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, 2010. Total “in good standing” membership increased to 44,512, an increase of 1,636, or 3.8 percent more than the previous year’s count of 42,876.
|Corporate Counsel Admittees||1,179|
|Corporate Counsel Registrants||577|
As of June 30, 2010, 33,265 VSB members have registered for a Member Login at VSB.org; 2,119 members have elected not to be listed in the Virginia Lawyer Directory, a searchable public directory; and 4,677 members have opted not to receive the monthly E-News.
Bar activities, officers, and council during 2009-10
Karen A. Gould has served as executive director since January 1, 2008.Jon D. Huddleston of Leesburg served as president of the bar from June 20, 2009, until June 19, 2010. Jon focused term on his Virginia Is for Good Lawyers initiative, which consisted of two components: (1) videotaped interviews with Virginia lawyers about their community service; and (2) essays from Virginia lawyers and judges. The interviews and the essays were posted on the bar’s website. Jon’s initiative advanced the mission of the Virginia State Bar by recognizing Virginia's finest citizen lawyers, by promoting exemplary community programs for lawyers, and by educating and encouraging discourse between lawyers and the public. Jon was asked to speak regarding this initiative at several national bar meetings, which brought national recognition and acclaim to the Virginia State Bar.
Irving M. Blank of Richmond became president of the Virginia State Bar at its annual meeting on June 19, 2010. He was sworn in by his son, Jonathon T. Blank of Charlottesville. George Warren Shanks of Luray, president-elect, was unopposed in the 2009 election for that office to serve during 2010-2011.
Mr. Shanks will serve ex officio on the VSB Executive Committee next year as president-elect. Tracy A. Giles, Kevin E. Martingayle, and Susan M. Pesner were elected by the council as new members of the 2010-11 executive committee, replacing Mr. Shanks, Theophani K. Stamos, and Judith L. Rosenblatt. W. David Harless, Alexander N. Levay, and Sharon D. Nelson were reelected to one-year terms.
The Supreme Court of Virginia approved the new VSB Diversity Conference by a vote of 6-1. The officers of the conference’s first board of governors, appointed by outgoing president Jon D. Huddleston, are Manuel A. Capsalis of Arlington, chair; Michael HuYoung of Richmond, vice chair; Linda Y. Lambert of Richmond, secretary; and Edward L. Weiner of Fairfax, treasurer. The conference must raise private funds to support its operations. The VSB Council had approved the Diversity Conference at its June 18, 2009, meeting by a vote of 51-13. The chair of the Diversity Conference has a seat on council, pursuant to an amendment to Paragraph 5 of Part 6, Section IV of the Rules of the Virginia Supreme Court, but the council defeated a proposal to award a seat on the executive committee by a vote of 33-30, with 3 abstentions.
With the approval of the Diversity Conference, the council currently consists of three officers, four 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, 2010:
4th Circuit David W. Lannetti
6th Circuit Peter D. Eliades
17th Circuit Raymond B. Benzinger
19th Circuit Sean P. Kelly
23rd Circuit Mark K. Cathey
24th Circuit Theodore J. Craddock
26th Circuit W. Andrew Harding
27th Circuit Richard L. Chidester
31st Circuit Gifford R. Hampshire
The following incumbents were reelected to three-year council terms that begin July 1, 2010:
2nd Circuit Kevin E. Martingayle
3rd Circuit George M. Willson
5th Circuit William H. Riddick III
13th Circuit Brian L. Buniva
16th Circuit Ronald R. Tweel
17th Circuit Mark D. Cummings
Gregory T. Hunter
19th Circuit Sharon D. Nelson
Edward L. Weiner
20th Circuit Peter C. Burnett
22nd Circuit C. Eugene Compton
The executive committee engaged developed and issued a strategic plan. The 2010 VSB Strategic Plan sets out five goals in support of the VSB mission statement and outlines strategies to implement those goals. The goals are protecting the public, regulating the profession, advancing access to legal services, improving the legal profession and judicial system, and operating the bar.
Mark D. Braley, executive director of the Legal Services Corporation of Virginia, reported to the executive committee in February 2010 that revenues from the Interest on Lawyers Trust Accounts program had declined 85 percent in the last two years. To assist in offsetting those and other funding losses, he asked that the VSB include an opportunity for lawyers to contribute to LSCV through the annual dues statement or through a direct fund-raising campaign. The VSB officers authorized a direct fund-raising plea to be included as a separate document with the dues statement, mailed in late May 2010.
The Supreme Court Forms for Bar Members project is moving forward and is expected to be online by July 1, 2010. The Court will be making court forms promulgated by the Office of the Executive Secretary available to VSB members through a Web-based interface between the VSB and the Virginia’s Judicial System website. These forms will be ones that are not placed on the Court’s public website and to which lawyers have indicated they would like to have on-line access. The forms will be available through the limited-access VSB Member Area.
