Report of the Executive Director/Chief Operating Officer

Karen A. Gould

The Virginia State Bar grew slowly this year. Active membership1 increased to 32,564 as of June 11, 2020.

 

 2018-19

  2019-20

Active

31,908

32,564

Virginia Corporate Counsel licensed under SCV Rule 1A:5, Part I

981

941

Corporate Counsel Registrants licensed under SCV Rule 1A:5, Part II

597

634

Associate

13,502

13,485

Judicial (includes active and retired)

1,448

1,514

Retired/Disabled

3,483

3,802

Total

51,919

52,940

 



Karen A. Gould has served as executive director/chief operating officer since January 1, 2008.

Marni E. Byrum served as the president 

Executive Committee members 2019-2020

President                                                             Marni E. Byrum           

President-elect                                                    Brian L. Buniva

Immediate Past President                                   Leonard C. Heath Jr.

At large                                                                     Maryse C. Allen

At large                                                                     Ann B. Brogan

At large                                                                      Eugene Elliott, Jr.

At large                                                                     Eva Juncker

At large                                                                      Jay B. Myerson

At large                                                                      William T. Wilson

Conference of Local Bars Chair                          Lewis A. Martin, III            

Diversity Conference Chair                                 Chidi I. James

Senior Lawyers Conference Chair                      John D. Eure

Young Lawyers Conference President               Farnaz F. Thompson


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.

At-large Council members FY 2020

Denise W. Bland                           Eastville

Afshin Farashahi                              Virginia Beach

Atiqua Hashem                                 Richmond 

Eva N. Juncker                              Falls Church

B. Alan McGraw                             Tazewell 

Lenard T. Myers, Jr.                         Norfolk

Lonnie D. Nunley, III                        Richmond

Patricia E. Smith                              Abingdon

Benjamin Spencer                           Hampton

 COUNCIL ELECTIONS

The following persons were elected to three-year terms on the Virginia State Bar Council with terms beginning July 1, 2019.

Winners of contested Council elections Spring 2019:

Circuit 1 (1 vacancy)           Damian J. (D.J.) Hansen, Chesapeake (1st term)

Circuit 13 (2 vacancies)      Eric M. Page, Richmond (1st term)

Cullen D. Seltzer, Richmond (1st term)

Circuit 17 (3 vacancies)      Adam D. Elfenbein, Arlington (2nd term)

Greg T. Hunter, Arlington (2nd term)

Josh D. Katcher, Arlington (1st term)

Circuit 20 (1 vacancy)         R. Penn Bain, Leesburg (1st term)

Circuit 24 (1 vacancy)         Eugene N. Butler, Lynchburg (elected to 1st term at circuit meeting)

Circuit 29 (1 vacancy)         D. Greg Baker, Clintwood (elected to 1st term at circuit meeting)

Uncontested Council election winners were as follows:

Circuit 2         Jeffrey B. Sodoma, Virginia Beach (1st term)

Circuit 3         Meredith B. Travers, Portsmouth (1st term)

Circuit 4         Ann B. Brogan, Norfolk (2nd term)

Circuit 5         Thomas G. Shaia, Suffolk (1st term)

Circuit 6         J. Daniel Vinson, Emporia (re-elected to 1st full term by circuit meeting; next election by electronic ballot)

Circuit 16       Palma E. Pustilnik, Charlottesville (2nd term)

Circuit 19       David J. Gogal, Fairfax (2nd term)

                        Doug R. Kay, Tysons Corner (2nd term)

Circuit 22       Eric H. Ferguson, Rocky Mount (1st term)

Circuit 23       K. Brett Marston, Roanoke (2nd term)

Circuit 26       Nancy M. Reed, Luray (2nd term)

Circuit 27       R. Cord Hall, Christiansburg (2nd term)

Circuit 31       Maryse C. Allen, Prince William (2nd term)
 

Council at-large appointments by the Supreme Court of Virginia effective 7/1/2019:

Denise W. Bland, Eastville

Patricia E. Smith, Abingdon

Regulatory Update

UPL

Effective July 1, 2019, the Court approved revisions to Part 6, §I of the Rules of the Supreme Court of VA on the unauthorized practice of law: (1) Paragraph 3.A. Exceptions, was amended by the addition at the end of the paragraph to include non-lawyers or paralegals employed by legal aid societies; and (2) Paragraph 5.D, Comments, was amended to correct the reference to Paragraph 3(Q) to Paragraph 3(R).

Paragraph 17 (MCLE requirements)

Also, effective July 1, 2019, the Court approved amendments to Paragraph 17 regarding MCLE.  Beginning in the November 2019 through October 2020 MCLE compliance period, revised Paragraph 17 requires active members to affirm that they have attended at least one hour of lawyer well-being education within the past three (3) years. Members will be required to provide this information during the end-of-year reporting process for the period ending October 31, 2020, and annually thereafter.

