Douglas, is a University of Virginia graduate employed by the Bank of America in Richmond.

Clearly, whether he’s out for a Sunday sail on his beloved Chesapeake Bay, or navigating the intricacies of public policy issues on a weekday in Richmond, Tayloe Murphy knows how to steer the course, regardless of the venture.Return to Top

What Does the VBA/YLD Do?
David N. Anthony

The VBA Young Lawyers Division (VBA/YLD) recently held its Spring Joint Executive Committee and Executive Council Meeting in Corolla, North Carolina. Forty-five outstanding young lawyer leaders took time out of their busy schedules to attend the meeting.

During the weekend, I spoke with a newly involved committee chair who commented to me that he simply did not realize the significant array and depth of programs run by the VBA/YLD. I thought that others also might not appreciate all that young lawyers around Virginia are doing to benefit their communities and the profession; so I decided to highlight a few VBA/YLD programs.

Disaster Legal Assistance: One of the YLD’s signature programs is a joint effort with the Virginia State Bar Young Lawyers Conference to provide legal assistance to those in need following emergency situations, such as natural disasters. Pete Johnson of Hunton & Williams and Tracy Giles of Giles & Lambert were instrumental in initiating this program. Over the years, the Committee has trained between 100 and 200 attorneys who have volunteered their legal services to Virginians after Hurricanes Dennis, Floyd and Fran, and other natural disasters such as tornadoes, blizzards and massive flooding in various parts of the Commonwealth.

Many outstanding young lawyers, such as Shawn Copeland from Hunton & Williams, Steve Otero from Troutman Sanders Mays & Valentine, Brett Marston from Gentry Locke Rakes & Moore, Richard Ottinger from Vandeventer Black and Valerie Long from McGuireWoods have spent countless hours working with this program with little public fanfare. In recognition of their significant contribution to the disaster-stricken, the American Bar Endowment selected this cooperative program as the Outstanding Public Service Project Award winner for 2000 from a pool of approximately 400 young lawyer affiliates in the United States. I was tremendously proud to accept the award on behalf of the VBA/YLD at the American Bar Association’s Annual Meeting in New York last July. Lawyers of any age who are interested in volunteering for this worthwhile program should contact Richard Ottinger at (757) 446-8673 or rottinger@vanblk.com, or Valerie Long at (804) 977-2545 or vlong@mcguirewoods.com.

Town Hall Meetings: Historically, lawyers in Virginia have been among the political, business and civic leaders of their communities. Times certainly have changed. However, in an effort to revive the spirit of community participation and political debate, the VBA/YLD continues to promote dialogue on important national, state and local issues by hosting town hall meetings in a traditional format.

In six diverse regions of the Commonwealth, VBA/YLD Committees work hard to present their communities with a forum for public discourse and debate. The VBA/YLD has assisted in the presentation of town hall meetings for political debates among candidates in races for Virginia’s Attorney General, three United States Congressional Districts, the General Assembly and several local elections. Additionally, the VBA/YLD has organized town hall meetings for discussions on the Standards of Learning, media and the law, the Hugh Finn case, violence in schools, juvenile justice reform and regional economic development. These YLD Committees routinely work with print and visual media and other civil leaders and organizations.

For more information or to volunteer for a regional committee, please contact Chris Boynton, who serves as the Statewide Coordinator for the VBA/YLD Town Hall Meeting Committees at (757) 426-5061 or by e-mail at cboynton@vbgov.com.

Legal Services for the Mentally Ill: Former VBA/YLD Chair John Walker recognized the needs of those suffering from mental illness and how lawyers may ease some of the frustration caused by legal obstacles facing these individuals and their families. John helped organize this program, modeled after the VBA/YLD’s award-winning Pro Bono Hotlines program. This Committee has forged a working relationship with the National Alliance for the Mentally Ill-Virginia (NAMI-VA) to match volunteer attorneys with those needing legal assistance. The VBA/YLD has trained approximately 25 attorneys in Richmond and Northern Virginia, who have provided legal advice and guidance to hundreds of individuals and families.

