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April 1999 Listing of articles from the VBA Journal, 1975-98 |
June 1999
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Bemoaning the sad state of affairs in America has become almost de rigueur.
Not only can one become physically overwhelmed with bad news first thing in the morning (before coffee, juice or sprightly weather forecasts), but one gets to hear it dissected, digested and regurgitated all day long by that creature of the 1990s, the pundit.
Some pundits have gotten so carried away with themselves that they have forgotten what occupations made them pundits in the first place. It's rumored that some can't even find their offices anymore. Boring old daily work gets in the way of TV appearances, public speaking engagements, and launching oneself into chic gossip columns.
Yes, it's easy to become disillusioned with leaders of questionable integrity, to rail at injustice and intolerance, to settle for cheap laughs and the dumbing-down of our culture, to despair at reports of violence and natural disasters. And it's easy to sit and whine about it all day.
One thinks of the 1970s pop song that advised a person concerned about pollution to start covering his mouth when he coughed. In other words, don't add to pollution — be a solution.
Walk the talk.
The Virginia Bar Association has a history of walking the talk. For example, VBA leaders were concerned about the erosion of professionalism among lawyers, so they established a task force group in 1997 to develop ways of fostering professionalism and civility. Two years later, the VBA has an active professionalism program and has cosponsored (with local and specialty bars) presentations all over Virginia, with no end in sight.
Take the Committee on Special Issues of State and National Importance. This blue-ribbon panel, chaired by former Governor Jerry Baliles, is investigating and studying all kinds of issues that we need to consider. You'll be hearing much more from this committee. It's going to make us all sit up and think, and maybe develop some solutions.
Members of the VBA Young Lawyers Division are no strangers to walking the talk. They created Pro Bono Hotlines to ease the burden of providing legal services, and won the nation's most prestigious award for their efforts. They reach out to youth through a variety of mentor and assistance programs. They serve special populations, like the mentally disabled and victims of domestic violence, who need assistance.
The list goes on and on.
These are but a few examples of how the VBA walks the talk these days. But none of us have to wait for the VBA, or any other group, to act for us. Each of us can start making our world a little bit better, cleaner and saner.
Pick up trash. Turn off trash. Do a good deed. Volunteer for a meaningful cause. Spread laughter. Appreciate the finer points of culture. Be pleasant to those around you. Learn something new. Do something creative. Do something productive. Share with others. And as the song goes, put your hand over your mouth.
Quit talking. Get walking.
— The Editor Return to Top
The Judicial Conference of Virginia recently completed its annual May meeting, this year in Williamsburg. As your President, I was one of the several non-judicial attendees. Since my law practice has increasingly led me to appear before judges in other states, I had a good vantage point from which to be proud of the men and women who sit on the bench at the trial and appellate levels in our Commonwealth.
The conference had, as a focal point, a presentation moderated jointly by Tom Spahn, chair of the Professionalism Task Force Working Group of The Virginia Bar Association, and Court of Appeals Judge Don Lemons, also a group member. The presentation was interactive, in that a series of hypotheticals and questions concerning professionalism and civility in the proceedings occurring daily before these judges were monitored through Virginia CLE's handheld responders. The dialogue was fascinating.
Since returning from the Judicial Conference, Judge Lemons has expressed an interest in preparing an article for the VBA News Journal on the judges' views on this topic and their role in respect to it.
In this way, the VBA's Professionalism Task Force has again brought forward plain talk about our continuing commitment to excellence in the profession.
Phil Stone began this project three years ago, subject to a commitment by Frank Flippin and myself to a continued emphasis at least to the year 2000. The exercise has become so meaningful that I believe that it will be a continuing program of the Association.
Among specific activities, in the last year the Task Force has conducted or facilitated some 20 programs by local and specialty bar associations on professionalism and civility, and more are in the works. The Virginia Bar Association Creed, espousing a commitment to those qualities which are the hallmark of professionalism and civility, is being considered for broader adoption beyond the VBA. Task Force Working Group member (now Judge) Catherine Hammond moderated a program at this year's VBA Annual Meeting in Williamsburg at which professionalism and civility were discussed in the context of other professions.
The work of this Task Force is ongoing. There is obviously a long way to go to assert fully the highest standards of professionalism and civility most becoming to our common calling as lawyers. In one sense, our work in this area may never be complete. But this VBA initiative continually reminds us that membership in The Virginia Bar Association is a mark of our pride in our profession and of our commitment to the best that is in it.
Presentations by the Professionalism Task Force
Norfolk and Portsmouth Bar Association
Roanoke County Bar Association
VBA 1998 Summer Meeting-The Homestead
McLean Bar Association
Old Dominion Bar Association
Accomack County Bar Association
Virginia Women Attorneys Association-Richmond Chapter
Northern Virginia Women Attorneys Association
Virginia Women Attorneys Association-Roanoke Chapter
Virginia Trial Lawyers Association
Chesterfield-Colonial Heights Bar Association
Judicial Conference for Circuit Judges-Williamsburg
Culpeper County Bar Association
Virginia Women Attorneys Association-NSV Chapter
Lynchburg Bar Association
Eastern Mineral Law Foundation
Pittsylvania County Bar Association
Charlottesville-Albemarle Bar Association
VBA 1999 Summer Meeting-The Greenbrier*
Judicial Conference for Circuit Courts*
*scheduled for summer 1999 Return to Top
In 1995, the United States Supreme Court issued an opinion which still ripples through the debt collection community, and which has confused Congress as to the meaning of "communications" under the Fair Debt Collection Practices Act (the "Act," 15 U.S.C. §§ 1692 et seq.). In Heintz v. Jenkins, 131 L.Ed. 2d 395, 115 S.Ct. 1489 (1995), the Supreme Court held that attorneys were subject to the Act even while engaged in litigation activities.
Background
When enacted in 1977, the Act exempted attorneys from coverage. In response to an indication that many attorneys were abusing their exempt status by engaging in unfair collection practices, Congress amended the Act in 1986 to delete the attorney exemption. Following this amendment, attorneys were subject to the Act if they engaged in substantial collection efforts on behalf of their clients.
The attorney in Heintz was sued because he attempted to collect a charge for credit insurance not provided for in the contract, a violation of Section 1692f(1) of the Act. He argued that attorneys engaged in litigation were free from the constraints of the Act, citing an earlier Sixth Circuit opinion to that effect, Green v. Hocking, 9 F.3d 18 (6th Cir. 1993). Running headlong into the "plain meaning" philosophy of the current Court, he was unsuccessful.
The Supreme Court focused on the definition of "debt collector" in the Act, holding that a lawyer who regularly seeks to obtain payment of consumer debts through court action is attempting to collect debts within the meaning of the Act, and is a debt collector. The Court noted the repeal of the earlier exemption for attorneys and concluded that the amendment evidenced an intent to subject lawyers to the Act without limitation.
Pleadings as Communication
The result in Heintz seems straightforward and in accordance with the plain language of the statute. It was in dealing with the potential anomalies which could result, catalogued by the Sixth Circuit in Green, that the Court left unresolved questions which, among other things, caused Congress to enact an ill-considered amendment to the Act.
The Court cited as Mr. Heintz's strongest "anomaly" argument the situation in which a debtor could forbid a debt collector from communicating further with the debtor, bringing the collection process to a sudden halt. The Court conceded that empowering the debtor to halt collection would be an "odd" result. However, rather than focusing on the meaning of "communication," the Court suggested that by permitting notification of the consumer that the debt collector intends to invoke a certain remedy, the Act implied the right to pursue that remedy. The Court suggested that a court pleading could be considered a notification to the consumer that the debt collector "may" sue, when of course the debt collector has already done so. This interpretation of the word "may" is peculiar, coming from a strict constructionist court.
Congressional Response
Apparently seeking to cure one of the anomalies discussed in Heintz, Congress amended Section1692e(11) of the Act, which required that debt collectors disclose clearly in all communications that they were attempting to collect a debt and might use any information gained for that purpose. Perceiving that this requirement could be construed to require every pleading in litigation to contain such a warning, Congress revised Section 1692e(11) to exclude formal pleadings made in connection with a legal action. It failed to consider the other anomalies cited in the Heintz opinion, leaving them, and collection attorneys, hanging.
Congress apparently never considered the position that formal pleadings in a legal action are not communications at all under the Act. An examination of the use of the word "communication" wherever it appears in the Act compels the conclusion that Congress did not intend a pleading in litigation to be a communication.
The Definition
Section 1692a(2) defines a communication as the conveying of information regarding a debt to any person, through any medium, directly or indirectly. At first blush, it would seem that a complaint or motion for judgment, which must be served on the debtor rather than his attorney, constitutes the conveying of information regarding a debt to another person.1 This was not a problem as long as attorneys were exempt from the Act's coverage, since only attorneys can properly file pleadings on behalf of third-party creditors.2 When the definition was drafted in 1977, pleadings could never be an issue. The only communications which would be pertinent would be telephone calls, correspondence, faxes and similar contacts. There is no indication that Congress considered the implications of this definition for litigation practice when it brought attorneys within the reach of the Act. The House Report on the amendment discussed the growth of the attorney collection industry and the resulting harm to consumers, and catalogues the abuses reported, but nowhere mentions abusive pleadings as a problem. H.R. Rep. 99-405, 99th Cong., 1st Sess. (1985), 1996 U.S. Code Cong. and Admin. News 1752.
The term "communication" appears in a number of sections of the Act, used in three different ways. In several instances, it is apparent that the term has nothing to do with litigation, and is used in the normal sense of the word. Examples are found in Section 1692b, dealing with communicating to acquire information about the debtor's location, Section 1692e(8) and (9), dealing with communication of knowingly false credit information and the use of written communications which simulate court or other official documents, and Section 1692f, regarding communications in which the cost is imposed on the debtor, communications by postcard, and communicating by mail or telegram. In reading through these sections, one has a sense of what the drafters of the Act originally intended in using this term.
A second category involves usage which could conceivably refer to litigation, however awkwardly. These include Section 1692g(a), requiring certain detailed disclosures in the initial communication with the debtor or within five days thereafter; and Section 1692e (prior to its amendment), requiring disclosure of the purpose of a communication. These sections can be troublesome for attorneys collecting debts, since failure to make required disclosures may result in severe penalties. If a clear determination cannot be made as to the meaning of the word, caution would dictate "when in doubt, include." This course would be safe, but would result in considerable silly and confusing language in collection pleadings.3
It is the third category of usages, found in Section 1692c, which demonstrates that "communications" cannot include pleadings unless we accept results which can only be characterized as bizarre. If we assume that a pleading is a communication:
Without the consent of the consumer or the permission of a court, an attorney may not communicate with the clerk by delivering a debt collection pleading for filing, or serve it on any person other than the consumer, his attorney, or certain other specified parties. Section1692c(b). (This would prohibit service of a complaint on a guarantor or co-maker.)
