Report of the Executive Director/Chief Operating Officer
Karen A. Gould
Membership in the Virginia State Bar grew slowly this year. Total “in good standing” membership increased to 47,383, an increase of 1,069, approximately a 1% increase from last year's membership number.
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Bar Activities, Officers, and Council During 2012-2013
Karen A. Gould has served as executive director since January 1, 2008.
W. David Harless of Richmond served as president of the bar from June 16, 2012, until June 16, 2013. President Harless advanced the mission of the Virginia State Bar throughout his term as president by advocating on behalf of the bar staff, encouraging the formation of bench-bar conferences, advocating for the passage of the payee notification legislation before the 2013 General Assembly, assisting staff in the myriad of details involved in obtaining new bar office space, and speaking eloquently and forcefully whenever called upon regarding the mission of the Virginia State Bar. He also focused his term on the VSB's relationship with the voluntary statewide bar organizations.
Sharon D. Nelson of Fairfax was unopposed in the 2011 election for that office to serve as president-elect during 2012-2013. Kevin E. Martingayle of Virginia Beach and Raymond B. Benzinger of Arlington filed petitions for the office of president-elect. Ballots were mailed out November 5, 2012 to active VSB members in good standing. Mr. Martingayle prevailed over Mr. Benzinger.
Mr. Martingayle will serve ex officio on the VSB Executive Committee during 2013-2014 as president-elect. Doris E.H. Causey, D. Sue Baker Cox, Tracy A. Giles, Ray W. King, will continue to serve on the Executive Committee during the 2013-2014 bar year. Alan A. Anderson and William L. Schmidt were elected by the council as new members of the 2013-14 executive committee, replacing Mr. Buniva and Mr. Martingayle. Eugene M. Elliott, Jr. and John M. Oakey, Jr., the new chairs of the Conference of Local Bar Associations and Senior Lawyers Conference, respectively, and Kenneth L. Alger, II, the incoming president of the Young Lawyers Conference, complete the 2013-14 roster of the executive committee.
The chair-elect of the Diversity Conference, Rupen Shah, became its chair at the bar’s Annual Meeting and will represent the Diversity Conference at the executive committee and council meetings for the 2013-14 fiscal year.
The following circuits did not have contested elections for a three-year term beginning July 1, 2013.
CIRCUIT 2: Daniel Schieble (replaces Kevin Martingayle who will become president-elect)
CIRCUIT 3: Nicholas D. Renninger (replaces George Willson)
CIRCUIT 4: David Lannetti (re-election)
CIRCUIT 13: Christy E. Kiely (replaces Brian Buniva)
CIRCUIT 16: Alex R. Gulotta (replaces Ron Tweel)
CIRCUIT 19: Sean P. Kelly (re-election), James A. Watson II (replaces Ed Weiner)
CIRCUIT 23: Mark K. Cathey (re-election)
CIRCUIT 26: W. Andrew Harding (re-election)
CIRCUIT 27: Richard L. Chidester (re-election)
CIRCUIT 31: Gifford R. Hampshire (re-election)
Contested Elections by Mail Ballot (winners denoted by *)
CIRCUIT 5 (one Council position to replace Bill Riddick)
*C. Phillips “Phil” Ferguson – 56
Fred D. Taylor – 31
CIRCUIT 11 (one Council position to replace Ray Lupold who was elevated to the bench)
Henry O. Brown – 3
*Dale W. Pittman – 24
Joseph M. Teefey, Jr. – 19
CIRCUIT 17 (three Council positions to replace Mark Cummings and Greg Hunter; Ray Benzinger can be reelected)
Timothy B. Beason – 91
*Raymond B. Benzinger – 92
*John H. Crouch – 104
*Harry A. Dennis III – 103
CIRCUIT 20 (one Council position to replace Peter Burnett)
*Christine Mougin-Boal – 129
Thomas K. Plofchan, Jr. – 45
Council Elections by Meetings
A third category of Council elections are those circuits that vote at a meeting. This category further breaks down into two categories, Council members who can be reelected and those who cannot. In the 22nd and 29th circuits, Mark Holland and Gene Compton, respectively, cannot be reelected. In the 6th and 24th circuits, Peter Eliades and Ted Craddock can be reelected and serve another term. The Chief Judge of these circuits convened a circuit meeting to vote on Council representation for their circuits.
