President's Page:
What Makes the VBA Special?
Frank A. Thomas III

The following is a slightly modified version of Mr. Thomas’s remarks after his induction as President of The Virginia Bar Association on January 18, 2003.
I grew up with stories of my grandfather who left home and moved in with an uncle so he might finish high school and then later worked his way through college and law school by, among other things, selling Bibles and working in the steel mills. I also heard stories of how hard he worked as a lawyer, the loyalty and friendship of his clients and the virtuosity of his skills in the courtroom. I suppose it is no surprise that I grew up thinking there is something special about being a lawyer.

As with many lawyers, I have looked for other lawyers to emulate who seemed to excel in those qualities which make lawyers special. I am fortunate to have had many — to name but a few — the WWII generation at Hunton & Williams including Warwick Davenport, Merrill Pasco, John Riely, along with the then-younger bucks, Allen Goolsby, Mark Dray, Judge Ellis; Dick Smith, Wayt Timberlake and John Sills at Timberlake, Smith, Thomas & Moses in Staunton; and V Shackelford whom I am blessed to have now as a partner and mentor.

I believe it is more than chance that most of the lawyers I have found that exemplify the “specialness” of our profession also have strong ties to The Virginia Bar Association. The values that embody that specialness are clearly articulated in the VBA’s mission statement: professionalism, collegiality, a commitment to ensuring we have good laws which work well and public service.

We work under a comprehensive set of ethical rules which arise for the most part from the concepts of agency and fiduciary responsibility. But professionalism is much more than the honoring the letter of these rules — it is honoring the spirit of them. Our clients are more than customers and our engagements are more than jobs. Overspreading all that we do is the premise that it is more than just about money — a premise that seems absent in other professions.

Honing our skills as lawyers is an important component of professionalism. We can be proud of the work of this Association in sponsoring CLE programs such as the annual conferences on Advanced Estate Planning and Labor Law and the programs offered at the meetings of the Association. We can look forward to the work of the Law Practice Management Division as it helps each of us in the ins and outs of our practices.

Professionalism also means acknowledging that there are standards to be met in our dealings with each other as lawyers — to treat other lawyers with civility and respect, to be honest and forthright and to occasionally acknowledge that but for the grace of God go I, while still being vigorous advocates for clients.

While many of the values of professionalism are expressed in the VBA Creed, they find their strongest expression in the everyday practices of our members. In many ways, their essence is a self-awareness that we as lawyers are special and should comport ourselves accordingly.

Collegiality should be easy for this group as the meetings and other gatherings of members of this Association have long been a focus of pleasant social interactions. There is an odd bond that unites lawyers — perhaps a product of the combination of law school, the ups and downs of dealing with clients, deadlines, tribunals and thorny problems, such that when two or three lawyers are gathered together — sooner or later they talk shop.

Collegiality means a number of things — good times and good friends, to start. It also offers the opportunity for self-interested schmoozing that goes under the rubric of networking. More importantly, however, collegiality is an important underpinning for the value of professionalism as it offers an opportunity to know other lawyers as people — not merely as adversaries or names on a letterhead or a pleading. Collegiality is important in that it gives each of us the comfort and humility of knowing that we are not alone — that other lawyers have the same problems, the same aspirations and the same successes as we experience.

In some quarters, the work of the Association in the area of law reform has near legendary status. As the only voluntary, statewide bar organization without a particular interest, orientation or agenda, we are equipped to pursue law reform in a way no other entity can. The Association’s record is one of which we can be proud. The Association has been and will continue to be involved in complex and technical legislation involving business relationships, civil procedure, trusts and estates, health law, construction law and domestic relations law, to name a few. The actions of our substantive law sections in preparing and sponsoring legislation in the true sense of public interest have redounded to the benefit of all Virginians in ways that many of them will never know.

We can be particularly proud that we have championed in our legislative projects the interests of children, those under a disability and groups who lack an effective voice; groups that might otherwise be overlooked or lost in the shuffle. Indeed, our sponsorship of legislation affecting these groups underlines the essence of the Association’s legislative philosophy — we support legislation on the basis of whether it is sound and in the public interest — not whether a particular economic interest may be served.

While much of what I have covered might be placed under the heading of public service — there are several items in this area worthy of special note. First, the activities of our young lawyers should be acknowledged. A complete catalogue of just their recent efforts would leave us gasping. To name but a few: a production of a video on child abuse, preparation of a special education handbook, assisting with child support enforcement, disaster legal assistance and town hall meetings on issues of public interest.

Other public interest activities of the Association at large of which we can be proud include the gubernatorial and senatorial debates, the Capital Defense Workshop, recommendations on judicial nominations, and cooperative efforts with others with respect to Lawyers Helping Lawyers, Alternative Dispute Resolution and the Virginia Law Foundation.

No one is paid for these activities and accolades and thank-yous are not given as often as they should. These actions arise out of a perception of a need and the desire to fulfill it — the desire to do the right thing because it is right that has inspired Virginians to public service for generations.

For the last several minutes I have been talking about things the members of this Association have done and continue to do. And while I hope this is not the first nor the last time it happens, on behalf of myself and the Association, I want to thank you for your efforts.

Before we get too comfortable on our laurels, however, we need to acknowledge the challenges before us. Purely and simply — it is not as easy to be a lawyer today as it once was. The financial, social and familial pressure on lawyers of all ages put them and their firms to difficult decisions as to where to spend their time and treasure. As a voluntary organization, it is no longer a foregone conclusion that we will have the financial contributions and contributions of time and talent we have enjoyed in the past. What we have come to expect almost as a matter of right is now something for which we must work.

With a few notable exceptions, evangelism seems to be contrary to that amorphous set of qualities we would designate as Virginian. If people do not support us — it is their problem not ours. Our greatest strength — that we are the only voluntary statewide bar organization without a particular focus or orientation — is also our greatest weakness. We lack the clearly defined hook which other voluntary organizations can use to attract members. We need to find a way that we can take the values of the Association which are self-evident to us and convince others that these values are important enough to become members and support us, all in a way of which we can be proud and in keeping with the traditions of this Association.

We also need to explore non-traditional forms of financial and other support for the Association’s activities so the entire burden does not fall on dues. These will include a more full use of the VBA Foundation to support the public service projects of the Association. They will also include member services programs, such as the insurance offered by the Virginia Barristers Alliance, which benefit both our members and the Association.

We have begun working on these projects this past year and you will see more activity on each of these fronts in the coming years. I hope you will join in them as enthusiastically as you have supported the other activities of the Association.

The more deeply I become involved in the work of this Association and the more I see of other bar associations, the more I appreciate what a truly unique organization, you, the members have created. No other organization in Virginia can so effectively champion the values of professionalism, collegiality, law reform and public service. These values make us “special” as an organization and they make us special as lawyers. I am very grateful for the opportunity to work with you in carrying on the good work the Association has been performing for the last 115 years.

Return to Top

Legal Focus/Civil Litigation:
The Virginia Supreme Court Takes a Big Bite Out of the Privilege for Marital Communications
Professor James Joseph Duane

If you are a lawyer in Virginia and do not handle criminal cases, I can tell you two important things that you probably did not know. (1) You probably have not read or heard about the recent decision of the Virginia Supreme Court in the death penalty case of William Joseph Burns. (2) You need to know about that decision.

But why? Why should you care about that decision, no matter what sort of law you practice, and even if are not a litigator at all?

Suppose you represent a married client on any kind of legal matter. He has information of the strictest sensitivity, because it could be very damaging to him in some civil litigation or a criminal prosecution. (It might be a pending case, or one that he reasonably fears in the future; it does not matter for our purposes. Nor does it matter whether he is guilty of any wrongdoing; even the innocent often possess truthful information that could be incriminating or difficult to explain.1 ) He is eager to avoid any risk that this information might ever be used against him at trial.

At the same time, your client is anxious because he disclosed some of these details in a confidential note, letter, e-mail, or recording he shared with his wife.2 He took every conceivable precaution to ensure that the communication would be private and confidential, and that she knew of his intention that it be kept always and only between them. (It is not relevant why he communicated with her in writing; perhaps he was in jail at the time, or she was out of town. It is enough to note that many married couples communicate this way from time to time.) Now he wants your advice as to whether the letter is protected by the privilege for marital communications, or whether it might be used against him at trial over his objection. (An alternative possibility: He has not yet written the note, but wants to know if he may do so safely.)