Unless the consumer consents or a court of competent jurisdiction permits, a debt collector may not serve a pleading on a consumer at any unusual or inconvenient time or place. The debt collector must assume that the convenient time for serving pleadings is after 8 a.m. and before 9 p.m. Section 1692c(a)(1). (Don't ask how one gets to court in the first place to seek court permission, if the debt collector cannot file such a pleading without the consumer's prior consent.)
If the consumer is known to be represented by an attorney, the debt collector may not serve a pleading on the consumer unless the attorney has failed to respond within a reasonable time, or unless the attorney consents to such service. Section 1692c(a)(2). (How then would the initial pleading be personally served on the consumer, as required in virtually any litigation?)
The debt collector may not serve the consumer at his place of employment if he has reason to know that the employer prohibits such service. Section 1692c(a)(3).
In perhaps the most bizarre result of all, the debt collector may not serve any pleading on the consumer concerning the debt, if the consumer notifies the debt collector in writing that he or she refuses to pay and wishes the debt collector to cease communicating with (serving any pleadings on) the consumer. Section 1692 c(c). The three exceptions to this prohibition only add to the strangeness of the result. The debt collector may advise the consumer that further efforts are terminated, notify the consumer that the collector may invoke certain remedies, and, if applicable, notify the consumer that the debt collector intends to actually invoke a specified remedy (presumably a collection suit). If no further pleadings may be filed in the matter, how can the debt collector follow through on its intention to invoke the remedy? It then would follow that such notification is itself a violation of the Act, since threatening to take an action which cannot be taken is a violation under Section 1692e(5).)
In subjecting attorneys to the Act, Congress specifically considered the last point, recognizing that beleaguered debtors should be entitled to cut off communication even from attorneys, thereby ending harassment and bringing the matter of the debt to a "head," not to a halt!4 The debtor's request should force the debt collector to choose between bringing suit or abandoning collection. This sensible result is derailed if the collection pleading is considered a communication.
The Solution
The Supreme Court's suggestion in Heintz that filing a pleading could be treated as notice that a remedy "may" be invoked is inconsistent with its emphasis on the plain meaning of statutory language, and is inadequate to solve the statutory conundrum. If pleadings are communications, the other nonsensical disclosures would still be required. The effort by Congress not only fails to resolve the remaining anomalies, but lends support to the argument that pleadings are indeed communications. Further amendment is necessary in order to ensure prompt, consistent results.
The definition of communication need only be clarified by language excluding court pleadings from the definition. Such a solution would leave attorneys subject to the Act, keeping in place the sanctions against such conduct as suing for an amount or remedy which is not available to the debt collector and bringing suit in an improper venue, without doing violence to common sense. The concerns expressed in Green and the result in Heintz would be in harmony. In the meantime, collection attorneys may choose between cluttering their pleadings with confusing and inappropriate disclosures, or taking comfort in the Supreme Court's statement:
When the [plain meaning] has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act.
U.S. v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). 5
Notes
1. The purpose of a motion for judgment is not to communicate with the debtor, but to ask the court to enter judgment. The pleading is served on the defendant simply to give notice as required by due process principles. Nevertheless, the broad language of the definition puts collection attorneys at risk.
2. Non-attorneys filing court actions on behalf of third parties would be engaging in the unauthorized practice of law under generally applicable restrictions. A party filing suit on its own behalf is not a debt collector, 15 U.S.C. § 1692a(6), and is not subject ot the Act.
3. Consider, for example, a motion for judgment advising the defendant that he or she has 30 days to dispute the debt when, under Virginia law, default occurs after 21 days. Worse yet, the pleading could be followed within five days by a separate 30-day dispute notice, hopelessly confusing a debtor/defendant. These disclosures would also be required in an order of publication for a defendant who could not be served.
4. H.R. Rep. 99-405, 99th Cong., 1st Sess. (1985), 1996 U.S. Code Cong. and Admin. News 1752.
5. Had not the Court dismissed Rep. Annunzio's remarks as merely those of "one informed person" (albeit the one who introduced the amendment!), given after the statute became law, attorneys could also take comfort in his assertion that:
The filing of a complaint is not covered by the act. Since it is not covered under the act, there is no requirement that attorneys include the notices required under section 809 of the act in legal filings. 132 Cong. Rec. 30842, 99th Cong., 2nd Sess. (1986).
About the Author: Eugene E. Derryberry is a partner in the firm of Gentry
Locke Rakes & Moore in Roanoke and practices primarily in the areas of corporate
and securities, banking and bankruptcy law. He received his undergraduate and
law degrees from Duke University, where he was an Angier B. Duke Scholar and
a member of Phi Eta Sigma and the Duke Law Journal. Prior to joining Gentry
Locke Rakes & Moore in 1973, he practiced law in Richmond for three years.
A member of The Virginia Bar Association since 1971, he is also a member of
the VBA Business Law Section. Return to Top
Your client, Mr. Blanch, has just been arrested for the distribution of cocaine. He gives you a call and asks you why the police took his money, jewelry, vehicle, beeper and cellular phones, especially since his vehicle was located in the City of Richmond and the case is in Henrico County. Naturally, you explain to him that it is evidence in the criminal case. However, he tells you he has received some paperwork filed in the Circuit Court about the property. What is happening here?
Many attorneys in the Commonwealth are coming into contact with drug asset forfeiture, and, as yet, there is no one reference book or pamphlet describing the Commonwealth's asset forfeitures statutes and cases. This article attempts to fill the void in this area by giving a brief legal description of the more important statutes and procedures involved in asset forfeiture. In Virginia, the most important statutes governing asset forfeiture are as follows:
1. §18.2-249 directs the police as to what can be seized;
2. §19.2-386.1 discusses how to file a forfeiture action;
3. §19.2-386.2 discusses seizure warrants and real property;
4. §19.2-386.3 discusses notice, service, and the defendant's answer;
5. §19.2-386.6 discusses bonds that may be placed on the seized property;
6. §19.2-386.8 has a rather lengthy list of exceptions to forfeiture;
7. §19.2-386.10 discusses the forfeiture trial; and
8. §19.2-386.12 details the costs of the proceeding.
What may be forfeited
§18.2-2491 allows law enforcement personnel to seize immediately just about anything that is an asset and is involved in, substantially connected to, or is a proceed from, the distribution of narcotics. Importantly, this Section does not limit law enforcement officers to seizing only those assets owned by the person charged with a violation of §18.2-248 or 18.2-248.1. Nor does it limit the seizure to only those events in which an individual is criminally charged with distribution of narcotics. In fact, the assets seized may belong to an individual who is not charged with any crime at all.2 Indeed, asset forfeiture is a civil proceeding and not linked to the criminal case except by way of evidence.
Jurisdiction and the Information
§19.2-386.13 of the Code of Virginia outlines the procedure the Commonwealth must follow to file a forfeiture action. The action begins with the filing of an Information against the property. The venue for such a cause of action extends to any jurisdiction in which the property is located or seized. Additionally, the Commonwealth may file a forfeiture action in any jurisdiction in which the owner of the property could be prosecuted for the alleged illegal conduct. Therefore, even if the property being forfeited is physically located in the City of Richmond, Henrico County has jurisdiction to file an information against the property if the property has been used in Henrico County, or represents proceeds derived from actions that occurred in Henrico County. This explains why in our initial scenario Mr. Blanch's vehicle was seized by Henrico County even though it was located in the City of Richmond. The information must include a specific description of the property and list all interested owners, lien holders of record, and any trustees on any deed of trust. It must include, in general, the grounds for the forfeiture. These "grounds" may be stated in the most general of terms, especially if the information refers one to the statutes involved.4 Although referring to the statute is not a requirement, it does allow the Commonwealth to file a more generalized Information. Finally, the information must ask that all persons having an interest in the property be notified so that they can appear and show cause why the property should not be forfeited. The information must be filed within 90 days of the date the item is seized by law enforcement personnel. Section 19.2-386.1 also requires that the Commonwealth file the information within three years of the last act giving rise to a forfeiture, if the property is not seized before this date. The Courts have strictly construed this statute against the Commonwealth.5
Property not yet Seized and Real Property
§19.2-386.26 of the Code of Virginia explains what must occur if the Commonwealth wants to forfeit property that has not yet been seized. The statute explains that the Commonwealth must file a motion for a seizure warrant. This is a rather unique statute in that it deals with the requirements which must be complied with by the Clerk's office, rather than the Commonwealth or the party defendant. The Commonwealth simply files a motion and an Information requesting a seizure warrant from the Clerk of the Circuit Court. This motion need not be accompanied by any type of affidavit nor be sworn to by the Commonwealth's Attorney. It is simply a motion to issue a seizure warrant against a particular type of property. Upon receipt of the motion, the Clerk issues a seizure warrant for the property directed to any law enforcement agency, which only allows the "res" to get to the Court.7
The second part of §19.2-386.2 discusses the procedural requirements that the Commonwealth must follow to forfeit real property. In sum, the Commonwealth must file a lis pendens in the jurisdiction where the property is located and must state, in the body of the lis pendens, the names of all persons affected by the filing. Of course, a lis pendens is not a seizure, per se, and a seizure warrant should not be issued against the property without a hearing.8
Notice, Service and the Answer
§19.2-386.39 of the Code of Virginia is the statute that explains why Mr. Blanch called your office. As one would expect, the Commonwealth must provide some type of notice to the persons having an interest in the property being forfeited. This statute specifies the notice requirements and refers to the two different situations of property seized prior to, and subsequent to, an information being filed. The Commonwealth should know whether the property has already been seized because §19.2-386.3 requires the seizing agency to "forthwith" notify the Commonwealth of the seizure. If a seizure occurs prior to the Commonwealth filing a Notice of Seizure and Seizure Warrant, the Commonwealth has two options. First, the Commonwealth can file a Notice of Seizure within 21 days of written receipt that a seizure has occurred.10 The Notice of Seizure must include a specific description of the property seized and identify all owners and lien holders of record, or then known. The Commonwealth's second option is to file both the Information and the Notice simultaneously.11 If the Commonwealth chooses the second option, its Notice of Seizure should include a warning to all interested parties that they must answer within 30 days of receipt of service.
The second part of §19.2-386.2 deals with service of process. Generally service of process is no different from what is already required in civil cases by the Code of Virginia in §8.01-296. Under §19.2-386.3 such service of process must include a copy of the Notice of Seizure and information.
