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Virginia Lawyer

V O L . 6 3 / N O. 2 • A U G U S T 2 0 1 4

VIRGINIA LAWYER REGISTER

The Official Publication of the Virginia State Bar

— INSIDE — Webinars Spread the Word on Pro Bono Get Ready for Fracking Technology Drives Rule Changes Ethics in the Cloud — and —

Special Issue on Ethics A Cool Hotline Marketing Rules Evolve Reporting Your Errors

Virginia Lawyer Register

Virginia Lawyer August 2014

The Official Publication of the Virginia State Bar

Volume 63/ Number 2

Features Access to Legal Services

ETHICS 14 Cool Facts About the Ethics Hotline by James M. McCauley

26 Webinars Spread the Word on Pro Bono by Karl Doss

16 In-Person Solicitation: New Virginia Rule and Evolving National Trends by Thomas E. Spahn 20 The Duty to Self-Report Malpractice to the Client by James M. McCauley

Noteworthy VSB NEWS

28 Voting for President-Elect 28 Court Forms on Website 29 Diversity Conference Continues to Reach Out

GENERAL INTEREST 24 Fracking and Zoning Law in Virginia by James A. Howard II

PEOPLE

30 James C. Turk’s Life of Work and Meaning 31 In Memoriam 31 Local and Specialty Bar Elections

VIRGINIA LAWYER REGISTER 38 Disciplinary Proceedings 39 Disciplinary Summaries

40 Notices to Members 40 Legal Ethics Opinion 1874 40 Pro Bono Conference and Celebration 41 Nominations Sought for Board and Committee Vacancies 41 Clients’ Protection Fund Board Petitions Paid 2013–14

Departments 6 35 44 45 46

Letters to the Editor CLE Calendar Professional Notices Classified Ads A Year at the Bar

Columns 8

President’s Message

10 Executive Director’s Message Cover: Suspended Belief — pedestrian bridge suspended over the James River captured on a foggy morning. The footbridge leads to Belle Isle Park, a 54-acre island of the James River in the city of Richmond, Virginia. Photo by Bill Dickinson of Sky Noir Photography. See more of his work at http://www.skynoirphotography.com.

32 Law Libraries 33 Technology and the Practice of Law

Virginia Lawyer The Official Publication of the Virginia State Bar

http://www.vsb.org Editor: Gordon Hickey ([email protected]) Advertising: Linda McElroy ([email protected]) Virginia Lawyer Graphic Design: Caryn B. Persinger ([email protected]) Virginia Lawyer Register Graphic Design: Madonna G. Dersch ([email protected])

VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) is published six times a year by the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565; Telephone: (804) 775-0500. Subscription Rates: $18.00 per year for non-members. This material is presented with the understanding that the publisher and the authors do not render any legal, accounting, or other professional service. It is intended for use by attorneys licensed to practice law in Virginia. Because of the rapidly changing nature of the law, information contained in this publication may become outdated. As a result, an attorney using this material must always research original sources of authority and update information to ensure accuracy when dealing with a specific client’s legal matters. In no event will the authors, the reviewers, or the publisher be liable for any direct, indirect, or consequential damages resulting from the use of this material. The views expressed herein are not necessarily those of the Virginia State Bar. The inclusion of an advertisement herein does not include an endorsement by the Virginia State Bar of the goods or services of the advertiser, unless explicitly stated otherwise. Periodical postage paid at Richmond, Virginia, and other offices.

Virginia State Bar 2014–15 OFFICERS Kevin E. Martingayle, Virginia Beach, President Edward L. Weiner, Fairfax, President-elect Sharon D. Nelson, Fairfax, Immediate Past President Karen A. Gould, Executive Director and Chief Operating Officer EXECUTIVE COMMITTEE Kevin E. Martingayle, President Edward L. Weiner, President-elect Sharon D. Nelson, Immediate Past President Alan S. Anderson, Alexandria Doris H. Causey, Richmond Nancy C. Dickenson, Abingdon Tracy A. Giles, Roanoke Leonard C. Heath, Jr., Newport News Michael W. Robinson, Tysons Corner Mary M. Benzinger, Washington, DC, CLBA Chair Eva N. Juncker, Silver Spring, MD, Diversity Conference Chair Renae R. Patrick, Winchester, SLC Chair Maureen E. Danker, Fairfax, YLC President COUNCIL 1st Circuit Nancy G. Parr, Chesapeake 2nd Circuit Steven G. Owen, Virginia Beach Judith L. Rosenblatt, Virginia Beach Daniel M. Schieble, Virginia Beach 3rd Circuit Nicholas D. Renninger, Portsmouth 4th Circuit Lisa A. Bertini, Norfolk I. Lionel Hancock, III, Norfolk David W. Lannetti, Norfolk 5th Circuit Carl Phillips “Phil” Ferguson, Suffolk 6th Circuit Peter D. Eliades, Hopewell 7th Circuit Leonard C. Heath, Jr., Newport News 8th Circuit Lesa J. Yeatts, Hampton 9th Circuit W. Hunter Old, Williamsburg 10th Circuit Charles H. Crowder, Jr., South Hill 11th Circuit Dale W. Pittman, Petersburg