Paragraphs 3 and 13-23.K (membership status)

Effective June 30, 2020, revisions to Paragraphs 3 and 13-23.K. regarding membership statuses were approved by the Supreme Court of Virginia on May 1, 2020. View the Court's order (pdf).

Summary:

The Rule changes: (1) impose an email address of record requirement for all members; (2) create separate membership classes for retired and disabled members (with corollary changes to Paragraph 13-23.K.); (3) remove the requirement for active members to be “engaged in the practice of law;”  (4) revise some procedures for electing different membership classes; and (5) update the Rule’s language to eliminate ambiguous terminology.

Noteworthy proposed rule revisions:

Eliminate the use of the ambiguous term “shall,” in favor of more explicit words such as “must,” “cannot,” and “authorized to.”

Eliminate interchangeable use and replace “attorney” with “lawyer” for consistency.

Add a sixth category of membership by disaggregating the singular “disabled and retired” class into the disabled class and the retired class.

Add an email address of record requirement.

Clarify that disciplinary notices will continue to be sent to the address of record, as opposed to the email address of record.

Remove specific reference to the “membership department” in favor of the more general term “Virginia State Bar” to avoid inconsistencies with internal staff departmental naming.

Remove the requirement for a lawyer to be “engaged in the practice of law, either full time or part time, salaried or non-salaried” to qualify as an active member.

Add that active membership requires “in good standing.”

Change “membership obligations” to “regulatory requirements.”

Define “good standing.”

Move the definition of Associate Members’ obligations and privileges (in relation to Active Members) to the beginning of the paragraph.

Remove “engaged in the practice of law” as the distinguishing characteristic between Active and Associate Members.

Add provisions for endorsement of declaration, by Respondent’s Counsel or Guardian Ad Litem, to conform with Para. 13-23.K.

Clarify that misconduct complaints “in any jurisdiction” shall result in deferral of consideration on petition for reinstatement to active status.

Change who can approve/deny a petition for reinstatement from retired to active status from the Executive Committee to the executive director.

Add, “in the discretion of the executive director” to clarify whose discretion is utilized to determine if the retired member has “a disability raising a serious question as to the member’s fitness or capacity to practice law.”

Add compulsory review by the Executive Committee of the executive director’s decision to deny a reinstatement to active status for retired members.

Add “exclusively” to make clear Emeritus status is only applicable to those who satisfy the emeritus requirements including limiting practice only to pro bono.

Clarify that practice in “any U.S. jurisdiction” satisfies the requirements of the emeritus status sections of the paragraph.

Amends Paragraph 13-23.K. authorizing Bar Counsel, in its discretion, to terminate an impairment proceeding if a Respondent transfers to the disjunctive Disabled or Retired class of membership, rather than the conjunctive Disabled and Retired Class, and declares that he/she will not seek transfer from that class of membership.

Rule 1A:5 changes

On November 1, 2019, the Supreme Court of Virginia amended Rule 1A:5 regarding Virginia corporate counsel & corporate counsel registrants. The amendments are effective January 1, 2020. These rule changes do not apply to Corporate Counsel Registrants under Part Two and require no action by lawyers currently certificated under Part One. Amendments to Rule 1A:5, Virginia Corporate Counsel were made by the Supreme Court of Virginia, effective January 1, 2020.

The new amendments require lawyers not admitted in Virginia who wish to serve as Part I Corporate Counsel for a Virginia employer to apply to the Virginia Board of Bar Examiners (VBBE) on forms to be provided by the VBBE. Applicants must undergo a character and fitness evaluation and cover the costs of the investigation and the fee for the application. An applicant must be admitted by examination and licensed to practice law in the court of last resort in another state or territory of the United States and in good standing in all other jurisdictions in which the applicant has been admitted.

A Corporate Counsel Registrant under Part II of Rule 1A:5 will continue to register with the Virginia State Bar. No substantive changes were made to Part II of the Rule.
 

LEO 1890 approved January 9, 2020, then vacated April 7, 2020

Approved by Council at its October 2019 meeting by a vote of 41-22, Legal Ethics Opinion 1890, was a compendium opinion on Rule 4.2, Communication with Persons Represented by Counsel. On January 9, 2020, the Supreme Court of Virginia approved proposed LEO 1890, effective immediately, which was approved by Council by a vote of 41-22 at the October 2019 meeting.  

https://www.vsb.org/pro-guidelines/index.php/rule_changes/item/leo_1890

The Court vacated its order approving LEO 1890 on April 7, 2020, without comment except to say it was acting “for reasons appearing to the Court.”

 

LEO 1891 approved effective January 9, 2020

Approved by Council at its October 2019 meeting, Legal Ethics Opinion, 1891, addressed the issue whether communications with represented government officials are “authorized by law” for purposes of Rule 4.2.  LEO 1891 addresses this question in the affirmative, as long as the communication is made for the purposes of addressing a policy issue, and the government official being addressed has the ability or authority to take or recommend government action, or otherwise effectuate government policy on the issue. A lawyer engaging in such a communication is not required to give the government official’s lawyer notice of the intended communication. 