Importantly, §19.2-386.3 also specifies what must be included in a person's Answer to the Commonwealth's Information. An Answer must be filed within 30 days from receipt of the Information and must be filed under oath. The Answer must also include the nature of the person's claim of ownership, exact right or title, and the reason, cause, exemption or defense to the claim. Thus far, the Courts have not yet clarified the precise meaning of this requirement. However, it is important to note that despite these requirements, an owner or lien holder may appear anytime prior to final judgment and assert an interest in property being forfeited.12 To do so, the person must appear in Court and be added as a party, and must file an Answer as described above.
How to get the Property back while the Forfeiture is pending
§19.2-386.6 concerns bonding of seized property.13 Basically, this statute allows a person to retrieve their property after posting a bond, equal to the fair market value of the property plus an amount to cover estimated costs of court. Should the Commonwealth prevail in the forfeiture action, the bond is forfeited rather than the underlying property.
Exemptions to Forfeiture, and Innocent Owners
§19.2-386.814 of the Code of Virginia lists a number of exemptions that mainly apply to the innocent owners and lien holders of the property being sought by the Commonwealth. The first exemption is for public transportation and other similar businesses. The second protects those citizens whose vehicles have been stolen.
The third and fourth exemptions deal with innocent owners and lien holders. In order for them to prove they are exempted, the innocent owner/lien holder must prove three separate elements: (1) (and most difficult for innocent owners) the owner or lien holder must not know and have no reason to know of the conduct giving rise to the forfeiture; (2) the owner must have innocently purchased the property, and the lien holder must have innocently granted the lien; and, (3) the conduct giving rise to the forfeiture must have occurred without the owner's or lien holder's "connivance or consent, expressed or implied." It is easy to see the problem that may evolve when an attorney is representing a client with an "innocent" defense. If that person knew or should have known that criminal activities were taking place, then the client should not prevail in maintaining a state of innocence. Further, if one is purposely blind to the actions of the criminal party, that individual loses the cloak of "innocence" and should not prevail in Court.
A Stay, Default, the Trial, and Burden of Proof
§19.2-386.10 15 of the Code of Virginia governs the trial of a forfeiture action. First, this Section allows for either party to request a stay in the forfeiture proceeding when it is related to a criminal indictment or information. In my experience, the Court liberally grants this stay, even if there has been only a warrant issued and the Commonwealth has not yet obtained an indictment.
Second, §19.2-286.10 provides that if a party defendant fails to answer and fails to appear at the forfeiture proceeding, that party is in default and the property is forfeited to the Commonwealth. Even so, the party defendant can get the property or their interest in the property back if, within 21 days after judgment, that party notifies the Department of Criminal Justice Services that: (1) he is a party; (2) he has a valid exemption to the forfeiture proceeding; and, (3) he has good cause for his nonappearance and lack of an Answer.16 This code section also provides that any party may request a jury trial, as opposed to a bench trial, for the forfeiture proceeding. In addition, the Commonwealth must prove its forfeiture case by a preponderance of the evidence. Of course, if the Commonwealth establishes the right to forfeit the property, the party defendant has the burden of proving the exemption under §19.2-286.8, as previously discussed. Finally, §19.2-386.10 clarifies that the forfeiture proceeding is deemed to be entirely separate from the criminal proceeding, thus allowing one trial to proceed without the other and leading to some interesting issues involving collateral estoppel.17
Costs of Court and Attorneys Fees
Note that §19.2-386.12 of the Code of Virginia contains the provision for costs in forfeiture proceedings. Should the property holder prevail, that party defendant is entitled to reasonable attorney fees and costs from the Commonwealth.
Your client, Mr. Blanch, has therefore just become a party to a civil proceeding that commenced with the filing of a Notice and Information by the Commonwealth. It is the hope of this author that this article provides a useful legal road map to this ever-growing and procedurally complex area of law.
Notes
1. 18.2-249. Seizure of property used in connection with or derived from illegal drug transactions. — A. The following property shall be subject to lawful seizure by any officer charged with enforcing the provisions of this article: (i) all money, medical equipment, office equipment, laboratory equipment, motor vehicles, and all other personal and real property of any kind or character, used in substantial connection with the illegal manufacture, sale or distribution of controlled substances or possession with intent to sell or distribute controlled substances in violation of Sec. 18.2-248 or the sale or distribution of marijuana or possession with intent to distribute marijuana in violation of subdivisions (a) (2), (a) (3) and (c) of Sec. 18.2-248.1, except real property shall not be subject to lawful seizure unless the minimum prescribed punishment for the violation is a term of not less than five years; (ii) everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of Sec. 18.2-248 or of marijuana in violation of Sec. 18.2-248.1; and (iii) all moneys or other property, real or personal, traceable to such an exchange, together with any interest or profits derived from the investment of such money or other property. B. All seizures and forfeitures under this section shall be governed by the procedures contained in Chapter 22.1 (Sec. 19.2-368.1 et seq.) of Title 19.2. (Code 1950, Sec. 18.1-346; 1960, c. 358; 1970, c. 650; 1972, c. 799; 1973, c. 171; 1975, cc. 14, 15; 1976, c. 132; 1979, c. 435; 1982, c. 462; 1985, c. 569; 1986, cc. 449, 485; 1988, cc. 575, 753; 1989, cc. 638, 690; 1993, c. 825.)
2. This does not apply to the seizure of real property. Such a seizure is governed by §§18.2-249A(i) & 19.2-386.2B, which states that the property must be involved in a crime that carries a penalty of five or more years. However, this statute does not state that an individual must be charged with this crime, only that the Commonwealth must prove that a crime has occurred for which the party defendant could be charged and sentenced to five or more years.
3. §19.2-386.1. Commencing an action of forfeiture. — An action against any property subject to seizure under the provisions of Sec. 18.2-249 shall be commenced by the filing of an information in the clerk's office of the circuit court. Any information shall be filed in the name of the Commonwealth by the attorney for the Commonwealth or may be filed by the Attorney General if so requested by the attorney for the Commonwealth. Venue for an action of forfeiture shall lie in the county or city where (i) the property is located, (ii) the property is seized, or (iii) an owner of the property could be prosecuted for the illegal conduct alleged to give rise to the forfeiture. Such information shall (i) name as parties defendant all owners and lienholders then known or of record and the trustees named in any deed of trust securing such lienholder, (ii) specifically describe the property, (iii) set forth in general terms the grounds for forfeiture of the named property, (iv) pray that the same be condemned and sold or otherwise be disposed of according to law, and (v) ask that all persons concerned or interested be notified to appear and show cause why such property should not be forfeited. In all cases, an information shall be filed within three years of the date of actual discovery by the Commonwealth of the last act giving rise to the forfeiture or the action for forfeiture will be barred. (1989, c. 690; 1991, c. 560.)
4. For example, if the Information refers the reader to §§18.2-248 or 248.1.
5. See Jenkins v. Commonwealth, 13 Va. App. 420, 411 S.E.2d 841 (1991) and Commonwealth v. Brunson, 248 Va. 347, 448 S.E.2d 393(1994).
6. 19.2-386.2. Seizure of named property. — A. When any property subject to seizure under Sec. 18.2-249 has not been seized at the time an information naming that property is filed, the clerk of the circuit court, upon motion of the attorney for the Commonwealth wherein the information is filed, shall issue a warrant to the sheriff or other state or local law-enforcement officer authorized to serve criminal process in the jurisdiction where the property is located, describing the property named in the complaint and authorizing its immediate seizure. B. In all cases of seizure of real property, a notice of lis pendens shall be filed with the clerk of the circuit court of the county or city wherein the property is located and shall be indexed in the land records in the name or names of those persons whose interests appear to be affected thereby. (1989, c. 690.)
7.See U.S. v. Turner, 933 F.2d 240 (4th Cir. 1991) which states, in part, that the U.S.C.A. allows for the clerk to issue a warrant without a finding of probable cause, and that such a warrant is only for the purpose of getting the "res" to court. This Court stated that such a warrant more closely resembles that of a summons to court than a search warrant.
8.See United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).
9. Sec. 19.2-386.3. Notice of seizure for forfeiture and notice of motion for judgment. — A. If an information has not been filed, then upon seizure of any property under Sec. 18.2-249, the agency seizing the property shall forthwith notify in writing the attorney for the Commonwealth in the county or city in which the seizure occurred, who shall, within 21 days of receipt of such notice, file a notice of seizure for forfeiture with the clerk of the circuit court. Such notice of seizure for forfeiture shall specifically describe the property seized, set forth in general terms the grounds for seizure, identify the date on which the seizure occurred, and identify all owners and lien holders then known or of record. The clerk shall forthwith mail by first-class mail notice of seizure for forfeiture to the last known address of all identified owners and lien holders. When property has been seized under Sec. 18.2-249 prior to filing an information, then an information against that property shall be filed within 90 days of the date of seizure or the property shall be released to the owner or lien holder. B. Except as to corporations, all parties defendant shall be served, in accordance with Sec. 8.01-296, with a copy of the information and a notice to appear prior to any motion for default judgment on the information. The notice shall contain a statement warning the party defendant that his interest in the property shall be subject to forfeiture to the Commonwealth unless within 30 days after service on him of the notice, or before the date set forth in the order of publication with respect to the notice, an answer under oath is filed in the proceeding setting forth (i) the nature of the defendant's claim, (ii) the exact right, title or character of the ownership or interest in the property and the evidence thereof, and (iii) the reason, cause, exemption or defense he may have against the forfeiture of his interest in the property, including but not limited to the exemptions set forth in Sec. 19.2-386.8. Service upon corporations shall be made in accordance with Sec. 8.01-299 or subdivision 1 or 2 of Sec. 8.01-301; however, if such service cannot be thus made, it shall be made by publication in accordance with Sec. 8.01-317. (1989, c. 690; 1991, c. 560; 1996, c. 673.)
10. The Clerk is required to send, by first class mail, the Notice of Seizure to those persons identified. Then the Commonwealth must file an Information within 90 days of the date of seizure, as described in section II of this article. Further, the Commonwealth must file a second Notice of Seizure with the Information, which should include a warning to all interested parties that they must file an Answer within 30 days of the receipt of service. An Answer is explained later in this section of this article.
11. The filing of the Information within 90 days is a mandatory procedure, as stated by the Court in Commonwealth v. Brunson, 248 Va. 347, 448 S.E.2d 393 (1994). Failure to do so results in the Commonwealth losing its forfeiture case. However, the Virginia Supreme Court has implied that the 21 days to file the Notice of Seizure is not jurisdictional and, therefore, the failure to do so will not cause the case to be forfeited by the Commonwealth.