POSTMASTER: Send address changes to VIRGINIA LAWYER MEMBERSHIP DEPARTMENT 1111 E MAIN ST STE 700 RICHMOND VA 23219-3565

12th Circuit Graham C. Daniels, Chester 13th Circuit Paula S. Beran, Richmond Brian L. Buniva, Richmond Doris Henderson Causey, Richmond Christy E. Kiely, Richmond George W. Marget, III, Richmond Eric M. Page, Richmond O. Randolph Rollins, Richmond 14th Circuit Thomas A. Edmonds, Richmond Jon A. Nichols, Jr., Glen Allen Daniel L. Rosenthal, Richmond

Virginia State Bar Staff Directory Frequently requested bar contact information is available online at www.vsb.org/site/about/bar-staff.

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15th Circuit Jennifer L. Parrish, Fredericksburg 16th Circuit Bruce T. Clark, Culpeper James M. Hingeley, Jr, Charlottesville

17th Circuit Raymond B. Benzinger, Arlington John H. Crouch, Arlington Harry A. Dennis, III, Arlington Adam D. Elfenbein, Arlington David A. Oblon, Arlington 18th Circuit Alan S. Anderson, Alexandria Foster S. B. Friedman, Alexandria Carolyn M. Grimes, Alexandria 19th Circuit James F. Davis, Fairfax Peter D. Greenspun, Fairfax Joyce M. Henry-Schargorodski, Fairfax Sean P. Kelly, Fairfax Gary H. Moliken, Fairfax Jay B. Myerson, Reston Luis A. Perez, Falls Church William B. Porter, Fairfax Dennis J. Quinn, Vienna Catherine M. Reese, Fairfax Michael W. Robinson, Tysons Corner Melinda L. VanLowe, Fairfax James A. Watson, II, Fairfax Michael M. York, Reston 20th Circuit Christine H. Mougin-Boal, Leesburg T. Huntley Thorpe, III, Warrenton 21st Circuit Joan Ziglar, Martinsville 22nd Circuit Lee H. Turpin, Chatham 23rd Circuit Mark K. Cathey, Roanoke Tracy A. Giles, Roanoke 24th Circuit David B. Neumeyer, Lynchburg 25th Circuit Roscoe B. Stephenson, III, Covington 26th Circuit W. Andrew Harding, Harrisonburg 27th Circuit Richard L. Chidester, Pearisburg 28th Circuit Roy F. Evans, Jr., Marion 29th Circuit Joseph M. Bowen, Tazewell 30th Circuit William E. Bradshaw, Big Stone Gap 31st Circuit Gifford R. Hampshire, Manassas MEMBERS AT LARGE Nancy C. Dickenson, Abingdon William E. Glover, Fredericksburg Michael HuYoung, Richmond Beverly P. Leatherbury, Eastville Darrel Tillar Mason, Manakin Sabot Todd A. Pilot, Alexandria Savalle C. Sims, Silver Spring, MD Lorrie A. Sinclair, Leesburg A. Benjamin Spencer, Charlottesville Conference of Local Bar Associations Chair Mary M. Benzinger, Washington, DC Diversity Conference Chair Eva N. Juncker, Silver Spring, MD Senior Lawyers Conference Chair Renae R. Patrick, Winchester Young Lawyers Conference President Maureen E. Danker, Fairfax

www.vsb.org

Letters

Benjamin M. Hahn Yorktown

was by our short discussion. He did not shake my hand and I have not seen him since. Now, at 67, I have occasion to sit and I see an aging member of the bar, a pinnacle of the profession in my youth, who suffers similarly, and I am so very relieved that the responsibility for addressing his impairment falls on other shoulders. I had not thought of Lawyers Helping Lawyers as a vehicle for this responsibility, but I am encouraged that careful attention is being written of and, presumably, discussed.

