70th Annual Report - Part II

Reports of the Standing Committees

Budget and Finance

Alda L. White, chair

The Standing Committee on Budget and Finance met on March 18, 2008, to review the staff’s proposal for the 2008-09 operating budget.  Immediately following the meeting, the proposed budget was sent to Chief Justice Leroy R. Hassell Sr. and all members of the Supreme Court of Virginia for their review and approval.  The proposed budget was reviewed by the Executive Committee on April 11, 2008 and recommended for approval to Bar Council.  On June 19, 2008, Bar Council approved an operating budget for fiscal year 2008-09 for the bar totaling $12,533,273.    This budget reflected a decrease of $205,000 over the budget for the prior fiscal year which ended on June 30, 2008.

 

Lawyer Advertising and Solicitation

Roscoe B. Stephenson, III, chair

The Standing Committee on Lawyer Advertising and Solicitation (SCOLAS) monitors lawyer advertising and solicitation in
Virginia, responds to inquiries regarding the propriety of certain lawyer advertising, and issues advisory opinions when, in the judgment of the committee, it is helpful to do so. SCOLAS meets every other month at the offices of the Virginia State Bar in
Richmond.

The committee and assistant bar counsel review in detail selected broadcast media, Yellow Pages and other printed advertising material to determine compliance with the applicable Rules of Professional Conduct. If the committee finds an ad is in violation of a rule, a letter is written to the responsible lawyer pointing out the problem with the ad and requesting that the advertisement be modified accordingly. Seventy noncompliance letters were sent in fiscal 2008; each recipient voluntarily complied with the committee’s request.

In fiscal 2008, the committee proposed one new opinion and referred another opinion request to the bar’s Standing Committee on Legal Ethics. These opinions address topics including:

  • Obligations of a lawyer who receives confidential information via law firm website or telephone voicemail
  • Case results advertising via electronic media

The committee also focused on perusing and evaluating different types and styles of Internet- and Web-based advertising, which includes lawyer directories and lawyer referral services. The exercise educates the committee on the direction of lawyer advertising in Virginia and the other states and helps the committee evaluate its application of Virginia’s Rules of Professional Conduct to the new and ever-changing environment of Web-based lawyer communication and advertising.

I would like to thank the committee members — George L. Townsend, Vice Chair, Elizabeth M. Allen, Alan S. Anderson, Gina M. Burgin, Richard O. Bolger, Gina M. Burgin, Alison P. Landry, Robert C. Lowerre, Daniel L. Rosenthal, Susan R. Salen, David R. Selig, and C. James Williams III for their hard work dedication to the mission of the committee during this past year.

 

Lawyer Discipline

William L. Babcock Jr., 2007-08 chair

The Committee on Lawyer Discipline oversees the attorney disciplinary process, including the Virginia State Bar’s investigation and prosecution of complaints.  Its work is divided into two main functions. 

One of those functions is to formulate and present proposed amendments to Part Six, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia, which govern the disciplinary process.  Proposed amendments to Paragraph 13 are drafted by the Rules Subcommittee of COLD and presented to the full Committee for approval.  If approved they are published in the Virginia Lawyer Register and presented to the Virginia State Bar Council, which decides whether to petition the Court for adoption of the change.  Final approval rests with the Virginia Supreme Court.

The other function has two components:  1) the Oversight Subcommittee of COLD randomly reviews case files to ensure that Bar Counsel handled them in a procedurally correct fashion and also reviews files where complainants or respondents have questioned the handling of a disciplinary matter; and  2) each District Committee has been assigned a COLD member as liaison, who contacts both the Chair and the assistant Bar Counsel assigned to the District Committee each month in order to monitor the District Committee docket and encourage the prompt disposition of cases.  COLD also receives monthly reports from the Disciplinary Board regarding its docket and from Bar Counsel regarding the overall system. 

The COLD Committee is comprised of 10 lawyers, 2 lay persons and 1 member of the Disciplinary Board serving ex officio without voting authority.  For the fiscal year ending June 30, 2009 the officers are: Kim White, Chair, John Whittington, Vice Chair, Julia Savage, Chair of the Rules Subcommittee, and Stephen Ratliff, Chair of the Oversight Subcommittee. 

At present there are two special projects that have been assigned to task forces: one chaired by Julia Savage working on the reorganization of Paragraph 13, and the other chaired by Stephen Ratliff charged with determining whether random audits or other measures should be adopted by the Bar to detect trust account irregularities.