 

Additional Paragraph 13 changes ordered January 9, 2020

On January 9, 2020, the Supreme Court of Virginia amended provisions of Paragraph 13 (Paragraph 13-1 definition of Memorandum Order, 13-16.Y, and 13-18.P) to state that explicit findings of fact are not required in proceedings conducted pursuant to Va. Code § 54.1-3935The Court also amended Paragraph 13-30.B to remove the specific reference of disclosure of an Attorney’s Disciplinary Record in a tribunal’s “findings of fact.”

https://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendments_to_paragraph_13

 

Amendments to Rule of Professional Conduct 1.15, Safekeeping Property 

Approved January 9, 2020, Effective March 15, 2020.

On January 9, 2020, the Supreme Court of Virginia approved amendments toRule 1.15, Safekeeping Property, effective March 15, 2020, which were approved by Council on October 2, 2019.  These amendments rewrite the trust account rules to make them clearer and easier to understand.

The rule was amended to read as follows, effective March 15, 2020:

RULE 1.15. Safekeeping Property.

(a) Depositing Funds. — (1) All funds received or held by a lawyer or law firm on behalf of a client or a third party, or held by a lawyer as a fiduciary, other than reimbursement of advances for costs and expenses shall be deposited in one or more identifiable trust accounts; all other property held on behalf of a client should be placed in a safe deposit box or other place of safekeeping as soon as practicable. 

*                      *                      *

(c) Record-Keeping Requirements. — A lawyer shall, at a minimum, maintain the following books and records demonstrating compliance with this Rule:

(1) Receipts and disbursements journals for each trust account. These journals shall include, at a minimum: identification of the client or matter; date and amount of the transaction; name of the payor or payee; manner in which the funds were received, disbursed, or transferred; and current balance. A checkbook or transaction register may be used in lieu of separate receipts and disbursements journals as long as the above information is included.

(2) A client ledger with a separate record for each client, other person, or entity from whom money has been received in trust. Each entry shall include, at a minimum: identification of the client or matter; date and amount of the transaction; name of the payor or payee; source of funds received or purpose of the disbursement; and current balance. 

*                      *                      * 

(d) Required Trust Accounting Procedures. In addition to the requirements set forth in Rule 1.15 (a) through (c), the following minimum trust accounting procedures are applicable to all trust accounts.

(1) Insufficient Fund Reporting. All accounts are subject to the requirements governing insufficient fund check reporting as set forth in the Virginia State Bar Approved Financial Institution Agreement.

*                      *                      *          

(3) The following reconciliations must be made monthly and approved by a lawyer in the law firm:

(i) reconciliation of the client ledger balance for each client, other person, or entity on whose behalf money is held in trust;

(ii) reconciliation of the trust account balance, adjusting the ending bank statement balance by adding any deposits not shown on the statement and subtracting any checks or disbursements not shown on the statement. This adjusted balance must equal the balance in the checkbook or transaction register; and

(iii) reconciliation of the trust account balance ((d)(3)(ii)) and the client ledger balance ((d)(3)(i)). The trust account balance must equal the client ledger balance. 

(4) The purpose of all receipts and disbursements of trust funds reported in the trust journals and ledgers shall be fully explained and supported by adequate records.  

Comment

*                      *                      * 

[4] Paragraphs (b)(4) and (b)(5) do not impose an obligation upon the lawyer to protect funds on behalf of the client’s general creditors who have no valid claim to an interest in the specific funds or property in the lawyer’s possession. However, a lawyer may be in possession of property or funds claimed both by the lawyer’s client and a third person; for example, a previous lawyer of the client claiming a lien on the client’s recovery or a person claiming that the property deposited with the lawyer was taken or withheld unlawfully from that person. Additionally, a lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. For example, if a lawyer has actual knowledge of a third party’s lawful claim to an interest in the specific funds held on behalf of a client, then by virtue of a statutory lien (e.g., medical, workers’ compensation, attorneys’ lien, a valid assignment executed by the client, or a lien on the subject property created by a recorded deed of trust) the lawyer has a duty to secure the funds claimed by the third party. Under the above described circumstances, paragraphs (b)(4) and (b)(5) require the lawyer either to deliver the funds or property to the third party or, if a dispute to the third party’s claim exists, to safeguard the contested property or funds until the dispute is resolved. If the client has a non-frivolous dispute with the third party’s claim, then the lawyer cannot release those funds without the agreement of all parties involved or a court determination of who is entitled to receive them, such as an interpleader action. A lawyer does not violate paragraphs 


(b)(4) and (b)(5) if he has acted reasonably and in good faith to determine the validity of a third-party’s claim or lien.