The Wise Lawyer Knows

The Honorable Michael Valentine Fairfax Station

VSB TechShow The VSB TechShow (June/July 2014 Virginia Lawyer) was, without a doubt, one of the top five best seminars that I have attended in my thirty-three years of practice. Even an “old dog” can learn some new “tricks.” I left the Techshow inspired and motivated. Thank you for providing the excellent training.

I commend the author and the publication (Jack W. Burtch Jr., “The Wise Lawyer Knows,” June/July 2014) on a much needed topic very well considered. I went on the bench at the ripe old age of 33 and during my twenty-seven years before retirement there were many difficult experiences. But one that haunts me to this day is when my fellow judges asked me, because of my seniority, to discuss with a long-time practitioner what was obviously declining ability related to aging. I still remember how jovial and warm he was when he entered my chambers (at my request) and how physically and emotionally devastated he

Letters Send your letter to the editor to: [email protected] or mail to: Virginia State Bar, Virginia Lawyer Magazine 1111 E MAIN ST STE 700 RICHMOND VA 23219-3565 Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at http://www.vsb.org/site /publications/valawyer/.

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Three Attorneys Who Speak Up As attorneys we subscribe to the theory that all men are created equal, and we swear to uphold the laws that have made that theory reality. Aspirationally, we by profession take pleasure in defending the disadvantaged, down-trodden and weaker members of our society, because we represent their dignity. This respect also is evident among the members of our profession who make special efforts to assist the disadvantaged, down-trodden, and weaker members of our profession, because we respect their dignity, even if they suffer from substance abuse, age-related disability, or the burden of being non-white. The June/July 2014 issue of Virginia Lawyer featured articles by three attorneys who consistently and over a significant period of time have provided insightful and thought-provoking articles making all of us aware of the needs of impaired, aged and non-white attorneys and have not only suggested approaches to assisting such colleagues but also have stepped forward and assumed leadership roles in implement-

ing those approaches: attorneys who, “Speak up for those who cannot speak for themselves, ensure justice for those who are perishing. Yes, speak up for the poor and helpless and see that they get justice” Proverbs 31:8-9. These three gentlemen are Frank Overton Brown Jr., who addresses the needs of older attorneys in his role with the Senior Lawyers Conference; Jack W. Burtch Jr., whose heart embr aces the life-threatening needs of the addictionimpaired through Lawyers Helping Lawyers; and Clarence M. Dunnaville Jr., who champions the dignity of our nonwhite members through the Diversity Task Forces and makes us aware of the fact that even if some are non-white, we are all Americans and that the prehyphen proper adjective is not evidence of a lesser status. Gentlemen, thank you for giving voice to our conscience and for encouraging us to be better than we might otherwise. John A. Dezio Charlottesville

Confidential help for substance abuse problems and mental health issues. For more information, call our toll free number:

(877) LHL-INVA

or visit http://www.valhl.org.

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President’s Message

According to legend, an ostrich will shove its head in the sand when confronted with something unpleasant. I think you’ll agree - probably not the best approach.

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President’s Message by Kevin E. Martingayle

Exhibiting Professionalism Goes Beyond Ethical Requirements Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession’s ideals of public service. —“Virginia Rules of Professional Conduct, Preamble: A Lawyer’s Responsibilities.”

YEARS AGO, I served two terms on the Virginia State Bar Second District Disciplinary Committee. This is the local disciplinary committee that decides whether ethical complaints against attorneys should proceed, and if so, in what manner and at what level. After that, I served two terms on the VSB Standing Committee on Legal Ethics, which includes among its duties the responsibility for proposing changes to the Virginia Rules of Professional Conduct and issuing legal ethics opinions. In both roles, I frequently had to remind myself and others that the VSB does not control matters of style nor mandate good taste. Engaging in such exercises would be virtually impossible. So, is the enforcement of minimum standards of conduct the sole focus of our self-regulation efforts at th e VSB? Is compliance with baseline requirements all that is expected of us? Of course not. When I attended a recent VSB Professionalism Course for new VSB admittees, I was reminded that there is more to “professionalism” than mere adherence to the ethical standards set forth in the Rules of Professional Conduct. Complying with ethical standards is required, while acting with professionalism is not. Neverth eless, we should strive to exhibit the highest level of professional conduct whenever,

