| Archives:
July 1999 Listing of articles from the VBA Journal, 1975-98 |
September 1999
|
Worthy goals? Or unfair? Virginia’s new, controversial Standards of Learning
(SOLs) have been regarded as both. On July 16, during the VBA Summer Meeting
at The Greenbrier, a panel discussion on SOLs produced by the VBA Committee
on Special Issues of National and State Importance drew an audience of approximately
200.
Del. W. Tayloe Murphy Jr. (D-Warsaw) served as moderator. Panelists were Rev.
George E. Conway of Charlottesville, headmaster of St. Anne’s-Belfield
School; State Board of Education Chair Kirk T. Schroder of Richmond; and Del.
Kenneth R. Plum (D-Reston). Questioners were Dr. Lawrence Cross of Virginia
Tech; Roanoke County School Board member Thomas A. Leggette; and Pamela Stallsmith
of the Richmond Times-Dispatch.
Schroder, who presented poised support for the SOLs, quoted the late Chief Justice
Earl Warren at one point: “Anything worthwhile I ever did I caught hell
for.” He noted that Virginia educators are now more focused on instructional
methods, and that children at risk will not fall through cracks in the system.
“Accountability is not just about schools, but about communities. I encourage
everyone present to help your schools improve their SOL performance.”
“The ‘testing frenzy’ of the 1970s led to an industrial approach
to education, turning little widgets out of school factories,” said Del.
Plum in contrast.
“If you view schools as factories and all students as the same, you will
believe SOLs are suitable tools. If you believe schools should recognize individuality
and encourage gifts and talents, you’ll be likely to feel SOLs fail....We
need a balance between knowledge and skills. We need to prepare kids for lifelong
learning.”
Rev. Conway expressed concern about possible government intrusion in private
education, while commenting that private schools are generally supportive of
SOLs. “Are we preparing kids for the future? Are we educating kids about
what has been important? Teachers and curriculum developers are caught between
the two.”
All panelists agreed that debating SOL-related issues is healthy and constructive,
and that community involvement in the schools benefits all concerned.
The pithiest critical comment of the day came from Dr. Cross: “Weighing
a pig more often won’t make him any fatter, and testing a child more often
won’t make him any smarter.” Return to Top
This summer’s yearly heat wave makes it pleasant to think about the winter
months.
In that regard, what is more emblematic of The Virginia Bar Association than
Williamsburg in January, with almost predictable ice storms and log fires in
the fireplaces as a remedy for the post-holiday blahs?
While our Summer Meetings are important (for example, we expect to have a senatorial
candidates’ debate next year at The Homestead), we really do the bulk of
our business at our Annual Meeting in Williamsburg, which is scheduled this
year for January 13-16, 2000. Planning is already in full swing and there are
going to be some important changes which you will, I believe, find exciting.
For years, the Williamsburg meeting extended through Saturday, providing an
extra evening to socialize with friends and to enjoy the amenities of Colonial
Williamsburg. Some years ago, the meeting was shortened to end with a midday
reception on Saturday. A number of us have observed that it would be nice for
the meeting not to end with the Saturday noontime reception, and that it would
be pleasant to stay Saturday night and have a less formal function so that we
could visit with one another on a more casual basis.
As a result, a Saturday evening steering committee will shortly be announced
and will guide us into an enjoyable dinner dance for that evening. The buffet
style for the dinner will promote lots of opportunities to mingle during the
course of the meal, and the band will be chosen with equal dedication to fun.
So — please be sure that you mark your calendar to stay through Saturday
night in Williamsburg!
Our programs and speakers are receiving equal attention, with friendly competition
for general session slots already occurring and some important commitments already
made.
You have recently observed the terrible events in connection with the day care
center shooting in Los Angeles, which resulted in the wounding of a number of
children and two employees of the center.
We, as an Association, are committed to integrity and tolerance — not mere
political correctness, but tolerance — as part of our ideal of professionalism.
Therefore, we have invited Rabbi Abraham Cooper of Los Angeles, associate dean
of the Simon Wiesenthal Center’s Museum of Tolerance, to speak with us
about moral imperatives at the core of our professionalism at a general session
on Friday, January 14.
The Museum of Tolerance is a world-class human rights laboratory and educational
center dedicated to challenging its visitors to confront racism and bigotry
and to understand the Holocaust in both historic and contemporary contexts.
The genesis for the Museum — the first of its kind in the world —
came from the leaders of the Simon Wiesenthal Center, an internationally recognized
and acclaimed human rights organization named in honor of the champion of Holocaust
survivors and the oppressed.
In the late 1980s, a decision was made to create a museum to educate and enlighten.
But this would be no ordinary museum, with documents and artifacts. The challenge
put forth was to create a museum that would help people of all backgrounds confront
their most closely-held beliefs.
The Museum of Tolerance opened in February 1993 to national and international
acclaim. Today, the public has come to view the Museum as a symbol of society’s
quest to live peacefully together and as a resource for information and counsel
on how to reach that goal. We are honored, at this particularly stressful time,
to have the opportunity to visit with Rabbi Cooper.
Purists may insist that the new millennium will not begin until 2001, but most
of us are anticipating the year 2000 with special excitement (and making our
millennial plans for that year!).
As has become a tradition, the Virginia Law Foundation Fellows Dinner and Induction
Ceremony on Thursday night, meetings of our various committees and sections,
and gatherings of the leadership of other statewide bar groups will characterize
our transition as an Association into the year 2000.