As a caveat, whenever the Commonwealth files the Information, they should include a Notice with the warning outlined above.
12. Sec. 19.2-386.9. Appearance by owner or lien holder. — Any person claiming to be an owner or lien holder of the named property may appear at any time within 30 days after service on him of notice to appear or on or before the date certain set forth in any order of publication under Sec. 8.01-317 or such longer time as the court in its discretion may allow to prevent a miscarriage of justice. Any person without actual or constructive notice of the forfeiture proceedings claiming to be an owner or lienholder may appear at any time before final judgment of the trial court and be made a party to the action. Such appearance shall be by answer, under oath, which shall clearly set forth (i) the nature of the defendant's claim; (ii) the exact right, title or character of the ownership or interest in the property and the evidence thereof; and (iii) the reason, cause, exemption or defense he may have against the forfeiture of the property. (1989, c. 690; 1991, c. 560.)
13. Sec. 19.2-386.6. Bond to secure possession. — If the owner or lien holder of the named property desires to obtain possession thereof before the hearing on the information filed against the same, such property shall be appraised by the clerk of the court where such information is filed. The clerk shall promptly cause the property to be appraised at its fair cash value, and forthwith make return thereof in writing to the court. Any appraisal fee shall be taxed as costs as provided in Sec. 19.2-386.12. Upon the return of the appraisal, the owner or lien holder may give a bond payable to the Commonwealth, in a penalty of the amount equal to the appraised value of the property plus the court costs which may accrue, with security to be approved by the clerk and conditioned for the performance of the final judgment of the court, on the trial of the information. A further condition shall be that, if upon the hearing on the information, the judgment of the court is that such property, or any part thereof, or such interest and equity as the owner or lien holder may have therein, is forfeited, judgment may thereupon be entered against the obligors on such bond for the penalty thereof, without further or other proceedings against them thereon, to be discharged by the payment of the appraised value of the property so seized and forfeited, and costs. Upon such judgment, execution may issue, on which the clerk shall endorse, "No security to be taken." Upon giving of the bond, the property shall be delivered to the owner or lien holder. (1989, c. 690.)
14. Sec. 19.2-386.8. Exemptions. — The following exemptions shall apply to property otherwise subject to forfeiture: 1. No conveyance used by any person as a lawfully certified common carrier in the transaction of business as a common carrier may be forfeited under the provisions of this section unless the owner of the conveyance was a consenting party or privy to the conduct giving rise to forfeiture or knew or had reason to know of it. 2. No conveyance may be forfeited under the provisions of this section for any conduct committed by a person other than the owner while the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof. 3. No owner's interest may be forfeited under this chapter if the court finds that: a. He did not know and had no reason to know of the conduct giving rise to forfeiture; b. He was a bona fide purchaser for value without notice; and c. The conduct giving rise to forfeiture occurred without his connivance or consent, express or implied. 4. No lien holder's interest may be forfeited under this chapter if the court finds that: a. The lien holder did not know of the conduct giving rise to forfeiture at the time the lien was granted; b. The lien holder held a bona fide lien on the property subject to forfeiture and had perfected the same in the manner prescribed by law prior to seizure of the property; and c. The conduct giving rise to forfeiture occurred without his connivance or consent, express or implied. In the event the interest has been sold to a bona fide purchaser for value in order to avoid the provisions of this chapter, the Commonwealth shall have a right of action against the seller of the property for the proceeds of the sale. (1989, c. 690.)
15. Sec. 19.2-386.10. Trial. — A. A party defendant who fails to appear as provided in Sec. 19.2-386.9 shall be in default. The forfeiture shall be deemed established as to the interest of any party in default upon entry of judgment as provided in Sec. 19.2-386.11. Within 21 days after entry of judgment, any party defendant against whom judgment has been so entered may petition the Department of Criminal Justice Services for remission of his interest in the forfeited property. For good cause shown and upon proof that the party defendant's interest in the property is exempt under subdivision 2, 3 or 4 of Sec. 19.2-386.8, the Department of Criminal Justice Services shall grant the petition and direct the state treasury to either (i) remit to the party defendant an amount not exceeding the party defendant's interest in the proceeds of sale of the forfeited property after deducting expenses incurred and payable pursuant to subsection B of Sec. 19.2-386.12 or (ii) convey clear and absolute title to the forfeited property in extinguishment of such interest. If any party defendant appears in accordance with Sec. 19.2-386.9, the court shall proceed to trial of the case, unless trial by jury is demanded by the Commonwealth or any party defendant. At trial, the Commonwealth has the burden of proving that the property is subject to forfeiture under this chapter. Upon such a showing by the Commonwealth, the claimant has the burden of proving that the claimant's interest in the property is exempt under subdivision 2, 3 or 4 of Sec. 19.2-386.8. The proof of all issues shall be by a preponderance of the evidence. B. The information and trial thereon shall be independent of any criminal proceeding against any party or other person for violation of law. However, upon motion and for good cause shown, the court may stay a forfeiture proceeding that is related to any indictment or information. (1989, c. 690; 1991, c. 560.)
16. I do not understand how the Department of Criminal Justice Services is able to overrule a Circuit Court's decision, but the language in the statute is plain and unambiguous.
17. For example, what occurs if the criminal case is lost before the forfeiture trial begins? Does the loss in the criminal trial collaterally estop the Commonwealth from going forward in the forfeiture case? See, United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099 (1984) & Moore v. United States, 360 F.2d 353 (1966).
About the Author: Thomas G. Shaia, a native Richmonder, has been a prosecutor for 10 years. After graduating from George Mason University in 1985, he received his law degree in 1988 from the Franklin Thomas Backus School of Law at Case Western Reserve University in Cleveland, Ohio. He was employed as an assistant commonwealth's attorney for the City of Richmond until 1993 and began with Henrico County in 1994. For the past four years, he has been in charge of all the drug asset forfeiture cases in Henrico County and has given training seminars to law enforcement agencies throughout Virginia. He is a member of the VBA Criminal Law Section and currently serves as president of the Henrico County Bar Association. Return to Top
What's in a name?
That which we call a rose
By any other name would smell as sweet.
— Romeo & Juliet, William Shakespeare
If Juliet only knew what a name could be worth in today's marketplace, she may have given second thought to her declaration about the value of a name. In today's competitive environment, a company's trademark may be one of the most valuable assets it owns. That's why it is crucial for a company to take care in selecting, using and protecting its trademarks.
In the United States, a person obtains legal rights in a trademark simply by using the mark in commerce. The first person to use a mark to identify a particular product or service can prevent all others from using the same mark, or any similar mark that is likely to cause confusion among consumers, to identify a similar product or service. Whether a mark is likely to cause confusion among consumers is determined by a combination of factors, including the sound, meaning and appearance of the two marks, the similarity in the products or services identified by the marks, and the channels of trade in which the two products or services are sold. Prior to finalizing the selection of a new mark, it is always wise to order a professional trademark search to determine if your chosen mark is already being used.
While trademark rights are based primarily on first use, such rights extend only to the geographic area in which the mark is used, unless they are federally registered. Congress enacted the Lanham Act in 1946 to allow persons to register their trademarks with the U.S. Patent & Trademark Office ("PTO"). Although it is not necessary, registration affords trademark owners several benefits, including 1) nationwide protection — even if a mark is currently only used in one part of the United States, federal registration allows the owner to have senior rights in the mark anywhere in the country; 2) constructive notice — no one can claim that he did not know a particular trademark was already in use; 3) presumption of validity, ownership and exclusive rights in the mark; and 4) possible recovery of additional monetary damages against infringers of the mark.
Selecting a trademark
While most people realize that it is important to choose a trademark that is easily identified and remembered, many people do not realize that it is equally important to select a trademark that is legally protectable. It does a company no good to choose a memorable trademark, only to find out later that the mark is not entitled to legal protection.
Trademarks are generally categorized into five degrees of strength based on protectability:
The strongest type of mark is a coined mark — one that is completely invented, such as KODAK or OREO.
The next strongest is an arbitrary mark, which is a real word used out of its ordinary context, such as CAMEL cigarettes or GAP clothes.
Suggestive marks, such as HEFTY trash bags, hint at an attribute of the product they identify; these marks are protectable, but are not as strong as coined or arbitrary marks.
Descriptive marks are ones that explicitly describe the product or an attribute of the product (or service), such as THE COMPUTER STORE for a store that sells computers; descriptive marks are not given legal protection until they have been used so extensively that consumers recognize that the mark identifies the particular product for which it is used.
Finally, generic terms, which are dictionary words used generally to describe a particular item, such as "potato chips" or "computers," are free for all to use and are never given any legal protection. Weaker marks are less protectable in two respects: 1) they may not be granted registration by the PTO, and 2) the owner of the mark may be unable to stop another person from using a similar mark.
Using, maintaining and protecting your trademarks
A trademark owner can lose the rights he possesses in his marks, whether registered or unregistered, if he does not properly protect and use his marks. First, it is crucial to prevent infringing uses because a trademark owner can lose his rights in his marks if he fails to protect their use. Therefore, a trademark owner should always be on the lookout for other marks that could pose a likelihood of confusion among the public.
Secondly, a trademark owner must use his trademarks properly. The following are a few points to keep in mind in using your marks:
1. Unregistered trademarks should always be tagged with a TM symbol; unregistered service marks should be tagged with an SM symbol. Registered trademarks and service marks should be tagged with the ® symbol.
2. Use trademarks only as adjectives followed by the generic name of the product. For example, "Xerox copiers" is a proper usage of the Xerox trademark. "Use a Xerox" (as a noun) or "Xerox these documents" (as a verb) are both improper usages.
3. Use your trademarks consistently. The mark should not be altered from the form that has been registered. If it is a design, do not combine it with other elements or rearrange the elements of the design.
4. Do not allow "naked licensing" of your marks. Although trademark owners are free to allow others to use their marks, the owner must always maintain control over the quality of the goods or services identified by the marks. When allowing others to use your marks, be sure to have the other users enter into well-drafted license agreements that allow you to retain control of the mark.
Conclusion
A rose is not necessarily a rose by any other name. Much of the value of a commercial product or service is in the reputation and good will associated with its name. Unfortunately, many companies often overlook the importance of trademark protection — until a problem arises. Take care early in the selection of a new trademark to prevent others from trampling over your roses later on.