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however, and wherever we can. And contrary to popular belief in some quarters, there are good business reasons for doing so. One thing that any new lawyer needs to understand — and that we all need to remember — is that reputation matters. Many of the best and most engaging attorneys I know are supremely skilled at being vigorous advocates while always maintaining a reputation for courtesy, decency, and civility. This is true with litigators, appellate attorneys, transactional lawyers, and so on. These are the lawyers to whom the lion’s share of important, interesting, and complex case and client referrals are made. These attorneys know that in addition to being the right thing to do, exhibiting professionalism is the smart th ing to do. Their reputations bring home the best opportunities. Many times over the years I have received calls from potential clients claiming to want a “pit bull” or “bulldog” to handle their issues and fight opponents. But in our profession, we are not here to act as attack dogs or guard dogs, or animals of any kind. What clients really need are problem solvers. And the most skilled and successful problem solvers know how to get to solutions with the least amount of conflict, expense, and aggravation necessary.

There is an old saying that when the only tool you have is a hammer, everything looks like a nail. We have all dealt from time to time with attorneys who are unyielding, unreasonable, unpleasant, and consistently uncompromising. They are also usually unsuccessful at finding efficient solutions, especially when compared with their more mentally flexible, bettermannered peers. None of this is meant to say that one should never stand firm and refuse to give in to unreasonable demands. Those situations arise, and when they do, we have to act accordingly. Some amount of conflict is to be expected. But a willingness and ability to collaborate, compromise, and advocate with professionalism should be the rule, not the exception. Although enforcement of the mandatory ethical requirements is a core function of the VSB, we strive for better than minimum standards. The VSB Professionalism Course for new bar admittees has emerged as one effective way to teach our newest members to aim higher and expect better. It is also critical that those of us with more experience never lose sight of the goal of demons trating the utmost professionalism in everything we do. We set the example daily. As stated by the Virginia Supreme Court in National Airlines v. Shea, 223 Va. 578 (1982), “Higher standards should prevail in the practice of law.” Id. at 583. These words remain as true today as they were more than three decades ago. It’s not up to our Supreme Court or VSB discipline case prosecutors to establish those “hig her standards.” That job is ours.

www.vsb.org

Appeals Rated AV by Martindale Hubbell

When it comes time to appeal or to resist an appeal, call Steve Emmert at (757) 965-5021.

L. STEVEN EMMERT www.virginia-appeals.com [email protected] SYKES, BOURDON, AHERN & LEVY VIRGINIA BEACH

You’re going places. Take us with you. Check your contact information of record, certify courses, and access Fastcase from anywhere, using the same login and password you now use on your computer. Get it for free in the iTunes store.

VSB.org: A Member Benefit VSB.org — the Virginia State Bar’s website — helps you with your membership obligations and your practice. There you’ll find the Member Login, where you can: • download your dues statement and pay your dues, • certify Mandatory Continuing Legal Education, • conduct research on Fastcase, and • update your contact information with the bar. At VSB.org, you also can link to: • Latest News on VSB regulation, programs, and practice information; • the Professional Guidelines that contain the Rules of Professional Conduct; • Rule Changes, proposed and approved; • the Ethics Hotline; • Meetings and Events; and • Search Resources for locating Virginia attorneys and checking their status with the state bar. VSB.org will keep you current and connected.

Executive Director’s Message by Karen A. Gould

Bar Finances Require Cutbacks in Expenditures MANDATORY BAR DUES in Virginia have not been increased since 2000, and a dues rollback of $25 for active members and $12.50 for associate members took place in 2011. Active members currently pay $225 and associate members pay $112.50. Virginia is tied for the lowest bar dues in the country among the mandatory bars. The approved Virginia State Bar budget for FY2014–2015 includes expenditures of $14,643,480. At the rate at which the VSB has been spending money, the bar’s reserve is projected to be expended by mid-year 2016 if no changes are made in expenditures or revenue. The Supreme Court of Virginia has asked the bar staff to reduce FY2014–2015 expenditures by 5 percent, which would amount to $732,175. The VSB staff has just finished this process and made the majorit y of the proposed cuts through reduced expenses under our control, for example, not filling vacant positions and reducing staff travel. Only one bar program was eliminated, a Solo & Small Firm Practitioner Forum, leaving two in place to be presented by the Conference of Local Bar Associations. Savings amount to $852,350, almost 6 percent of projected expenditures. Hiring Freeze The greatest savings over t he next year will be achieved by the hiring freeze, amounting to $502,215 in salaries and benefits. Six positions were affected: assistant bar counsel; assistant ethics counsel; assistant clerk; a secretarial position in the Professional Regulation