[5] The reconciliations required by paragraph (d)(3) must include an explanation of any discrepancy discovered and how it was corrected. This explanation must be approved by the lawyer who approves the reconciliations.

[6] The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services.  For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.

[7] Nothing in this Rule is intended to prohibit an attorney from using electronic checking for his trust account so long as all requirements in this Rule are fulfilled. It is the lawyer’s responsibility to assure that complete and accurate records of the receipt and disbursement of entrusted property are maintained in accordance with this rule. Many businesses are now converting paper checks to automated clearinghouse (ACH) debits. Authorized ACH debits that are electronic transfers of funds (in which no checks are involved) are allowed provided the lawyer maintains a record of the transaction as required by this rule. The record, whether consisting of the instructions or authorization to debit the account, a record or receipt from the financial institution, or the lawyer’s independent record of the transaction, must show the amount, date, recipient of the transfer or disbursement, and the name of the client or other person to whom the funds belong.

 
 

June 2020 Executive Committee and Council meetings

Because of the coronavirus pandemic, the June 2020 meeting of the VSB Council was cancelled.  Between meetings of the Council, the VSB Executive Committee is authorized to perform Council’s duties and functions. Paragraph 7 of the Rules of the Supreme Court of Virginia, Part 6, § IV; Bylaws of the Council, Part II, Article VI, § (f). Consequently, the Executive Committee met via telephone conference call on June 9, 2020. The Executive Committee consisted of President Marni E. Byrum, President-elect Brian L. Buniva, Immediate Past President Leonard C. Heath, Jr., Maryse C. Allen, Ann B. Brogan, Eugene M. Elliott, Jr. Eva N. Juncker, Jay B. Myerson, William T. Wilson, Conference of Local & Specialty Bar Assn chair Lewis A. Martin III, Diversity Conference chair Chidi I. James, Senior Lawyer Conference chair John D. Eure, and Young Lawyer Conference chair Farnaz F. Thompson.

The Executive Committee’s electronic meeting was permitted by Emergency Order 53 (as amended entered by Governor Northam on March 23, 2020 and § 4-0.01(g), Acts of the Assembly, Ch. 1283 (2020) (aka “the Budget Bill”) creating an exception to the Virginia Freedom of Information Act’s usual provisions requiring a physically present quorum to discuss public business unrelated to the gubernatorial-declared emergency.

 

One of the matters that the Executive Committee considered was the proposed changes to Supreme Court of Virginia Rule 1A:8, Military Spouse Provisional Admission. The debate on the Rule 1A:8 changes was lengthy, slightly over 2 hours, and spirited. Primarily the debate centered on whether, in order to protect the public, a finite period of supervision by a local Virginia lawyer should be imposed, and/or whether a period of supervision was appropriate only in cases of a military spouse lawyer with less than a determined number of years of total practice experience. It took six votes on various issues (several procedural) before a resolution could be reached. The conference call was recorded and is available for listening at https://www.vsb.org/video/EC-Council-6-9-2020.wav.  The portion of the recording relevant to Rule 1A:8 can be heard starting at 39:57 and ending at 2:42:10.

Ultimately, by a vote of 11 to 2, the Executive Committee agreed to recommend to the Court that it adopt the following amendments to Rule 1A:8 (deletions are indicated by strikethroughs; additions by underlining):

Rule 1A:8 Military Spouse Provisional Admission.

2.             Required Evidence.

(k)           has certified under oath completed completion of twelve (12) hours of instruction approved by the Virginia Continuing Legal Education Board on Virginia substantive and/or procedural law, including four (4) hours of ethics, within the six-month period immediately preceding or following the filing of the applicant’s application;

 

3.             Issuance, Admission, Duration and Renewal.

(c)           Duration. - A provisional admission may be renewed by July 31 of each year, upon filing with the Virginia State Bar (i) a written request for renewal, and

(ii) an affidavit by supervising Local Counsel, who certifies to the provisionally admitted attorney's continuing employment by or association with Local Counsel and to Local Counsel's adherence to the supervision requirements as provided under this Rule, and (iii) compliance with the membership obligations of Part 6, Section IV of the Rules of the Supreme Court of Virginia applicable to active members of the Virginia State Bar.

            

4.             Supervision of Local Counsel. A person provisionally admitted to practice under this Rule may engage in the practice of law in this jurisdiction only under the supervision and direction of Local Counsel.

(a)                       As used in this Rule, Local Counsel means an active member in good standing of the Virginia State Bar, whose office is in Virginia.

(b)                       Local Counsel must provide to the Virginia State Bar his or her Virginia State Bar number, physical office address, mailing address, email address, telephone number, and written consent to serve as Local Counsel, on the form provided by the Board.

(c)                        Unless specifically excused from attendance by the trial judge, Local Counsel shall personally appear with the provisionally admitted attorney on all matters before the court.