Patrick Hanes and King Tower of Williams, Mullen, Clark & Dobbins have been impassioned advocates for the mentally ill and models of the unique and valuable role that lawyers can play in our society. They and numerous others have quietly served this often-forgotten segment of our population through this program. NAMI-VA recently honored Patrick and King with awards for their efforts, and I am honored to work with these two stellar attorneys who have made a real difference in the everyday lives of people. The Committee continues to seek volunteer attorneys, and interested lawyers should contact King Tower at (804) 783-6438 or e-mail him at ktower@wmcd.com. Return to Top

Chimborazo Elementary students hold mock trial
at federal courthouse in Richmond

During the trial, there were gasps when the victim’s widow admitted that her late husband’s favorite food was grilled children with a side of barbecue sauce. When court recessed, the defendant asked, “Does that mean I can go to the bathroom now?” And when the verdict was announced, a judge cheerfully stuck his tongue out at the defendant.

In the mock trial of “The State v. Jack Robinson,” staged by students from Richmond’s Chimborazo Elementary at the U.S. Courthouse in Richmond on May 15, much humor sparked the proceedings, based on the tale of “Jack and the Beanstalk.”

Yet it was clear to the audience that the students, participants in the VBA/YLD’s Richmond Mentor Program, had put considerable study and effort into their mock trial. Guided by their teachers and VBA/YLD mentors Sean Gibbons and Stephen Barnett, who both practice law with the firm of Williams Mullen Clark & Dobbins in Richmond, the students staged the event with precision and aplomb.

Before the trial began, the students were greeted by U.S. Magistrate Judge Dennis W. Dohnal as “my bosses.” Following the trial, U.S. District Court Judge James R. Spencer held a question-and-answer session with the students. Return to Top

Across the Commonwealth

VBA entities hold spring conferences

May was a busy month for VBA members and staff, with three substantive law sections holding their annual gatherings.

The VBA Bankruptcy Law Section traveled to Wintergreen for its annual conference, held May 4-5. Seminars focused on recent developments in bankruptcy law and ethical and practical issues affecting employment of professionals. A panel discussion considered the topics of “Observations on Seeking and Granting Adequate Protection” and “Implications of the Recent Unpublished 4th Circuit Decision in Warthen v. Smith (In re: Smith) for the Strip-off of Wholly Unsecured Liens.”

The Seventh Annual Administrative Law Conference, a joint venture of the VBA Administrative Law Section and the Virginia Administrative Law Advisory Committee, was held at the Omni Richmond on May 17. This year's keynote speaker, Thomas M. Susman, a partner at the Washington, D.C., law firm of Ropes & Gray, spoke on “E-Government and Administrative Law.” Other sessions dealt with technology and the future of Virginia administrative law, how to participate effectively in the rulemaking process, the Virginia Regulatory Town Hall and Internet access to administrative rule making, new legal issues raised by e-government, and ethical issues in government relations practice.

On May 18, members of the VBA Health Law Section held their annual legislative update, in cooperation with the Virginia State Bar Health Law Section. Originally planned for the Seventh & Franklin Building conference room, the event had to be moved because of higher-than-expected attendance. Panelists reviewed 2001 General Assembly actions and discussed issues expected to arise in the coming year.Return to Top

Richardson received JMF Teaching Award for 2001

Sandra L. Richardson of Charlottesville, a teacher of history and government at Tandem Friends School, has been selected as this year’s recipient of The John Marshall Foundation’s Teaching Award.
Ms. Richardson received the award during a ceremony at the John Marshall House in Richmond on Law Day, May 1. Hon. Harry L. Carrico, chief justice of the Supreme Court of Virginia, and JMF President/Chair Allen C. Goolsby presented the award.

The award recognizes excellence in teaching the Constitution at the middle or secondary school level. Richardson teaches U.S. history and an introduction to American government to 11th- and 12th-grade students at Tandem Friends.

A 15-year teaching veteran, Richardson holds a B.A. degree in history from Mary Baldwin College and a master’s degree in secondary history education from the University of Virginia.