If you spent a few hours researching this question and did an almost perfect job of legal research, you would come up with the following facts, all of them pointing to the same conclusion.

1. The leading national treatises on evidence law are unanimous that confidential letters are protected by the marital privilege, just as they are by all of the other major privileges protecting other written communications (for example, with your lawyer or doctor or priest).3

2. Federal case law is unanimous in extending the privilege to writings.4 So if the case against your client ends up in federal court, the letter would clearly be inadmissible.5

3. Like every other state, Virginia recognizes a privilege for confidential marital communications,6 which exists to “protect from public exposure confidences of the marital relation … which the continued tranquility, integrity and confidence of their intimate relation demands to be shielded and protected by the inviolate veil of the marital sanctuary.”7 There is no conceivable reason why that policy would not apply with full force to a sensitive secret between spouses merely because it was in writing.

4. Over 30 years ago, in Reil v. Commonwealth, the Virginia Supreme Court declared that this statute applied to a letter written by a man to his wife, even though he abandoned her right after leaving it, and that the letter was therefore “inadmissible as a privileged communication.”8 If you check that case using Shepard’s and Keycite today, you will find no indication that Reil has ever been overruled, distinguished, or limited.

5. The leading treatise on Virginia law states without qualification that the privilege for marital communications “is not limited to oral statements. Written statements are equally privileged.”9 If you check the pocket part just to be safe, you’ll find that this claim is not qualified in any way, but is in fact reiterated, in the 2002 Supplement.

For all five of these reasons, a lawyer who did an almost perfect job of legal research could easily conclude with confidence that a private letter between spouses is privileged and inadmissible in Virginia if its author objects, just as it would be in federal court and virtually every other state. You would advise your client not to worry about the letters he had written and encourage him to take full advantage of the legally protected confidence between a man and a woman “connected by the nearest and dearest relations of life,” which has been described as “the best solace of human existence.”10

There would be only one little problem with that advice. You would be dead wrong.

Despite the seemingly unanimous authority that marital letters are privileged under Virginia law, that conclusion cannot be reconciled with the plain language of the statute. Unlike the laws of other states, which typically declare that confidential marital communications are “privileged” and “may not be disclosed” by anyone over the objection of either spouse, the Virginia statute merely provides that a spouse may not be “examined in any action” as to a marital secret or to reveal it “in testimony.”11 This language has been in the statute since its enactment in 1894, one year before the invention of the radio.

Although nobody noticed the point for more than a century, this language obviously does not create a privilege for letters from a man to his wife, but only for her testimony about the letters. Four years ago, I was the first to point out that a man’s letter to his wife is clearly unprivileged and admissible in Virginia as long as its author or his handwriting can be authenticated without her testimony (for example, with the aid of a handwriting expert).12 I predicted that the next time the Virginia Supreme Court considered the issue, it would overrule Reil and hold that a confidential letter between spouses could be admitted at trial against the man who wrote it, even over his strenuous objection, as long as it was admitted without the testimony of his wife.13

Less than two years later, the Virginia Supreme Court did precisely that, in Burns v. Commonwealth.14 When William Burns was languishing in jail and awaiting trial on capital murder and other charges, he wrote dozens of letters to his trusted wife Penny. The letters contained many details about the crime and were written in the obvious expectation that they would remain confidential. In one of the earliest letters, before he offered most of the details surrounding the death of his alleged victim, he once wrote that he couldn’t tell her more “until I know 100% percent your not trying to use the things I am telling you against me,” and that she would not reveal them in court.15 He even gave her information he had not yet told his lawyer.16

Unfortunately for Mr. Burns, his faith in the discretion of his wife proved to be misplaced. (In fairness to his wife, that was totally understandable; the murder victim was her mother.) She turned his letters over to the police. The incriminating letters were admitted at trial over his objection after a handwriting expert testified that the defendant wrote them. The prosecutor even had some of them blown up for maximum impact during closing argument.17

In affirming the murder conviction and death sentence of William Burns, the Virginia Supreme Court held that his confidential letters to his wife were admissible against him. The Court reasoned that the plain language of the statutory privilege is limited “to situations where a spouse is being examined in an action or is revealing a private communication through testimony.”18

Accordingly, since his wife “did not testify about the letters or their content,” there was no error in admitting the letters through the testimony of a law enforcement officer.19 The Court did not distinguish or even mention its contrary statement three decades earlier in Reil, which it apparently did not notice it was overruling sub silentio.20 Sadly, even though it was a death penalty case with the life of a man hanging in the balance, neither party had even cited Reil in their briefs to the Supreme Court on the precise issue discussed in Reil.21

The holding in Burns did not make legal headlines (until today), but it must be understood by every lawyer who practices in this Commonwealth. It finally makes plain that there is no true privilege protecting even the most confidential communications between your clients and their spouses if those secrets are written, left on an answering machine tape, or otherwise recorded. Not one word of the Court’s reasoning in Burns is limited to criminal cases, much less capital cases. Nor does it matter under the Court’s reasoning how your client’s trial adversary acquired the letter. As long as the wife who received the letter does not testify about the letter herself, there is no privilege to block its admission, regardless of whether she lost it, or turned it over voluntarily, or even if it was stolen from her.

In effect, Burns holds that the Virginia marital privilege only prevents a woman from revealing a confidential written communication from her husband through her testimony, even after the marriage ends, but she is not precluded from “revealing” the letter to anyone she wishes, including the police, who can then “reveal” it to the jury through the “testimony” of anyone else who can verify that her spouse wrote it. That is not a true privilege at all, and it is no surprise that no other state in the country observes such a bizarre rule.22

In fairness to the Virginia Supreme Court, its unfortunate holding in Burns is compelled by the language of the statute. But the holding is bad news just the same, and will be until the statute is amended. It makes a mockery of the Court’s insistence that the privilege is supposed to “protect from public exposure confidences of the marital relation … which the continued tranquility, integrity and confidence of their intimate relation demands to be shielded and protected by the inviolate veil of the marital sanctuary.”23

And the worst may be yet to come. If the logic of Burns is faithfully applied, it will undermine the confidentiality of even oral conversations between you and your spouse, as long as someone else — anyone other than your spouse — can be produced to testify to the communication. Even if a man takes every reasonable precaution to ensure that he is alone when he speaks with his wife, but there is an eavesdropper hiding in the room (even one whose presence was not reasonably foreseeable), there is no privilege in Virginia to prevent that interloper from relating what he overheard.24 And even if nobody overheard what a man told his wife in private, if she repeats that secret to the police or her friend, he has no privilege to prevent that third party from testifying to everything he once told his wife in the strictest of confidence. (At the time he tells a secret to his wife, a man can never know whether she will repeat his statement to another in a way that would be admissible under some exception to the hearsay rule.25 ) None of this would violate the husband’s privilege under Burns, even if the wife were indirectly but deliberately revealing his secrets to the jury through the testimony of a third party, because she would not be revealing it through her testimony.