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Department; public information coordinator; and elimination of a vacant position, web developer/designer. The assistant bar counsel position was vacant as a result of a three-year employee leaving. The number of open cases in the Professional Regulation Department has been reduced by 45 percent from what it was four years ago. Given those statistics, the bar counsel is of the opinion that his staff can adequately perform with one less prosecutor, although a close eye will need to be kept on this situation. The same rationale applies to not filling the assistant cle rk position.

The hiring freeze is not an absolute. There may be vacancies in the future that will need to be filled. Technology Projects Deferred or Eliminated The IT Department proposes to reduce spending for information technology by approximately $230,500 or 16 percent. The proposal includes saving $175,000 by delaying implementation of the enterprise content record management systems for several departments and $55,500 by eliminating some MCLE programming enhancements to the bar’s database system.

Staff Travel Curtailment Staff made several policy decisions to limit travel expenses: Non-essential staff travel was eliminated until further notice. Exceptions are participation in VSB CLE programs. Professional staff may still participate in CLE programming that results in no cost to the VSB and does not take away from on-thejob time either for preparation or attendance at the event. Other Reductions Savings of $120,135 came from reducing the following budgets: the Communications Department, which cut its costs for printing Virginia Lawyer; the Intake Department, which plans to use e-mail rather than U.S. mail to communicate with complainants; the Lawyer Referral and Human Resources Departments, which reduced their advertising budgets; the Local Bar Program, by having the Bar Leaders Institute held as a series of webinars rather than as a live program; and Special Programs, by eliminating one Solo & Small Firm Practitioner Forum. Truth and Consequences Executive management believes these are savings the bar can live with, although the frozen positions place a workload burden on some staff, which will have to be monitored. The hiring freeze is not an absolute. There may be vacancies in the future that will need to be filled. The ban on staff travel is a hindrance to staff development because national conferences are an excellent source of information and training for employees of statewide bar

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Executive Director’s Message organizations. Participation in CLE programming at the local bar level has always been seen by bar attorneys as an integral part of their job. The VSB has not included in its future planning a salary increase for the staff or lifting any of the restrictions imposed as a result of the 5 percent reduction, except for funding the frozen assistant bar counsel position in FY2016–2017 and FY2017–2018. In July 2013, the VSB staff received a 2 percent raise, the first raise since November 2007.1 A 2 percent salary increase would cost approximately $160,000 in salary and benefits. The VSB membership should also be aware that there are some costs over which the bar has no control, such as

receiverships. Pursuant to Va. Code §54.1-3900.01, a circuit court judge can appoint a receiver under certain circumstances to take over a lawyer’s practice, and the VSB is responsible for paying the fees, costs, and expenses of the receiver if there are not sufficient nontrust funds to pay them. The VSB may underspend the current receivership budget of $250,000, or if a receiver is appointed to handle the affairs of an embezzler, the receivership budget may be overspent by thousands of dol lars. The $852,350 in expenditure reductions will have a positive impact on the bar reserves, maintaining the integrity of the reserves at a reasonable level. From the projections, it appears the VSB can go without a dues increase until June of

2016. A return to $250 in dues for active members will take dues back to where they were before the rollback in 2011. As always, I invite your comments and suggest ions. Contact me at [email protected]. 1

In 2011, VSB employees hired before July 1, 2010, and therefore participating in VRS Plan 1, received a 5 percent salary increase to offset the requirement that Plan 1 employees begin paying the 5 percent VRS member contribution on a pre-tax salary reduction basis. In some cases, take-home pay was reduced.

Tell Us Your Favorite Law Story Every lawyer has a story set aside for gatherings of friends or relatives. It’s a special tale about a legal battle won, or lost. Or about an amusing encounter with a judge. Or a story with a surprising twist. Maybe it’s a story that will bring a knowing smile, or shake of the head, from a colleague. Pick your best law story, your incredible adventure, your unusual courtroom or even boardroom escapade, and send it to us. We hope to get enough of these stories to produce an ongoing “Law Stories” feature in Virginia Lawyer. Keep them short— about 400 words or less—and send them in.