CIRCUIT 6: Peter D. Eliades (Hopewell) (re-elected)
CIRCUIT 22: Lee H. Turpin (Chatham)
CIRCUIT 24: David B. Neumeyer (Lynchburg)
CIRCUIT 29: Joseph M. Bowen (Tazewell)
New and Reappointed At-Large Members
Michael HuYoung (Richmond) and Beverly Powell Leatherbury (Eastville) have been reappointed by the Supreme Court of Virginia to serve again as at-large members of Council for a second three-year term. Nancy Dickenson of Abingdon was appointed to replace Margaret Nelson (Lynchburg), effective July 1, 2013, for her first three year-term.
The following conference chairs and president will serve on council during the 2013-2014 bar year:
Eugene M. Elliott, Jr., Conference of Local Bar Associations
John M. Oakey, Jr., Senior Lawyers Conference
Kenneth L. Alger, II, Young Lawyers Conference
Rupen Shah, Diversity Conference
In summary, council consists of the three officers, four conference chairs, nine at-large members appointed by the Supreme Court of Virginia, and sixty-five elected members.
The Supreme Court of Virginia and Council approved the FY2013-2014 budget.
707 E. Main Street Leasehold
Dominion Resources, which owns 707 E. Main Street, informed us on February 13, 2013, that the bar’s lease will not be renewed. The bar’s lease, originally set to expire on August 31, 2013, has been extended to April 30, 2014. The VSB has received an exemption from working with the Commonwealth’s Department of Real Estate Services (DRES) to find new space, although the Secretary of Administration must still approve the lease after it is approved by the Director of the Department of General Services. A request for proposal for a broker/agent to represent the bar was issued on April 11, 2013, and the bar has chosen the brokerage firm of CBRE to represent it.
Payee Notification Proposal
Through the joint efforts of the Virginia Trial Lawyers Association, the Virginia Bar Association, the Virginia Association of Defense Attorneys, the Virginia State Bar, and members of the VSB’s Payee Notification Task Force, the payee notification proposal was successfully shepherded through the General Assembly by Senator Mark Obenshain. It was voted out of committee unanimously and by both the House and the Senate unanimously. As of this writing, it awaits the Governor’s signature. The proposal, as passed, provides as follows:
§ 38.2-236. Notice of settlement payment.
A. Upon payment by any insurer of at least $5,000 in a single check to an attorney licensed in the Commonwealth, or other representative, in settlement or satisfaction by an insured or a third party of any claim arising out of an insurance policy issued or delivered in the Commonwealth, the insurer shall send to the claimant or judgment creditor on the underlying insurance or liability claim a notice of such payment as required by subsection B within five business days after the date payment is made or sent to the attorney or other representative of the claimant or judgment creditor. A copy of the notice shall be sent simultaneously to the attorney or representative of the claimant or judgment creditor.
B. The notice required pursuant to subsection A shall be sent to the physical address, or email or other electronic address, furnished by the claimant or judgment creditor to the insurance company, unless the claimant or judgment creditor has notified the insurance company in writing that he waives notice of payment. In the absence of any address or waiver furnished by the claimant or judgment creditor, the notice shall be sent to the last known physical address, or email or other electronic address, of the claimant or judgment creditor.
The notice shall be sent by the insurance company only after a settlement has been agreed to by the attorney or other representative of the claimant or judgment creditor, and shall contain only the following language:
"Pursuant to § 38.2-236 of the Code of Virginia, you are hereby notified that a payment was sent on (insert date on which payment was sent) by (insert name of insurer) to your attorney or other representative (insert name, address, and telephone number of attorney or other representative known to insurer), in satisfaction of your claim or judgment against (insert name of insurer, or insured, whichever is appropriate).