(d)                       Local Counsel will be responsible to the courts, the Virginia State

Bar, the Supreme Court of Virginia, and the client for all services provided by the provisionally admitted attorney pursuant to this Rule.

(e)                       Local Counsel is obligated to notify the Executive Director of the Virginia State Bar when the supervising relationship between the provisionally admitted attorney and Local Counsel is terminated.

 

5.    Events of Termination. An attorney's provisional admission to practice law pursuant to this Rule shall immediately terminate and the attorney shall immediately cease all activities under this Rule upon the occurrence of any of the following:

(c) The absence of supervision by Local Counsel;

….

 

Salaried Employment Changes In FY2020 (July 1, 2019 to June 30, 2020)

 

  • Elizabeth Shoenfeld promoted to Senior Assistant Bar Counsel 06/25/2019
  • Shelley Spalding (Assistant Bar Counsel) hired 07/15/2019
  • Jonathan Cencich (Senior Systems Engineer) hired 08/25/2019
  • Dorothy Papciak (Regulatory Compliance Analyst) retired 08/31/2019
  • Kelly Armentrout (Intake Analyst) separated 12/13/2019
  • Brittany Shaw (Intake Analyst) hired to replace Kelly 01/25/2020
  • Matthew Hesser (Legal Secretary) hired 02/18/2020
  • Jackie Kruszewski (Communications Coordinator) separation 02/24/2020
  • Jonathan Cencich (Senior Systems Engineer) separation 02/24/2020
  • Naja Dunn (Regulatory Compliance Analyst) hired to replace Dorothy Papciak 04/10/2020
  • Kaylin Bowen (Communications Coordinator) hired to replace Jackie 04/25/2020
  • Katie Uston (Assistant Bar Counsel) separation 05/04/2020
  • Suzette Walker (Legal Secretary) separation 05/29/2020
  • Alastair Blanks (Senior Systems Engineer) hired to replace Jonathan Cencich 06/25/2020

 

Positions filled as of June 30, 2020:  90

 

FTE FOR FY20:       92

FTE FOR FY21:       92

 

Events of Historical Significance to the VSB Occurring in 2019-2020

The Flood

The year was marked by significant events that disrupted the usual activities of the Virginia State Bar.  On July 24, 2019, the Virginia State Bar suffered the loss of approximately a third of its space, when a part failed in the middle of the night in the HVAC system of the Bank of America Building. Twenty-five floors of chiller water were dumped in one floor of the VSB space and ruined computers, monitors and other equipment. The entire 17,337 sq. feet were rendered unusable.

The VSB staff responded with a great attitude: working in tight quarters, sometimes doubling up where only one person was meant to work; working in odd environments where lawyers don’t usually work; and multiple people working together in conference rooms that became makeshift offices.  Bank of America building management provided alternate workspace on another floor, which the displaced staff were able to occupy on Monday, August 5.

Despite the many difficulties encountered in dealing with the flood, there were also positive developments. Because of the VSB’s Continuity of Operations Plan (COOP), the VSB’s management team was able to easily contact its 92 employees to notify them of the emergency and advise them of the problem and the actions that were being taken. The four-person IT staff responded immediately and appropriately to get the dues compliance employees back online to meet the needs of our members and continued to assist those whose IT equipment was destroyed in the flood.

Approximately three months later, the building had finished reconstruction of the space, and the displaced employees were able to resume normal operations in the VSB offices.

The Coronavirus Pandemic

And then came the coronavirus. 

The VSB Bar Leaders Institute was held on March 6, 2020, at Lewis Ginter Botanical Gardens with 101 lawyers in attendance, seated at round tables of 8. It was business as usual at the BLI and went off beautifully with numerous speakers presenting, including several Virginia Supreme Court justices. Things changed quickly over the next week. Wednesday, March 11, 2020, has been pinpointed as the day that the pandemic changed things in the United States:  

… on that Wednesday, the World Health Organization, which had only begun referring to the virus as Covid-19 a month earlier, declared the disease a global pandemic. Every hour seemed to bring major new developments: On Wall Street, after days of huge up-and-down gyrations, the Dow Jones Industrial Average fell 1,465 points and officially entered bear territory; Capitol Hill faced its first confirmed Covid-19 case; the NCAA announced it would play its basketball tournament without fans; and then, in rapid-fire succession that evening, President Trump gave an Oval Office address, announcing a travel ban from Europe, the NBA suspended its season after player Rudy Gobert tested positive for the virus, and Tom Hanks and his wife, Rita, posted on Instagram that they too had been diagnosed while in Australia and were recuperating.

By Thursday, the national landscape had been undeniably altered, and Americans were panic-buying toilet paper. A whole new vocabulary—WFH, PPE, flattening the curve, social distancing, self-isolation, Zoom-bombing, and quarantines—loomed ahead. Epochal events that had occurred just weeks earlier, from the Australian wildfires to President Trump’s impeachment trial to the drama of the Democratic primary, would seem instead to have occurred years ago.