On November 14, 2000, even before Burns was decided, the Civil Litigation Council of The Virginia Bar Association endorsed my recommendation to modify the language of the Virginia marital privilege (among other reasons) to make it applicable to confidential written communications.26 The subsequent decision in Burns makes the need for that legislative reform more urgent than ever. Until that decision is repealed by the General Assembly, this state shall pay little more than lip service to the sanctity of the confidences between a married couple, “the best solace of human existence.”27

NOTES
1. Ohio v. Reiner, 532 U.S. 17 (2001).
2. Of course, the situation is identical if the client is a married woman. I assume the case of a male client for the sake of simplicity, and because virtually every reported case involving this scenario involves secrets shared by a man with his wife. See James J. Duane, The Bizarre Drafting Errors in the Virginia Statute on Privileged Marital Communications, 12 Regent U. L. Rev. 91, 96 n.26 (1999).
3. E.g., Edward J. Imwinkelreid, The New Wigmore: Evidentiary Privileges §6.7.1, at 636 (2002); Glen Weissenberger & James Duane, Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority 221 (2001); Christopher Mueller & Laird Kirkpatrick, Evidence: Practice Under the Rules 562 (1999).
4. Securities & Exch. Comm’n. v. Lavin, 111 F.3d 921 (D.C. Cir. 1997) (tape recording of marital conversation is within the privilege); United States v. Wood, 924 F.2d 399, 401-02 (1st Cir. 1991) (privilege applies to letter from husband to wife while both were in jail); United States v. Duran, 884 F. Supp. 537, 541 (D.D.C. 1995) (privilege applies to letter written to spouse).
5. That is, unless it is a civil diversity action, in which case the federal court will follow Virginia evidence law. Fed. R. Evid. 501.
6. Va. Code Ann. § 8.01-398 (Michie 1998).
7. Menefee v. Commonwealth, 109 Va. 900, 911-12, 55 S.E.2d 9, 15 (Va. 1949).
8. Reil v. Commonwealth, 210 Va. 369, 372, 171 S.E.2d 162, 164 (Va. 1969). This statement was unequivocal and unqualified, although it was technically dictum since the defense had not made the right objection at trial.
9. Charles E. Friend, The Law of Evidence in Virginia 217 (5th ed. 1999).
10. Stein v. Bowman, 38 U.S. 209, 223 (1839).
11. Va. Code Ann. § 8.01-398(A).
12. Duane, supra note 2, at 97-98.
13. Id. at 99-102.
14. 261 Va. 307, 332-33, 541 S.E.2d 872, 889-90 (2001).
15. Record on Appeal at 2817E-2817F, Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001) (Nos. 001879 & 001880) (filed in the Supreme Court of Virginia, Oct. 11, 2000).
16. Id. at 2817R.
17. Id. at 2655.
18. Burns, 261 Va. at 333, 541 S.E.2d at 890.
19. Id.
20. Of the seven members of the Court who decided Reil in 1969, only one of them, Justice Carrico, was on the panel of the Court that decided Burns in 2001.
21. In the most bizarre twist in this tragic comedy of errors, the leading treatise on Virginia evidence law cites the Burns case but completely misses its significance. The Supplement actually cites Burns in support of the book’s assertion that the statutory privilege applies to letters just as much as oral conversations, when the Court held just the opposite. Friend, supra note 9, at 44 (2002 Supp.)
22. Modern legal authority from other states unanimously rejects and forbids such a result. Imwinkelreid, supra note 3, at 609-14.
23. Menefee v. Commonwealth, 109 Va. 900, 911-12, 55 S.E.2d 9, 15 (Va. 1949).
24. See Duane, supra note 2, at 102-04.
25. For example, if a woman calls her friend or a police officer to repeat something a few minutes after she hears it from her husband, considerable legal authority would permit the friend or officer to repeat the wife’s hearsay statement as a “present sense impression” at the trial of the husband. E.g., United States v. Price, __ F.3d __, No. 02-5313, 2003 WL 202165 (6th Cir. Jan. 28, 2003) (after man threatened his girlfriend in her trailer, telephone call made by their daughter moments later from a neighbor’s house was properly admitted against him as her present sense impression); United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995) (after man threatened his wife in their apartment, a telephone call made by her several minutes later from nearby convenience store was admissible against him as her present sense impression), vacated on other grounds, 516 U.S. 1168 (1996); Warren v. State, 774 A.2d 246, 253 (Del. 2001) (“[c]ourts generally find statements admissible as present sense impressions if the statements were made within about 10 or 20 minutes of the event.”); see also United States v. Perkins, 187 F.3d 639, 1999 WL 506980 (6th Cir. 1999); United States v. Jackson, 124 F.3d 607 (4th Cir. 1997); United States v. King, 133 F.3d 918, 1997 WL 791686 (4th Cir. 1997); United States v. Mejia-Velez, 855 F.Supp. 607, 613-14 (E.D.N.Y. 1994) (admitting hearsay telephone call made 16 minutes after the caller’s contact with the accused). It is not yet clear whether Virginia courts would go quite this far in construing the “present sense impression” doctrine, but they might. See Foley v. Commonwealth, 8 Va.App. 149, 161, 379 S.E.2d 915, 922 (Va. Ct. App. 1989) (since there are few Virginia cases construing the hearsay exception for present sense impressions, “we look to our sister states for guidance”). Besides, if your client finds himself litigating a diversity case in federal court, the court will follow federal law in deciding his hearsay objection, Fed. R. Evid. 101, but will follow Virginia law and the Burns decision in rejecting any claim of privilege by him as to any secrets his wife passed along to her friend or the police. Fed. R. Evid. 501. There is no way to gauge the likelihood of such possibilities at the time your client is trying to decide how far he can trust his current spouse.
26. For the details of that proposal see Duane, supra note 2.
27. Stein v. Bowman, 38 U.S. 209, 223 (1839).

Return to Top

New VBA Leaders for 2003

In addition to Frank Thomas’s installation as Association President, several new VBA leaders for 2003 were confirmed during the 113th Annual Meeting. E. Tazewell “Ted” Ellett of Alexandria was voted president-elect of the VBA, and James V. Meath of Richmond was chosen to chair the VBA Board of Governors.

Ellett, who chaired the Board of Governors in 2002, is a partner in the law firm of Hogan & Hartson, L.L.P., with offices in McLean and Washington, D.C. He is a graduate of Davidson College and the University of Virginia School of Law and is a member of the VBA Business Law and Transportation Law Sections. Ellett was the charter chair of the Transportation Law Section, chair of both the VBA and VBA/YLD Membership Committees, and a member of the VBA/YLD Executive Committee. He received the Fellows Award of the VBA Young Lawyers Section in 1988.

Meath chairs Williams Mullen’s Labor, Employment and Employee Benefits Department, which represents clients throughout the United States and Canada. He is a former chair of the VBA Labor Relations and Employment Law Section. He has a J.D. degree from the University of Richmond and holds a master's degree in urban affairs from Virginia Tech and a bachelor's degree from Old Dominion University.

New VBA Board of Governors members include The Honorable William G. Broaddus (McGuireWoods LLP) and Marilynn C. Goss (Legal Aid Justice Center), both of Richmond, The Honorable Diane M. Strickland of Roanoke (The McCammon Group) and Glenn C. Lewis of Fairfax (The Lewis Law Firm).

The Honorable John E. Wetsel Jr. of Winchester was elected to a third and final one-year term as the judicial representative on the Board of Governors, and Professor Roger D. Groot of Washington & Lee University was elected to a second one-year term as the Board’s law faculty representative.

J. Edward Betts of Richmond will serve on the Board of Governors as the VBA’s immediate past president. Heman A. Marshall III of Roanoke (Woods, Rogers & Hazlegrove) continues on the Board as chair of the VBA Law Practice Management Division.
In addition, VBA Young Lawyers Division leaders Stephen D. Otero (Troutman Sanders LLP) and Stacy M. Colvin (Hunton & Williams), both of Richmond, will serve on the Board of Governors. Otero is the 2003 chair of the VBA/YLD; Colvin is the VBA/YLD chair-elect.

Nonvoting members of the Board include Executive Vice President Breck Arrington, Administrative Director Sandy Thompson (until her retirement March 31) and Section and Committee Coordinator Brenda Dillard (after March 31).

Return to Top

Legal Focus/Civil Litigation:
Jurisdiction Over Cybertorts: The ‘Virtual’ Reach of Virginia’s Long-Arm Statute
J. Burke McCormick and D. Alan Rudlin

The Internet is everywhere and it is nowhere. By its very nature, it challenges traditional notions of personal jurisdiction in cases involving torts committed entirely in cyberspace. A non-resident may enter the forum state “virtually” through electronic contacts, defame someone, pilfer data, infringe on a trademark or cause other injury, while having no physical presence in the forum in the traditional sense.

Courts in Virginia and elsewhere have grappled with the question of how, when, and where jurisdiction may be exercised over non-residents whose only contact with the forum is online. Where is “contact” made? Is it in jurisdiction A, where the sender of Internet information is located; jurisdiction B, where the recipient of such information is found; or some other location where the two come together? The answer to this question is evolving as rapidly as the Internet has transformed our society.