If you have any questions, please contact your attorney or other representative."
C. Nothing in subsection A or B shall (i) create any cause of action for monetary damages for any person against an insurer based upon a failure to provide notice as required by this section or the provision of a defective notice, (ii) establish a defense for any person to any cause of action based on a failure to provide notice as required by this section or the provision of a defective notice, or (iii) invalidate or in any way affect the settlement or satisfaction for which the payment was made by the insurer.
D. Except as provided and authorized by this section, no insurer shall otherwise communicate with a claimant or judgment creditor known to be represented by an attorney licensed in the Commonwealth, or other representative, regarding settlement of a claim or satisfaction of a judgment without the written consent of such attorney or other representative.
Clients’ Protection Fund Rules of Procedure Amended
The Clients’ Protection Fund (CPF) Board’s proposed changes to the CPF Rules of Procedure were approved by Council at the February 23, 2013, meeting. A client would generally have seven years to make a claim from the time the client “knew or should have known” of the lawyer’s dishonest conduct. Another change would permit the CPF board to award return of a partial fee, if it found that the lawyer had provided some legal services.
The CPB Board is undertaking an actuarial study of the CPF to determine whether the CPF will be adequate to meet future projected claims. The CPF $25 assessment paid by Virginia’s active lawyers expires June 30, 2015.
The Clients’ Protection Fund was established in 1976 to make monetary awards to persons who suffered financial losses due to the dishonest conduct of Virginia lawyers. The total amount paid during 2011-2012 was $649,300 for forty-eight claims. Fifteen petitions were denied and fifteen petitions were rejected for not meeting the CPF rule requirements. The fund balance as of December 31, 2012, was $6,557,731.41.
Indigent Defense Task Force Proposal Forwarded to Supreme Court of Virginia
At the February 2013, Council meeting, the IDTF, through its chairperson Alexander N. Levay, Jr., presented a report of its activities since its inception in 2004, and presented a recommendation that Virginia Supreme Court Rule 3A:11 be amended to broaden discovery in criminal matters. Before presentation to Council of its draft of proposed changes, the IDTF accepted amendments from the bar's Standing Committee on Legal Ethics bringing the draft of Rule 3A:11 into compliance with LEO 1862. In advance of Council's February 2013, meeting, the bar published for comment the IDTF's draft of proposed changes to Rule 3A:11.
Following Mr. Levay's presentation of the IDTF's report and proposed changes to Rule 3A:11, Council received the oral presentations of B. Leigh Drewry, Jr., President of the Virginia Association of Criminal Defense Attorneys, and Michael R. Doucette, President of the Virginia Association of Commonwealth's Attorneys. Mr. Drewry spoke in favor of the IDTF recommendations and Mr. Doucette spoke in opposition.
In February 2004, Council approved creation of the IDTF under the auspices of the VSB's Access to Legal Services Committee. Its charge was to study the indigent defense delivery system in Virginia and make recommendations to Council for improvements by its October 2004, meeting. At its October 2004, meeting, Council unanimously approved a number of proposals presented by the IDTF, including a proposal that "the rules of discovery be broadened to allow for more access to information in a criminal case." Council authorized the IDTF to submit its proposals to the Indigent Defense Commission for its review and possible inclusion in future proposed legislation to the General Assembly.
In 2010, the bar reconstituted the IDTF and directed that it consider and develop a proposal relating to discovery procedures in criminal matters for public comment and consideration thereafter by the Supreme Court. Council's action during the February 2013, meeting was solely to consider whether the Task Force had fulfilled its assigned mission and then to decide whether to approve forwarding the IDTF proposal to the Supreme Court accompanied by all public comments. By a vote of 51-3, Council answered these questions in the affirmative. Council did not approve or endorse the IDTF's proposed changes to Rule 3A:11, but rather approved the transmittal of the IDTF recommendation to the Supreme Court for its consideration and action, if any, that it deems appropriate.
