Report of the Executive Director/Chief Operating Officer
Karen A. Gould
The membership of the Virginia State Bar continued its steady growth in the fiscal year ended June 30, 2009. Total "in good standing" membership increased to 42,876, an increase of 1,088 members, or 2.6 percent more than the previous year's count of 41,788.
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Officers, bar activities during 2008-09, and new Executive Committee and Council members
Karen A. Gould has served as executive director since January 1, 2008.
Manuel A. Capsalis of Arlington served as president of the bar from July 1, 2008, until June 30, 2009. Manny started his year off by convening the first Public Protection Conclave to explore ways for the VSB to better protect the public. He urged adoption of a payee notification statute to prevent unscrupulous lawyers from stealing settlements from their clients. He championed diversity in the legal profession and worked to promote full and equal participation by all persons in the Virginia State Bar, the profession, and the justice system. In furtherance of this goal, he appointed a Diversity Task Force to coordinate and develop programs to enhance diversity in the profession and joined the Chief Justice of the Supreme Court of Virginia in increasing diversity on the boards and committees of the Virginia State Bar. Manny fostered a relationship between the fledgling Afghan Bar Association and the VSB and recruited Virginia lawyers to assist in the Afghans’ and United States Army’s efforts to advance the rule of law in Afghanistan. He also supported programs to provide pro bono legal assistance to Virginia’s military service people and their families.
Jon D. Huddleston of Leesburg became president of the Virginia State Bar at its annual meeting on June 21, 2008. He was sworn in by the Honorable L. Burke McCahill of the Loudoun County Circuit Court. Irving M. Blank, president-elect, was unopposed in the 2008 election for that office; he will serve as president for the 2009-10 term.
Irving M. Blank will serve ex officio on the Executive Committee for 2009-10 as president-elect. W. David Harless, Sharon D. Nelson, and George W. Shanks were elected by the Council as new members of the 2009-10 Executive Committee, replacing Michael C. Guanzon, M. Janet Palmer and the vacancy created when Irving M. Blank took the president-elect’s seat. Alexander N. Levay Jr., Judith L. Rosenblatt and Theophani K. Stamos were re-elected to one-year terms.
The Council presently consists of three officers, three conference chairs, nine at-large members appointed by the Supreme Court, and sixty-five elected members.
The following new members were elected to the VSB Council for three-year terms beginning July 1, 2009:
4th Circuit I. Lionel Hancock III
14th Circuit Roger T. Creager
Thomas A. Edmonds
13th Circuit O. Randolph Rollins
Doris Henderson Causey
17th Circuit David A. Oblon
18th Circuit Alan S. Anderson
Jean K. Niebauer
19th Circuit Peter D. Greenspun
Susan M. Pesner
Catherine M. Reese
23rd Circuit Tracy A. Giles
28th Circuit Roy F. Evans Jr.
The following incumbents were re-elected to Council for three-year terms beginning July 1, 2009:
8th Circuit Patrick B. McDermott
12th Circuit W. Richard Hairfield
16th Circuit Bruce T. Clark
30th Circuit Joseph E. Wolfe
Darrel T. Mason and Savalle C. Sims were appointed by the Supreme Court of Virginia to three-year terms as Council members at large beginning July 1, 2009. Kimberley S. White of Halifax was reappointed to a three-year term as a Council member at large. Gifford R. Hampshire became chair of the Conference of Local Bar Associations; Lesley Pate Marlin of Washington, D.C., became president of the Young Lawyers Conference; and John G. Mizell Jr. became chair of the Senior Lawyers Conference. They will serve as ex officio members of Council and the Executive Committee during 2009-10.
As of June 2, 2009, 1,960 members had opted out of being listed in the online Lawyer Directory.
The Virginia Association of Commonwealth’s Attorneys was asked to communicate with its members to ensure that work addresses are listed as their VSB addresses of record. Reaction to the directory has been uniformly positive.
As of June 2, 2009, 5,153 members have opted out of receiving the E-News. The E-News constitutes an important method of communicating with our members.