About the Author: Kenneth E. Liu is an associate in the Technology & Intellectual Property Section of the law firm of Williams, Mullen, Clark & Dobbins in its Tysons Corner office. He received his law degree from Cornell University. His practice focuses on trademark prosecution, intellectual property litigation, technology licensing and Year 2000 matters. Mr. Liu can be reached at kliu@wmcd.com or (703) 760-5200. Return to Top
The Virginia Bar Association's Committee on Special Issues of State and National Importance is pleased to present The Honorable William H. Webster, former director of the Central Intelligence Agency and of the Federal Bureau of Investigation, as the Summer Meeting banquet speaker.
Judge Webster, now with the law firm of Milbank, Tweed, Hadley & McCloy in its Washington office, will speak on "The Changing Face of Terrorism — New Threats to American Liberties and Security" during the banquet on Friday evening, July 16.
Judge Webster's appearance at the Summer Meeting banquet is the first in a series planned by the VBA Committee on Special Issues of State and National Importance. The Committee, chaired by former Governor Gerald L. Baliles of Richmond, seeks to bring notable speakers on current issues to VBA meetings and events, and to develop programs of interest to VBA members.
Eleven continuing legal education programs, sponsored by VBA sections, task groups and committees, will be offered July 15-17 during the Association's 109th Summer Meeting at The Greenbrier.
And because the meeting falls during July, the grace period for earning and reporting 1998-99 credits to the Virginia State Bar, VBA members who attend the Summer Meeting can catch up on their CLE credit requirements or start accumulating credits toward their 1999-2000 CLE reports.
Four general sessions, including one postponed from the Annual Meeting in January, highlight the Summer Meeting schedule.
"The New Standards of Learning and the Law: Worthy Goals or Unfair Results?" will be presented at 10:30 a.m. on Friday, July 16, by the VBA Committee on Issues of State and National Importance. Hon. W. Tayloe Murphy Jr., a member of the House of Delegates and a former VBA treasurer, will serve as moderator.
Panelists will include Rev. George E. Conway, headmaster of St. Anne's-Belfield School in Charlottesville, Del. Kenneth R. Plum (D-Reston), and State Board of Education Chair Kirk T. Schroder of Richmond. Reactors will be Carole M. Agee of Woods, Rogers & Hazlegrove in Roanoke, Prof. Lawrence Cross of Virginia Tech, and reporter Pamela Stallsmith of the Richmond Times-Dispatch.
"Courts Under Attack: Examining Judicial Criticism and Closer Cooperation with the Community" will be moderated by Norfolk Circuit Court Judge Charles E. Poston and will feature Judge Robert K. Pirraglia of the District Court of Rhode Island. The program, to be offered at 1:30 p.m. on Friday, July 16, was originally scheduled for this year's Annual Meeting, but was postponed when a Northeastern ice storm stranded Judge Pirraglia en route to Williamsburg.
Professionalism Task Force Chair Thomas E. Spahn of McGuire, Woods, Battle & Boothe in Richmond will discuss "Ethics in the Information Age" at 3 p.m. on Friday, July 16.
The VBA Health Law Section will present "The Clinical Aspects of Sexual Harassment in the Workplace — Two Views: Impact on Advice to Clients — Impact on Firm Management" at 10:30 a.m. on Saturday, July 17. Speakers will be Dr. Gene G. Abel of the Behavioral Medicine Institute in Atlanta and Dr. J. Anderson Thomson of Charlottesville.
One of last year's Summer Meeting general sessions, "The Year 2000 and You: Debacle or Distraction," will return this year as an "early bird" videotape session on Thursday, July 15, at 3 p.m.
A complete schedule of Summer Meeting CLE programs, including credits available for each session, is listed below.
Noon-12:30 p.m.
Executive Committee Luncheon
12:30-4:30 p.m.
Executive Committee Meeting
2-6 p.m.
Registration/Information
3-5 p.m.
Early Bird CLE Program (See separate listing)
6-7 p.m.
Opening Reception (Members, guests and children welcome)
8-9 a.m.
Past Presidents & Life Members Breakfast
8:30 a.m.-6 p.m.
Registration/Information
9-10:30 a.m.
Spouse Program: Culinary Demonstration
9-10:30 a.m.
CLE Programs (See separate listing)
10:30 a.m.-Noon
General Session I (1.5 CLE Credits)
A Presentation of the Special Issues of State and National Importance Committee
"The New Standards of Learning and the Law: Worthy Goals or Unfair Results?"
12:30-5 p.m.
Recreational Tournaments
12:30-2 p.m.
Women's Roundtable Luncheon (Separate registration required.)
1:30-3 p.m.
General Session II (1.5 CLE Credits)
A Presentation of the Judicial Section
"Courts Under Attack: Examining Judicial Criticism and Closer Cooperation with the Community"
3-4:30 p.m.
General Session III (1.5 Credits/1.5 Ethics)
A Presentation of the Professionalism Task Group
"Ethics in the Information Age"
6:30-7:30 p.m.
Reception (black tie)
Courtesy of CSX Corporation and Norfolk Southern Corporation
Host: CSX Corporation
7:30-10 p.m.
Banquet (black tie)
Recognition of 1999 Life Members
Special Guest Speaker:
The Hon. William H. Webster
Milbank, Tweed, Hadley & McCloy-Washington, DC
Former CIA and FBI Director
10:30 p.m.-Midnight
Cigar Smoker
Post-banquet event offering after-dinner cordials and premium cigars
(Register separately-two superior cigars are included in registration)
8-9:30 a.m.
YLD Executive Committee and Council Breakfast Meeting
8:30 a.m.-1 p.m.
Registration/Information
9-10:30 a.m.
CLE Programs (See separate listing)
10:30 a.m.-Noon
General Session IV (1.5 CLE Credits)
A Presentation of the Health Law Section
"The Clinical Aspects of Sexual Harassment in the Workplace-Two Views:
Impact on Advice to Clients-Impact on Firm Management"
12:30-5 p.m.
Recreational Tournaments
2-3:30 p.m.
Ladies' Beginners Golf Lesson (Separate registration required)
6:30-7:30 p.m.
Reception (Black tie)
Courtesy of Lexis Law Publishing
7:30 p.m.
Dinner by individual arrangement Return to Top
Eleven continuing legal education programs will be offered during The Virginia Bar Association's 109th Summer Meeting, July 15-17, at The Greenbrier. A total of 11 credits (including 3 ethics credits) will be available to members attending the meeting.
Because the Summer Meeting occurs within the "grace period" for attorneys' CLE reports, credits earned during the Summer Meeting may be applied to fulfill lawyers' obligations for 1998-99 or for 1999-2000, depending on individual needs.
3-5 p.m.
Corporate Counsel Section
Early Bird Videotape Presentation
"The Year 2000 and You: Debacle or Distraction"
2 Credits
9-10:30 a.m.
Real Estate Section
"The Terrible Saga of the Effect of Recent Bankruptcy Cases on Retail Leases"
1.5 Credits
9-10:30 a.m.
Business Law Section
"Risky Business: Keeping Current with Changes in Securities Law"
1.5 Credits
9-10:30 a.m.
Domestic Relations Section and Criminal Law Section
9-10 a.m.: "You've Got Mail! Have You Got More Problems Than Y2K? Chat Rooms, E-mails and the Internet as Evidence in Divorce Cases: Information Privacy Rights, Admissibility and Criminal Liability"
10-10:30 a.m.: "Practical Update on the Revised Child Support Statute: A Primer on the
Amendments to Virginia Code § 20-108.2"
1.5 Credits
10:30 a.m.-Noon
General Session I
Committee on Special Issues of State and National Importance
"The New Standards of Learning and the Law: Worthy Goals or Unfair Results?"
1.5 Credits
1:30-3 p.m.
General Session II
Judicial Section
"Courts Under Attack: Examining Judicial Criticism and Closer Cooperation with the Community"
1.5 Credits
3-4:30 p.m.
General Session III
Professionalism Task Group
"Ethics in the Information Age"
1.5 Credits/1.5 Ethics
9-10:30 a.m.
Civil Litigation Section
"Streamlining Jury Trials in the Next Millennium: The New Civil Trial Practice Standards"
1.5 Credits
9-10:30 a.m.
Intellectual Property Law Section
"The Uniform Computer Information Transactions Act: To Be, But Not [Article] 2B"
1.5 Credits
9-10:30 a.m.
Substance Abuse Committee
"Signs and Symptoms of a Lawyer in Distress: The Red Flags of Alcohol and Drug Addiction"
1.5 Credits/1.5 Ethics
10:30 a.m.-Noon
General Session IV
Health Law Section
"The Clinical Aspects of Sexual Harassment in the Workplace—Two Views:
Impact on Advice to Clients—Impact on Firm Management"
1.5 Credits
A special program is being planned for children ages 5-12 during the formal Friday evening reception and banquet on July 16. For only $10 per child, from 6 p.m. to midnight, children will have dinner and be entertained with activities, including a movie. Register for this program on the accompanying meeting registration form.
Children are always special at The Greenbrier. Every day, a full schedule of organized fun is offered for children and young people, divided into age groups 3-5, 6-9 and 10-12. Registration and other information on these programs is available through The Greenbrier's Special Activities Desk at 1-800-624-6070, extension 7196.
Other babysitting needs may be arranged on an hourly basis through The Greenbrier's Housekeeping Department at extension 7215. Return to Top
In addition to business meetings and CLE sessions, the Summer Meeting will provide VBA members with numerous opportunities for networking and collegiality.
The welcoming reception on Thursday, July 15, from 6 to 7 p.m., will be open to all VBA members and their guests, including children.
Past VBA presidents and Life Members will breakfast together on Friday, July 16, from 8 to 9 a.m.
Later that day, women members of the VBA will gather for a roundtable luncheon from 12:30 to 2 p.m. Separate registration is required.
Following the Friday evening banquet, a cigar smoker will feature after-dinner refreshments, a collegial atmosphere, and premium cigars from 10:30 p.m. to midnight (in a well-ventilated area, of course). Separate registration is required for those who plan to indulge in cigars. Nonsmokers are invited to attend and may purchase refreshments during the event.
Business and breakfast will blend on Saturday, July 17, when the VBA Young Lawyers Division Executive Committee and Council holds its summer meeting from 8 to 9:30 a.m. Return to Top
All over Virginia, athletic VBA members are honing their skills for the annual Summer Meeting recreational tournaments.
The golf tournament on The Greenbrier Course will begin with a shotgun start on Saturday, July 17, at 12:30 p.m. Teams of four will participate. Details will be mailed with meeting registration confirmation material. John Epps of Richmond will chair the tournament.