While “mention of the Internet in a legal context invokes a sense of venturing into unchartered territory,”1 courts must remain true to traditional concepts of jurisdiction when dealing with issues of online contacts. Just as advances in technology in the early 20th Century caused an evolution in the law of in personam jurisdiction from the rigid rule that the defendant be physically present in the forum2 to the more flexible “minimum contacts” analysis enunciated in International Shoe Co. v. Washington,3 courts dealing with jurisdiction in cyberspace must meld traditional concepts to the realities of the World Wide Web.4

Under the well-established test for determining the existence of personal jurisdiction over a non-resident, Virginia courts employ a two-step process which requires an assessment of: (1) whether the particular facts and circumstances of the case fall within Virginia’s long-arm statute (Code of Virginia § 8.01-328.1); and (2) whether the Due Process Clause of the Fourteenth Amendment permits such jurisdiction to be asserted.5

Due Process
Due process requires that a defendant have certain “minimum contacts” with the forum such that maintenance of the suit “does not offend traditional notions of fair play and substantial justice.”6 Three factors should be considered: (1) to what extent the defendant purposely availed itself of the privilege of conducting business in the forum; (2) whether the present claim arose out of activities related to the forum; and (3) whether the exercise of jurisdiction is constitutionally reasonable.7 The defendant’s relationship with the forum and the extent of its activities there must be such that it “should reasonably anticipate being haled into court there.”8

Jurisdiction may be general or specific. A court exercises general jurisdiction when the cause of action does not arise out of the defendant’s activities in the forum, but the defendant’s contacts are “continuous and systematic.”9 For specific jurisdiction, where the suit arises out of the defendant’s in-state activities, the contacts need not be as extensive but the defendant must still have “purposely directed” its activities at the forum.10

As a practical matter, because the Virginia long-arm statute extends personal jurisdiction to the fullest extent permitted by the Due Process Clause, the due process inquiry often is merged with the question of whether the defendant is within reach of the long-arm.11

The Long Arm of the Law
In the context of analyzing personal jurisdiction in Internet tort cases, courts in Virginia have commonly considered two of the long-arm statute’s ten subsections: 8.01-328.1(A)(3) and 328.1(A)(4). Subsection (A)(3) provides that jurisdiction may properly be exercised over one “[c]ausing tortious injury by an act or omission in this Commonwealth.” Jurisdiction under this subsection has been asserted over many defendants in cyberspace who were not physically in Virginia.

Consistent with a traditional due process analysis, jurisdiction also may be asserted under subsection 328.1(A)(4) over a person: (1) who causes injury in Virginia; (2) by an act or omission outside of Virginia; (3) if that person “regularly does or solicits business” in Virginia, “engages in any other persistent course of conduct” in Virginia, or “derives substantial revenue from goods used or consumed or services rendered” in Virginia.

The Seminal Cases
One of the earliest and most significant Virginia cases was decided in 1993, when the Internet had yet to transmogrify the popular culture. The Supreme Court of Virginia held in Krantz v. Air Line Pilots Association that the posting of messages by a defendant located in New York to a closed-circuit, electronic bulletin board housed in Virginia constituted “an act . . . in this Commonwealth” within the meaning of section 328.1(A)(3).12 Krantz was a commercial airline pilot who lived in Vermont and participated in a strike against his employer, Eastern Airlines. He later withdrew from the strike and crossed the picket line to return to work, thus being termed a “scab” by his fellow pilots. The airline pilots’ union (ALPA) had its offices in Herndon, Virginia, where it maintained an interactive electronic database that its members could use to communicate. When Krantz subsequently attempted to get a job with United Airlines, a pilot in New York (Nottke) used the ALPA computer network in a successful campaign to prevent Krantz from flying the friendly skies for United by rallying pilots around the country to protest the hiring of a scab. In Krantz’s Virginia lawsuit against Nottke for tortious interference, Nottke contested jurisdiction and denied that he had any contacts with Virginia. The Supreme Court of Virginia held that Nottke used the Virginia database as a means of furthering his plan to block Krantz’s employment and therefore committed an “act” in the Commonwealth.13

Section 328.1(A)(3) and Krantz have proved to be particularly important to the issue of personal jurisdiction in Internet cases because of the presence of one of America’s largest Internet service providers (ISPs) in northern Virginia. America Online (AOL), headquartered in Loudoun County, provides Internet access to subscribers for a fee. In accessing and communicating over the Internet through their AOL accounts, these subscribers are communicating with computers located in Virginia. Applying section 328.1(A)(3) and its interpretation under Krantz, several federal courts in Virginia have found this fact to constitute prima facie evidence that the exercise of jurisdiction in Virginia is proper.14

The Virginia General Assembly codified the reasoning of these decisions in 1999 when it added to section 328.1 a provision which states that “Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth.”15 This new statutory provision has already been relied upon to support the exercise of jurisdiction in Verizon Online Services, Inc. v. Ralsky.16 There, a band of Michigan defendants who sent millions of unsolicited bulk e-mails (UBE or “spam”17 ) through seven computer servers located in Reston, Virginia, operated by Verizon, an ISP.18 Verizon sued the spammers for trespass to chattel and other torts after its network became so clogged by the UBE that the legitimate e-mail of its own subscribers was impeded. “The use of Verizon’s e-mail servers was an integral component of the trespass. Since the injury from the tort Verizon complains of occurred in Virginia, jurisdiction under § 8.01-328.1(A)(3) is proper.”19

The Most Recent Decisions from the Federal District Courts
A review of the relevant cases demonstrates that the district courts in Virginia have faithfully applied the principles of Krantz. In Bochan v. La Fontaine,20 for example, the plaintiff published criticisms on the Internet of a book written by the defendants. Two of the three defendants, who lived in Texas and New Mexico respectively, responded by accessing their AOL accounts to post statements on the Internet which accused the plaintiff of being both homosexual and a pedophile. When the plaintiff sued for defamation in Virginia, the defendants responded that their Internet contacts with the forum were insufficient to establish jurisdiction.21 Rejecting that argument, the could held that “a prima facie showing of a sufficient act by the La Fontaines in Virginia follows from their use of the AOL account, a Virginia-based service, to publish the allegedly defamatory statements.”

A similar result was reached in Business Information Systems v. Professional Governmental Research & Solutions, Inc.,22 where the defendant, a Tennessee company, was accused of accessing the plaintiff’s computer server in Virginia, downloading files, and offering those files for sale on the defendant’s web site. The defendant did not maintain an office in Virginia and did not keep employees or other representatives in the Commonwealth. The defendant had also never made a sale to a Virginia resident through its website.23 Finding jurisdiction proper under section 328.1(A)(3) and Bochan, the district court stated, “The decisions in the last nine years in this area . . . [have] primarily focused on ‘the location of the Internet service provider or the server on which the [information] is stored and the role played by this service or hardware in facilitating the alleged tort.’”24

Recent Decisions from the Fourth Circuit
Two recent decisions by the Fourth Circuit in the area of jurisdiction and Internet contacts have somewhat changed the analysis under the Due Process Clause. When taken together, these cases make clear that the inquiry is one of “intent”: whether the defendant intended to direct (“specifically target”) its activities at Virginia.

In ALS Scan, Inc. v. Digital Service Consultants, Inc.,25 the Fourth Circuit held in a case of first impression from Maryland that a defendant’s minimum contacts in Internet cases should be assessed under the standard set forth by a Pennsylvania federal court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc.26 Tailoring the requirements of International Shoe to fit the realities of the Internet world, the court in Zippo articulated what it called a “sliding scale” approach to the determination of personal jurisdiction.
Emphasizing the “commercial nature” of the contacts, the court in Zippo noted that at one end of the scale are those defendants who do business over the Internet with residents of the forum state, engaging in repeated transactions or transmissions of computer files. In those circumstances, the exercise of jurisdiction is proper. At the other end of the Zippo scale are those defendants who maintain “passive” websites that do nothing more than display information which is accessible in a foreign jurisdiction. Simply making information available is not such a purposeful availment of the forum as to make the exercise of jurisdiction constitutionally permissible.