With funding from the Virginia Law Foundation, the VSB’s Family Law Section’s Spare the Child DVD has been completed. The DVD replaces an outdated video that has been used for many years to guide divorcing parents in visitation, custody, and child-support issues, stressing the best interests of children. Many courts show the video in litigant-education programs required under Va. Code § 16.1-278.15. Spare the Child also is used by judges, lawyers and civic groups to encourage mediation and responsible parental behavior. An estimated thirty thousand people will see the video each year. The new DVD will be posted for viewing on the bar’s website, and a copy will be made available on request.
Effective January 21, 2010, the first five digits of Social Security numbers have been eliminated from the VSB database for all members except those with public and private discipline and those who owe costs. This was done to protect our members’ Social Security numbers in the unlikely event of a security breach.
Bar operations and staffThe VSB ended fiscal year 2010 in excellent financial shape, supplementing its reserve by approximately $1 million. The bar’s staff went without a raise for another fiscal year, having last received a raise in November 2007. The Supreme Court of Virginia has approved a 3 percent bonus for bar employees in December 2010, if Commonwealth of Virginia employees receive a 3 percent bonus. The 3 percent bonus has resulted in the budget for FY 2011 being $230,000 greater than FY 2010.
A new abbreviated evaluation form was used to provide feedback to the staff regarding their performance in the fall of 2009.
The state auditor of public accounts issued a favorable audit report.
In March 2010, the VSB Publications staff posted a searchable HTML version of the Professional Guidelines, which include Rules of Professional Conduct and Rules of Court governing the bar.
The staff has been planning this year for the transition to permanent bar cards, at the suggestion of President-elect Irving M. Blank and with the concurrence of the Membership Task Force. Beginning in the 2010-11 fiscal year, Virginia State Bar members with active, active/Virginia corporate counsel, associate, active/military legal assistance attorney, and emeritus status will receive permanent bar cards.
Amendments to MCLE Regulations
The Mandatory Continuing Legal Education Board amended its regulations to reflect current policies relating to course approval standards, course sponsor responsibilities, and attorney compliance reporting procedures. The amendments will also limit prerecorded programs to eight credit hours. The latter change will require attorneys to take at least four hours of live, interactive programs. Live telephone seminars and Web casts will meet the live credit requirement, as well as video replays that provide interaction with a presenter. The amendments will go into effect November 1, 2010.
Rule 1.15 changes approved
The council approved at its June 17, 2010, meeting the Standing Committee on Legal Ethics proposed amendments to the Rules of Professional Conduct 1.15, the Rules of the Virginia Supreme Court Part 6, § IV, ¶ 20, and the trust account notification agreement. The proposed amendments eliminate redundancy in the rule and clarifies the rule’s record-keeping requirements for Virginia lawyers. In addition, the modifications to Paragraph 20 would eliminate the regulations for the approval of financial institutions as a depository for attorney trust accounts in Virginia. Details. The proposal was sent to the Court for its consideration on July 8, 2010.
The Standing Committee on Lawyer Advertising and Solicitation was eliminated by order of the Supreme Court of Virginia, with its role taken over by the VSB staff and the Legal Ethics Committee, effective January 22, 2010. The council on June 18, 2009, had approved sunsetting SCOLAS by a vote of 58-1, with 4 abstentions.
Paragraph 10 amendments
Paragraph 10 of Part 6, § IV of the Rules of the Virginia Supreme Court, which governs the promulgation of legal ethics and unauthorized practice of law (UPL) opinions and rules of court, was amended to update terminology and eliminate redundancy in the that provide for notice and public comment. Paragraph 10 continues to require sufficient notice and comment periods in the Virginia Lawyer Register and on the Virginia State Bar’s website as related to draft advisory opinions and proposed rule amendments. Additionally, the rule has been reformatted into new subparagraphs to conform to the recent reformatting of Paragraph 13 of the Rules of the Virginia Supreme Court. The Court also amended Paragraph 10 to require that the VSB seek the Virginia attorney general’s analysis of potential restraint on competition only for proposed UPL opinions that declare activity conducted by a nonlawyer to be UPL. No other UPL or ethics opinions and no other rules must be submitted for this analysis, under the amended Paragraph 10. New Paragraph 10-5 broadens the definition of “member” to include foreign lawyers as defined under new Rule 5.5 of the Virginia Rules of Professional Conduct, effective March 1, 2009, which regulates the multijurisdictional practice of law in Virginia. New Paragraph 10-5(C) prohibits the subpoenaing of ethics counsel’s records or documents for use in proceedings other than a disciplinary proceeding in which ethics counsel’s advice has been placed in issue. In addition, language was added to provide that a respondent claiming to have relied on ethics counsel’s advice in connection with the conduct questioned or alleged may not withhold consent to disclose that advice to bar counsel in a disciplinary proceeding.