Bar operations and staff
The bar ended fiscal year ended 2009 in excellent financial shape. Two significant developments occurred during FY2009: The Supreme Court decided that the judicial system, of which the bar is a part, would follow the governor’s lead and eliminate raises for employees. And mindful of the dire state of the economy, the bar’s staff continued to find ways to save money. Rather than using $544,400 from the reserve in FY2009 — as was originally projected — the bar supplemented its reserve by approximately $780,000. This is excellent news for Virginia’s lawyers, because the dues increase previously thought to be needed in 2010 can be further delayed. Additional good news is that the bar’s budget for FY2010 is $476,816 less than FY2009’s budget. This means that the bar’s revenue will exceed expenses by approximately $290,000, and this money can be added to the reserve. Unfortunately, this savings comes at the expense of the hard-working bar staff, for whom a raise has been deferred for the second year.
Improvements in the bar’s technology systems continued to be a focus. The staff came up with a new system to prioritize demands for IBIS improvements. The executive management team started studying how to implement an enterprise content management system.
In light of Internet security breaches at the West Virginia State Bar and the Virginia Department of Health Professions, the executive management team of the VSB assured itself that the VSB has excellent security systems in place. We are also having an independent security consultant review our system and make suggestions on additional security measures. We recently had an external penetration test done with only minor suggestions made. The consultant was not able to penetrate the bar’s security.
The Virginia Auditor of Public Accounts issued a favorable audit report — an improvement over last year’s audit.
Council and Supreme Court actions
Rules of Professional Conduct
On February 28, 2009, the Council considered an amendment to Rule 7.4(d) of the Rules of Professional Conduct (RPC). The proposed amendment would allow a lawyer to advertise a specialty certification without the disclaimer required by the present rule if the certification is granted by an organization that is currently accredited by the American Bar Association following the ABA’s arduous review process. The motion to approve the proposed amendment passed by a vote of 30 to 25. The proposed rule change was submitted to the Court by petition on May 8, 2009, following the mandatory forty-five-day additional comment period required by Rules of the Supreme Court of Virginia Part 6, §4, 10.
The Council on June 18, 2009, approved by a vote of 60 to 2, with 1 abstention, a proposed change to RPC 1.17. The proposal would prohibit a lawyer who sold part of a law practice from engaging in the private practice of law in the same geographic area only with respect to the particular practice area that he or she sold. The proposed rule change was submitted to the Court by petition on July 1, 2009.
The Council approved proposed changes to RPC 1.9 and 1.11 on March 1, 2008. The proposed rule changes were submitted to the Court on March 21, 2008. The Court indicated in February 2009 that it was going to approve the proposed changes to RPC 1.9, but was going to hold Rule 1.11 for consideration. Ethics Counsel James M. McCauley has written to the Court explaining why it would be inconsistent to approve Rule 1.9 and not Rule 1.11. The change to Rule 1.11 would move Comment 10 to the body of Rule 1.11 since it deals with a substantive issue of lawyer conduct (disqualification of other lawyers in an agency when one of the lawyers is disqualified from a matter). The amendment to Rule 1.9, Comment 5, would provide direction to lawyers regarding law firm disqualifications when lawyers move from private to public employment.
Undisclosed recording issue
On February 26, 2009, the Supreme Court rejected, by a 4-3 vote, proposed Comments 6 through 9 to RPC 8.4. The proposed comments would have provided guidance to lawyers regarding when a lawyer, or an agent under the lawyer's direction or control, may ethically engage in lawful, undisclosed or nonconsensual recording of communications in which the lawyer or agent is a participant. The proposed comments were approved by Council on March 1, 2008, after originally being submitted to the Court on November 22, 2006 because the Court asked that the proposed rule change be republished for comment.