New Hires in Discipline Department
Anastasia K. Jones replaced Seth Guggenheim effective July 9, 2012. Also joining the bar on July 9, 2012 was Roanoke attorney Mary Beth Nash, who became the bar's newest investigator, working cases from the 8th, 9th and 10th districts.
Enterprise Client Management Project
After undertaking a high level assessment of its operations and record management needs in FY2011, in FY2012, the bar developed a request for proposal to purchase enterprise content records management software and purchased the software from Open Text. During fiscal year 2012-2013, consultants completed the content inventory, aligned the content items with required and best practices record-retention policies, issued an RFP for consultants to undertake implementation of the ECRM project, which was awarded to The IQ Group Consultants, who began work on January 24, 2013.
ALPS Property & Casualty Insurance Company (dba Attorneys Liability Protection Society, A Risk Protection Group) (ALPS) is the VSB's endorsed lawyers' professional liability carrier, a position it has held since October 2000. ALPS has an A.M. Best financial strength rating of A- (Excellent). In June 2012, ALPS notified the VSB that while its financial strength rating had been reaffirmed by Best at A- (Excellent), its outlook had been changed from Stable to Negative. On May 28, 2013, ALPS notified us A.M. Best again revised its ALPS outlook, this time from Negative to Stable. The A.M. Best press release (attached) noted that the designation comes "on the heels of a record-breaking year for ALPS, with 2012 recording the highest policyholder surplus in company history," $34.4 million.
In 2012 year-end results, ALPS reported a net combined ratio of 96.10% overall with the Virginia book at 99.66%. Of its total 12,643 insureds, 3,405 were Virginia attorneys as of 12/31/2012. As of 6/30/2013, 3,720 Virginia lawyers were insured by ALPS in 1,930 firms. Claims frequency in 2012 was 4.88% in Virginia, compared to 4.04% overall. Gross written premium from the Virginia book was $8,952,606, and overall was $40,497,693. Net written premium from Virginia was $6,159,085, and overall was $27,861,019.
ALPS continues to move forward with plans to relinquish its Risk Retention Group status and become an admitted carrier in all states in which it does business. In consultation with the Virginia State Corporation Commission, it withdrew its Virginia application in February, but plans to re-file later this year after the completion of a triennial financial examination. Acceptance of ALPS as an admitted carrier in Virginia will require them to be part of the Virginia Guarantee Fund.
On the risk management front, ALPS contributed 3% of its Virginia gross written premium in 2012, or $233,000, to support a variety of VSB risk management activities. Those dollars, administered by the Virginia Lawyers Malpractice Insurance Committee, supported a statewide Fall risk management tour (where 1,400 Virginia attorneys earned 3 hours of CLE ethics credit), a Hanging Out a Shingle mini-tour, three webinars, nine programs uploaded into a Virginia on-demand library and the retention of a dedicated, full-time Virginia risk manager able to serve as a risk management resource with local bars and engage in article publication, blogging and fielding Virginia lawyer calls.
Finally, long-time ALPS CEO Robert W. Minto Jr. recently transitioned into his new role as Executive Chair of the ALPS board of directors, making way for insurance industry veteran David Bell to take the reins as CEO. Bell was previously ALPS’ President and Chief Operating Officer.
Online Dues Renewal
The VSB's online dues renewal process was effective for the first time with the 2011 dues renewal season. The new system resulted in the collection of fewer penalties. Participation by members was much higher than expected for the first year of usage. In September 2012, online dues renewal improved by $724,260 from last year, the 2nd year of the program’s existence.
FY2012 Audit Report
The audit report for FY2012, completed January 15, 2013, found (1) proper recording and reporting of all transactions in the Commonwealth Accounting and Reporting System and our internal financial system; (2) no matters involving internal control and its operations necessary to bring to management’s attention; and (3) no instances of noncompliance with applicable laws and regulations or other matters that are required to be reported.