When you come to the Annual Meeting next January, please plan to arrive on Thursday
and depart on Sunday. Yet another great Williamsburg meeting is in store for
us all. Return to Top
Introduction
Virginia consumers and health care providers experiencing problems with managed care organizations face a complex maze of federal and state regulations. To address this problem, the 1999 Virginia General Assembly created a new office within the State Corporation Commission’s Bureau of Insurance called the “Office of the Managed Care Ombudsman” (“Ombudsman”) to help consumers take full advantage of their legal rights and remedies. A central function of the new office involves educating consumers about their rights and responsibilities and how to advocate on their own behalf, particularly understanding and exercising their rights of appeal of adverse determinations made by managed care health insurance plans (also referred to as “MCHIPs”). 1
In enacting this legislation, Virginia joins a growing number of states that have created similar ombudsman offices.2 However, it is important to recognize that Virginia’s new office is unique in that it will not itself perform an advocacy, adjudicatory or complaint resolution function, but rather has as its mission to educate and guide consumers navigating the seas of managed care regulation.
This article discusses the framework of laws regulating managed care dispute resolution in Virginia and explains how the new Ombudsman can complement existing dispute resolution mechanisms. According to the National Association of Insurance Commissioners, roughly three out of five, or 62 percent, of Americans are covered by private plans subject to state insurance regulation.3 The remainder who have insurance typically are covered by self-funded employer plans established under the federal Employee Retirement Income and Security Act (“ERISA”).4 An important issue to be considered, therefore, is the applicability of state law since ERISA contains complex provisions, which can preempt state law jurisdiction.5
Although technical jurisdictional issues may arise, there is no question that the new Ombudsman can help many Virginia consumers needing assistance with resolving health care insurance disputes.6 Recent cases also suggest possible erosion of ERISA preemption,7 a trend confirmed by an April 1999 decision of the Supreme Court of the United States upholding a California consumer protection law as against a claim of ERISA preemption.8 The United States Court of Appeals for the Fourth Circuit and the Supreme Court of Virginia have also rejected ERISA-based preemption challenges to Virginia laws prohibiting discrimination against providers.9 These developments provide strong encouragement for state consumer protection activities in the managed care area. The Commonwealth’s new Office of the Managed Care Ombudsman continues Virginia’s tradition as a leader in protecting the rights of managed care consumers.10
Functions of Virginia Ombudsman
Effective July 1, 1999, Virginia’s new office of the Managed Care Ombudsman began operation for the purpose of “promot[ing] and protect[ing] the interests of covered persons under managed care health insurance plans in the Commonwealth.”11 Statutorily enumerated duties of the Office include (1) assisting covered persons with understanding their rights and the processes available to them under their managed care health insurance plans; (2) answering inquiries from covered persons and other citizens; (3) providing information upon request about managed care health insurance plans and other utilization review entities; (4) developing information on the types of managed health care insurance plans available in Virginia, including mandated benefits and utilization review procedures and appeals; (5) maintaining data on inquiries received and their disposition; (6) monitoring changes in federal and state laws relating to health insurance; and (7) providing assessments of proposed and existing managed care health insurance laws.12 The new legislation also calls for the appointment of an ombudsman within the Department of Personnel and Training to assist employees covered under any self-funded state employees’ health plan.13
One of the Ombudsman’s first tasks is collecting information about appeal procedures within managed care plans. Health carriers operating managed care health insurance plans are required by law to establish complaint systems approved by the State Corporation Commission and the State Health Commissioner.14 ERISA imposes similar requirements on self-funded employer plans,15 and courts generally have held that these internal review procedures must be exhausted before an ERISA suit can be brought.16 An ombudsman thus can serve an important role in assuring that consumers understand and take full advantage of their rights under managed health care insurance plans. Consistent with statutory notification requirements,17 the Virginia Health Insurance Consumer’s Guide, currently made available by the Bureau of Insurance, encourages consumers to make an effort to contact their agent or insurance company first since many times misunderstandings can be resolved through personal communication.18
Consumers unable to obtain a satisfactory answer from their agent or insurer generally may file a complaint with the Bureau of Insurance.19 In the case of final adverse decisions affecting utilization of hospital, medical or other medical services by consumers in managed care health insurance plans, the Virginia General Assembly has provided for an additional specific statutory right of appeal by the covered person, his representative or a provider.20 This statutory right of appeal consists of review by clinical peers who were not associated with the original decision. Consumers in managed care health insurance plans who file complaints with their plans will now receive information about the new Office of the Managed Care Ombudsman, which will provide the information they need to assert their rights.21
Independent External Review
The legislation adopted by the 1999 General Assembly includes provision for review by an independent impartial health entity contracted by the Bureau of Insurance to perform review of final adverse decisions.22 This independent external review procedure, however, is not effective until July 1, 2000, unless the Commission promulgates regulations sooner, in which case the process becomes effective 90 days thereafter.23 Under the new procedure, the independent external review entity would review written materials including affidavits and medical records it deems appropriate and issue a written recommendation to the Commissioner of Insurance who shall issue a written ruling carrying out the recommendation of the external review entity unless that entity exceeded its authority or acted arbitrarily or capriciously.24
Finality of Commissioner’s Determinations
This new procedure is significant in that it contemplates a written determination by the Commissioner of Insurance, which
shall bind the covered person and the issuer of the covered person’s policy or contract for health benefits to the extent to which each would have been obligated by a judgment entered in an action at law or in equity with respect to the issues which the impartial review entity may examine when reviewing a final adverse decision under this section.25
This statutory language contemplates finality for the Commissioner’s decision. Notice regarding the binding nature and effect of the Commissioner’s decision is required to be given by the managed care health insurance plan in its notice following denial of an appeal of a final adverse decision.26
New Section 38.2-5902(D) subjects licensees required to provide previously denied services as a result of independent external review to liability for costs in an amount deemed appropriate by the Commission to cover review costs. Section 38.2-5903 further provides for an assessment based upon direct gross premium income to fund regulation, supervision and examination of managed health care insurance plan licensees operating in Virginia. Implementation of this assessment and other procedural details necessary to effectuate the independent external review mechanism are left to regulations to be promulgated by the Commission, subject to the delayed enactment clause noted above.27 Pursuant to Section 38.2-5905, the Commission is to promulgate regulations implementing the new independent external review procedure within 280 days of its enactment.28
Benefits of Virginia’s Statutory Scheme
An important function of the new Ombudsman will be to help assure that consumers have taken optimal advantage of available review procedures within the managed care plan before invoking the new independent external review procedure. An ombudsman working within an organization such as the Bureau of Insurance can actually be more advantageous for consumers in that he has significant knowledge, expertise and access to critical information.29 Virginia’s initial choice of an Ombudsman with experience in the Department of Health’s Center for Quality Health Care Services and Consumer Protection provides consumers with access to an expert who can provide information about public and private programs that may offer solutions and immediate help.30
The creation of the new Ombudsman to help consumers and providers solve problems within a carefully crafted framework of internal and independent external review is to be contrasted with the new private right of action created in favor of health care providers damaged by insurer breaches of ethical standards in business practices.31 This contrast reflects a legislative determination to focus limited administrative resources on helping health care consumers obtain expeditious administrative review by experts. Competitive business issues arising under contractual arrangements between health care providers and insurers can be resolved using other procedures, and the threat of treble damage liability in a private enforcement action creates a real incentive for insurers to comply with ethical standards.