Paragraphs 1, 2, and 3
On June 18, 2009, Council unanimously voted in favor of amendments proposed by the Membership Task Force to Paragraphs 1, 2, and 3 of Part 6, Section IV of the Rules of the Supreme Court, “Organization & Government of the VSB,” regarding membership registration and classes of membership. The proposed changes, if approved by the Supreme Court, will require that attorneys licensed or admitted to practice in Virginia must register with the VSB within a specified time period; that attorneys can request the VSB to omit their names and addresses from electronic or other disclosure of the membership list in response to Freedom of Information Act requests; that associate members must be attorneys; and that associate members can apply for the Disabled/Retired class of membership. The proposed rule changes were submitted to the Court by petition on July 1, 2009.
Creation of diversity conference
At its June 18, 2009 meeting, the Council voted in favor of a proposal submitted by the Diversity Task Force to include language in Paragraph 9(j) of Part 6, Section IV, of the Rules of the Supreme Court encouraging diversity by a vote of 50 to 14 (1 abstention). By a vote of 51 to 13 (2 abstentions), Council approved the creation of a diversity conference and the proposed conference bylaws. By a vote of 42 to 21 (3 abstentions), Council approved proposed amendments to Paragraph 5 of Part 6, Section IV of the Rules of the Supreme Court, which would create a seat on Council for the chair of the diversity conference. By a vote of 33 to 30 (3 abstentions), Council defeated the proposed amendment to Article VI, Part II of the Bylaws of Council, which would have added the chair of the diversity conference to the Executive Committee. The proposed rule changes were submitted to the Court by petition on July 1, 2009.
Sunsetting of SCOLAS
The Council on June 18, 2009, approved sunsetting the Standing Committee on Lawyer Advertising and Solicitation by a vote of 58 to 1 with 4 abstentions. The original rule amendments were amended to delete the strikeouts in paragraphs 10(b)(i) and (ii). The proposed rule changes were submitted to the Court by petition on July 1, 2009, subject to the additional forty-five-day comment period mandated by Paragraph 10.
At its October 17, 2008, meeting, Council approved the proposed restructuring of Paragraph 13. The proposed restructuring was submitted to the Supreme Court by petition on November 14, 2008, and the Court approved the proposed changes on February 27, 2009.
On February 28, 2009, Council approved three amendments to Paragraph 13 providing that the definition of “terms” contained in Paragraph 13(A) be amended to allow imposition of terms for certain suspensions; that the definition of “costs” contained in Paragraph 13(A) be amended to include electronic and telephonic conferencing costs; and that Paragraph 13(I)(8)(b) be amended to increase the reinstatement bond from $3,500 to $5,000. These changes passed unanimously. The proposed rule changes were submitted to the Court by petition on March 23, 2009. On May 29, 2009, the Supreme Court approved the proposed rule changes, but further amended the language to Paragraph 13-1 by adding “if such procedures are requested by Respondent”.
The Council on June 18, 2009, unanimously approved proposed amendments to Paragraph 13-10, deleting language regarding mutual agreement; to Paragraph 13-22, changing the procedure for a show cause hearing after a guilty plea or adjudication of a crime; and to Paragraph 13-29, amending the duties of a disbarred or suspended respondent. The proposed rule changes were submitted to the Supreme Court by petition on July 1, 2009.
The Council on June 18, 2009, approved by a vote of 48 to 10 with 1 abstention the proposed amendment to Paragraph 17 of Part 6, Section IV of the Rules of the Supreme Court of Virginia, “Organization & Government of the VSB,” to eliminate the requirement of mailing the Mandatory Continuing Legal Education certification form, after the language was amended to state “(electronically or, upon request, by first class mail),” after the language “make available.” The proposed rule change was submitted to the Supreme Court by petition on July 1, 2009.
On February 28, 2009, Council approved amending Paragraph 19 to require (1) that an additional $100 delinquency fee be included in Paragraph 19 for failure to comply with the MCLE certification requirement by a second fiscal year deadline in February; and (2) that the certified mail requirement for the initial sixty-day notice of noncompliance with membership obligations be deleted. The proposed rule changes were submitted to the Supreme Court on March 23, 2009, and were approved by the Court on May 29, 2009.