Amendments to Rules of Professional Conduct 7.1-7.4
Effective July 1, 2013, the Supreme Court of Virginia approved amendments to Rules 7.1-7.5 of the Rules of Professional Conduct. The amendments move specific examples of lawyer advertising statements or claims from the body of rules to the comment sections. They also remove unnecessary and redundant language.
Here is how the approved amendments change the current rules.
- The terms “fraudulent” and “deceptive” are removed from Rule 7.1. A communication that is “false or misleading” violates the rule.
The disclaimer required for advertising specific or cumulative case results has been removed from Rule 7.2—which has been eliminated in its entirety—and is now Rule 7.1(b). The disclaimer shall:
- (i) put the case results in a context that is not misleading; (ii) state that case results depend upon a variety of factors unique to each case; and (iii) further state that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.
- The disclaimer shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.
- Other than specific or cumulative case results, examples of statements or claims considered to be “false or misleading” have been taken out of Rule 7.1 and placed in the comments. Former subparagraphs (1)-(4) were deleted.
- Comment  to Rule 7.1 was substantially rewritten to describe the types of communications subject to regulation under Rule 7.1and to exclude other forms of non-commercial speech.
- Rule 7.2 was eliminated in its entirety, although the specific and cumulative case results disclaimer requirement is now Rule 7.1(b) and provisions in Rule 7.2 regulating written solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.
- Rule 7.3 addresses in-person and written solicitation of potential clients. The amendments to Rule 7.3 remove the current per se prohibition of in-person solicitation in personal injury and wrongful death cases. Effective July 1, 2013, in-person and written solicitation will be improper only if: the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.
- Rule 7.3 also regulates payment or rewards to persons for recommending employment, prohibiting a lawyer from giving anything of value to a referral source except that the lawyer may: pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1; pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service (note that the lawyer referral service must be a non-profit entity); pay for a law practice in accordance with Rule 1.17; and give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer's services.
- Rule 7.3’s regulation of written solicitations has been simplified with regard to the “ADVERTISING MATERIAL” labeling requirement.
- Rule 7.4 regulates claims of specialization and expertise and the current rule is substantially unchanged by the amendments.
- Rule 7.5 is substantially unchanged with the exception of a new Comment  that states that lawyers should practice using the official name under which they are licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia. The lawyer’s use of a name other than the lawyer's name on record with the Virginia State Bar may be a misleading communication about the lawyer's services to the public in violation of Rule 7.1.
Revisions to Clients’ Protection Fund Rules of Procedure
At its meeting on February 23, 2013, the Virginia State Bar Council approved the Clients’ Protection Fund Board's proposal that the Rules of Procedure of the Clients’ Protection Fund be amended to clarify how the Board processes claims for reimbursement.
Bylaws revisions to election procedures for president-elect and council
At its meeting on October 19, 2012, the Virginia State Bar Council approved the Membership Task Force’s proposal that the VSB bylaws be amended to permit the use of means, other than U.S. mail, for election notification and balloting.
Amendment to Bylaws to give Diversity Conference chair a seat on the Executive Committee
At its meeting on June 13, 2013, the Virginia State Bar Council approved the VSB Diversity Conference's proposal to amend the bylaws to place its chair on the Executive Committee.
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.
Sample VSB Meetings and Programs
- May 3, 2013 | Ninth Annual Indigent Defense Training Seminar, Richmond
- May 9, 2013 | Past Presidents’ Dinner, Richmond
- May 13-15, 2013 | Circuit Court Judges’ Conference, Roanoke
- May 23, 2013 | VSB Solo & Small Firm Forum, Staunton
- June 3, 2013 | VSB/YLC Admission & Orientation Ceremony, Richmond
- June 12, 2013 | VSB Executive Committee meeting, Virginia Beach
- June 13, 2013 | VSB Council meeting, Virginia Beach
- June 13-16, 2013 | VSB Annual Meeting, Virginia Beach
Updated: Aug 01, 2013