Conclusion
The ombudsman model presents unique opportunities for helping consumers and providers resolve sensitive issues affecting the provision of health care services as quickly and compassionately as possible. Virginia’s new Office of the Managed Care Ombudsman is a vital part of alternative dispute resolution in the managed care context.
By virtue of its location within the Bureau of Insurance, Virginia’s Ombudsman is in a unique position to foster positive communication and development of relationships that can help patients and providers effectively navigate what can seem like a complicated and intimidating procedural maze, especially to those lacking familiarity and experience with health care insurance. Health care consumers, providers, managed care organizations and their advocates can all benefit through the services and education offered by the new Ombudsman.32
Notes
1. See 1999 Va. Acts Ch. 649, enacting a new Section 38.2-5904 establishing the Office of Managed Care Ombudsman within the State Corporation Commission’s Bureau of Insurance. in fact, two bills were enacted and signed dealing with the Office of Managed Care Ombudsman. See 1999 Va. Acts, Chs. 643 and 649. The enactments were signed on the same day, and the Virginia Code Commission reconciled these versions in the text set forth in the affected statutory supplements.
2. Sage, “Physicians As Advocates,” 35 Houston Law Review 1529,1532 (1999); Wiegand, “A Just and Lasting Peace: Supplanting Mediation with the Ombuds Model,” 12 Ohio St. J. Disp. Resol. 95, 99 (1996). As these commentators explain in detail, the ombudsman conciliation model is a process that seeks to facilitate problem solving by promoting a spirit of good will and cooperation, as opposed to finding facts, assigning fault and imposing sanctions. A great deal of information about ombudsmen is available through a website maintained by the Ombudsman Committee of the American Bar Association section of Administrative Law and Regulatory Practice, http://www.abanet.org/adminlaw/ombuds/.
3. National Association of Insurance Commissioners, Insurance Consumer Alert—Resolving Health Care Disputes, page 3, http://www.naic.org/geninfo/0909nbl.htm.
4. A 1997 Report of the Joint Commission on Health Care estimates that 35 percent of Virginians are covered under self-funded benefit plans. Study of the Appropriate Role of the Agencies of the Commonwealth in Overseeing the Managed Care Industry Pursuant to SJR 67 of 1996, 1997 Senate Document No. 7 at pages 14-15.
5. The combined effect of these provisions has been summarized as follows:
[S]tate laws that relate to employee benefit plans, (including health insurance benefits), are preempted by ERISA, unless they regulate the business of insurance, in which event they are saved from preemption. State laws that regulate self-insured plans, or that broadly attempt to regulate both self-insured and purchased insurance plans, will be invalidated by the combined effect of the preemption and deemer clauses, even if the savings clause would save them from preemption if they applied only to plans that were not self-insured.
Furrow, et al., Health Law, Volume 2, Section 11-9 at 39 (1995). Not surprisingly, the meaning and scope of ERISA’s preemption provisions have been the subject of continuing litigation since the original enactment of ERISA in 1974.
6. For a number of years, both the Virginia Department of Health and the Bureau of Insurance have provided limited assistance to consumers covered under ERISA plans, such as providing the consumer with a referral to an appropriate contact at the U.S. Department of Labor. Virginia’s Bureau of Insurance is monitoring a voluntary experimental arrangement between the Department of Labor and the Oklahoma Insurance Department, which gives the Oklahoma Department primary jurisdiction to resolve disputes under ERISA plans. See Mathews, “ADR for Managed Healthcare Disputes,” 25 VBA News Journal 6 (April 1999).
7. Regan, “Regulating the Business of Medicine: Models for Integrating Ethics and Managed Care,” 30 Colum. J. of Law and Soc. Prob. 590, 681 (1997).
8. UNUM Life Ins. Co. of Am. v. Ward, ___ U.S. ___, 67 U.S.L.W. 4243, 119 S.Ct. 1380, 143 L.Ed.2d 462, 1999 U.S. Lexis 2839 (1999). This case concerned state laws affecting the timeliness of a claim for disability benefits, which was asserted to override time limitations established under the employer’s self-funded plan.
9. Stuart Circle Hosp. Corp. v. Aetna Life Ins. Co., 995 F.2d 500 (4th Cir. 1993), cert. denied, ___ U.S. ___ (1993); Blue Cross and Blue Shield of Va. v. St. Mary’s Hosp. of Richmond, 426 S.E. 2d 117 (Va. 1993).