LMI Committee term change
On June 18, 2009, Council unanimously approved changing the bylaws of the Virginia State Bar so that members of the Lawyer Malpractice Insurance Committee would serve five year terms and to delete the words “three-year” in Section 4 of Part I, Bylaws of the Virginia State Bar. The change was effective immediately.
On June 18, 2009, Council approved proposed amendments to the Consumer Real Estate Settlement Protection Act regulations to conform the regulations to the statutory changes effective July 1, 2009. Council approved on February 28, 2009, a proposed amendment to the Clients' Protection Fund Rules of Procedure to eliminate a requirement that Clients' Protection Fund petitions be sent to respondent attorneys by certified mail, return receipt requested, instead requiring that the petitions be mailed. This change was effective immediately.
Mandatory malpractice insurance
At Council’s October 17, 2008, meeting, the proposal that Virginia’s lawyers in private practice be required to maintain professional liability malpractice insurance at minimal levels was defeated by a vote of 60 to 11.
Opt-in versus opt-out membership directory change
Council voted on October 17, 2008, to change the opt-in membership directory to an opt-out membership directory. At the same meeting, it changed the bar’s e-mail policy to allow sending large messages to members’ e-mail addresses in cases determined as follows: “1) define the circumstances as determined to be appropriate by the executive director or a majority of the officers of the bar;” and “3) in the case of e-mails to their members from bar conferences, sections, committees, and task forces, e-mails may be sent as necessary to carry out the work of the conference, section, committee, or task force.”
Increases in administrative fees in disciplinary cases
On October 17, 2008, Council approved increases in administrative fees in disciplinary cases, effective immediately. The increases are as follows:
- Subcommittee cases — from $200 to $500
- District committee cases — from $500 to $750
- Disciplinary Board and three-judge circuit court cases — from $750 to $1000
- Reinstatement cases — from $750 to $1500
UPL Opinions 213 and 214
UPL Opinions 213 and 214, approved by Council on June 19, 2008, and submitted to the Court by petition on July 11, 2008, were approved by the Supreme Court on February 27, 2009.
UPL statutory amendment
The council, at its June 18, 2009, meeting, considered and approved, by a vote of 58 to 2, the Virginia State Bar’s Standing Committee on the Unauthorized Practice of Law’s proposal to seek legislative support to increase the penalty for the unauthorized practice of law to a felony. A letter was sent to the Chief Justice regarding the proposed statutory change on July 13, 2009.
Emergency Legal Services Rule
The proposed Emergency Legal Services rule, submitted to the Supreme Court by petition on July 11, 2008, is pending with the Court, and the Court indicated in a letter dated February 11, 2009, that it will let us know what its concerns are. The proposed new rule would, if adopted, set up a system for the provision of emergency legal services in the event of a disaster. The Virginia Supreme Court would first have to declare an emergency to trigger the rule coming into play. Out-of-state lawyers could provide pro bono legal services to Virginia citizens within certain constraints, and displaced out-of-state lawyers could provide legal services in Virginia on a temporary basis if those services were reasonably related to the lawyer's practice in the affected jurisdiction. The proposed rule was unanimously approved by Council on June 19, 2008.
Website posting of disciplinary information
The Supreme Court of Virginia advised the bar by letter dated February 11, 2009, that the VSB is authorized “to resume its practice of posting on its website information, otherwise public, regarding lawyers who are subject to the disciplinary process, when a probable cause determination has been made regarding that lawyer. The information posted on the website must include the status of the proceeding and whether an appeal has been taken.” The Court, by letter dated March 21, 2008, had instructed the bar to not post any such information.
Task Force on Online Legal Research
The VSB is required by Supreme Court rule to provide an online legal research program. Fastcase was chosen three years ago to provide that service at a cost to the bar of about $4 per member. The bar currently has a three-year contract with three one-year optional renewals, and the first three-year term was up for renewal in January 2009. The task force conducted a survey which indicated that Fastcase has been well-received by bar members. The online legal research task force, chaired by Mr. Huddleston, reviewed issues that need to be addressed by Fastcase. The Fastcase contract was renewed in January 2009 for another year.