Virginia State Bar

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Real Property

A Section of the Virginia State Bar.

Meeting Minutes - June 20, 2003

Minutes of the Virginia State Bar
Real Property Section
Board of Governors

Virginia Beach, Virginia

The Summer Meeting of the Board of Governors of the Real Property Section of the Virginia State Bar was held on Friday, June 20, 2003, at the Holiday Inn-Sunspree Hotel in Virginia Beach, Virginia.

The following persons were in attendance: Stephen R. Romine, Paula S. Caplinger, Cynthia A. Nahorney, K. Wayne Glass, Michael E. Barney, Joseph W. Richmond, Jr., Courtland L. Traver, Charles M. Lollar, C. Grice McMullan, Jr., J. Page Williams, Lisa Murphy, Steven W. Blaine, Richard B. Chess, Joseph M. Cochran, James Downey, Douglass W. Dewing, John David Epperly, Thomas F. Williams, Edward R. Waugaman, James M. McCauley, Jean D. Mumm, Stephen C. Gregory, Richard Mendelson, Susan M. Pesner, and Larry J. McElwain. Larry J. McElwain, Secretary of the organization kept the minutes.

Mr. Romine called the meeting to order at 12:40 p.m. (See official Agenda below.)

Mr. Romine previewed the Agenda for the meeting and then presented the minutes of the April 4, 2003, meeting of the organization, and upon motion duly made and seconded, the minutes were unanimously approved as written by those who attended the April 4, 2003, meeting. Those not in attendance at the January 31, 2003, meeting abstained. Mr. Romine noted that the Section was second in the number of active Members with 1,838 and third in overall Membership.

Ms. Caplinger gave the financial report. After reviewing the Section's financial Statement she noted that taking into account anticipated expenses the Section will nonetheless have excess funds in the current budget. It was noted that last year when this occurred the Section returned funds to the Bar. After discussion about reimbursing some of the excess to CLE and covering some additional expenses related to the Fee Simple, Mr. Waugaman proposed that additional funds be allotted to the First Day in Practice program in order to update the discs given out at the fall induction of new attorneys. Discussion then centered on using some of the funds as a competition reward to spur Fee Simple articles written by law students, and weather or not such would be approved by the Bar. Ms. Pesner suggested that each law school be solicited, with the results called research, as opposed to competition. Upon Mr. McMullan's motion, seconded by Mr. Richmond, it was unanimously resolved to have the Chair allocated excess funds to the First Day in Practice program, and for matters to benefit the Fee Simple.

Mr. McMullan next began a discussion about coordinating activities with the VBA, indicating his desire to have a combined meeting of the V5B and the VBA. There ensued a discussion about non-paying attendees at the seminar given in conjunction with the annual meeting thereby depriving the Bar of needed CLE income, and it was opined that attendees should have to be signed up for the annual meeting in order to receive credit for the seminar. Mr. Romine stated that the Chair would continue to monitor the issue.