10. See Senate Document Number 17, supra at 39 (noting that “Virginia has been recognized as having some of the most extensive HMO consumer protections in the country”); Consumer Federation of America, Consumer Information Available from State Insurance Departments 4 (1999) (describing information available from Virginia Bureau of Insurance as “[e]xcellent, well-written and relevant to consumers”); Families USA, The Best from the States II (1998) (citing Virginia Code Section 32.1-137.15 as a recommended appeal procedure to protect patient rights).
11. Section 38.2-5904(A). Although effective July 1, 1999, preparations for the new Office began earlier in the year after the enacting legislation was signed by the Governor on March 28, 1999. On June 7, 1999, the Bureau of Insurance issued Administrative Letter 1999-6 announcing the selection of Mr. Tom Bridenstine to head the new Office of the Managed Care Ombudsman within the Life and Health Division of the Bureau of Insurance. Bridenstine had been serving as Supervisor of Managed Health Care Plans with the Virginia Department of Health Center for Quality Health Care Services and Consumer Protection.
12. Section 38.2-5904(B).
13. Section 2.1-20.1(L). The Department of Personnel and Training estimates that there are about 230,000 state employees, and it reportedly plans to staff the new Ombudsman position later in the fall of 1999.
14. Section 38.2-5804(A).
15. 29 U.S.C.A. Section 1133; 29 C.F.R. Section 2560.503-1.
16. Furrow et al., supra at 40.
17. 38.2-205(B).
18. State Corporation Commission Bureau of Insurance, Virginia Health Insurance Consumer’s Guide 22 (1994). This Guide also contains information about ERISA plans. See Guide at 10-11.
19. See Section 38.2-305(B) (covered persons to be provided notice that includes address and toll-free number for contacting the Bureau of Insurance). Apart from this notification requirement, there does not appear to be any statute granting consumers the right to file a complaint and obtain administrative review of the actions of an insurer or agent. The Commission’s Rules of Practice and Procedure adopted pursuant to Section12.1-25 allow any person dissatisfied with administrative action by an employee to complain to the Commissioner of Insurance and a person dissatisfied with the Commissioner’s actions can petition the full State Corporation Commission for a hearing. See Rules 3:3 and 3:5, Rules of Practice and Procedure of the Virginia State Corporation Commission (1986).
20. Section 32.1-137-15. As noted, this appeal procedure has been cited as an effective consumer protection.
21. Bureau of Insurance Administrative Letter 1999-6 (detailing information about Ombudsman required to be included in complaint forms and any written procedures provided to covered persons).
22. Sections 38.2-5900 et seq.
23. Chapter 649, 1999 Acts of Assembly, Section 3.
24. Section 38.2-5902(A).
25. Id.
26.New statutory language regarding the required notification is as follows:
If the appeal is denied, such notification shall include a clear and understandable description of the covered person’s right to appeal final adverse decisions to the Bureau of Insurance in accordance with Chapter 59 (Section38.2-5900 et seq.) of Title 38.2, the procedures for making such an appeal, and the binding nature and effect of such an appeal, including all forms prescribed by the Bureau of Insurance pursuant to Section 38.2-5901. Such notification shall also include the mailing address, telephone number and electronic mail address of the Managed Care Ombudsman. Further, such notification shall advise any covered person that, except in the instance of fraud, any such appeal herein may preclude such person’s exercise of any other right or remedy relating to such adverse decision.
Section 32.1-137.15(A) (Emphasis added.)
27.The third enactment clause of 1999 Va. Acts, Chs. 643 and 649 provides: “This act shall take effect on July 1, 1999; however, the appeal processes set forth in Chapter 59 of Title 38.2 of this act shall not take effect until the earlier of (i) ninety days following the promulgation of regulations by the State Corporation Commission as set forth in Section 38.2-5905 or (ii) July 1, 2000.”
28.1999 Va. Acts. Chs. 643 and 649, cl. 2.
29. See Consumer Federation of America, Consumer Voice, Participation and Representation in Managed Health Care 8 (1998) (noting that independent ombuds have more freedom but less clout).
30. See footnote 11, supra.
31.1999 Virginia Acts of Assembly, Chapter 739 (adding a new section 38.2-3407.15). This new legislation grants providers a private cause of action with treble damages to encourage private enforcement of ethical business standards in relationships between providers and managed care plans.
32. Weigand, supra at 122-31 (explaining development of ombuds offices as an option preferable to mediation in situations involving disparities in power and resources as well as differences in goals and values).
About the Author: Martha Blevins Brissette is an Assistant Attorney General in the Insurance and Utilities Regulatory Section of the Division of Consumer Counsel established by Section 2.1-133.1 of the Code of Virginia. The information in this article does not necessarily represent an official position of the Office of the Attorney General. The author expresses appreciation to staff at the Virginia State Corporation Commission’s Bureau of Insurance for their helpful comments and assistance, particularly to Mr. Tom Bridenstine, director of the Office of the Managed Care Ombudsman. Return to Top
What shall we do about e-mail?
It’s fast becoming our principal means of written communication. Fax, I predict, soon will be assimilated into e-mail. Documents we now send from a fax machine will be sent as e-mail attachments. They’ll either be scanned images (such as present fax documents), files we create on our computers (like a Word or Word Perfect document), or files we create then translate into a ubiquitous form such as Adobe PDF or Personal Document Format. Most folks today can read PDF files using their browser’s Acrobat software.
Within your office great savings of time and money are possible if you’ll begin sending documents from point to point as e-mail attachments. How is this done? Put small desktop scanners on as many desks as possible. They can be bought from less than $100 to maybe $200. Feed sheets of paper into these scanners and images of the documents are created as computer files which can be sent as e-mail attachments. I do this at my desk many times each day. Many go out as e-mail attachments. The rest are sent as faxes or simply stored on my hard disk for future reference.