The Supreme Court approved the following changes to Paragraph 13 this year:

  1. an update of the definition of “Certification,”
  2. a removal of inconsistencies regarding a Respondent’s right to demand a three-judge Circuit Court hearing,
  3. a clarification that when a Respondent makes a timely demand for a three-judge Circuit Court hearing and provides available dates for such a hearing within 30 to 120 days, the inability of the Bar to schedule the hearing within that 30 to 120 day window is not grounds for dismissal of the proceeding,
  4. a clarification that an appeal by a Respondent is possible from any district committee determination imposing discipline, including dismissals de minimis and dismissals for exceptional circumstances, and
  5. a correction of “notice” of a determination to “service on the Respondent.”

The Court issued an order rejecting a proposal for a Rule change stating affirmatively that a Respondent has no right to appeal an agreed disposition approved by the Disciplinary Board.

Bar Council approved an amendment which would permit the Disciplinary Board to use a suspension of one year or less with or without terms as an available sanction, which amendment is presently pending at the Supreme Court.

COLD held its annual Disciplinary Conference in Portsmouth on July 10 and 11, 2008.  The conference was attended by 57 District Committee members, 21 Disciplinary Board members, 2 judges, 8 members of COLD and 15 guests.

The program included an orientation for new Disciplinary Board members, the Disciplinary Board administrative meeting, the ever-popular Ethics Jeopardy game, remarks by Bar President Manuel Capsalis, a session by Bar Counsel Ned Davis on recent developments, the screening of a mock hearing video, and the presentation of case vignettes with participation by conference attendees using the responder system.  Mr. Alan Cooper, reporter for the Virginia Lawyer, was the luncheon speaker.

 

Legal Ethics

Roger T. Creager, chair

Ethics opinions
The Standing Committee on Legal Ethics received six new opinion requests in fiscal 2008. Since July 1, 2007, the committee carried one request over from fiscal 2007; withdrew one opinion request; issued four opinions; and is carrying four requests over to fiscal 2009.

Opinions issued by the Committee address topics including:

• Can a lawyer representing a settlement company facilitate that company’s practice of re-deeding property through a relocation intermediary without proper recordation?
• Can a lawyer, who is member of the town’s governing body, represent a client challenging the constitutionality of an ordinance the lawyer voted to adopt?
• Obligations of a lawyer who receives confidential information via law firm website or telephone voicemail
• Whether a member of the Virginia State Bar who practices patent law can be a partner with a non-lawyer registered patent agent?


Rule revisions
This past year, the committee sought further public comment regarding the proposed comments to Rule 8.4 that represent an important change in the committee’s position on the ethical propriety of a lawyer or the lawyer’s agent using an undisclosed recording device to capture a communication or event in which the lawyer or agent is a participant. Under the new comments, the undisclosed recording of a communication or event is not unethical per se if the recording a) is lawful; b) is consented to by one of the parties to the transaction; c) is in furtherance of an investigation on behalf of a client; and d) is not effectuated by means of any misrepresentations; and if e) the means by which the communication or event was recorded and the use of the recording do not violate the legal rights of another. At its March 2008 meeting, Council overwhelmingly voted to support Supreme Court of Virginia’s adoption on the proposed amendments to the comments of Rule 8.4.  These amendments are pending with the Supreme Court of Virginia.

The committee also approved proposed amendments to Rule 1.9, 1.11 and 2.11.  The amendment to Rule 1.11 incorporated language from Comment [10] into the rule as the comment deals with a substantive issue of lawyer conduct with regard to the special conflicts of interest for former and current government officers and employees.  The amendment to Rule 1.9 added complementary language from Rule 1.11 that provides direction to lawyers regarding law firm disqualifications when lawyers move from private to public employment.  The amendment to Rule 2.11, Comment [9] removes the reference to Rule 2.2 which no longer exists and clarifies references to Rule 1.7 and “common representation” and to the lawyer’s role as intermediary.  These amendments are pending with the Supreme Court of Virginia.

Ethics telephone calls
In addition to the written requests for ethics opinions outlined above, the average number of ethics telephone calls to VSB staff attorneys from July to June was 401 per month.

 

Professionalism

Dana D. McDaniel, chair

The Standing Committee on Professionalism (the “Committee”) is charged with responsibility for administering and overseeing the Virginia State Bar Harry L. Carrico Professionalism Course (the “Course”), which all newly admitted active members of the Virginia State Bar are required to attend within their first year of practice in Virginia. The purpose of the Course is to encourage attorneys to uphold and elevate standards of honor, integrity and courtesy in the legal profession. Since it began in 1988, over 25,000 new admittees have taken the Course—more than 95% of the current practicing Bar in Virginia.