In the middle of the spectrum, there are those defendants who maintain an “interactive” website, where a user can exchange information with the host computer. In these circumstances, “jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Website.”27

“Adopting and adapting the Zippo model,” the Fourth Circuit in ALS Scan held that a state may, consistent with due process, exercise jurisdiction over a person outside of the state when that person: (1) directs electronic activity into the state; (2) with the manifest intent of engaging in business or other interactions within the state; and (3) the activity creates, in a person within the state, a potential cause of action cognizable in the state’s courts.28

The corporate defendant in ALS Scan was a Georgia-based ISP for the publisher of photos that were the subject of a copyright infringement suit. The defendant’s only contact with the state of Maryland was through the Internet, but visitors to the webpage could not transact business with the company online.29 Applying Zippo to the facts before it, the court in ALS Scan found jurisdiction lacking over the defendant.

In so holding, the Fourth Circuit made clear that the activity in question must “specifically target” a resident in the forum state. “If we were to conclude . . . that a person’s act of placing information on the Internet subjects that person to personal jurisdiction in each state in which the information is accessed, the defense of personal jurisdiction . . . would no longer exist.” The Fourth Circuit reasoned that “[t]he person placing information on the Internet would be subject to personal jurisdiction in every State.”30 Because the defendant did not direct its electronic activities specifically at any target in Maryland, did not manifest an intent to engage in business or some other interaction in Maryland, and none of its conduct in enabling a website created a cause of action in Maryland, jurisdiction did not exist.31

The Fourth Circuit revisited the ALS Scan test in the Internet defamation context when it decided Young v. New Haven Advocate32 in December 2002. In Young, the warden of a Virginia prison sued two Connecticut newspapers, alleging that stories printed on their respective web pages were defamatory.33 The state of Connecticut had shipped some of its prisoners to Virginia for incarceration and this became a controversial issue in Connecticut. The defendant newspapers, in reporting this story, made certain comments on conditions in the Virginia penitentiary which the warden believed defamed him personally. As is now a common practice in the news media, the stories appeared both in print and on the newspapers’ Internet websites. One of the papers had eight subscribers in Virginia and both newspapers had conducted phone interviews with a spokesperson from the Virginia Department of Corrections regarding their respective stories on the conditions in the Virginia prison.34 Neither paper maintained an office or any employees in Virginia, did not regularly solicit or do business in Virginia, and did not derive any substantial revenue from goods or services provided to Virginia.35

Before beginning its constitutional analysis, the Fourth Circuit noted that the plaintiff did not rely on “the few Virginia contacts that are not Internet-based” in asserting that jurisdiction was proper.36 Instead, the contacts relied upon by the warden “arose solely from the newspapers’ Internet-based activities.”37 Turning to the issue of jurisdiction, the court opined that when the activity at issue involves posting news articles on the Internet, “the ALS Scan test works more smoothly when parts one and two of the test are considered together. We thus ask whether the newspapers manifested an intent to direct their website content — which included certain articles discussing conditions in a Virginia prison — to a Virginia audience.”38

Directing that question of “intent” to the facts, the Fourth Circuit found the exercise of personal jurisdiction to be unconstitutional. In so holding, the court reasoned that, “The overall content of both websites is decidedly local, and neither newspaper’s website contains advertisements aimed at a Virginia audience.”39 With respect to the articles themselves, the court held that while one of the articles mentioned Young by name, “The focus of the article . . . was the Connecticut prisoner transfer policy and its impact . . . on Connecticut.”40

Does Young Undercut the Holdings in Prior Cases?
While ALS Scan and Young affirm the established practice by Virginia courts of applying Zippo’s “sliding scale” analysis, both call into question those decisions that have permitted the exercise of jurisdiction over defendants whose contacts with Virginia are difficult to distinguish from contacts with other jurisdictions and who arguably have not “specifically targeted” their activities towards Virginia.41

For example, the district court in Alitalia-Linee Aeree Italiane S.p.A. v. Casinoalitalia.com42 found the exercise of jurisdiction proper in a trademark dispute brought by the plaintiff, the national airline of Italy, over a defendant located in the Dominican Republic. The defendant did not have offices in Virginia and conducted all of its activities outside of the continental United States. The defendant, which required its users to enter into a contract with it in order to buy credits to use the online casino, entered into contracts with five Virginia residents.43 Nevertheless, the court held that because the defendant had earned $264.80 from those five Virginia users, combined with the “intense real-time interactivity to its members,” the assertion of jurisdiction under subsection 8.01-328.1(A)(4) comported with due process.44

Similarly, the district court in TELCO Communications v. An Apple A Day45 held that it had jurisdiction over the defendant who distributed press releases through a business wire that, in turn, disseminated the allegedly defamatory statements through ISPs, including AOL in Virginia. The court noted that the press releases were placed on the wire for distribution into Connecticut, New York and New Jersey. The defendant, however, was made aware through his subscriber agreement that the publications could end up in Virginia and the defendant advertised its services and solicited business over the Internet, accessible by Virginia residents 24 hours a day.46 Accordingly, jurisdiction was properly asserted under subsection 8.01-328.1(A)(4) and the Due Process Clause.47

Finally, the district court in Bochan v. La Fontaine48 also found jurisdiction proper over the third of three defendants who lived outside of Virginia. Unlike the other two defendants, the third defendant used ISPs in California and New Mexico, rather than AOL, to post statements about the plaintiff on the Internet. For this defendant, the court rested its finding of jurisdiction on the fact that the defendant advertised his products on the Internet, accessible by Virginia residents 24 hours a day, even though the defendant had never made any sales from that website in Virginia, did not maintain an office in Virginia, and had no employees in the Commonwealth.49

In light of ALS Scan and Young, these decisions might be questionable because of the difficulty in distinguishing the defendant’s contacts with the forum from the defendant’s contacts with any other state. In Bochan, however, the court also held that all three defendants knew that the person about whom he was making allegedly defamatory statements was a Virginia resident, and because the “effects” of the defamation were felt in Virginia, these contacts with Virginia were sufficient to confer jurisdiction under subsection 8.01-328.1(A)(4) and the Due Process Clause.50 If that means these defendants “specifically targeted” the effects of their defamatory statements toward a Virginia resident, Young would not undercut the finding of jurisdiction. In Young, the focus of the stories was not the Virginia warden. Rather, they were targeted to Connecticut readers interested in the controversial practice of sending convicts out-of-state. The newspapers “did not manifest an intent to aim their websites or the posted articles at a Virginia audience.”51

Conclusion
The Internet has spawned a tension between this modern form of commerce and communication and the traditional paradigms for examining personal jurisdiction. One court expressed this dilemma with particular eloquence and wit:
Although the defendants appear to be correct in their contention that much of the activity in this matter occurred in cyberspace, this can not signify that the increasingly large number of those who deal in e-commerce shall not be subject to jurisdiction in any earthly court. . . . There being no District Court of Cyberspace, . . . defendants will have to settle begrudgingly for the Western District of Virginia.52

Until the United States Supreme Court revisits and redefines Constitutional principles of due process to comport with modern technological advances, courts in the Commonwealth are constrained to apply traditional concepts of personal jurisdiction to cases involving Internet activities. While the Fourth Circuit has adopted the Zippo “sliding scale” analysis, the constitutional question now is whether an Internet activity is “specifically targeted” at Virginia. Against those defendants who access a computer physically located in Virginia, a finding of jurisdiction under section 8.01-328.1(A)(3) seems free from doubt. But when comparing the decisions under section 8.01-328.1(A)(4) with the more recent constitutional reasoning of ALS Scan and Young, what is or is not an activity “specifically targeted” at Virginia from outside her borders is a rapidly evolving concept.53
Whatever the future holds for jurisdiction in cyberspace, it seems clear that the convergence of commerce, transportation and communication will necessarily result in the relaxation of due process standards in an ever-shrinking world.