“An Oral History of the Day Everything Changed,” Garrett M. Graff, https://www.wired.com/story/an-oral-history-of-the-day-everything-changed-coronavirus/.

On March 12, 2020, the management team of the VSB decided to cancel an upcoming large event, the VSB Tech Show, to be held on April 27, because of coronavirus concerns. Also, on March 12, Virginia Governor Ralph S. Northam declared a state of emergency due to COVID-19 in Executive Order No. 51. The Governor and State Health Commissioner issued Order of Public Health Emergency One on March 17, 2020, amended on March 20, 2020, declaring a public health emergency. Originally that order was to expire on April 30, 2020, but was extended to June 10, 2020. 

Governor Northam’s Executive Order 53 (EO-53) was issued March 23, 2020, designating lawyers as essential.  It was amended April 15, 2020, extending the duration of the Public Health Emergency Order One and EO-51, EO-53 and EO-55 until June 10, 2020. That order was later extended indefinitely. Paragraph 8 specifically provided:

Although business operations offering professional rather than retail services may remain open, they should utilize teleworking as much as possible. Where telework is not feasible, such business must adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and apply the relevant workplace guidance from state and federal authorities. 

EO-55 required non-essential persons to stay at home and prohibited social gatherings, both public and private, of 10 or more people. 

This partial recitation of the orders issued by the Governor is relevant to an understanding of the depth of the crisis and the VSB’s response.  In mid-March, the VSB started canceling its meetings and events because of the concern over spread of the disease by meeting in large groups.  

The VSB public calendar contemporaneously showed the status of event or meeting cancellations:

March 2020

03/04  Standing Committee on Lawyer Discipline Meeting – VSB

03/06 VSB Bar Leaders Institute – Lewis Ginter Botanical Garden

03/09 VSB MCLE Board Meeting – VSB

03/10 Public Disciplinary Board Hearing – State Corporation Commission

03/10 Disciplinary Board Committee Meeting – VSB

03/13 Diversity Conference Board Subcommittee meeting – TELECONFERENCE

03/18 Public Disciplinary Board Hearing – CONTINUED

03/18 Bench-Bar Relations Committee Meeting – CANCELED

3/19 Diversity Conference Mandatory Bias Subcomm Meeting – TELECONFERENCE

3/20 Access to Legal Services Committee Meeting – CANCELED

3/25 Better Annual Meeting Committee Conference Call – CANCELED

3/27 Public Disciplinary Board Hearings – CONTINUED

 

April 2020

04/03 Solo & Small-Firm Practitioner Forum – CANCELED

04/15 VSB Administrative Law Section Bd of Gov Meeting – TELECONFERENCE

04/15 VSB Family Law Section Bd of Gov Meeting – TELECONFERENCE

04/15 Past Presidents’ Dinner – CANCELED

04/16 Nominating Committee Meeting – TELECONFERENCE

04/16 VSB Executive Committee Meeting – CANCELED

04/21 VSB Senior Lawyers Conference Board Meeting - TELECONFERENCE

04/22 Professionalism Course – CANCELED

04/22 Committee on Technology & the Future Practice of Law Meeting – CANCELED

04/23 Standing Committee on Legal Ethics Meeting – CANCELED

04/23 Diversity Conference Board Meeting – TELECONFERENCE

04/23 Disciplinary Board Meeting – CANCELED

04/24 Public Disciplinary Board hearings – CONTINUED

04/27 VSB TECH SHOW - CANCELED

04/29 Professionalism Committee Meeting - CANCELED 

04/30 Diversity Conf Board Subcommittee Meeting – TELECONFERENCE

 

May 2020

05/01 Leroy R. Hassell Sr. Indigent Criminal Defense Program - LIVE WEBINAR 

05/01 Clients’ Protection Fund Board Meeting - CANCELED 

05/05 Committee on the Resolution of Fee Disputes Meeting - CANCELED 

05/05 VSB Disciplinary Board Hearings - CANCELED

05/06 Standing Committee on Lawyer Discipline Meetings - CANCELED 

05/06 Better Annual Meeting Committee Conference Call - CANCELED

05/12 Diversity Conference Board Subcommittee Meeting - TELECONFERENCE

05/13 - 05/15 Public Disciplinary Hearings - CANCELED 

05/14 Lawyer Insurance Committee Meeting - TELECONFERENCE

05/18 ​MCLE Board meeting - CANCELED 

05/19 Solo & Small-Firm Practitioner Forum - CANCELED

05/28 VSB Professionalism Course - CANCELED 

 

June 2020

06/01 - 06/02 Public Disciplinary Board Hearing - CONTINUED 

06/04 Committee on Technology & the Future Practice of Law Meeting - CANCELED 

06/17 Executive Committee Meeting – TELECONFERENCE

06/17 Bar Council Reception and Dinner - CANCELED 

06/18 Bar Council Meeting - CANCELED 

06/18 - 06/20 82nd Annual Meeting - CANCELED 

06/25 Committee on Legal Ethics Meeting - VSB

06/26 Public Disciplinary Board Hearings - TBD

06/26 Diversity Conference Subcommittee Board Meeting - TELECONFERENCE

And so forth….