The Course faculty is composed of distinguished lawyers and judges representing a broad cross section of the legal profession in Virginia. Faculty members are nominated by their peers, screened by the Committee and submitted to Chief Justice Leroy R. Hassell, Sr. for appointment to a three year term.

The Course was offered a total of eight times in Northern Virginia, Richmond, Roanoke, Newport News and Charlottesville during the 2007-2008 bar year.  There were approximately 1,500 attendees at these courses. Although the committee had anticipated that the number of attendees would trend downward, the number has remained steady for the past four years.

The Supreme Court continues to demonstrate its support for the Course. Chief Justice Hassell and Justice Lemons have given luncheon addresses at a number of the Courses, and other judges, including the Honorable Gerald B. Lee and the Honorable Charles E. Poston have served as luncheon speakers this year. The luncheon address continues to be one of the highlights of the Course.

During this past year, Committee Chair, Dana McDaniel, served as the VSB representative on the Virginia Bar Association’s Commission on Professionalism (the “Commission”). The Commission was formed in 2007 under the leadership of William VanBuren, past President of the VBA. It is Chaired by Thomas Spahn. Since its formation, the Commission has prepared several draft “Principles of Professionalism for Virginia Attorneys” which have been reviewed by this Committee. Members of this Committee have commented on the draft Principles, and this Committee has unanimously approved the final version of the Principles.

Finally, the Committee continues to work with the Professionalism for Law Students program co-sponsored by the VSB Section on the Education of Lawyers. This program has become a fixture at all the Virginia law schools thanks to the diligent work of the Honorable J. Martin Bass and the Honorable B. Waugh Crigler and the committed faculty.  The Committee would like to recognize the indefatigable work of the late David T. Stitt for his devotion to the Committee, the Course and the law school program. His presence will always be felt by those volunteers committed to professionalism and he will be sorely missed.

 

Unauthorized Practice of Law

Megan E. Kelly, chair

The Standing Committee on Unauthorized Practice of Law (UPL Committee) is charged with two duties. It investigates allegations that individuals or business entities are engaged in the unauthorized practice of law. The committee also renders opinions as to whether specific conduct constitutes the unauthorized practice of law.

So far this year, 73 complaint investigations were closed; these included 16 resulting in signed letter agreements; 7 referred to the Office of the Attorney General for civil prosecution; 0 referred to commonwealth’s attorneys for criminal prosecution; and 0 referred to the U.S. Attorneys Office. Twenty-eight complaints were carried over from previous years, and 64 new complaints were opened.  Since the beginning of fiscal year 2008, out of 92 cases (28 carried over and 64 newly opened), the committee concluded 79 percent of the docket.

The committee received three new opinion requests in fiscal 2008 and issued UPL Opinions 213, 214 and 215 responding to these
requests.

UPL Opinion 213 asks: Can a retired member of the Virginia State Bar on Associate membership status, who owns an undivided interest in a tract of land, verify the ownership of other undivided interests and negotiate and prepare an easement deed acting, not only pro se, but on behalf of all the landowners, representing all interests in the matter? Pursuant to UPR 6-103 (A)(1), a non-lawyer can act for him/herself pro se, as long as he/she is the owner of the property or a party to the transaction involving a piece of real estate and he/she but cannot act not for anyone else.  Acting on behalf of all the interested parties would also be inconsistent specifically with Rule 6 as well as generally with the Definition of the Practice of Law and would be considered the unauthorized practice of law.  This opinion was approved by bar Council at the annual meeting in Virginia Beach on June 19, 2008 and was submitted to the Virginia Supreme Court for consideration on July 11, 2008.

UPL Opinion 214 asks: Can an individual who is a CPA, not a licensed attorney in any jurisdiction, independently offer to provide customers in Virginia, services related to arbitration, including representation, and charging a fee for those services and representation?  Based on the Definition of the Practice of Law in the Commonwealth of Virginia, in particular Part 6, Section I(c) of the Rules of the Virginia Supreme Court, and the decisions of the Committee in UPL Opinions 92, 200 and 206, the Committee found the conduct of this CPA to be the unauthorized practice of law.  This opinion was approved by bar Council at the annual meeting in Virginia Beach on June 19, 2008 and was submitted to the Virginia Supreme Court for consideration on July 11, 2008.