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illustration by Madonna Dersch

E-mail your stories to us at [email protected].

Vol. 63 | August 2014 | VIRGINIA LAWYER

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Charles Harvey Bayar, Esq. Attorney at Law (VSB # 16306)

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Virginia State Bar Mission The Virginia State Bar (VSB) was created in 1938 by the General Assembly as an administrative agency of the Supreme Court of Virginia. The creation of the agency unified Virginia's lawyers in a mandatory State Bar. The VSB is governed by its Council and Executive Committee, whose members are elected or appointed from every judicial circuit in the Commonwealth. The mission of the Virginia State Bar, as an administrative agency of the Supreme Court of Virginia, is to regulate the legal profession of Virginia; to advance the availability and quality of legal services provided to the people of Virginia; and to assist in improving the legal profession and the judicial system. Read more at http://www.vsb.org/site/about.

See the most current dates and registration information at http://www.vsb.org/site/members/new.

 
 
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ETHICS | Vol. 63 | August 2014 | VIRGINIA LAWYER

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Cool Facts

About the Ethics Hotline

© shutterstock.com

by James M. McCauley

The Virginia State Bar’s Legal Ethics Hotline is staffed by four full-time lawyers and one legal assistant and receives on average about thirty-six inquiries per day either by telephone or e-mail. In almost all instances, a reply or response is given the same day an inquiry is received. Telephone inquiries are initiated by leaving a message. Calls are returned in the order they are received unless the caller indicates the matter is urgent, in which case that call moves to the top of the queue. Beginning in 2012, the hotline became available to lawyers by sending e-mail inquiries via the VSB’s website or sending an inquiry to [email protected]. The VSB’s Legal Ethics Hotline evolved from a system in which bar counsel, in addition to their tasks of investigating and prosecuting complaints of attorney misconduct, responded to informal inquiries from members of the bar by providing informal advice or opinions. In the 1980s the VSB hired Susan B. Spielberg as an assistant bar counsel who, with the help of a research assistant, took over the responsibility of providing informal ethics advice to members of the bar, in addition 14

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to her duties as staff liaison to three standing committees—Legal Ethics, Unauthorized Practice of Law (UPL), and Lawyer Advertising and Solicitation. Her title was changed to senior professional responsibility counsel. In 1995, Spielberg retired from the VSB and her position was renamed “ethics counsel” by her successor, James M. McCauley, an assistant bar counsel for the VSB since 1989. Ethics counsel has since added three additional full-time lawyers to staff the hotline and serves the VSB’s Standing Committees on Legal Ethics and UPL. The Lawyer Advertising Committee was discontinued in 2010, but regulation and compliance remains active through the work of ethics staff and the Legal Ethics Committee. The VSB Ethics Hotline stands apart from hotlines in other states. The VSB hotline is not restricted to VSB members only, but handles inquiries from foreign lawyers, law professors and law students, and non-lawyers who work with lawyers, including firm managers, secretaries, and legal assistants. While the hotline does not serve the public generally, non-lawyers representing banks, title companies, insurers, advertising agencies, and other business entities use the hotline for inquiries relating to lawyer regulation. The hotline will not address an inquiry by a member of the public regarding an individual lawyer’s ethical conduct, but will provide advice on how to make an inquiry through the disciplinary process. The VSB hotline strives to answer directly any questions posed by an inquiry, rather than merely referring the inquirer to a rule or advisory opinion. Further, the ethics counsel that work the hotline are dedicated exclusively to the practice of www.vsb.org