“If one thinks of the Constitution as a living document, Sandy Richardson is the living embodiment of a teacher who allows students to understand the fundamental importance this document plays in their lives,” wrote Sharon Deal, director of Tandem Friends’ Upper School, in her letter nominating Richardson for the award.

“[She] takes pride in the fact that students leave our school with a true understanding of their rights and responsibilities in our democracy... I have unbounded confidence in the work she does in the classroom, and feel fortunate to have a teacher who is so committed and so inspiring to her students. Students who have studied with her often refer to her as their most important and memorable teacher.”
The John Marshall Foundation Teaching Award is presented annually. More information about the JMF and the award is available at www.vba.org.Return to Top

Merhige to be honored at VBA Summer Meeting

Former U.S. District Judge (E.D.Va.) Robert R. Merhige Jr. of Richmond, special counsel to the litigation, intellectual property and antitrust team of the law firm of Hunton & Williams, will be the guest of honor at the Saturday evening reception sponsored by LexisNexis during the VBA Summer Meeting at The Greenbrier.

During his 31-year judicial career, Merhige mediated and tried thousands of cases at both trial and appellate levels. Since joining Hunton & Williams, he has successfully mediated and arbitrated cases involving contract, fraud and intellectual property issues. He has also taught trial advocacy at the law schools of the University of Richmond and the University of Virginia, where he served as the John Ewald Distinguished Professor of Law. In addition, he is a member of numerous professional and civic organizations, and in 1999 was named one of the “100 Most Influential Richmonders of the 20th Century” by Style Weekly and The Valentine Museum.Return to Top

Midyear appointments, nominations announced by President Franklin

Several members of The Virginia Bar Association have been nominated by VBA President Jeanne F. Franklin for appointment or reappointment to positions on various committees.

Former VBA/YLD Chair John L. Walker III of Richmond, a partner in the law firm of Williams, Mullen, Clark & Dobbins, was nominated for an initial three-year term on the Virginia Law Foundation Board of Directors He succeeds Prof. A. Mechele Dickerson of the College of William and Mary School of Law, who did not seek reappointment.

Former VBA President Douglas P. Rucker Jr. of Richmond, a partner in the law firm of Sands, Anderson, Marks & Miller, was nominated for reappointment to a second and final three-year term on the Virginia Law Foundation Board.

Dexter S. Rumsey III of Irvington (Rumsey & Bugg), J. Lee E. Osborne of Roanoke (Carter, Brown & Osborne), Elaine R. Jordan of Richmond (Sands, Anderson, Marks & Miller), Neil S. Lowenstein of Norfolk (Vandeventer Black) and VBA/YLD representative Melissa Amos Young of Roanoke (Gentry Locke Rakes & Moore) were all nominated for reappointment to additional one-year terms on the Joint Continuing Legal Education Committee of the Virginia Law Foundation.

Lisa P. O’Donnell of Virginia Beach, a partner in the law firm of Shuttleworth, Ruloff & Giordano, was reappointed to another three-year term on the board of directors of the Virginia Capital Representation Resource Center.Return to Top

Lawyers on film

Looking for a good movie to rent? The William & Mary Law Library website lists dozens of movies featuring lawyers as heroes and villains. From Crime and Punishment (1935) to Double Jeopardy (1999), read a review and then head to your neighborhood video store. The website is http://fsweb.wm.edu/law/library/movies.asp.Return to Top

Virginia Law Foundation Fellows

The Virginia Law Foundation Fellows seek nominations for the Fellows Class of 2002, to be accepted through September 4, 2001.

The 2002 Class of Fellows will be inducted at a dinner meeting in Colonial Williamsburg on January 17, 2002, during The Virginia Bar Association’s Annual Meeting.

Candidates must
•be an active or associate member of the Virginia State Bar for at least 10 years;
•be a resident of Virginia;
•be a person of integrity and character;
•have maintained and upheld the highest standards of the profession;
•be outstanding in the community; and
•be distinguished in the practice of law.

Retired and senior-status judges are eligible. Sitting full-time judges and constitutional office holders are not eligible during their tenures.