UPL Opinion 215 asks: Are non-Virginia-lawyers who are members of the legal department of a financial institution with offices outside Virginia (1) subject to required registration as corporate counsel; and (2) engaging in UPL if they advise Virginia offices on Virginia law.  The Committee concluded that a non-Virginia-licensed attorney does not have to apply for a corporate counsel certificate if that attorney’s place of employment is not located physically in Virginia.  The Committee also concluded that these lawyers are not engaged in the UPL, pursuant to Part 6, §I (B)(1) and (2) of the Rules of the Virginia Supreme Court, when they provide advice and counsel to their regular employer regarding Virginia law, even when the branch of the financial institution is located in Virginia.  This opinion was issued as final March 18, 2008.

I would like to thank the committee members — Vice Chair Robert V. Ward, David P. Bogardus, Wells H. Byrnes Sr., William H. Chandler Jr., Joseph C. Fleig, Sharon D. Nelson, Edward L. Weiner, and Sean C. Workowski for their hard work and dedication to the mission of the UPL Committee during the past year.

 

Reports of the Special Committees

 

Access to Legal Services

Renae Reed Patrick., chair

Effective participation of the members of the Access to Legal Services Committee and the encouragement, support, and sharing of expertise of the Virginia State Bar staff and VSB leadership led to several positive developments during the past year that were consistent with the committee’s stated mission.  A result-oriented approach pervaded the committee’s efforts.  The sustaining work of the VSB staff and VSB leadership was indispensable.  Moreover, the committee provided a forum for the exchange of information from many components about current efforts to provide access to legal services, to explore improved ways to expand that access, and to vigorously address the many variables, modifications, and incentives that support and promote critically important access to our justice system. 

Major substantive initiatives

Providing an entree for future dialogue, the committee invited VSB Assistant Bar Ethics Counsel Leslie Haley to speak to committee members and invited guests from legal aid about the VSB Standing Committee on Lawyer Advertising and Solicitiation Rule 7.5(a) “consulting role” protocol for handling allegations of false advertising of legal services;

The committee heard a PowerPoint web cast presentation on pending recommendations of the Mental Health Law Reform Commission and the Futures Commission by an invited Supreme Court staff member.  Numerous recommendations from these Court-appointed bodies overlap with committee priorities and pending proposed rule changes. They range from emergency legal services, to unbundling/pro se litigant assistance, to, potentially, amendments to the emeritus rule.

The committee confirmed that it welcomes solicitations from outside parties wishing to make presentations to the full committee on access to justice issues in Virginia. Those inquiries need to be consistent with the committee’s mission, authority, and priorities.  Outside parties will be encouraged to communicate directly with the chair to secure potential consideration and a time slot on the agenda.

The committee sponsored the annual award ceremony for the Lewis F. Powell Jr. and Oliver W. Hill (Law Student) pro bono awards on the evening of May 22. The awards ceremony and the  Annual VSB Pro Bono & Access to Justice Conference the following day were held at the Washington and Lee University School of Law to coincide with the university’s celebration of the one hundredth anniversary of the birth of W&L alumnus Justice Lewis F. Powell Jr. The featured guest speaker for the awads ceremony evening was Robert Grey, former President of the ABA and partner in Justice Powell’s former law firm. The 2008 recipients of, respectively, the Powell and the Hill pro bono awards were: Sands Anderson Attorney Phyllis C. Katz of Richmond and then-graduating law student Ashley R. Brott of George Mason University.

The following day, May 23rd, the committee sponsored the Annual VSB Pro Bono & Access to Justice Conference also at W&L School of Law.   The program was designed to encourage Issue spotting among attendees  and to train, on a nuts & bolts basis, advocates to handle compelling high unmet-need cases. It featured multiple point/counterpoint sessions on the housing crisis, and other CLE sessions on economic development, minority & disability access to justice including diversity/cultural competency issues, and mentoring law students to exponentially expand the volunteer
resource base.  The VSB Section on the Education of Lawyers co-sponsored the program which included W&L Dean Rodney A. Smolla, Karen Gould and Howard Martin as ethics program participants.

Continuity

Select systemic pro bono initiatives, identified as “suggestions” for development in the prior year were implemented incrementally. The suggestion that  the Committee  “recruit mentors willing to co-counsel on civil and defender cases”  was met by showcasing law-school clinic opportunities at the pro bono conference ethics session. A suggestion had been made that the committee  “promote involvement of Court in forging statewide commission or local pro bono study groups” . In attempting to develop a response, Access Co-Vice Chair Margaret Nelson attended the spring ABA/NLADA meeting of statewide Access to Justice Chairs and shared updates with the committee, and the national meeting materials with bar leaders and VA Supreme Court staff.  The committee had been asked to “remain receptive to legal aid community and defender efforts to, respectively, secure funding parity, and, educate the legal community about appointed counsel fee waivers”. The Committee was told of increases recently approved for juvenile representation in the most serious court-appointed felony cases was pleased to learn about the major pending funding increases for LSCV grantees.  Additionally, the Committee’s  “Funding Alternatives” subcommittee is exploring the feasibility of proposing a license plate check-off for donations to legal services as well as several ways to promote better awareness of subsidized internships with legal nonprofits.)