On April 24, 2020, Governor Ralph Northam signed into law a temporary change to the Freedom of Information Act, which will permit public bodies to meet electronically to discuss business, so long as the nature of the emergency makes it inadvisable to assemble in person and the meeting is meant to carry out statutorily required, or necessary, functions.  Part of the “caboose” bill, HB29 and SB30, the new provision was effective immediately. 

Lawyers and law firms were not immune to the strife caused by the pandemic.  Virginia law firms, as elsewhere throughout the country, downsized, laying off lawyers and in some places cutting their compensation.  Because the courts were closed, lawyers who had a criminal defense practice did not have work to do. Other Virginia lawyers suffered from a lack of business as well.  One group that fared well as a result of the pandemic were trusts and estates attorneys.

On April 3, 2020, the New York Times reported: “In just two weeks, nearly 10 million Americans have lost their jobs, more than in the worst months of the 2008 financial crisis. A monthly employment report from the Labor Department today is expected to show a net loss of jobs for the first time in nearly 10 years.” The expectation that the legal services industry would avoid the impact facing other sectors, such as the hospitality industry, were dismissed by Martha Gimbel, a labor market expert, who said “People are being way too sanguine about a lot of the white-collar industries…This thing is going to come for us all.” New York Times, April 2, 2020, A Widening Toll on Jobs: ‘This Thing Is Going to Come for Us All.’

Cancellations continued to occur as the pandemic spread and worsened throughout the country. The economy basically came to a close for approximately two months. Businesses were shut; restaurants were closed. The numbers of occurrences and deaths in Virginia were not as bad as in other jurisdictions, but they were still bad (see data below). Virginia courts were shut down, but gradually started opening by court order to some level.  On June 22, 2020, the Supreme Court of Virginia continued the prohibition against jury trials but set up a Jury Task Force to address the reinstatement of jury trials in Virginia. 

The ABA Journal reported on June 23, 2020 that things were not as grim for lawyers as they had appeared:

The legal industry has fared surprising well during the COVID-19 pandemic, according to a survey of mostly larger law firms by Wells Fargo Private Bank's legal specialty group.

Although demand was down 10.4% in May compared to the same month last year, demand for the first five months of the year was down only 1.4%, according to a press release summarizing the survey results.

Cash collections were up more than 3% through May, and expenses were essentially flat as law firms reduced discretionary spending.

The survey is based on data from April and May for 52 of the nation’s top 100 grossing law firms and 20 midsized and regional law firms.

Other survey findings include:

• Lawyer layoffs have been modest. Layoffs of nonlegal staff members have been concentrated in jobs that don’t lend themselves to remote work.

• Transactional practices, such as corporate and real estate, were most affected by the slowdown in demand. Practices have been active, however, in bankruptcy, banking and labor and employment.

• Liquidity is good, with almost 90% of law firms having the ability to cover at least three months of monthly expenses, excluding partner draws.

https://www.abajournal.com/news/article/legal-industry-fared-surprisingly-well-during-pandemic-survey-says.

Phase One, implemented by Governor Northam, “safer at home,” was implemented on May 15, 2020. Under phase one of the plan, general guidelines for “safer at home” included continued social distancing, continued teleworking, and continued use of face coverings in public. Non-essential businesses like restaurants and salons reopened with limited capacity.

Virginia, with the exception of Richmond and Northern Virginia, entered Phase Two of reopening on Friday, June 5, 2020. Richmond and Northern Virginia entered Phase Two on Friday, June 12. Under Phase Two, restaurants were able to offer indoor seating at 50 percent capacity and fitness centers were open at 30 percent capacity, along with certain recreation and entertainment venues that did not rely on shared equipment were open with restrictions. Governor Northam informed the public on Tuesday, June 23, 2020, that Virginia would enter Phase Three on July 1, 2020.  In phase 3, gyms and fitness centers will be able to operate at 75% capacity, as will swimming pools. Entertainment venues, including amusement parks, can open at 50% capacity, or a maximum of 1,000 people. Hair salons and barbershops will be allowed to open completely. So can childcare centers. Overnight summer camps will remain closed, Teleworking will also continue to be strongly encouraged. The state’s guidelines recommend continued social distancing of 6 feet. Face coverings will also still be required, Northam said.

On Thursday, June 12, 2020, the Virginia Department of Health reported that the statewide total for COVID-19 cases is 53,211 — an increase of 564 from the 52,647 reported the previous Thursday. The 53,211 cases include 50,853 confirmed cases and 2,358 probable cases. Also, there are 1,534 COVID-19 deaths in Virginia — 1,426 confirmed and 108 probable. That's an increase of 14 from the 1,520 reported the previous Thursday. The VDH defines probable COVID-19 cases as people who are symptomatic with a known exposure to COVID-19, but whose cases have not been confirmed with a positive test.