Notes
1. Design88, Ltd. v. Power Uptik Prods., L.L.C., 133 F. Supp. 2d 873, 876 (W.D. Va. 2001).
2. Pennoyer v. Neff, 95 U.S. 714, 733 (1877).
3. 326 U.S. 310 (1945).
4. See Hanson v. Denckla, 357 U.S. 235, 251 (1958) (“But it is a mistake to assume that [the trend of relaxing jurisdictional standards in light of advances in communications and transportation] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.”).
5. Ellicott Mach. Corp. v. John Holland Party, Ltd., 995 F.2d 474, 477 (4th Cir. 1993).
6. International Shoe, 326 U.S. at 316.
7. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-77 (1985).
8. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
9. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).
10. Burger King, 471 U.S. at 472.
11. Alitalia-Linee Aeree Italiane S.p.A. v. Casinoalitalia.com, 128 F. Supp. 2d 340, 348 n.18 (E.D. Va. 2001).
12. Krantz v. Air Line Pilots Ass’n, Int’l, 245 Va. 202, 206, 427 S.E.2d 326, 328 (1993).
13. Id.
14. Bochan v. La Fontaine, 68 F. Supp. 2d 692, 699 (E.D. Va. 1999) (“[S]ince Krantz, courts have focused in large measure on the location of the Internet service provider or the server on which the bulletin board is stored and the role played by this service or hardware in facilitating the alleged tort.”); TELCO Communications v. An Apple A Day, 977 F. Supp. 404, 408 (E.D. Va. 1997). One Virginia circuit court, however, has held to the contrary. Melvin v. John Doe, 49 Va. Cir. 257 (Loudoun Co. 1999) (an Internet posting on a server located in Virginia is not, without more, sufficient contact for jurisdiction in a defamation case involving residents of Pennsylvania).
15. Va. Code Ann. § 8.01-328.1(B) (Michie 2000 & Supp. 2002).
16. 203 F. Supp. 2d 601 (E.D. Va. 2002).
17. The term “spam” when used in connection with UBE “derives from the sketch by the British comedy troupe Monty Python, where a group of Vikings chant the word spam in a café whose breakfast menu is devoid of all else.” Id. at 606 n.1. This should not be confused with “SPAM,” a registered trademark of the Hormel Foods Corporation.
18. Id. at 607.
19. Id. at 610.
20. 68 F. Supp. 2d 692 (E.D. Va. 1999).
21. Id. at 695-96.
22. (W.D. Va. Oct. 10, 2002) (unpublished opinion) (on file with authors).
23. Id. at 3-4.
24. Id. at 11.
25. 293 F.3d 707 (4th Cir. 2002).
26. 952 F. Supp. 1119 (W.D. Pa. 1997).
27. Id. at 1124.
28. ALS Scan, Inc., 293 F.3d at 714.
29. Id., at 709.
30. Id., at 712.
31. Id., at 714-15.
32. — F.3d —, 2002 WL 31780988 (4th Cir. Dec. 13, 2002).
33. Id. at *1.
34. Id. at *2.
35. Id. at *2.
36. It is worth noting that had the plaintiff relied upon the periodic circulation of those newspapers in Virginia, jurisdiction may have been proper. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773 (1984) (“[R]egular circulation of magazines in the forum state is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine.”).
37. Id. at *4.
38. Id. at *5.
39. Id. at *6.
40. Id. In so holding, the Fourth Circuit rejected the reasoning of the district court, which had stated: “Essentially, information is the product offered to the public by these defendants. . . . Thus, a newspaper article published and circulated on the Internet can essentially be physically ‘present’ in different locations at one time and subjected to multi-state jurisdiction.” Young v. New Haven Advocate, 184 F. Supp. 2d 498, 509 (W.D. Va. 2001). No doubt the Fourth Circuit wanted to avoid the sort of result reached by the High Court of Australia, which recently held that a local man in Victoria, Australia, could maintain a libel action in a local court against Dow Jones & Company for statements published on the Internet. See New York Times, Internet Makes Dow Jones Open to Suit in Australia (Dec. 11, 2002), available at http://www.nytimes.com/cnet_2100_1023_976988.html (last visited Dec. 12, 2002) (copy on file with authors).
41. Several Virginia courts have applied reasoning similar to that in ALS Scan to find the exercise of jurisdiction improper because the defendant’s activities were not aimed specifically at Virginia. Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 719 (E.D. Va. 2000) (“[S]uch a finding of personal jurisdiction, based on the fact that the webpage is accessible in Virginia, could lead, alarmingly, to nationwide jurisdiction over . . . anyone who posts a webpage.”). Accord America Online v. Huang, 106 F. Supp. 2d 848, 856-57 (E.D. Va. 2000); Rannoch, Inc. v. Rannoch Corp., 52 F. Supp. 2d 681, 685-86 (E.D. Va. 1999).
42. 128 F. Supp. 2d 340 (E.D. Va. 2001).
43. Id. at 342, 350.
44. Id. at 349-50.
45. 977 F. Supp. 404 (E.D. Va. 1997).
46. Id. at 406-07.
47. TELCO Communications, 977 F. Supp. at 407-08. But see ALS Scan Inc., 293 F.3d at 713 (“[T]he ‘stream of commerce’ concept, although considered, has never been adopted by the Supreme Court as the controlling principal for defining the reach of a State’s judicial power.”). In dicta, the TELCO Communications court also opined that jurisdiction was proper under subsection 8.01-328.1(A)(3). See TELCO Communications, 977 F. Supp. at 407. That discussion is not addressed here.
48. 68 F. Supp. 2d 692 (E.D. Va. 1999).
49. Id. at 700-702.
50. Id. at 702.
51. Young at *1.
52. Design88, Ltd. v. Power Uptik Prods.,L.L.C., 133 F. Supp. 2d 873, 877 (W.D. Va. 2001).
53. Young was recently relied upon by the Fifth Circuit in Revell v. Lidov, — F.3d —, 2002 WL 31890992 (5th Cir. Dec. 31, 2002), where a Texas resident sued a Massachusetts resident who had never visited Texas, for statements posted on an Internet bulletin board. In finding the exercise of jurisdiction unconstitutional, the Fifth Circuit applied reasoning similar to that in Young, “the post to the bulletin board here was presumably directed at the entire world, or perhaps just concerned U.S. citizens. But certainly it was not directed specifically at Texas.” Id. at *5. Against that backdrop, the court articulated the following test:
The defendant must be chargeable with knowledge of the forum at which his conduct is directed in order to reasonably anticipate being haled into court in that forum. . . . Demanding knowledge of a particular forum to which conduct is directed, in defamation cases, is not altogether distinct from the requirement that the forum be the focal point of the tortious activity because satisfaction of the latter will oft times provide sufficient evidence of the former.
Id. at *6.

Return to Top

Young Lawyers Division:
We Reap What We Sow: Volunteer Work with the VBA/YLD Serves the Public, The Bar and You
Stephen D. Otero

The VBA Young Lawyers Division (“VBA/YLD”) has recently enjoyed a series of exceptional years, thanks to the dedicated efforts of its members, the guidance of the senior section leaders and VBA staff, and the able leadership of its past officers, Executive Committee and committee chairs. It is my distinct honor to serve as the Chair of the VBA/YLD for 2003, and I sincerely hope that we can produce a record of achievement over the coming year worthy of the VBA/YLD’s distinguished history.

In December, I had the privilege of representing the VBA/YLD at a dinner honoring Chief Justice Harry L. Carrico. In his superb tribute that evening (reprinted in the January 2003 VBA News Journal), Governor Gerald Baliles recounted that he first met Chief Justice Carrico nearly 30 years ago, when as a member of the VBA/YLD a few years out of law school, he approached then-Justice Carrico about a joint project of the VBA/YLD and the Virginia YMCA to establish a Model Judiciary Program for high school students across the Commonwealth. Governor Baliles related that Chief Justice Carrico endorsed the project, provided guidance and secured access to the Supreme Court Chambers for the final arguments that each year serve as the culmination of the program. Today, the Model Judiciary Program remains one of the VBA/YLD’s signature projects, thanks in large part to the continued support of Chief Justice Carrico and the efforts of numerous VBA/YLD volunteers who have worked on the project in the years since Governor Baliles started it.

I believe Governor Baliles’ remarks are particularly relevant to VBA/YLD members for at least a couple of reasons. First, they serve as a reminder of how fortunate we are in Virginia to have leaders who are living examples of a commitment to volunteerism, public service and service to the bar. They also illustrate the many unique opportunities and incidental benefits of involvement in the VBA/YLD.