Other tournaments open to Summer Meeting attendees will include tennis, croquet, skeet and trap shooting, and "Race Mobiles" for runners. A beginners' golf lesson for ladies will be offered from 2 to 3:30 p.m. on Saturday, July 17. Return to Top
Summer Meeting brochures, including registration information and forms, were mailed in mid-May to all VBA members. Information about the Summer Meeting was posted on the VBA website at that time.
The form may also be downloaded from the "CLE/Meetings" page of the VBA website. If all else fails, call the VBA office at (804) 644-0041 and request a form to be faxed to you. Return to Top
This year's Summer Meeting spouse/guest program will be a culinary demonstration and tasting on Friday, July 16, from 9 to 10:30 a.m.
Take home recipes and the know-how for special selections by The Greenbrier's Chef!
Spouses and guests may register for this program on the meeting registration form. Return to Top
There are three ways to reserve your room at The Greenbrier:
By phone: call toll-free at 1-800-624-6070;
By mail: mail the hotel's reservation form to Reservations Department, The Greenbrier, 300 West Main Street, White Sulphur Springs, West Virginia 24986; or
By fax: fax the hotel's reservation form to (304) 536-7818.
Reservations must be made by June 7, 1999, in order to guarantee the VBA's
group rate.
NOTE: Do not send the hotel reservation form to the VBA office! Hotel reservations
must be made directly with The Greenbrier, using one of the methods listed above.
Return to Top
With the official conclusion of the 1999 General Assembly, The Virginia Bar Association's members, leaders and staff can look back on a successful session. Naturally, all bills supported by the Association did not pass, but VBA influence was felt in a number of legislative areas.
Here, the VBA News Journal presents its annual "scorecard" to illustrate how bills of interest to VBA members fared in this year's session. This is not meant to be a complete or comprehensive account of legislative activity; for more detailed information, visit http://leg1.state.va.us on the Internet.
BUDGET
Description: Legal aid restrictions
Committee: Access to Justice
Disposition: MODIFIED (Watered down)/VBA OPPOSED
BUDGET
Description: Legal aid supplement
Committee: Access to Justice
Disposition: $250,000 add'l/VBA ENDORSED
HJ 501
Description: Joint subcommittee study of Freedom of Information Act
Chief Patron: Woodrum, D-Roanoke
Section: Administrative Law
Disposition: PASSED
HB 1985
Description: Freedom of Information Act amendments
Chief Patron: Woodrum, D-Roanoke
Section: Administrative Law
Disposition: PASSED
SB 1023
Description: Freedom of Information Act amendments
Chief Patron: Bolling, R-Hanover
Sections: Administrative Law, Criminal Law
Disposition: PASSED
HB 699
Description: Coverage for hospice care; accident/sickness insurance
Chief Patron: Callahan, R-McLean
Sections: Business Law, Health Law
Disposition: PASSED
HB 871
Description: Health care coverage networks
Chief Patron: Griffith, R-Salem
Sections: Business Law, Health Law
Disposition: PASSED
HB 1873
Description: Securities; exemptions from registration
Chief Patron: Callahan, R-McLean
Sections: Business Law, Corporate Counsel
Disposition: PASSED/VBA
HB 2441
Description: Shareholder actions without a meeting
Chief Patron: Cantor, R-Richmond
Sections: Business Law, Corporate Counsel
Disposition: PASSED/VBA
HB 2719
Description: Corporations, proxies, electronic and other authorization
Chief Patron: Cantor, R-Richmond
Sections: Business Law, Corporate Counsel
Disposition: PASSED/VBA
HB 2721
Description: Corporations; electronic notices of shareholders meeting
Chief Patron: Cantor, R-Richmond
Sections: Business Law, Corporate Counsel
Disposition: PASSED/VBA
HJ 558
Description: NCCUSL briefings: revisions to Article 9 of UCC
Chief Patron: Morgan, R-Gloucester
Sections: Business Law, Corporate Counsel
Disposition: PASSED
SB 1235
Description: Health care coverage networks
Chief Patron: Williams, R-Newport News
Sections: Business Law, Health Law
Disposition: PASSED
SB 1269
Description: Virginia Electric Utility Restructuring Act
Chief Patron: Norment,
Sections: Business Law, Corporate Counsel
Disposition: PASSED
HB 1660
Description: Compensation of appointed counsel
Chief Patron: Almand, D-Arlington
Sections: Civil Litigation, Criminal Law, Domestic Relations
Disposition: FAILED/VBA
HB 2530
Description: Summary judgment on depositions
Chief Patron: McClure, R-Centreville
Sections: Civil Litigation, Judicial
Disposition: FAILED/VBA
HB 2359
Description: Extensions for filing
Chief Patron: Almand, D-Arlington
Sections: Civil Litigation, Criminal Law, Judicial, Domestic Relations
PASSED
SB 187
Description: Jury selection (random selection)
Chief Patron: Gartlan, D-Mason Neck
Sections/Committees: Civil Litigation, Criminal Law, Judicial, Judiciary
Disposition: PASSED
SB 412
Description: Subpoenas issued by attorneys
Chief Patron: Mims, R-Leesburg
Section: Civil Litigation
Disposition: FAILED/VBA
SB 1230
Description: Limitations on recovery in medical malpractice cases
Chief Patron: Marsh, D-Richmond
Sections: Civil Litigation, Health Law
Disposition: PASSED
HB 2391
Description: Public Procurement Act; withdrawal of bid
Chief Patron: Cantor, R-Richmond
Section: Construction & Public Contracts
Disposition: PASSED/VBA
HB 2393
Description: Public Procurement Act; standard of review
Chief Patron: Cantor, R-Richmond
Section: Construction & Public Contracts
Disposition: PASSED W/GOV.'S AMDTS./VBA
HB 2431
Description: Construction contracts
Chief Patron: Davies, D-Culpeper
Section: Construction & Public Contracts
Disposition: PASSED/VBA
HB 2584
Description: Public Procurement Act; legal actions
Chief Patron: Davies, D-Culpeper
Section: Construction & Public Contracts
Disposition: FAILED/VBA
HJ 680
Description: Study insanity defense in juvenile delinquency proceedings
Chief Patron: McEachin, D-Richmond
Sections/Committees: Criminal Law, Judicial, Judiciary, Children, Mentally Disabled
Disposition: PASSED/VBA
HB 2298
Description: Capital case bills of review
Chief Patron: Almand, D-Arlington
Section: Criminal Law
Disposition: FAILED
HB 1505
Description: Court decrees as to marital property
Chief Patron: Darner, D-Arlington
Section/Committee: Domestic Relations, Children
Disposition: FAILED/VBA OPPOSE
HB 1685
Description: Required parent education; custody cases
Chief Patron: Reid, R-Richmond
Section/Committee: Domestic Relations, Children
Disposition: FAILED/VBA OPPOSE
HB 2407
Description: Determination of child support
Chief Patron: Barlow, D-Smithfield
Section/Committee: Domestic Relations, Children
Disposition: PASSED/VBA
HB 2736
Description: Covenant marriages
Chief Patron: McDonnell, R-Virginia Beach
Section/Committee: Domestic Relations, Children
Disposition: FAILED/VBA OPPOSE
SB 1085
Description: Determination of child support
Chief Patron: Gartlan, D-Mason Neck
Section/Committee: Domestic Relations, Children
Disposition: PASSED/VBA
SB 1044
Description: Department for the Aging
Chief Patron: Forbes, R-Chesapeake
Section: Elder Law
Disposition: FAILED
HB 2427
Description: Patient health records
Chief Patron: S.C. Jones, R-Suffolk
Section/Committee: Health Law, Mentally Disabled
Disposition: PASSED W/GOV.'S AMDTS.
HB 2452
Description: Patient health records
Chief Patron: Williams, D-Norfolk
Section/Committee: Health Law, Mentally Disabled
Disposition: VETOED
HB 2540
Description: Health care decisions
Chief Patron: Marshall, R-Manassas
Sections/Committees: Health Law, Mentally Disabled, Wills, Trusts & Estates
Disposition: FAILED/VBA OPPOSE
HB 2541
Description: Health Care Decisions Act
Chief Patron: Marshall, R-Manassas
Sections/Committees: Health Law, Mentally Disabled, Wills, Trusts & Estates
Disposition: FAILED/VBA OPPOSE
HB 2620
Description: Privacy of patient health records
Chief Patron: S.C. Jones, R-Suffolk
Section/Committee: Health Law, Mentally Disabled
Disposition: FAILED
SB 1010
Description: Patient health records
Chief Patron: Gartlan, D-Mason Neck
Section/Committee: Health Law, Mentally Disabled
Disposition: PASSED W/GOV.'S AMDTS.
SB 1158
Description: Patient records (organ donations)
Chief Patron: Gartlan, D-Mason Neck
Sections/Committees: Health Law, Civil Litigation, Mentally Disabled
Disposition: PASSED
SB 1174
Description: End-of-life decisions
Chief Patron: Woods, R-Fairfax
Sections: Health Law, Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 1727
Description: Creation of Secretary of Technology
Chief Patron: Scott, D-Merrifield
Section: Intellectual Property
Disposition: PASSED
SB 808
Description: Creation of Secretary of Technology
Chief Patron: Schrock, R-Virginia Beach
Section: Intellectual Property
Disposition: PASSED
HB 2215
Description: Appeal of interlocutory orders
Chief Patron: Davies, D-Culpeper
Committee: Judiciary
Disposition: FAILED/VBA
HB 2297
Description: Notice of judicial vacancies
Chief Patron: Almand, D-Arlington
Committee: Judiciary
Disposition: PASSED/VBA
HB 2319
Description: Appellate jurisdiction, Court of Appeals (pendente lite)
Chief Patron: Almand, D-Arlington
Committee: Judiciary
Disposition: FAILED/VBA
HB 2524
Description: Local judicial nominations committee; procedures for selection/appointment of judges
Chief Patron: Clement, D-Danville
Committee: Judiciary
Disposition: FAILED/VBA
SB 1157
Description: Qualifications for judicial candidates
Chief Patron: Gartlan, D-Mason Neck
Committee: Judiciary
Disposition: FAILED/VBA
BUDGET
Description: Judicial salaries
Section: Judicial
Disposition: 6.25% RAISE APPROVED/VBA SUPPORTED
SB 1278
Description: Real estate settlement agent registration
Chief Patron: Barry, R-Fairfax
Sections: Law Practice Management, Real Estate
Disposition: PASSED
HB 1441
Description: Courts of record; indexing by tax map reference
Chief Patron: Wilkins, R-Amherst
Section: Real Estate
Disposition: PASSED/VBA
SB 730
Description: Courts of record; indexing by tax map reference
Chief Patron: Potts, R-Winchester
Section: Real Estate
Disposition: PASSED/VBA
HB 841
Description: Prudent Investor Rule; Uniform Act
Chief Patron: Clement, D-Danville
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 842
Description: Uniform Principal & Income Act
Chief Patron: Clement, D-Danville
Section: Wills, Trusts & Estates
Disposition: PASSED W/GOV.'S AMDTS./VBA
HB 1633
Description: Guardians and wards
Chief Patron: Cantor, R-Richmond
Sections/Committees: Wills, Trusts & Estates, Children, Civil Litigation
Disposition: PASSED/VBA
HB 1945
Description: Relating to funeral expenses
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 1946
Description: Relating to vouchers of fiduciaries
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 1996
Description: Relating to pour-over wills
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 1997
Description: Relating to tenancies by the entireties
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 1998
Description: Grant of powers to a personal representative of trustee by circuit court
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED W/GOV.'S AMDTS./VBA
HB 1999
Description: Powers granted to personal representatives of estates
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 2000
Augmented estates; exclusions; valuation
Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 2001
Description: Duties of attorneys-in-fact empowered to act under § 11-9.1
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: PASSED/VBA
HB 2002
Description: Prohibition against certain persons serving as fiduciaries
Chief Patron: Howell, R-Fredericksburg
Section: Wills, Trusts & Estates
Disposition: FAILED/VBA
HB 2333
Description: Rule against perpetuities and inter-vivos transfers
Chief Patron: McClure, R-Centreville
Section: Wills, Trusts & Estates
Disposition: FAILED/VBA OPPOSE Return to Top
A state-of-the-art videoconference ending in a flash of virtual fireworks highlighted the official unveiling of the new Education and Technology Center at the National Center for State Courts (NCSC) in Williamsburg on April 9.