Nominations must include a resume or biographical sketch of the nominee and must be received by September 4.

Please send nominations to VLF Fellows Council, c/o Nominations, 701 East Franklin Street, Suite 708, Richmond, VA 23219, phone (804) 648-0112, e-mail valawfdn@richmond.infi.net. Return to Top

Center for Elder Rights

The Center for Elder Rights is an information and referral service of the Virginia Department for the Aging which provides information about services available to older Virginians, such as health care, insurance, nutrition, consumer protection and other issues for older people. Referrals are made to agencies that may be able to assist an older Virginian with a personal problem.

The Center maintains a directory in which attorneys who have a particular interest in the legal issues of older Virginians and who are willing to consider taking pro bono cases are asked to participate. Periodically the Center offers no-cost continuing legal education opportunities attorneys who participate in the directory.

Attorneys are invited to participate in a continuing education program, "Issues in Social Security Disability," to be held June 26, 2001, from 9 a.m. to 5 p.m. at the Sheraton Richmond West, 6624 West Broad Street, Richmond, Virginia 23230. There is no fee and a light lunch is included. Participation is limited to the first 50 applicants.

Please complete and return the registration form on the VBA Elder Law Section’s web page at www.vba.org, or contact Terry Raney at (804) 662-7049 to make a reservation.

The Center for Elder Rights of the Virginia Department for the Aging, together with the American Association of Retired Persons Foundation, are sponsoring this training about Social Security disability to encourage attorneys to help people with Social Security disability claims. Social Security disability payments are often a significant source of income for older people.

Continuing legal education credit and guardian ad litem credit are pending.Return to Top

News in Brief

VBA member Robert H. Patterson Jr. of Richmond, a partner in the law firm of McGuireWoods, L.L.P., was selected as the recipient of 2001 Hunter W. Martin Professionalism Award by the Bar Association of the City of Richmond. The award was established in 1993 to recognize adherence to the highest standards of professional conduct.

Elizabeth A. McClanahan of Abingdon, a VBA member and a shareholder and director of the law firm of PennStuart, was recently elected vice rector of the Board of Visitors of the College of William and Mary. She will serve a two-year term in the position beginning July 1, 2001.

James C. Roberts of Richmond, a VBA member and a partner in the law firm of Troutman Sanders Mays & Valentine, L.L.P., recently received the Robert R. Merhige Jr. Outstanding Achievement Award from the John Marshall Inn of Court. The award recognizes exceptional contributions to and advancements of the administration of justice in the Commonwealth of Virginia, the efficiency and quality of legal services delivered to the public, and the ethics and professionalism of the law.

Former VBA President Phillip C. Stone was the guest of honor at the 2001 Dinner of Champions on May 24 in Harrisonburg. During the dinner, a benefit for the National Multiple Sclerosis Society, Stone received the MS Silver Hope Award and was “roasted” by JMU President Ronald Carrier and VBA members Douglas L. Guynn, Breck Arrington and his son, Phillip C. Stone Jr.

Best wishes to VBA/YLD Chair-elect Vaughan Gibson and VBA member Russell Aaronson on their marriage May 12 in Midlothian, Virginia.

Congratulations to VBA Executive Vice President Breck Arrington on the 10th anniversary of his taking the helm at the Association’s offices in Richmond on May 1, 1991, and best wishes for another great decade!

Welcome to Judy King, the newest member of the VBA staff. Judy became the VBA’s staff assistant for membership in April.

VBA Communications Coordinator Caroline Bolte Cardwell received second place in writing for the Web in Virginia Press Women’s annual awards competition.

Support VBA activities by becoming a Patron in 2001. By contributing $100 in addition to your membership and section dues, you will provide invaluable support for the many public and professional services offered by the Association. Check the box on your membership dues statement, or mail your check separately if you’ve already sent in your dues. Call (804) 644-0041 for more information.

The Virginia Lawyer, successor to The Virginia Lawyer's Basic Practice Handbook, was first published in 1966 by the VBA/YLD in conjunction with the Joint CLE Committee. 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. Return to Top

Copyright 2007 The Virginia Bar Association