Annual meeting activities:

James W. “Jay” Speer was selected as the recipient of the 2008 Virginia Legal Aid Award.  Mr. Speer, Executive Director of the Virginia Poverty Law Center, is a highly respected consumer law attorney.  The guest speaker at that well-attended June Award Luncheon, held during the bar’s Annual Meeting in Virginia Beach, was nationally-known author/historian Kevin Phillips.  Mr. Phillips was also featured during the inaugural “Access to Justice Book Fair,” a book-signing event sponsored by Barnes & Noble at the Lawyers Expo during the bar’s Annual Meeting.  His most recent work, a timely addition to current trade book economics literature, is Bad Money: Reckless Finance, Failed Politics, and the Global Crisis of American Capitalism.  The book fair also featured a book signing by U/R Law Professor Jonathan K. Stubbs, the editor of the late Oliver Hill’s autobiography, The Big Bang: Brown vs. the Board of Education and Beyond. 

At that same luncheon, Mark D. Braley, Executive Director of Legal Services Corporation of Virginia, received a framed citation at the Legal Aid Award Luncheon in the form of a Special Resolution of Appreciation from Bar Council recognizing him for his extraordinary achievements in successfully encouraging efforts by Virginia’s General Assembly to stabilize and increase resources dedicated to helping low-income people through Virginia’s legal aid programs

Other awards and appointments

In response to a suggestion that the Committee “institute more multi-jurisdictional award ceremonies” (circuit awards); the bar and the Supreme Court of Virginia recognized, through circuit awards to appointed and pro bono counsel, the following individuals for their extraordinary contributions to the Virginia justice system: pro bono attorney Bernadette R. O’Reilly (20th judicial circuit); assigned counsel Michael W. Cannaday (21st); the late substitute judge and assigned counsel Benjamin R. Gardner (21st); and pro bono counsel Ross C. Hart (23rd ).  The Committee appreciates input from judges and local bar presidents who continue to consult on proposed legal aid board appointments;

Gratitude

The committee wishes to express sincere appreciation and encouragement to all members of the Virginia State Bar, the VSB staff and leadership, and to the Virginia judiciary, at every level of court, for their interest, time, and support consistent with our mission, including “…fostering support for free and reduced fee legal services with the goal of improving access to the legal system for all Virginians and for nonprofit charitable and civic groups that serve the public good.”

 

Information Technology

John L. Deal, chair

With the new IBIS (Integrated Bar Information System) computer system in place, the committee turned its attention this past year to other technology needs of the Virginia State Bar.  A new telephone system was at the top of the list.  The project was delayed when the first vendor chosen failed to meet implementation deadlines and had to be replaced.  The new system purchased from SyCom Technologies was put into service in April of this year. 

Another project designed to improve the efficiency of the bar office was remote access into the IBIS system.  New hardware, including a new firewall and router, and software were installed and remote access for staff members was completed in June.  Other improvements to the system included a directory look-up, a member online demographic update and MCLE online certification.  A web version of IBIS with member demographic and status information is in the testing phase and will be implemented at a later date.  In addition, the staff continues to work on a Disaster Recovery and Business Continuity Plan.   Imaging of disciplinary orders is continuing and the first phase of document management is slated for this year. 

Looking forward, Information Technology Director William H. Dickinson and his staff have prepared a draft of an Information Technology Five-Year Plan which will be submitted for review by senior management and this committee. 

My term on the committee has ended.  This has been a rewarding experience for me and I look forward to ways in which I may contribute to the Virginia State Bar in the future.  I would like to thank particularly Bill Dickinson who continues to be an invaluable asset to the bar with his oversight of these technology projects.  I would also like to thank committee members John K. Sheldon, John M. Tran and Prof. Ellen Walk for their contributions, as well as staff members who assisted the committee over the last year:  Thomas A. Edmonds, Karen Gould, Mary Yancey Spencer, Elizabeth L. Keller, George W. Chabalewski and Susan C. Busch. 

John M. Tran, who has ably served on this committee for a number of years, will be the new chair.