The majority of VBA/YLD initiatives are public service projects. For instance, the Child Support Enforcement Project seeks to reduce child support arrearages to judgments on a pro bono basis, the Emergency Legal Assistance Program offers pro bono legal services to victims of natural disasters and other emergencies, and the Domestic Violence Projects help battered spouses obtain civil protective orders on a pro bono basis. Still other VBA/YLD initiatives provide a service to the bar, such as promoting Professionalism and Civility in Practice through CLE presentations and panels, helping new lawyers to Bridge the Gap between law school and practice through CLE presentations and publications, and Minority Recruitment to the legal profession through mentoring and internships at law firms. Service to the public and the bar in these and other projects is its own reward, and reason enough for young lawyers to be active in the VBA/YLD.

Nevertheless, the demands and expectations placed on young lawyers today are as high as they have ever been. Recent increases in associate salaries in the private sector have led inevitably to more pressure to increase billable hours. In addition, the recent downturn in the economy has led to layoffs and hiring freezes in both the public and private sectors, which have led in turn to pressure on many lawyers to maintain or increase production levels with fewer people.

In this climate, it is easy to appreciate how a young lawyer could feel pressure to forego VBA/YLD volunteer work altogether in order to produce a few more hours of work. To do so, however, would be to ignore the many long-term, incidental benefits of staying involved in the VBA/YLD. For instance, the YLD affords young lawyers the opportunity to interact with their peers from across the Commonwealth in a non-adversarial context. The collegiality among VBA/YLD members allows them to forge life-long friendships, while at the same time developing a referral network that can lead to significant business over the long-term. The VBA/YLD also provides young lawyers the opportunity to develop their legal and speaking skills through, for instance, pro bono court appearances, or the formulation and presentation of CLE seminars to audiences around the state. In addition, the VBA/YLD provides young lawyers with opportunities to meet and mingle with some of the best and brightest of our profession, from whom they get the benefit of mentoring as well as examples of the highest standards of competence and professionalism. As it did for Governor Baliles, involvement in the VBA/YLD may even provide a young lawyer with an opportunity to meet and work with a future Chief Justice, or some other distinguished leader in the bar and the community.

Governor Baliles’ remarks really underscore some of the potential long-term benefits of being active in the VBA/YLD. Thus, my message to young lawyers at the start of this bar year is this: although involvement in the VBA/YLD may result in a few missed billable hours in the short term, the time commitment is very manageable, and in the long term, you will reap what you sow many times over. Stated differently, the more you put into the VBA/YLD, the more you are likely to benefit from it.

With this in mind, I look forward to working with the members of the VBA/YLD over the coming year to realize a few general objectives. First, we hope to implement some new projects that will serve the public and the bar. One example of this effort is the Wills for Heroes program, a collaboration with the ABA and VSB young lawyers, the Arlington County Bar, George Mason Law School and several other organizations that aims to provide fire fighters, police officers and other first responders with wills, advance medical directives and powers of attorney on a pro bono basis.

Second, we hope to expand some of our existing projects, such as the Model Judiciary Program and the Domestic Violence Project, so as to increase our presence across the state.

Third, we want to gain momentum for some of our newer projects, such as the Nonprofit Legal Support Project and the Immigration Project, while maintaining our momentum on our ongoing projects.

Lastly, we will continue our efforts to improve as an organization by maintaining a focus on attracting new members, providing new member services and improving communications, both internally and externally. These are exciting times in the VBA/YLD, and I look forward to reporting on our progress over the course of the coming year.

I encourage anyone interested in getting involved in the VBA/YLD to review our website and contact me (804-697-1236, steve.otero@troutmansanders.com) or one of our membership co-chairs, Elizabeth Horsley (804-783-6453, ehorsley@williamsmullen.com) and Anne Wood (434-846-9000, awood@ewlaw.com).

Return to Top

Across the Commonwealth

Lawyers Helping Lawyers leaves VBA orbit for new stage
Substance abuse assistance program will be private nonprofit
After nearly two decades of existence under The Virginia Bar Association’s administration, the Lawyers Helping Lawyers (LHL) Program has incorporated and becomes an autonomous, private nonprofit organization this year.

LHL traces its origins to 1984, when a joint committee of The Virginia Bar Association and the Virginia State Bar convened to study the impact of substance abuse on the legal profession and concluded that substance abuse posed a serious threat to members of the legal profession and their clients, families and colleagues. After studying lawyer assistance programs in other states, the joint committee recommended the adoption of a program in Virginia and that the program be separated from the disciplinary role of the Virginia State Bar so that lawyers seeking help could do so without fear that revealing their difficulties might subject them to disciplinary action. The VBA invited the fledgling program to be housed within its structure, and has fostered the program through its Substance Abuse Committee and with the help of Association staff.

Hundreds of people have received education, intervention, assessment, referral, peer support, monitoring and treatment through the efforts of LHL staff and volunteers. Disciplinary rules were amended to provide confidentiality, and a statute was passed to provide civil immunity to volunteers for their work with impaired attorneys. Funds were raised to help lawyers requiring financial assistance for their treatment, and the Stephen C. Chapple Recovery Assistance Fund was housed in the VBA Foundation. In the program’s 10th year, the first of several successful statewide conferences was held, a full-time program director — Susan D. Pauley — was hired, and the volunteer base grew beyond the Substance Abuse Committee to a statewide network of approximately 200 attorneys.

This new stage of the program’s evolution is in response to the SAC’s findings that the legal profession needs assistance with mental health issues beyond substance abuse and a new structure is needed to assist LHL in its work in this area.

At press time, LHL was still housed within the VBA offices but expected to move into its own space later this spring. The VBA News Journal will announce the new LHL address when it is available and will continue to print contact information for the program: currently, toll-free at 1-800-838-8358, Richmond area (804) 644-3212, valhl@vba.org.

Bankruptcy Law Conference will be April 11-13 at Duck
The Bankruptcy Law Section of The Virginia Bar Association will hold its sixth Annual Conference April 11-13, 2003, at The Sanderling Inn in Duck, North Carolina.

Four hours of continuing legal education programming, including one hour of ethics, is scheduled.

The weekend will begin with a welcome reception Friday evening for meeting attendees and their families. Saturday morning’s CLE programs will start with a continental breakfast for meeting participants and conclude with lunch and an optional golf outing.
Continuing legal education program topics will be “Recent Developments in Bankruptcy Law,” “Electronic Ethics,” “Bankrupting Mechanics’ Liens,” and a panel discussion on “Fraudulent Transfers, Some Current Issues.”

Full schedule and registration information has been mailed to Section members and is available on the Bankruptcy Law Section’s activities web page.

With Judge Agee elected to the Supreme Court,
GA picks McClanahan for the Court of Appeals
As Virginia’s new Chief Justice, The Honorable Leroy R. Hassell Sr., took his position in early February, a sort of “domino effect” occurred in the Commonwealth’s highest courts.

The Honorable G. Steven Agee of Salem, formerly of the Court of Appeals of Virginia, was elected to the Supreme Court, filling the vacancy caused by the January 31 retirement of The Honorable Harry L. Carrico, Chief Justice of Virginia.

Chief Deputy Attorney General Elizabeth A. McClanahan and The Honorable R. Terrence Ney of the 19th Circuit Court (a VBA past president and current Judicial Section chair) were recommended by the VBA for the pending Court of Appeals vacancy caused by Judge Agee’s election. McClanahan was ultimately chosen for the seat by the General Assembly.

Information about General Assembly actions on judgeships and judicial matters may be found at leg1.state.va.us (search by topic or by keyword).

Our congratulations and best wishes to Chief Justice Hassell, Justice Agee and Judge McClanahan, all of whom are VBA members!

‘Wills for Heroes’ partners will offer free wills for Arlington emergency personnel
George Mason University School of Law is partnering with The Virginia Bar Association Young Lawyers Division, the Arlington County Bar Association, the Virginia State Bar Young Lawyers Conference, Virginia CLE, the ABA’s Young Lawyers Division Special Committee on 9/11 Legal Assistance, Lexis-Nexis, the Fellows of the Virginia Law Foundation, Hunton & Williams and McGuireWoods LLP to provide free wills, powers of attorney, and advance medical directives for Arlington County firefighters, police, sheriff’s deputies and other emergency personnel. This massive undertaking envisions providing testamentary documents to well over 1,200 Arlington County emergency personnel. In the wake of the 9/11 attack on the Pentagon, this is a particularly appropriate public service since there is currently no program in place to offer this service for the county’s emergency personnel.