COOL FACTS ABOUT THE ETHICS HOTLINE

legal ethics and lawyer regulation. Ethics inquiries need not be stated in the hypothetical, because by rule of the Supreme Court of Virginia all consultation and answers are strictly confidential and may not be disclosed to a third party without the express written consent of the inquiring lawyer. The lawyers staffing the VSB hotline make a contemporaneous and permanent record of each inquiry and response and can make a log of an ethics inquiry available by written request of the inquirer. The hotline will also address other professional regulatory issues that are not strictly legal ethics, including issues involving membership, unauthorized practice of law, corporate counsel, limited liability entities for law practice, and attorney real esta te settlement agents. Lawyers who staff the VSB hotline may decline to answer questions that involve: the subject matter of a pending disciplinary complaint or proceeding, questions of law, the conduct of another attorney, or disqualification or opposition thereto. A classic example of an inquiry ethics counsel decline to answer is whether opposing counsel or firm must withdraw or be disqualified based on information supplied by the inquirer/moving party. The hotline was not set up to provide opinions in support of or opposition to motions to disqualify a lawyer or law firm. Ethics counsel will advise a lawyer whether a conflict requires the lawyer to withdraw from representation, whether the conflict can be cured by informed consent of the affected clients, or whether the lawyer’s conflict is imputed to the other lawyers in the same firm. The primary purpose of the hotline is to provide guidance to a lawyer regarding his or her own prospective or contemplated conduct so that the lawyer may comply with the rules of professional conduct. The hotline is not intended to render informal advice on the conduct of opposing counsel, particularly since the opposing counsel is not a participant in the confidential communications and the ethics counsel does not have the benefit of their information. However, ethics counsel are well aware that lawyers often inform the court and opposing counsel that they have contacted the bar’s hotline for ethical guidance. Because consultations over the hotline are confidential, however, ethics counsel cannot inform other third parties even of the fact that a particular inquiry was made. With some frequency, questions asked over the hotline are novel or present questions that have not been addressed previously. When that happens, ethics counsel will consult with each other, conduct research, and consult with colwww.vsb.org

leagues in other states. Lawyers with complex or difficult questions may want to examine the Rules of Professional Conduct and Legal Ethics Opinions before using the hotline. The Rules of Professional Conduct, Comments, and Legal Ethics Opinions may be found online at the VSB’s website. The most frequently asked questions (FAQs) are also posted at the VSB’s website and can be found at http://www.vsb.org/profguides/FAQ_leos /LegalEthicsFAQs.html. Other resources online include: • Frequently Asked Questions About Trust Accounting at http://www.vsb.org/site/regulation/trust-accounting-FAQs • Quick Facts About Legal Ethics and Social Networking at http://www.vsb.org/site /regulation/facts-ethics-social-networking • Guidelines for Closing a Law Practice at http://www.vsb.org/profguides /closinglawpractice.html • Planning Ahead: Protecting Your Client’s Interests in the Event of Your Disability or Death at http://www.vsb.org/site/publications/planning -ahead The most frequently asked questions over the hotline involve issues concerning conflicts, lawyers moving between firms, file retention and destruction, withdrawal from representation, contacts with represented persons, missing clients and abandoned trust funds, delivery of the file to a former client, scope of permissible practice by foreign lawyers, medical liens and third-party claims, confidentiality and attorney-client privilege, subpoenas for former client’s file, and application of particular rules of conduct when a lawyer serves as a guardian ad litem.

James M. McCauley is the ethics counsel for the Virginia State Bar. He and his staff write the draft advisory opinions for the Standing Committees on Legal Ethics and Unauthorized Practice of Law and provide informal advice to members of the bar, bench, and general public on lawyer regulatory matters, through the Legal Ethics Hotline (http://www.vsb.org/site/regulation/ethics/). McCauley teaches professional responsibility at the University of Richmond School of Law in Richmond and served on the American Bar Association’s Standing Committee on Legal Ethics and Professionalism.

ETHICS | Vol. 63 | August 2014 | VIRGINIA LAWYER

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w Ne ia gin Vir d an le Ru ds ren lT na tio Na

All states recognize three different standards for lawyer marketing. First, all marketing must comply with the rules governing content. Everything from a lawyer’s billboard or magazine ad to a lawyer’s statement over lunch with a potential client must meet the pertinent state’s specific contentbased standards. In 2013, Virginia moved in the direction of other states’ fairly basic and com16

VIRGINIA LAWYER | August 2014 | Vol. 63 | ETHICS

illustrations by Madonna Dersch

ing olv Ev by Thomas E. Spahn

mon sense approach. Under Virginia Rule 7.1(a), “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” Virginia maintains content-based restrictions in only two specific areas: (1) communications that advertise “specific or cumulative case results,” which must be accompanied by a disclaimer (Virginia Rule 7.1(b)); and (2) law firm names, which are subject to a small number of specific requirements and prohibitions (Virginia Rule 7.5). www.vsb.org