 

Lawyer Malpractice Insurance

Darrel Tillar Mason, chair

The Virginia State Bar’s fifteen-member Special Committee on Lawyer Malpractice Insurance had a productive  2007-08 year.  The Committee served the members of the Virginia State Bar at large through the sponsorship of various risk management activities summarized below.  Our Policy Review Subcommittee evaluated changes in the insurance products offered to our members by the Bar’s endorsed carrier, Attorneys Liability Protection Society (ALPS).  In addition, the Client Protection Subcommittee continued to be responsive to requests from Bar Council to address the question of mandatory malpractice insurance.  A new Consumer Guide subcommittee undertook to develop a guide for lawyers in purchasing professional liability insurance.

In the area of risk management, the Committee worked with ALPS to present a series of continuing legal education seminars offered free of charge in various venues across the commonwealth and carrying three hours of ethics credit.  In addition, the seminar on trust accounting developed by the Committee last year was provided to several local bar organizations.
In May, the proprietary trust accounting software developed by ALPS with input from the Committee was made available to Virginia lawyers.  The Bar’s paid risk managers continued to provide hot line assistance, law office management reviews, and periodic articles in The Virginia Lawyer on risk management topics.  The Committee also used a portion of its risk management budget to help underwrite an entertaining program on managing stress as a lawyer which was presented at the Bar’s annual meeting in Virginia Beach.

 

Lawyer Referral

Mary Benzinger, chair

The Virginia Lawyer Referral Service (VLRS) has provided effective and high-quality legal assistance to the citizens of Virginia, the United States, and abroad since 1977. The VLRS – a public service arm of the bar – offers toll-free and Richmond-area phone numbers that receive more than 29,000 calls yearly from persons in need of legal assistance with matters in Virginia. Through professional customer service, the VLRS strives to promote the image of the legal profession.

Today, the VLRS continues in its efforts by providing a more efficient referral process for the attorneys who make up the referral panel and the community. Beginning July 1, 2007, the Special Committee on Lawyer Referral instituted mandatory prepayment at the time of referral (waived for those deemed indigent). Since the prepaid consultation fee was instituted, 7,971 paid referrals generated consultation revenue of $278,000. The number of no-contact/no-show referrals to our panel members dropped from 7,804 in 2006-2007 to 26 in 2007-2008. This year the VLRS had a net operating loss of $1,625.00, well under previous years’ deficits, the improvement attributable to both the increase in referral revenue and the staff’s cost cutting efforts.

Membership recruitment efforts continue to increase the number of VLRS panel members to ensure the VLRS participation throughout the state. Efforts included attendance at the Virginia State Bar (VSB) Admission and Orientation Ceremony, the VSB Annual Meeting, and the VSB Solo & Small-Firm Practitioners Forum. Committee member Robert L. Flax orchestrated a May 2008 Virginia Lawyer Weekly article on the VLRS and committee member Eric R. Spencer promoted the VLRS at Southwest Virginia local bar activities.

The service committed its staff, resources, and toll-free lines to provide legal services to victims of tornadoes in central and southeast Virginia.  The Disaster Relief program is co-sponsored by the Young Lawyers Sections of the Virginia State Bar and The Virginia Bar Association.

Special thanks to the VLRS 2007-08 committee members: Stephen A. Bryant, John H. Click, Michael D. Clower, Joan B. Davis, Robert L. Flax, Christine H. Mougin-Boal, John V. Robinson, Daniel L. Rosenthal, Carol J. Schrier-Polak, Eric R. Spencer, and Richard Stahl and thanks also to the VLRS staff: Coordinator Toni B. Dunson and Staff Assistants Sheree Patterson and Lydia Maddox for their tireless efforts to sustain and improve the VLRS.  We welcome our newest members: Charles E. Adams, August Bequai, Pamela C. Gavin and Rhodes B. Ritenour and look forward to their energy and enthusiasm in service to the Committee.

 

Personal Insurance for Members

Gary W. Lonergan, chair

The primary purpose of the Personal Insurance for Members Committee is to provide oversight of the VSB endorsed health, term life and disability income insurance plans.  The Virginia State Bar has endorsed such plans for more than fifty years.  With the help of the broker-administrator, the Virginia State Bar Members’ Insurance Center, the committee monitors the plans and the details of coverage offered.  The work of the committee and the administrator relieves attorneys of the time and expense of finding insurance products on their own.
The most popular component of the VSB insurance program is health insurance with Anthem.  The enrollment of VSB members, staff members and family members now exceeds 6,000.  Thanks to the endorsement by the VSB, people receive “Value Added Benefits,” or extra benefits, at no additional cost.  Another important feature of this VSB health insurance program is the ability to offer “sole proprietor” group coverage. An exception has been made for the VSB and several other professional associations. Ordinarily a minimum of two employees is required for group health insurance.