How much time would it save in your office if paper that now is routed from desk to desk were sent as e-mail attachments? Everyone would get the document at the same time. Nothing would be stuck on an absent or busy person¹s desk. And countless staff hours now spent carrying pieces of paper up and down the hall would be avoided.
A major e-mail issue that most large law firms already have faced and needs to be on the agenda of every small office is integration. It means combining internal and external e-mail into one process.
In the beginning, e-mail sent within and without the office were separate functions that required separate software. Then a wise person asked, “Why shouldn’t all e-mail originate in the same way, using the same software and the same recorded address list?” Today, I receive messages via the Internet which show copies sent to folks in the sender’s office. Obviously, they’re using integrated e-mail.
Most major software e-mail packages today offer this integration. The same network you use for internal e-mail only needs to be connected to the Internet so that external e-mail can flow transparently from your office to the rest of the world. Our firm had a form of this years ago when we had offices in three cities. It was possible then to send e-mail messages to people in our own office and copy folks in one or both of the other offices. Now, with integration, you can copy anyone in the world who has an Internet e-mail address. Or you can send a message to them and copy someone down the hall.
Finally, there are issues of confidentiality. The ABA ethics people recently issued an opinion that it’s not a violation for an attorney to send routine client communications by e-mail. Sure, for a super-secret contract, you might want to use encryption. Low-cost software is available that will encode your messages and UPS has an encryption service which costs something like a dollar a page. But for day-in and day-out communications, the type you’ve previously sent by postal mail, fax and courier, e-mail has been proven to be as secure as these other delivery vehicles.
We¹ve all received misdirected postal mail and faxes. Years ago, the phone lines in our area got tangled and I’d pick up the phone to dial out and find myself in the middle of a conversation involving another attorney whose voice I knew. Such errors do happen and, I’m sure, can happen with e-mail. However, I’ve yet to have a properly addressed message of mine wind up in a third party’s hands — and I’ve been using e-mail of one form or another for at least 15 years.
How about confidentiality within your office? Can you expect such for messages you send and receive using the law firm ‘s computer? The growing consensus seems to be “no,” but everyone involved should be told to avoid possible problems, even litigation.
This means the boss can, if he or she wishes, read your e-mail. It could involve pulling your messages from the office server or even looking on your computer’s hard disk. Is it wise to do this randomly? Definitely not.
But create an office policy that makes it plain any superior has the right to do this even for a suspicion of wrongdoing.
You’ve may have read about large settlements certain national business firms recently have paid because racist jokes or sexually suggestive messages were sent on their office e-mail systems. Another case involved copyrighted clip art which an employee put on his Web page and the employer was held liable for copyright infringement. Of course, confidential information also can be sent to the wrong people via e-mail.
A co-counsel in Pennsylvania told me that a partner of his firm recently resigned and tried to take a major client’s business with him. However, this man left on his computer’s hard disk a message which showed he was planning this exit and grab for the client’s business a year earlier when he was still a partner of the firm. That message came back to haunt him.
All this is to say there are many quite valid reasons for you as an employer to know how your e-mail system is being used. Just be sure your employees understand that they have no right or expectation of privacy for law firm e-mail. Then use your right of “snooping” with great caution and only for valid reasons.
This column is the first in a new series contributed by the VBA Law Practice Management Section Council. Jackson S. White Jr. is a partner in the law firm of White Bundy McElroy Hodges, P.C., in Abingdon, and a member of the VBA Law Practice Management Section Council. He invites readers to contact him about this column at jwhite10@naxs.com.
In 1962, Robert C. “Robin” Wood III started a double life.
After graduation from Washington & Lee University, he began law school at
the University of Virginia that fall. In speaking with a friend, the first-year
law student learned that officials were needed for athletic events in the Charlottesville
area—at a pay rate of $50 per week. Wood, a longtime football player, signed
up with the local officials’ association, and his second career was born.
Thirty-seven autumns later, he’s still leading that double life as a weekday
lawyer with Edmunds & Williams in Lynchburg and a weekend referee for Atlantic
Coast Conference football games.
How does Wood balance a law practice with a second career? “We don’t
have to get to the game site until Friday night. Most games are on Saturday
afternoon or Saturday night, and I get home sometime on Sunday. So there’s
really no problem. And I have been known to take legal work with me, because
there is some down time during the weekend.
“I usually get in on Friday night, see the [game] videos, eat and go to
bed early. The officials meet on Saturday morning, then we get to the stadium
three hours before the game. We see the head coaches one hour before game time,
as part of our preparation.”
Wood started as a referee for football, basketball and baseball. “In my
younger days, I was officiating three days a week, because that’s how you
paid your dues. But after law school, I only wanted to do football,” Wood
recalled. “I started with junior high and Little League games, and later
did the high school games.”
After Wood left Charlottesville for Richmond and law practice, he joined the
local officials’ association there. At the time, Richmond was the center
for Southern Conference officials, just as Charlottesville was (and is) the
ACC officiating hub.
“Like anything, networking in the officials’ associations was important
and helpful,” Wood commented. “I had contacts in both Charlottesville
and Richmond.”
And in time, he moved up the refereeing ladder, even as he moved his law practice
to Lynchburg. Wood applied to the ACC in 1970 and was put on the roster for
freshman games. He was a frosh referee from 1970 to 1974, then joined the varsity
staff in 1975.
By his estimation, he has officiated at more than 180 ACC games since then,
including several bowl games. He officiates at nine to 11 games per season.
His two-career life required some negotiations at home. “I told my wife
that if she would be understanding for 10 weeks each fall, I wouldn’t hunt
and I wouldn’t play golf.”