The "Ed Tech Center," as it is known, is a high-tech, state-of-the-art facility dedicated to distance learning and new technology for judges, administrators and others involved with state courts throughout the United States.
"To borrow a word from the younger generation, this is an awesome place," said Delaware Chief Justice E. Norman Veasey, a member of the NCSC board of directors.
The Ed Tech Center's studio classroom allows NCSC to demonstrate the latest developments in court technology and to broadcast workshops and seminars throughout the United States and the world by the Internet, videoconferencing and/or digital satellite transmission.
Presentation technology provided by the studio includes digital video capture and editing, digital video disc and compact disc, and computer and video projection on a large screen.
Judges, court administrators and others can participate in NCSC programs through use of laptop computers. Each of the 43 stations in the Ed Tech Center studio has direct Internet access, along with microphones for videoconferences.
"Person-to-person contact is important," said one participant, "but it's not the only way [to communicate]."
Those sentiments were echoed by Arizona Chief Justice Thomas Lackett. "This center has limitless potential for better preparation of judges and staff, for an enriched relationship between NCSC and the courts, for greater efficiency at reduced cost to taxpayers. We're not linking machines. We're linking people."
As with any new endeavor, there were a few technical snafus which punctuated the ceremonies with feedback, echoes and good-natured laughter. A satellite link to Mexico City, which would have allowed several Mexican judges to participate in the program, did not proceed as planned, but was the only major glitch during the event.
Former VBA Executive Committee member and William & Mary Law Professor A. Mechele Dickerson, however, was linked into the program from W&M's Marshall-Wythe School of Law, located next door to NCSC. Speaking from "Courtroom 21," W&M's high-tech moot courtroom (and a joint effort with NCSC), Prof. Dickerson brought greetings from the law school's faculty and students.
"This studio is now the premier information source for courts," commented NCSC board member and court administrator William C. Vickrey of San Francisco. "But it used to be full of junk and even had a dirt floor in the 1980s."
A junk dump no more, the Ed Tech Center now serves as a permanent home for two NCSC programs.
The Court Technology Laboratory, funded by the State Justice Institute, helps courts to find appropriate new technology and vendors to improve operations. It receives loans and donations of hardware and software from numerous vendors who participate in onsite and remote demonstrations.
The Court Executive Development Program of NCSC's Institute for Court Management provides comprehensive instruction in technical, interpersonal and conceptual skills needed by court managers and leaders.
Toward that end, the staff of the Ed Tech Center is developing two video courses and already has created two Internet courses, currently posted on the NCSC website.
"The Ed Tech Center is always going to be a work in progress," said NCSC Chair David A. Brock, chief justice of the Supreme Court of New Hampshire. "There will be constant upgrading."
Brock, Vickrey, and NCSC President Roger Warren joined Virginia Chief Justice Harry L. Carrico to perform a virtual ribbon-cutting at the ceremony's end. As the four "pushed" an onscreen button, an image of scissors slicing through a ribbon appeared, to be followed by fireworks and applause.
A reception provided an opportunity for all onsite attendees to greet each other and marvel at the technological advances demonstrated during the unveiling ceremony.
The National Center for State Courts was founded by the nation's state chief justices in 1971 with the support of then-Chief Justice Warren E. Burger.
NCSC is a nonprofit organization which seeks to improve the administration of justice through the creation of new knowledge about judicial administration, the exchange of information about judicial administration, and applying its knowledge to help solve court operational problems, meet future court needs, and support the projects and policies of state courts and state court associations.
NCSC carries out this mission through its offices in Williamsburg and Arlington and in Denver, Colorado.
Persons wanting to learn more about the National Center for State Courts, its Ed Tech Center, and its mission are invited to visit the NCSC website at http://www.ncsc.dni.us/, or may phone NCSC at (757) 253-2000. Return to Top
A genuine exchange of views on current directions marked the third session of the four-part University of Richmond Law School symposium commemorating the centennial of the juvenile courts in America.
After a presentation of the historical background of juvenile courts in the United States in the first program on January 26 and of juvenile courts in Virginia on February 23, there was a clash of perspectives in an assessment of juvenile justice reforms over the last decade on March 16.
Hunter Hurst III of Pittsburgh, director of the National Center for Juvenile Justice, addressed the legislative and administrative changes during the past 10 years. He viewed the shifts in jurisdictions, sentencing, corrections, confidentiality and treatment of victims as a mixed bag of reforms, but characterized them generally as a shift from an optimistic to pessimistic outlook on children in the judicial system.
This perspective was inherent also in reactive remarks by Delegate Jerrauld Jones (D-Norfolk), but contested sharply by the second reactor, Delegate Robert McDonnell (R-Virginia Beach), who saw the changes over the 1990s as driven by new realities in the broad culture of the United States and as generally correct responses.
The fourth and last of the symposia on April 20 saw noted New Orleans Juvenile Judge Ernestine Gray, the principal speaker, offer an optimistic future view of what the juvenile court system could (and should, in her view) look like in the new century.
Sharon England, chair of the Citizens Advisory Council for the Richmond Juvenile Court and herself a Richmond lawyer, supported Judge Gray's outlook in her statement as the first of two reactors, stressing that accountability must be linked with early intervention and collaboration in the entire system.
A novel perspective characterized the second reactor, F.G. Rockwell IV, a honor student at the Governor's School in Richmond. He especially spoke to the central role of the educational system as a major environmental factor in considering the state of juvenile justice. As in the earlier sessions, a lively question-and-answer period followed the presentations.
An informal "birthday party" for the 100th year of the juvenile and family courts closed the symposium, replete with balloons, cake and ice cream to enhance the celebratory air. Return to Top
During the spring meeting of The Virginia Bar Association's Executive Committee, held in Richmond April 16-17, committee members and guests made side trips to such legal landmarks as the John Marshall House and St. John's Church.
At the latter site, the group attended a reenactment of Patrick Henry's "Give me liberty or give me death!" speech. VBA President David Craig Landin donned a wig and clerical garb and joined interpreters in the living history presentation. Return to Top
The VBA Transportation Law Section's Air & Space Committee has held programs on a variety of aviation-related issues over the years. They've flown to Wallops Island and Pax River, met under Admiral Byrd's plane at the Virginia Aviation Museum and explored Langley's Air & Space Center.
Now they've burned a plane.
While Committee Chair Matt Broughton of Roanoke appreciated the attention-grabbing qualities of such an action ("That should get people excited!"), the more serious objective of the seminar, held March 6 at the Roanoke Regional Airport, was to learn about smoke and fire safety procedures in and on aircraft and the related legal issues.
The seminar, attended by 75 aviators, guests and vendors, was highlighted by a demonstration of the Commonwealth of Virginia's new airplane fire simulator.
Experts used fire demonstrations to help attendees identify different types of smoke and fire, reduce the risk of injury and errors in dealing with smoke/fire emergencies, and to discuss how airplane insurance applies to smoke/fire situations.
In addition to the Committee, seminar co-sponsors included the IFR Pilots' Club, Piedmont-Hawthorne Aviation, Virginia Aviation Trades Association, Roanoke Regional Airport, Virginia Airport Operators Council, Roanoke Fire & Rescue, and the Virginia Departments of Aviation and Fire Programs.
Any VBA member with an interest in aviation and aviation law is welcome to join the Air & Space Committee, one of four modal committees of the Transportation Law Section. Persons seeking more details about the Committee are invited to contact Matt Broughton at Gentry Locke Rakes & Moore in Roanoke, (540) 983-9407. Return to Top
State Senator Joseph V. Gartlan Jr. (D-Mason Neck) delivered the keynote address at the Fifth Annual Administrative Law Conference at the Omni Richmond on May 13. The senator, who will retire at the close of his current term, chose "Looking Back on a Legislative Career in Administrative Law" as his topic. Return to Top
The Virginia Law Foundation (VLF) Board of Directors has approved 30 grant awards totaling $476,181 for funding during its 1999-2000 fiscal year.
The VLF supports projects that provide civil legal services to low-income Virginians, improvements in the administration of justice, law-related public education and summer internships for law students.
The five VBA programs which received VLF grants are as follows:
Pro Bono Hotline Training, $3,500. VLF funds will support the ongoing collaborative effort of the VBA and various legal aid societies across the state, in which VBA/YLD volunteers staff hotlines at various legal aid offices, and provide pro bono assistance to indigent individuals.
Domestic Violence Project, $3,000. This project is a collaborative effort of the VBA/YLD and Legal Services of Northern Virginia, to serve the legal needs of indigent domestic violence victims throughout Northern Virginia.
Seventh Annual Capital Defense Workshop, $16,950. Grant funds will assist the VBA Foundation in providing an intensive CLE program in specialized capital defense training, in order to increase the number of attorneys available for appointment in capital cases. The workshop will attempt to cover current issues related to recent decisions of the U.S. and Virginia Supreme Courts and the Fourth Circuit Court of Appeals.