Our endorsed broker administrator works closely with individual lawyers and law firms to select health insurance.  This assistance is significant, as health insurance premiums continue to increase.  No law firm or lawyer is immune from the escalating cost of health insurance.  In general, health insurance premiums have doubled from 2000 to 2007, whereas wages and inflation have increased about 25%.

There are approximately seven hundred (700) individuals covered by the VSB Group Term Life Plan and about two hundred sixty-five (265) individuals are insured under the Group Disability Income Plan.  The Committee is pleased to report that the rates for both these plans did not increase this past year.  In fact, during the past 17 years VSB members have not seen a rate increase in either plan.  However, they have been afforded rate reductions and “premium holidays” on occasion.

Information about these VSB-endorsed insurance plans can be found at http://www.vsbmic.com.

I would like to express my appreciation to Vice Chair, Susan Stoneman, Raymond B. Benzinger, Franklin R. Blatt, R. Paul Childress Jr., Sean Patrick Kelly, M. Janet Palmer, Carol Joy Schrier-Polak, and Kathleen Maureeen Uston for their participation and commitment to the work of the committee.  I would also like to thank VSB Deputy Executive Director, Mary Yancey Spencer, for her efforts on behalf of the committee.

Finally, I would like to welcome the recently-appointed members of the committee for the 2008-2009 fiscal year:  Raymond Paul Childress, Vice-Chair, Raymond B. Benzinger, Franklin R. Blatt, Pamela Conner Gavin, M. Janet Palmer, Carol Joy Schirer-Polak, Susan Katharine Stoneman and Kathleen Maureen Uster.  I am looking forward to a productive year.

Publications and Public Information

William R. Allcott Jr., chair

The committee developed the hypothetical for the Law in Society Student Essay Competition and served as judges of the contest.

At the request of the VSB executive director, the committee discussed and endorsed a concept to save money by reducing the size of Virginia Lawyer Register by publishing most of its content online.

The committee agreed on a sense of the committee statement strongly supportive of President Martin's letter to the Chief Justice related to the need for a Web-based disciplinary search. Chair William Allcott joined Vice Chair Bruce Marshall in expressing their view that Karen Gould, Howard Martin, a member of COLD and a member of the IT committee meet with the Chief Justice to voice concern and to clarify any future implications for public information media, including the Virginia Lawyer Register, relating to publication of disciplinary actions of the bar.

The committee passed a resolution in favor of an opt-out directory of bar members as it had originally proposed.

Committee members for 2008-09 are: Bruce M. Marshall, chair; William L. Lewis, vice chair; Elizabeth M. Allen; Robert C. Barclay IV; Robert L. Flax; Mitchell P. Goldstein; Robert C. Hagan Jr.; Alexander N. Levay Jr.; Mary Beth Long; Barrett E. Pope; Terry W. Raney; John P. Vita; William M. Watson Jr., and Rodney A. Coggin, liaison.

 

Resolution of Fee Disputes

Geetha Ravindra, chair

The purpose of the Special Committee on the Resolution of Fee Disputes is to support more efficient and collaborative resolution of fee disputes between attorneys and their clients.  The Committee added mediation as a dispute resolution option in the Rules governing this program in FY 2006-07.  Training was conducted for approximately 200 new mediators and arbitrators around the state.  In FY 2007-08, 207 requests for information regarding the fee dispute resolution program were received by the Virginia State Bar.

Educating the bench and the bar about the availability of the Fee Dispute Resolution Program has been a priority in FY 2007-08. Geetha Ravindra made a presentation at the District Judges Conference in August 2007 encouraging the General District Court judges to refer appropriate fee dispute matters to the VSB Fee Dispute Resolution Program.  In March 2008, Geetha Ravindra drafted a resolution acknowledging March as Mediation Month in Virginia.  This was adopted by Governor Tim Kaine.  In the resolution reference was made to the VSB’s development of a mediation program to address attorney-client fee disputes.  In addition, on May 1, 2008, Geetha Ravindra spoke at a conference for attorneys in solo and small firms about the benefits of using the fee dispute resolution program. Another similar session will be held in late July.  An article on the success of the fee dispute resolution program will be submitted to the VBA for publication in the Joint VBA-VSB Committee on Alternative Dispute Resolution.  Fee dispute brochures were updated and placed in the packets handed out at the VSB Annual meeting.