The judiciary started opening the courts again in June, slowly but steadily to deal with the backlog of cases. The Supreme Court of Virginia heard oral argument via video on June 16, 2020, for the first time, one of the cases involving a respondent who had appealed from a VSB disciplinary decision. 

The VSB continued its operations throughout the pandemic, enabled in large part by some departments having adjusted during the flood to teleworking. Many employees had the computer equipment to connect securely to the office and continue during their jobs. Other departments resumed working in the office after two weeks off, using Public Health Emergency Leave put in place by Governor Northam. 

The Ethics Department reported that the ethics hotline call volumes for FY2020 were decreased from the previous year: 557 calls per month (6687 total for the year), compared to 602 per month (7220 total) in FY2019. It was hypothesized that a lot, but not all, of that seemed to be because of the pandemic slowdown. For just July 1, 2019 through February 28, 2020, there were 589 calls per month, so there was a drop of over 30 per month starting in March. 

During the last days of FY 2020, the VSB continued its operation with many staff members teleworking, which eased the situation in the office for those who either could not telework (primarily employees in Regulatory Compliance because of their work setup) or who wished to come into work, rather than telework. Some departments had employees alternating who teleworked versus working in the office. Because of the warning by health officials that everyone still needed to social distance and wear masks when around others, the reduced numbers in the office enhanced the safe environment.

Black Lives Matter movement

George Floyd’s death in Minneapolis on May 25, 2020, resulted in peaceful protests and not-so-peaceful protests. His autopsy report indicated he died as the result of suffocation. He had been put in a chokehold for over eight minutes. 

President Marni E. Byrum posted this statement to the VSB membership on June 12, 2020:

Dear Virginia lawyers:

Our country and our Commonwealth are quite obviously struggling, and mightily so, with issues of inequality and the pain, anger and unrest that inevitably result from that. 

Because the Virginia State Bar is an official arm of the Supreme Court of Virginia, it is prohibited from taking a stance on specific political or ideological issues outside of the regulation of the legal profession or improvement to the quality of legal services. We understand the reasons behind this prohibition.

Still, when being sworn in as lawyers, we all took the oath to defend the Constitution of this Commonwealth and of the United States; and both Constitutions guarantee equal protection under the law. In addition, the Preamble to our Rules of Professional Conduct urges us to be mindful of deficiencies in the administration of justice. Virginia lawyers have long been instrumental in working, through legal means, to ensure and expand constitutional protections to citizens — with regard to voting, marriage, housing and a myriad of other rights. Moreover, and throughout our history, lawyers have been an essential part of the public dialogue; and we must continue to defend and protect citizens’ rights, and, particularly, to speak for those who have no voice, or have been denied it.

I urge you to consider ways you, as a lawyer, can make a difference. We are problem solvers, critical thinkers and community servants. Our efforts will continue to be needed in the days, weeks, months, and even years ahead, as our Commonwealth and nation struggle toward the goal of a more perfect union.
Marni E. Byrum
President

Inclusion * Diversity * Engagement

 

On June 16, 2020, the Justices of the Supreme Court of Virginia issued a statement to members of the judiciary and the Virginia State Bar.

To Members of the Judiciary and the Bar of Virginia, 

On the frieze at the top of the front steps of the Supreme Court of the United States is a short but profound statement: "Equal Justice Under Law."

Article 1 of the Constitution of Virginia states:

"That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." 

Dr. Martin Luther King, Jr., spoke as a prophet when he caused a nation to consider his words from the Birmingham Jail. We need to hear them again: "Injustice anywhere is a threat to justice everywhere." 

While words may be inspirational and motivating, to have any lasting impact they must be followed by lawful action. 

As Judges, we must take all steps possible to ensure that in the courtrooms of the Commonwealth, all people are treated equally and fairly and with dignity under the law. It is a moral imperative that we do so. 

As lawyers, members of the Bar of Virginia, we must provide legal services to those who otherwise would be unable to afford a lawyer. As judges and lawyers, we must encourage our brethren at the bar to make pro bono services a priority in our communities. 

At this time, we face many challenges and uncertainties. We must join together to be a part of the solution to problems and difficult circumstances we face. The racial divide we experience in this country can only be bridged by personal efforts to develop new relationships in the communities where we live and work. We can do it -- together.

Donald W. Lemons
Chief Justice of the Supreme Court of Virginia

Justice S. Bernard Goodwyn 

Justice William C. Mims

Justice Cleo E. Powell 

Justice D. Arthur Kelsey

Justice Stephen R. McCullough

Justice Teresa M. Chafin

Updated: Jul 17, 2020