Rules 1.9 and 1.11 amendments
Rules 1.9 and 1.11 of the Rules of Professional Conduct were amended by the Supreme Court of Virginia, effective January 4, 2010, to move Comment 10 of Rule 1.11 to the body of the rule since the comment 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). An amendment to Rule 1.9, Comment 5, provides direction to lawyers regarding law firm disqualifications when lawyers move from private to public employment.
Rule 1.17 amendment
Rule of Professional Conduct 1.17 was amended by the Court effective January 4, 2010, to 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. (Previously a lawyer who sold a part of a practice was totally excluded from practicing in the same geographic area.) The council on June 18, 2009, had approved the change by a vote of 60-2, with 1 abstention.
Paragraph 13 amendments
The Court 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, after having been approved unanimously by the council on June 18, 2009.
Mandatory membership registration and other membership rule changes
Effective January 4, 2010, attorneys licensed or admitted to practice in Virginia must register with the Virginia State Bar within a specified time period. The VSB Council on June 18, 2009, unanimously voted in favor of the amendments proposed by the Membership Task Force to Paragraphs 1, 2, and 3 of Part 6, Section IV of the Rules of the Virginia Supreme Court, Organization and Government of the VSB, regarding membership registration and classes of membership. In addition to the mandatory registration requirement, attorneys can now 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; to require associate members to be attorneys; and to permit associate members to apply for the disabled/retired class of membership.
LEO 1852 issued
The VSB Standing Committee on Legal Ethics Committee issued an opinion on December 9, 2009, regarding employment limitations for suspended or revoked lawyers. http://www.vacle.org/opinions/1852.htm
LEO 1853 issued
The Legal Ethics Committee finalized advisory Legal Ethics Opinion 1853, Sexual Relationship with a Client.
Denials and Withdrawals
Payee notification proposal
The VSB Council by a vote of 39-25 had authorized the officers to seek legislation at the 2010 General Assembly that would have required insurers that pay liability claims to notify claimants when insurers disburse settlement proceeds of $5,000 or more to claimants’ attorneys. The Supreme Court of Virginia asked the Virginia State Bar to withdraw the legislation because it had many questions and wanted to seek the input of the seventeen statewide bar groups.
Specialization amendment to Rule 7.4(d) denied by Court
The Supreme Court rejected a petition requesting a rule change to Rule of Professional Conduct 7.4(d) on January 22, 2010. The proposed amendment, approved by the council on February 28, 2009, by a vote of 30-25, would have permitted attorneys to identify certification through an American Bar Association-approved specialized program without including a disclaimer.
MCLE Form 1 mailing elimination denied by Court
A proposal to eliminate mailing MCLE Form 1, required by Paragraph 17 of Part 6, Section IV of the Rules of the Virginia Supreme Court, Organization and Government of the VSB, was rejected by the Supreme Court on November 2, 2009. The Council on June 18, 2009, had approved by a vote of 48-10, with 1 abstention, the proposed amendment.
UPL felony proposal
On June 18, 2009, the VSB Council considered and approved, by a vote of 58-2, the 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. Because of the state’s budget situation and the fact that the felony proposal would require additional funds to be expended, the UPL Committee decided to withdraw the proposal before a patron was selected.
Pending before the Supreme Court of Virginia
Rule 4.2 amendment
A proposed amendment to Rules of Professional Conduct 4.2 would clarify that a commonwealth’s attorney may advise a law enforcement officer regarding the legality of an interrogation or other investigative conduct when a defendant in custody, formally charged and represented by counsel, waives his Miranda rights and wants to give a statement without his or her counsel present. The amendment was unanimously approved by the council on October 16, 2009.
New Rule 1.18
New Rules of Professional Conduct 1.18 was approved by the council on October 16, 2009, by a vote of 67-1 and is pending before the Court. The rule would define a prospective client to whom the duty of confidentiality is owed, and distinguish that prospective client from someone who unilaterally communicates with a lawyer with no reasonable expectation of forming an attorney-client relationship. The proposed amendment also would allow a law firm to screen the lawyer who discussed the possibility of employment by a prospective client to avoid imputation of a conflict to other lawyers in the firm. The proposed rule was submitted to the Court on October 28, 2009.
Proposed Emergency Legal Services rule
Pending before the Supreme Court is a proposal for an Emergency Legal Services rule which would 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. Under the proposal, 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 proposal was unanimously approved by the council on June 19, 2008, and was submitted to the Court on July 11, 2008.