In FY 2008-09 it is our goal to increase the number of Circuit Committees on the Resolution of Fee Disputes (CCRFD) in areas currently not participating, as well as replenish the current CCRFD panels. In addition, we hope to follow up with parties who contact the State Bar for information about the fee dispute resolution program to learn why they may have elected not to use the program and how we can improve the program. In the fall of 2008 we hope to have a meeting with all CCRFD to update them on forms and program rules.  We will also seek to enhance the user friendly nature of the fee dispute forms and rules on the VSB website.

 

Special Boards and Task Forces

Clients' Protection Fund Board

John Tarley Jr., chair

The Clients’ Protection Fund was established in 1976 to make monetary awards to persons who have suffered financial losses due to the dishonest conduct of Virginia lawyers. The fund is operated by a 14-member board appointed by the Virginia State Bar Council. The board has lay and lawyer members. Board members investigate all petitions from clients for payments from the fund, and the board discusses and acts on each petition.

As of July 1, 2007, four claims were pending from the previous fiscal year. A total of forty new claims were presented to the board for review and investigation during the year. The total amount paid during fiscal 2007-08 was $202,899.33, representing eighteen claims.  The board denied twenty-two petitions and one was withdrawn by the petitioner. As of June 30, 2008, there were three pending claims, including one that was approved to pay in May but not paid since the respondent asked for reconsideration of the board’s decision. As of June 30, there are a number of petitions which have been received but not assigned to the board for investigation. Over one hundred of these involve Stephen Conrad, a former attorney from Prince William County.

The fund began the fiscal year on July 1, 2007, with a cash balance of $3,406,588. The new Clients’ Protection Fund $25 assessment from all active attorneys totaled $672,375 for the fiscal year. Interest income, net of bank service charges for the fiscal year totaled $167,998. The fund received restitutions from Attorney General’s collections, debt set-off and individual restitutions in the amount of $20,641, net of attorney’s fees for collection services. As of June 30, 2008, the cash balance in the fund was $4,064,603. Pursuant to the rules governing the Clients’ Protection Fund, all funds are invested in certificates of deposit, U. S. government securities, and federal agency securities.

The board began the 2007/08 fiscal year with two new board members. William Phillips was appointed by Council to represent the Ninth Disciplinary District and Theodore Bruning was appointed as the new lay member.

The Clients’ Protection Fund Board members are to be commended for the many hours they spend investigating and deliberating claims submitted to the board.

 

Multi-Jurisdictional Practice Task Force

Marni E. Byrum, chair

Status summary

The Multi-Jurisdictional Practice Task Force reconvened in April and September 2007 to revise Rules of Professional Conduct 5.5 and 8.5 and the Foreign Legal Consultant Rule (Rule 1A:7) in accordance with the  recommendations of the Virginia Supreme Court.  The rules, as revised, were presented again to Council for approval at its meeting on March 1, 2008.  Council approved all three rules as revised and the rules were submitted again to the Court in March 2008 for the Court’s review and approval.  Court approval is still pending.

RULE 5.5

The MJP Task Force reconvened in April and September 2007 to make the revisions and produced the current proposed Rule 5.5.  Specifically, the MJP Task Force revised paragraph (d)(4)(iv), deleting the language “or the law of a non-U.S. jurisdiction;” added paragraph (d)(5); and added the language “in which the Foreign Lawyer is admitted to practice” to the end of Comment [14].

The Committee also made additional revisions based on comments received during the period the rules were published for public comment.  It revised Comment [9] deleting the entire second sentence because it was redundant following the first sentence.  Also, in the first sentence, the word “a” was changed to “this” when modifying “jurisdiction.”  The Task Force also revised paragraph (d)(4)(i) to include the exception of Corporate Counsel admitted under Part I of Rule 1A:5.

RULE 8.5

The present proposed Rule 8.5 is the same rule presented to and approved by Bar Council in March 2006 and submitted thereafter to the Virginia Supreme Court.  No revisions were made to this rule. 

RULE 1A:7:  FOREIGN LEGAL CONSULTANT RULE

The MJP Task Force: (1) revised paragraph (d) to clarify the scope of practice of a FLC and add a definition of “international law;”(2) added paragraph (e)(2)(ii) to allow a FLC to be employed as in-house counsel under Part II of Rule 1A:5 Rules of the Virginia Supreme Court; and (3) revised paragraph (g) to give the Virginia Board of Bar Examiners authority to set the application and renewal fees for FLC status.

 

Updated: Jul 29, 2009