In an era of highly-publicized misbehavior by prominent athletes, many wonder
if sportsmanship is on the wane. Wood doesn’t think so.
“Discipline among the players has been good in recent years, with virtually
no disrespect or complaining,” he said. “There’s a lot of pressure
on coaches these days, and we’re lucky in the ACC to have high-caliber
coaches. You have to have discipline among your players, and if a coach has
good discipline, that coach and that team will be more successful.”
Wood noted that the NCAA emphasizes sportsmanship. “If you fight, you’re
out of the game. Two fights, and you’re out for the season. The rules prohibit
baiting or taunting. If you have two penalties, you are removed from the game.”
If Wood and other officials notice potential misbehavior on the field, they
talk to players about their behavior before it becomes a problem.
Wood and the other ACC referees know their work is under close scrutiny at all
times. “Nearly all the games are televised, and all of them are videotaped.
The stakes are high, and there’s much pressure on all these teams to win.
We get credit or blame for every penalty.”
The high-powered atmosphere has a bonding effect on officials. “The older
you get, each game becomes very special, as opposed to 20 years ago when they
all kind of ran together, and you realize you’ll miss the people you share
it with. I’ve met a lot of wonderful people through this. We’re very
close, and we give each other a lot of support with things outside of football.”
And after 37 years as a referee, Wood takes it all in stride. “Officiating,”
he says, “is the only profession in which you start out perfect and are
expected to improve.” —Caroline Bolte Return
to Top
Fall is the season for conferences and at the VBA, that doesn’t necessarily mean Atlantic Coast, Big East or Yankee. As the calendar illustrates, the autumn will be highlighted by various Association events.
VBA members can keep abreast of conference announcements, available CLE and credits and schedules by checking the Calendar and CLE/Meetings pages on the VBA website. Registration information for any conference will be available on the website or can be faxed on request, if necessary, by contacting the VBA office at (804) 644-0041.
There is still time to register for the VBA Corporate Counsel Section’s first Fall Forum, to be held September 17-18 at The Jefferson Hotel in Richmond. Six CLE credits (2 ethics) will be available. The forum will focus on issues facing the corporate lawyer, such as professionalism and civility, Internet issues, and recent developments in corporate law. For more information, visit the Section activities page or call (804) 644-0041. For hotel accommodations, call The Jefferson at (804) 649-4690. Return to Top
Lanny Davis will speak October 8 to labor & employment lawyers
The VBA’s 29th Annual Labor Relations and Employment Law Conference will
be held at The Tides in Irvington October 8-9.
Lanny J. Davis, former counsel to the President and a partner in the law firm
of Patton Boggs, LLP, in Washington, D.C., will speak at the conference luncheon
on October 8.
Jay J. Levit of Levit, Mann & Halligan, P.C., in Richmond, and Bayard E.
Harris of Woods, Rogers & Hazlegrove, P.L.C., in Roanoke, will receive the
Chair’s Awards for Outstanding Contributions to the VBA Labor Relations
and Employment Law Section. Michael F. Marino of Hunton & Williams in McLean
is the section chair.
The conference will offer 8.5 hours of CLE credit. Presentation topics will
include recent Supreme Court decisions, litigation issues for the new millennium,
vicarious liability in the employment setting, in-house counsel perspectives,
Batson Motions and recent developments in the federal courts. Workshops will
be offered on such subjects as arbitrating employment disputes, ethics issues
and sexual harassment.
Registration is $175 for VBA members by September 25 and $190 thereafter. A
full schedule, hotel rates and a registration form are available on the Section's
activities page. For accommodations, contact The Tides at 1-800-843-3746
or (804) 438-5000. Return to Top
Capital Defense Workshop is November 18-19 at Hyatt Richmond
Plans are underway for the Seventh Annual Capital Defense Workshop, to be held
November 18-19 at the Hyatt Richmond. The Workshop, sponsored by the VBA Criminal
Law Section with financial support by the Virginia Law Foundation, is designed
to improve capital defense skills and satisfy specialized training requirements
(interpreted to mean at least six hours every two years) for court-appointed
counsel pursuant to § 19.2-163.8 of the Virginia Code.
The charge for the workshop will be nominal for attorneys who agree to accept
appointment in capital cases.
Brochures will be mailed when the agenda is complete and speakers confirmed.
Details will be available on the Criminal
Law Section's activities page. Return to Top
‘Elder Rights and the New Millennium’ is set for October 18-19
“Elder Rights and the New Millennium,” Virginia’s first elder rights conference, will be held October 18-19 at the Sheraton Park South in Richmond. The conference is sponsored by the Elder Rights Planning Committee, of which The Virginia Bar Association, through its Elder Law Section, is a member.
Virginia Attorney General Mark Earley is expected to be the opening speaker, with Sen. Joseph V. Gartlan Jr. (D-Mason Neck) as the Monday luncheon speaker and Sen. Jane H. Woods (R-Fairfax) delivering the closing address on Tuesday.
Program topics include the national perspective on elder rights, current Medicaid issues in long-term care, financial abuse of elders, bioethical issues, resolving consumer disputes, long-term care advocacy and guardianship. An agenda and registration form are available on the Elder Law Section's activities page. Application for CLE and guardian ad litem credit has been submitted.
Conference registration is $60 per person until October 1, 1999, and $100 thereafter. Payment should be made to VAAAA, Inc. (Virginia Association of Area Agencies on Aging) and mailed with registration to VAAAA at 530 East Main Street, Suite 428, Richmond, Virginia 23219. Hotel reservations may be made by calling the Sheraton Park South at (804) 323-1144. Additional questions about the conference may be directed to VAAAA at (804) 644-2804.