Mr. Romine noted that there has been a great deal of confusion surrounding the U.S. Patriot Act, and attorney's obligations pursuant thereto. Mr. McCauley, having recently written an article published in the Fee Simple on the matter, was given the floor. He noted that the Treasury Department was currently looking at rules pertaining to the Act, that CFR's had been promulgated as had an Executive Order, however there appeared to be contradiction between the foregoing. The Treasury Department has not implemented requirements, however it was the duty of all citizens to comply with the dictates of the Act. He stated that ultimately specific regulations will be forthcoming, but that Treasury was still seeking input as to whether persons involved in real estate transactions are going to be held to the same standards as other industries, such as banking. James H. Rodio with the firm of Holland & Knight, LLP, in McLean was introduced by the Chair. Mr. Rodio opined that the Executive Order is broad in scope and that real estate attorneys are not differentiated from any other industry that is covered by the Act. The Act, according to Mr. Rodio, expands the definition of financial institutions, and that the safe course at this time, until a final determination is made, is to consider closing attorneys as financial institutions for purposes of the Act. He stated that the Executive Order stipulates that in the event a potential client appears on the list referred to in the Act, attorneys are prohibited from representing such person, and that if the list is not reviewed until subsequent to being retained by a person appearing on the list, counsel is prohibited from engaging in a transaction involving such a person. If no representation occurs, the attorney has no obligation to report the attempted engagement, however if the attorney has been retained and then discovers his client to be on the list, the attorney is under an affirmative obligation to report the matter to the Office of Foreign Asset Control both as to the client and the matter, however the attorney may not inform the client of his actions. This obviously brings into question ethical issues which presumably will be addressed in the final form of the regulations. Mr. Traver noted that title companies are indexing the list, and in his opinion attorneys should do likewise. In his opinion if you have been retained and then check the list and find your client on it you should tell your client that you can not handle the matter. while such action exposes counsel to a grievance it is Mr. Traver's opinion that sanctions would not in all probability be issued. Mr. McCauley then raised the issue of when an attorney may terminate representation, and whether such action is prejudicial to your client. He agreed that it would be unwise to close any transaction where counsel had knowledge of the appearance of a client on the list. It was suggested that this matter would be good material for a future seminar.

Mr. Romine next thanked Ms. Butler and Mr. Traver for their efforts related to the Fee Simple and noted that it is the gold standard as far as Section news letters are concerned. He repeated is desire for committees to be assigned to contribute articles to the Fee Simple on a recurring basis, and that the possibility of having law school students contribute articles should be explored.

Mr. Romine next thanked Ms. Caplinger and Mr. McElwain for organizing the seminars during the past year.

Committee reports were submitted in written form only and were not reviewed due to a lack of time. Mr. Romine suggested that the committees have meetings in conjunction with the fall meeting, perhaps by meeting early over breakfast.

Mr. Waugaman raised the issue of having Circuit Court Clerk's refusing to record documents due to inconsequential mistakes on cover sheets, especially when it may take some period of time between submission and rejection. No action was taken on this matter.

Mr. Romine suspended the giving of liaison reports.

Mr. Romine next introduced a slate for incoming officers as follows: Ms. Caplinger as Chair, Mr. McElwain as Vice-Chair and Mr. Dewing as Secretary. In addition Karen Davis was nominated to become a Board member. The motion was duly seconded and unanimously passed.

Upon nomination and unanimous passage the following were named Area Representatives: Lucy Davis, James Downing and Lawrence Schoenberger from the Northern Region; Jeffrey Maynard from the Tidewater Region, Pamela Sellers from the Central Region.

Mr. Romine noted that the dinner would had, as usual, at Steinhilber's Restaurant. Mr. Romine next stated his gratitude for all of the support he has received during his tenure as Chair, and turned the meeting over to Ms. Caplinger who assumed the duties of the Chair.

Upon motion duly made, seconded and unanimously passed the meeting was adjourned at 1:40 p.m.

Respectfully Submitted,
Larry J. McElwain, Secretary



12:30 p.m. June 20, 2003
Virginia Beach, Virginia

1. Welcome - Romine

2. Approval of minutes from the April 4, 2003 meeting - McElwain

3. Membership Report - Howard

4. Financial Report - Romine

5. Initiative with VBA - McMullan

6. USA Patriot Act Update- McCauley

7. Fee Simple - Butler/Traver

8. Programs - Caplinger

9. Subcommittee Reports

A. Commercial Real Estate (McMullan/Williamson)
B. Creditor's Rights and Bankruptcy (Wood)
C. Ethics (Davis/Pesner)
D. Land Use and Environmental (Blaine)
E. Residential Real Estate (Meier)
F. Technology (Dewing)
G. Title Insurance (Gregory/Waugaman)

10. Liaison Reports

Bar Counsel - King
Old Dominion Bar Association - Holmes

11. Report of Nominating Committee / Election of Secretary/Treasurer and Board Member

12. Old Business

13. New Business

14. Adjourn