Professor Leslie Woodruff, a trusts and estates professor at George Mason University School of Law, and Elizabeth Wildhack, Chair of the Arlington Bar’s Trusts and Estate Section Special subcommittee, have worked with the VBA/YLD and the VSB/YLC to develop three basic will forms, as well as an advance medical directive and a “springing” power of attorney. Virginia CLE provided invaluable assistance in developing and coding the forms into “HotDocs” the document assembly program donated by Lexis-Nexis. From this point, the program will take a three-step approach.

First, volunteer attorneys and law students will attend a training seminar. This free seminar introduces volunteers to the program and provides an explanation of the document templates and a discussion of the logistics of the program. The first two seminars, sponsored by GMU School of Law, were held February 22 and 25, 2003, at George Mason’s Arlington campus. CLE approval is pending for the seminar, with ethics credits included.

Second, first responders will attend a presentation to educate them regarding the benefits and effects of estate planning in general and the specific documents being offered.

Finally, the volunteer attorneys, along with George Mason law students, will meet with the emergency personnel to prepare and supervise execution of the documents. The documents will be prepared using laptop computers donated by Hunton & Williams and printers donated by McGuireWoods LLP. The Fellows of the Virginia Law Foundation provided needed funding for the program, which ensures the program will be a success in Arlington as well as across the Commonwealth.

The idea for “Wills for Heroes” was hatched by Anthony Hayes, an attorney in Columbia, S.C., who, as Chair of the ABA Young Lawyers Division Special Committee on 9/11 Legal Assistance, provided wills for over 300 emergency personnel in South Carolina. The VBA/YLD and the VSB/YLC plan to take the program statewide. The Arlington program will serve as a model for the statewide program, as well as for other states that implement the program with the ABA Young Lawyers Division’s support. With volunteer young lawyers poised for action across the state, the program will benefit all those emergency personnel who risk their lives daily.

To ensure the success of this program, volunteer attorneys are needed. In order to volunteer, attorneys must complete a training session.

For additional information about the program, future training sessions and how to volunteer, please contact volunteer coordinators Heather Dawson, heather.dawson@ofplaw.com, or Carson Sullivan, csullivan@mcguirewoods.com.

Law School Council co-hosts program at UR
The Richmond Journal of Law and the Public Interest and the VBA/YLD's Law School Council at the University of Richmond co-sponsored a program on January 23 entitled "The Virginia Budget Crisis: The Impact" featuring Lieutenant Governor Timothy M. Kaine, Deputy Secretary of Education Peter A. Blake and Deputy Secretary of Natural Resources David K. Paylor. The event featured a panel discussion and question-and-answer session moderated by Jeff Schapiro, political reporter for the Richmond Times-Dispatch.

Administrative Law Conference set
The Virginia Bar Association’s Administrative Law Section will hold its annual day-long conference on Tuesday, April 22, at the Omni Richmond. Agenda and registration information will be mailed to Section members when available and will be posted on the VBA website.

Return to Top

News in Brief

Congratulations to the following VBA members recently appointed to Virginia boards and commissions by Governor Warner and confirmed by the General Assembly:
Hon. Mary Sue Terry, Critz, Tobacco Indemnification and Community Revitalization Commission; Hon. Thomas J. Michie, Charlottesville, Board for Hearing Aid Specialists; F. Claiborne Johnston Jr., Richmond, The Library Board; Thomas F. Farrell II, Richmond, Advisory Council on Revenue Estimates; Jennifer L. McClellan, Richmond, and William L. Nusbaum, Norfolk, Board of the Virginia College Building Authority; James J. Wheaton, Chesapeake, Board of Commssioners, Virginia Public School Authority; Theodore J. Craddock, Lynchburg, and Prof. A. Mechele Dickerson, Hampton, Escheators; Harriette H. Shivers, Roanoke, James W. Speer, Richmond, and Erica Wood, Arlington, Public Guardian and Conservator Advisory Board; Lucia Anna Trigiani, Alexandria, Board of Health Professions; Betty Wade Coyle, Norfolk, Advisory Board on Child Abuse and Neglect; Katherine E. Slaughter, Charlottesville, State Water Control Board; Alan D. Albert, Virginia Beach, Board of Conservation and Recreation; Prof. Robert E. Shepherd Jr., Richmond, Advisory Committee on Juvenile Justice; W. David Harless, Richmond, Medal of Valor Review Board; Hon. John J. Davies III, Culpeper, and Phillip C. Stone, Bridgewater, Commonwealth Transportation Board; Andrew A. Protogyrou, Norfolk, Citizens Advisory Committee to the Chesapeake Executive Council; Sharon E. Pandak, Woodbridge, Education Commission of the States. Any omissions from this list will be published in a future issue.

Return to Top

Professional Announcements

Robert L. Flax is proud to announce the continuation of his law practice at 8 South Sheppard Street, Richmond, VA 23221-3028, (804) 355-8425, fax (804) 355-9129, e-mail rflaxlaw@hotmail.com. Mr. Flax has practiced from this location for 25 years. He will concentrate in the civil practice areas of civil litigation, domestic relations, bankruptcy, worker’s compensation, personal injury and residential real estate closings. Mr. Flax is a former chairman of the General Practice Section of the Virginia State Bar. He is a member of The Virginia Bar Association, the Virginia Trial Lawyers Association, the Richmond Bar Association and the American Bar Association. Mr. Flax practiced with S. Neil Stout as Flax and Stout Affiliated Law Offices for 10 years.

Return to Top

Hail and Farewell to a Friend: Sandy Thompson Retires

After 20 years with The Virginia Bar Association, Administrative Director Sandra P. Thompson retires at the end of this month, with the heartfelt good wishes and thanks of VBA members, leaders and staff. During the Annual Meeting banquet on January 17, the following resolution was presented to Sandy by VBA President Ed Betts and Executive Vice President Breck Arrington:

The Virginia Bar Association
Resolution

This RESOLUTION made this sixteenth day of January 2003 in the City of Williamsburg, Virginia, on behalf of the entire membership of The Virginia Bar Association as evidenced by the names and signatures affixed below, does hereby state that:

WHEREAS, Sandra P. Thompson of Varina, Virginia, will fulfill twenty years of extraordinary service with The Virginia Bar Association on March 31, 2003; and

WHEREAS, Sandra P. Thompson will on that same date formally retire from her service to this Association with the heartfelt thanks and complete goodwill and appreciation of all the members of the Association; and

WHEREAS, Sandra P. Thompson has been an exemplary staff member since April 1, 1983, and staff leader without peer since May 1, 1991, when she became our Administrative Director; and

WHEREAS, Sandra P. Thompson has also been a model citizen of the Commonwealth, as the longtime legislative aide to Delegate Robert Bloxom, as a founder of the Good Neighbor Village community and in her many other public services, as well as an affectionate spouse to Robert M. Thompson who, in turn, has been so very supportive of Sandy and this Association, and as mother of Holly, Michael and the late Cathy Thompson;

NOW, THEREFORE, BE IT RESOLVED, that it is timely that we express, for the Association, our limitless gratitude, admiration and affection to Sandra P. Thompson whose commitment to The Virginia Bar Association and its many good works stands as a shining example to all, now and into the years to come.

[Signed]
F. Claiborne Johnston, Jr., President, 1990
Allen C. Goolsby, President, 1991
Thomas C. Brown, Jr., President, 1992
Hon. Whittington W. Clement, President, 1993
Hon. M. Langhorne Keith, President, 1994
Hon. R. Terrence Ney, President, 1995
Douglas P. Rucker, Jr., President, 1996
Phillip C. Stone, President, 1997
G. Franklin Flippin, President, 1998
David Craig Landin, President, 1999
Anita O. Poston, President, 2000
Jeanne F. Franklin, President, 2001
J. Edward Betts, President, 2002
Frank A. Thomas, III, President-elect, 2003

ATTEST: Charles B. Arrington, Jr., Executive Vice President

Return to Top

Copyright 2007 The Virginia Bar Association