Looking ahead to 2000, VBA members should remember that the VBA Annual Meeting, January 13-16 in Williamsburg, is being planned to extend through Saturday evening. Also, the VBA Summer Meeting, to be held August 3-6 at The Homestead, is planned for a later date in 2000 to avoid a conflict with the American Bar Association Annual Meeting, set for New York and London in July at the time the VBA usually meets. This “switch” is for one year only. Return to Top
"Stop the Violence" training will be held September 17 in Fairfax
The Virginia Bar Association Young Lawyers Division’s (VBA/YLD) award-winning Domestic Violence Project Committee, in conjunction with Legal Services of Northern Virginia (LSNV), will offer “Stop the Violence: A Training Program for Legal Advocates of Victims of Domestic Violence” on Wednesday, September 29, at the Fairfax County Judicial Center Cafeteria, 4110 Chain Bridge Road in Fairfax.
Program topics include obtaining a civil protective order, assisting victims in family law matters related to domestic violence, and a moot court demonstrating a civil protective order hearing. The Honorable Stephen W. Rideout, chief judge of the Alexandria Juvenile and Domestic Relations Court, and The Honorable Gayl B. Carr of the Fairfax Juvenile & Domestic Relations Court will speak.
Registration will begin at 4:30 p.m., with training from 5 to 8 p.m. and the moot court from 8 to 9 p.m. A light supper will be served. Volunteers will receive four continuing legal education credits for representing three victims of domestic violence in a civil protective order hearing within the next 12 months. The program and supper are free.
Interested lawyers may pre-register by September 17 by contacting Eric Moe at LSNV, (703) 534-4343 or fax (703) 532-3990.
Framed VBA Creeds are available for purchase from the VBA office. These hang in many Virginia legal offices and judges’ chambers and make an attractive addition to any VBA member’s office. (Not to mention a great gift!) Please call the VBA office at (804) 644-0041 for more details on purchasing a framed Creed. Return to Top
1999-2000 Legislative Schedule
As the final months of 1999 slip away, preparations are being made for the
2000 General Assembly — the Commonwealth’s first millennial legislature.
VBA sections and committees have already been working on legislative proposals
for several months. Any VBA section or committee developing such proposals should
complete its work for review by the VBA Executive Committee at its fall meeting.
Some key legislative-related dates are as follows:
Current: Bill prefiling (until November 14).
October 22-24: VBA Executive Committee review of legislative proposals for the
2000 Assembly.
December 2: Final legislative review by Executive Committee.
January 13: Session begins.
January 17: Bill drafting deadline.
January 24: Bill introduction deadline.
February 15: Crossover.
March 11: Last day of session.
Election Day—November 2—is still several weeks away, but the voter
registration deadline is coming up quickly on October 4. Return
to Top
Hunton & Williams was among the 1999 recipients of the American Bar Association’s Pro Bono Publico Award, for extraordinarily noteworthy contributions in extending legal services to the poor and disadvantaged, on August 9 during the ABA Annual Meeting in Atlanta. For the past three years, the firm has met the ABA Law Firm Challenge goal of committing at least three percent of the firm’s gross billable hours to pro bono, serving clients in several geographic regions of the United States and in Europe.
Douglas M. Nabhan, a VBA member and partner in the law firm of Williams, Mullen, Clark & Dobbins, was recently elected to chair the board of directors of the Richmond Forum. VBA member Jane L. Schwarzschild of Mays & Valentine was also elected as an executive member at large of the Richmond Forum board.
Brenda Vieregg of Arlington, one of the authors of the recently released book Fourteen Friends’ Guide to Eldercaring, was interviewed August 4 on NBC-TV’s Today. Vieregg is married to Judge Arthur B. Vieregg Jr. of the 19th Judicial Circuit, a former VBA Executive Committee member.
Lawyers Helping Lawyers, which provides confidential, nondisciplinary help to members of the legal profession in Virginia with substance abuse problems, joins related organizations across the U.S. in observing September as National Alcohol and Drug Addiction Recovery Month (NADARM). Lawyers Helping Lawyers may be contacted at 1-800-838-8358, (804) 644-3212 or valhl@vba.org.
Jason Mojica, Katherine Frommelt and Michael Kierce, all Fairfax County students, were recently honored by the American Bar Association for posters they created for the 1998 Law Day poster competition co-sponsored by the VBA Young Lawyers Division and the Fairfax Bar Association. After the posters were entered in the national contest and judged by Kansas City Mayor Emanuel Cleaver II, Mojica took first place in the sixth-grade age group and all three students received certificates of appreciation.
This year’s Hampton Roads Town Hall Meeting, scheduled for October 6 at the Holiday Inn-Executive Center on Greenwich Road in Virginia Beach, will focus on Virginia’s Standards of Learning. Speakers will include VBA President-elect (and Norfolk School Board Chair) Anita Poston. For details, visit the VBA website at www.vba.org or contact Christopher Boynton at (757) 397-3481.
The Coalition for a Greater Richmond plans a Candidate School and a Campaign Managers School for mid-October, to encourage more people to get involved in the local electoral process as candidates, campaign managers or volunteers. For details, contact Ann Carter at (804) 353-4101 or CGR98@aol.com.
The Institute of Bill of Rights Law will hold its 12th annual Supreme Court Preview September 24-25 at the College of William and Mary School of Law in Williamsburg. Up to seven CLE credits (no ethics) are available. For details, contact the Institute at (757) 221-3810 or ibrl@wm.edu.
Does The Virginia Bar Association have your number? Please send any address changes, new phone or fax numbers, or e-mail addresses to the VBA. Return to Top
Each year, the American Bar Association Young Lawyers Division presents awards
to young lawyer affiliates from across the United States for projects undertaken
by the affiliates which are considered to be “[w]ell planned and executed”
and “which contribute significantly to the public good and to the betterment
of the profession.” These Awards of Achievement are presented at the ABA’s
Annual Meeting following an extensive application process. Each affiliate competes
in divisions based on the size of that affiliate, and awards are given in each
of the divisions.