Virginia Homebuyer's Manual (Third Edition), $9,225. The VBA Real Estate Section will update this manual, last revised in 1995, and will reprint and distribute 10,000 copies to the public.
Study on Offenders with Mental Retardation in Virginia, $14,000. The VBA Committee on the Needs of the Mentally Disabled, in conjunction with the Institute of Law, Psychiatry and Public Policy, will assemble and inventory programs and resources currently available for retarded offenders in Virginia, and will identify and prioritize key challenges for reform. Return to Top
The John Marshall Foundation has announced the winner of its annual award for Virginia teachers of the United States Constitution.
Linda Mundy Weekley, a teacher at Stuarts Draft High School in Augusta County, received the award from Chief Justice Harry L. Carrico of the Supreme Court of Virginia presented the award to Ms. Weekley in a ceremony at the John Marshall House in Richmond on May 3, as part of Law Day USA observances.
Ms. Weekley is an eleventh- and twelfth-grade government and sociology teacher at Stuarts Draft. A graduate of James Madison University, she has been teaching for 28 years. Return to Top
Passing through Richmond on your summer vacation? You may want to schedule time for visits to the John Marshall House in downtown Richmond and the recently restored Marshall gravesite in Shockoe Hill Cemetery, located just north of downtown Richmond.
The John Marshall House is located at 818 East Marshall Street, in Richmond's historic "Court End." (The neighborhood got its nickname in the early 1800s because so many prominent lawyers and judges lived there.) Capitol Square and other historic sites are within walking distance. Call (804) 648-7998 for visitor information.
The Marshall gravesite, restored and rededicated in 1998, is located in Shockoe Hill Cemetery and, with the house, represents the only major memorial to the "Great Chief Justice." Directions to the gravesite are posted on the John Marshall Foundation page of the VBA website. Return to Top
• Thirteen VBA members were recently announced as new Fellows of the American Bar Foundation. They are J. Rudy Austin (Gentry Locke Rakes & Moore) of Roanoke; R. Edwin Burnette (Edmunds & Williams) of Lynchburg; Robert W. Mann (Young, Haskins, Mann, Gregory & Smith) of Martinsville; VBA Secretary Wade W. Massie (PennStuart) of Abingdon; Gordon P. Peyton of Alexandria; VBA Treasurer John R. Fletcher (Tavss, Fletcher, Maiden & King), Thomas G. Johnson Jr. (Willcox & Savage), former VBA Secretary Howard W. Martin Jr. (Crenshaw, Ware & Martin) and James R. McKenry (Heilig, McKenry, Fraim & Lollar), all of Norfolk; and Thomas A. Edmonds (Virginia State Bar), Henry H. McVey III (McGuire Woods Battle & Boothe), George H. Roberts Jr. (Christian & Barton) and Thomas E. Spahn (McGuire Woods Battle & Boothe), all of Richmond.
The Fellows, founded in 1955, is an honorary organization of attorneys, judges and law faculty whose careers have demonstrated outstanding dedication to their communities' welfare and the highest professional principles. Membership is limited to one-third of one percent of lawyers licensed to practice in each jurisdiction. The Fellows encourage and support the research program of the American Bar Foundation.
• VBA/YLD Secretary/Treasurer David N. Anthony of Norfolk, a partner in the law firm of Kaufman & Canoles, P.C., has been elected president of the Tidewater Association of Service Contractors (TASC), a professional association focusing on government contract issues and education. Terence Murphy, also a partner in Kaufman & Canoles, a VBA member and a former TASC president, has been elected as an industry representative on the Tidewater Government Industry Council (TGIC), a group of government and industry representatives who seek to address issues of mutual concern to improve the federal procurement process. Murphy also serves as general counsel of TASC.
• It's rare that a VBA section chair becomes a king, but Hon. David H. Adams of Norfolk has done just that. Come September, Judge Adams will exchange the U.S. Bankruptcy Court bench for the throne of "King Neptune XXVI" as he presides over Virginia Beach's annual Neptune Festival. Judge Adams was chosen as the community event's "ruler" from nominations submitted by the general public.
• Pizza, softball and collegiality were the order of the day at Washington
& Lee University's Lewis Hall on April 16, as the VBA Young Lawyers Division
joined the Student Bar Association and the Dean's Softball Tournament to entertain
W&L law students. More than 100 future lawyers attended the gathering, which
served up details on involvement with the VBA and the VBA/YLD, along with pepperoni
and other diversions. Return to Top
The Virginia Bar Association Young Lawyers Division web page has acquired two significant new additions.
First, a special welcoming message for new Virginia lawyers has been added. This message includes links to other pages of interest to new lawyers and VBA members on the VBA website.
The VBA's expense reimbursement form has also been added to the VBA/YLD page at the request of Secretary/Treasurer David Anthony. The PDF (portable document format) form may be downloaded and printed with Adobe Acrobat Reader® software, which may be obtained as freeware from http://www.adobe.com.
The following persons are chairing VBA Young Lawyers Division committees in 1999. As with any organization, most of these committees seek volunteers. For more details about VBA/YLD committees and how you can become involved in their work, as well as how to contact committee chairs, visit the VBA/YLD web page.
ABA Liaison/Project Development/Grants:
Stacy C. Taylor, Richmond; Hunton & Williams
ABA/YLD Award of Achievement:
Stephen D. Otero, Richmond; Mays & Valentine
Bridge-the-Gap:
Robert M. Lilly, Narrows; Warren & Scheid
Christopher E. Vinyard, Richmond; Mays & Valentine
Child Support Enforcement Project:
Eric R. Nowak, Richmond; Hunton & Williams
Kimberlee Harris Ramsey, Richmond; Florance, Gordon & Brown
Communications/Publicity:
James K. Cowan Jr., Roanoke; Flippin, Densmore, Morse & Jessee
Community Law Week and Law Day:
N. Thomas Connally III, McLean; Hogan & Hartson
Disaster Legal Assistance:
Stephen D. Otero, Richmond
Domestic Violence Project:
Erica S. Beardsley, McLean; Watt, Tieder, Hoffar & Fitzgerald
Katherine Harman-Stokes, McLean; Hogan & Hartson
The John Marshall Foundation Liaison:
Christopher G. Lanning, Richmond; Hunton & Williams
Law School Liaison:
Barry T. Meek, Richmond; Hunton & Williams
Lawyers for the Arts/Nonprofits:
Ann E. Davis, McLean; Watt, Tieder, Hoffar & Fitzgerald
J. Jacob R. Peek, Richmond; McGuire Woods Battle & Boothe
Kimberlee Harris Ramsey, Richmond
Lawyers Helping Lawyers Program Liaison:
Charles G. Meyer III, Richmond; LeClair Ryan
Legal Services for the Mentally Ill:
Patrick R. Hanes, Richmond; Williams, Mullen, Clark & Dobbins
Meetings Coordinator:
Monica L. Taylor, Roanoke; Gentry Locke Rakes & Moore
Membership:
Lynn Morris Kachel, Richmond; Mezzullo & McCandlish
King F. Tower, Richmond; Williams, Mullen, Clark & Dobbins
Stacy C. Taylor, Richmond
Mentor Program-Richmond:
Maureen Riley Matsen, Richmond; State Council of Higher Education
John S. West, Richmond; Mays & Valentine
Mentor Program-Roanoke:
Edward B. Walker, Roanoke; Mundy, Rogers & Frith.
Lori D. Thompson, Roanoke; Gentry Locke Rakes & Moore
Minority Recruitment-Richmond:
Wyatt S. Beazley IV, Richmond; Williams, Mullen, Clark & Dobbins
Minority Recruitment-Roanoke:
Nicole Chrisman Daniel, Roanoke; Woods, Rogers & Hazlegrove
Model Judiciary Program:
Attison L. Barnes III, Washington, D.C.; Gardner, Carton & Douglas
National Moot Court:
C. Sherrill Wood, Richmond; U.S. Court of Appeals, Fourth Circuit
Elizabeth Mason Horsley, Richmond; Williams, Mullen, Clark & Dobbins
NCAA Circuit Riders Program:
Lynn K. Brugh IV, Richmond; Williams, Mullen, Clark & Dobbins
Jason R. Davis, Norfolk; Kaufman & Canoles
D. Reed Freeman Jr., Washington, D.C.; Arent, Fox, Kintner, Plotkin & Kahn
Pre-Law Counseling:
Matthew P. Pritts, Roanoke; Woods, Rogers & Hazlegrove
Pro Bono Hotline-Central Virginia:
Cyane B. Crump and McAlister C. Marshall II, Richmond; Hunton & Williams
Samantha S. Otero, Richmond; Morris & Morris
Pro Bono Hotline-Harrisonburg:
Sheila R. Keesee, Harrisonburg; Wharton, Aldhizer & Weaver
Pro Bono Hotline-Northern Virginia:
Lance W. High, Washington, D.C.; Kirkpatrick & Lockhart
Pro Bono Hotline-Peninsula:
Curt G. Spear Jr., Newport News; Kaufman & Canoles
James H. Shoemaker Jr., Newport News; Patten, Wornom & Watkins
Pro Bono Hotline-Roanoke:
Victor S. Skaff III and Melissa Amos Young, Roanoke; Gentry Locke Rakes & Moore
Pro Bono Hotline-Southside:
Michael C. Guanzon and Edward F. Hodges Jr., Danville; Clement & Wheatley
Pro Bono Hotline-Tidewater:
Beth V. McMahon, Norfolk; Kaufman & Canoles
Richard H. Ottinger, Norfolk; Vandeventer Black
Professionalism and Civility in Practice:
David N. Anthony, Norfolk; Kaufman & Canoles
Susan M. Davis, Richmond; Hunton & Williams
Town Hall Meeting-Hampton Roads:
Christopher S. Boynton, Portsmouth; Cooper, Spong & Davis
Brandon H. Zeigler, Virginia Beach; Stallings & Richardson
Town Hall Meeting-Northern Virginia:
Sean C.E. McDonough, Alexandria; Hudgins Law Firm
Town Hall Meeting-Richmond:
Maya M. Eckstein and Jennifer L. McClellan, Richmond; Hunton & Williams
Rudolph Bumgardner IV, Richmond; Sands, Anderson, Marks & Miller
Town Hall Meeting-Roanoke:
Mark W. Dellinger, Roanoke; Gentry, Locke, Rakes & Moore
Upward Bound:
Daniel C. Summerlin III, Roanoke; Woods, Rogers & Hazlegrove
The Virginia Lawyer:
Roderick W. Simmons, Richmond; Hirschler, Fleischer, Weinberg, Cox & Allen
Return to Top
Copyright 1999 The Virginia Bar Association