I am proud to report that the VBA Young Lawyers Division had another outstanding
year in this year’s competition, receiving awards in its division in each
of the categories it submitted an application. The results of this year’s
competition were released during the ABA/YLD Assembly, held on August 7 in Atlanta.
First, the VBA/YLD garnered a first place award in the Service to the Public
category for the new Child Support Enforcement Project. With this project, the
VBA/YLD has joined with the Richmond Bar Association and the Office of the Attorney
General in helping recruit and train young attorneys to act as pro bono special
counsel to the Attorney General. The attorneys represent the Commonwealth in
working toward collecting child support payments, which are then paid to the
parent supporting the child. Currently, the program provides attorneys in three
jurisdictions (Richmond, Henrico County and Chesterfield County), with a planned
expansion to other areas. VBA/YLD co-chairs Eric Nowak (Hunton & Williams)
and Kim Ramsey (Florance, Gordon & Brown) have done an excellent job working
on this project.
The YLD received special recognition in the Service to the Bar classification
for its work with the Lawyers Helping Lawyers Program. Lawyers Helping Lawyers,
with a confidential and non-disciplinary program, assists attorneys and other
members of the legal profession suffering from substance abuse. The VBA/YLD
liaison to that committee, Charlie Meyer, has spearheaded the VBA/YLD contributions
to Lawyers Helping Lawyers for a number of years. The VBA/YLD coordinates presentations
at law schools to educate law students on the dangers of substance abuse and
on the availability of Lawyers Helping Lawyers. VBA/YLD members also assist
with interventions and helping impaired attorneys.
Finally, the VBA/YLD won second place for its “Comprehensive Application.”
In this category, a number of projects are evaluated for overall work in both
the Service to the Bar and Service to the Public areas. The VBA/YLD submitted
17 of its projects for consideration, including the Mentor Programs, Town Hall
Meetings, Pro Bono Hotlines and Minority Recruitment.
Steve Otero (Mays & Valentine) deserves special thanks for his hard work
in preparing and submitting the Award of Achievement applications this year.
The VBA/YLD has also received another honor from the ABA this year. The ABA’s
Affiliate Outreach Program holds two national seminars each year, one in the
spring and one in the fall. At these seminars, young lawyer affiliates present
workshops describing the operation of their projects, with the hope that these
projects and ideas can be replicated in other areas of the country. Affiliates
apply to have their projects selected for presentation, and the VBA/YLD submitted
two projects for consideration: The Child Support Enforcement Project and the
Northern Virginia “Stop the Violence” Domestic Violence Project.
We were successful in having both projects selected for showcasing at this Fall’s
Affiliate Outreach conference in Las Vegas. I have already described the Child
Support Enforcement Project above. The Northern Virginia Domestic Violence Project
recruits and trains attorneys to aid victims of domestic violence and to assist
with obtaining civil protective orders. Erica Beardsley (Watt, Tieder, Hoffar
& Fitzgerald) and Kathy Harman-Stokes (Hogan & Hartson) continue to
make this project a successful one.
Ashley Taylor (Deputy Attorney General, Office of the Attorney General), a member
of our VBA/YLD Executive Committee, deserves special congratulations for receiving
the ABA’s Jefferson B. Fordham Award for State and Local Government Law
“Up and Comers.” This award honors “[p]ast efforts and accomplishments
in the area of state and local government law, with a promise to continue these
contributions for future achievement.” Ashley was instrumental in realizing
the VBA/YLD’s involvement in the Child Support Enforcement Project.
Finally, I want to recognize Stacy Taylor (Hunton & Williams), as she just
completed her tenure as an ABA/YLD district representative (Virginia and Maryland)
at the Annual Meeting in Atlanta. Stacy has done an excellent job representing
our district at the national level. In confirmation of her effectiveness, Stacy
received an award at the Spring Affiliate Outreach Program Conference in Boston
for her excellent communication with affiliates in her district.
The recognition the VBA/YLD has received from the ABA is a tribute to its quality
projects and people. We should all be proud of and thankful for the many lawyers
who volunteer each day to contribute time and energy to VBA/YLD projects. I
am confident that the VBA/YLD is in a position to spring from these successes
and to add many more citizens to the list of those whose lives have been influenced
by the VBA/YLD’s efforts.
Please remember the VBA’s website at www.vba.org/yld.htm,
where you can learn more about the Young Lawyers Division and its numerous projects.
Return to Top
The 1999 VBA Young Lawyers Division Nominating Committee members are VBA/YLD
Chair Philip Parker of Roanoke and Chair-elect Jim Ingold of Fairfax, who serve
ex officio; Ashley Taylor and Kimberlee Ramsey, both of Richmond; and Mary
Zinsner of McLean. Taylor, Ramsey and Zinsner are appointees of the VBA/YLD
Executive Committee.
VBA/YLD members are invited to submit recommendations for nominees to the offices
of chair-elect and secretary-treasurer, and, as needed, two seats on the VBA/YLD
Executive Committee, to the Nominating Committee members:
Philip Parker, (540) 983-7600, parker@woodsrogers.com;
Jim Ingold, (703) 352-1900, jvingold@aol.com;
Ashley Taylor, (804) 786-3888, altaylor@oag.state.va.us;
Kimberlee Ramsey, (804) 697-5116, kramsey@fgb.com;
Mary Zinsner, (703) 734-4363, mzinsner@maysval.com.
Times and dates of Nominating Committee meetings will be posted at http://www.vba.org/yld.htm.
Return to Top
Copyright 1999 The Virginia Bar Association