IN-PERSON SOLICITATION: NEW VIRGINIA RULE AND EVOLVING NATIONAL TRENDS

Second, because written communications specifically directed to a potential client are more intrusive than a billboard or magazine ad, states may constitutionally impose more restrictions on those. This type of marketing is usually called “direct mail.” In addition to meeting the content requirements, direct mail usually must include a warning that it contains an advertisement. Many states also prohibit direct mail by lawyers seeking to represent clients in accidents or other specific incidents until a certain period of time has lapsed. In 2013, Virginia adopted a limited restriction on such direct mail, which requires most such communications to proclaim themselves as adverti sing in the specified fashion. Virginia Rule 7.3(c). Third, states may constitutionally impose even more restrictions on the most intrusive type of marketing — called “in-person” solicitation. Traditionally, such in-person solicitation involved face-to-face or telephonic communications. In 2013, Virginia abandoned its earlier prohibition on in-person solicitation for personal injury or wrongful death cases, in favor of an even-handed provision that allows such solicitation — unless the potential client has asked not to be solicited, or the solicitation involves “harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promise of benefits.” Virginia Rule 7.3(a). This approach is even less restrictive than the ABA Model Rules, which prohibit in-person solicitation unless the would-be client is a lawyer, or “has a family, close personal, or prior professional relationship” with the soliciting lawyer. ABA Model Rule 7.3(a)(2). Because Virginia lawyers marketing in other states will usually be governed by those other states’ marketing rules, it is worth noting that most states take a far more restrictive approach to in-person solicitation than the new Virginia Rules. For instance, the Florida Rules prohibit such solicitation if the potential client “has no family or prior professional relationship” with the lawyer — thus presumably prohibiting lawyers from soliciting work from their friends. Florida Rule 4-7.18(a)(1). Georgia flatly prohibits all inperson solicitation — presumably even of family members or friends. Georgia Rule 7.3(d). www.vsb.org

States are not shy when disciplining lawyers who violate their in-person solicitation restrictions. Hamm v. TBC Corp., 345 F. App’x 406, 410-11 (11th Cir. 2009) (affirming the district court’s sanctions against a law firm for soliciting employees of various companies to file Fair Labor Standards Act cases, under the guise of interviewing them as witnesses); Fla. Bar v. Wolfe, No. SC94226, 2000 Fla. LEXIS 659 (Fla. Mar. 30, 2000) (suspending for one year a lawyer who engaged in unethical in-person solicitation of clients after they were hit by tornadoes). States’ differing approaches to in-person solicitation parallel the public policy issue behind every marketing rule. Does the government believe that consumers of legal services must be

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protected from even truthful marketing, or does the government believe that consumers are smart enough to make informed hiring decisions as long as they are not deceived by “false or misleading” marketing? The national debate about in-person solicitation also involves another fascinating issue, which our entire society confronts. How “intrusive” are forms of electronic communication, which increasingly make up the bulk of our interpersonal communications? As folks began to use the internet in the early to mid-1990s, bars found it necessary to analyze whether law firm websites were so intrusive as to constitute in-person solicitation. See, e.g., Pennsylvania LEO 96-17, 1996 WL 928126, at *2 (5/3/96) (“It is my opinion that advertising on the Internet via a web site does not constitute in-

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person solicitation as prohibited under Rule 7.3(a).”). This analysis seems almost silly now, but bars seriously wrestled with this early form of electronic marketing — which seemed to jump off the computer screen. At about the same time, bars dealt with emails. At the dawn of the electronic age, e-mails seemed more intrusive than envelopes delivered to a mailbox. But were e-mails so intrusive that they deserved to be governed by the much more restrictive in-person solicitation rules? At least one bar seemed to conclude that they were. Tennessee LEO 95-A-570 (5/17/95) (not for publication). However, bars everywhere ultimately concluded that e-mails should be considered “direct mail”— landing somewhere b etween a magazine advertisement and a face-to-face visit. More recently, bars have had to deal with text messages. For many of us, those seem much more intrusive than e-mails, mostly because we usually text with a fewer number of family members and friends. In 2013, the Ohio Bar concluded that “a standard text message is more akin to an e-mail than a chat room communication.” Ohio LEO 2013-2 (4/5/13). But before you praise the Ohio Bar’s forward thinking, you should note that in the same opinion approving lawyers’ marketing through texts, the Ohio Bar required all such texts to include: (1) the name and address of the “responsible lawyer or law firm” sending the text; (2) the following language in all caps, if the lawyer “has a reasonable belief that the prospective client is in need of legal service s in a particular matter: “ADVERTISING MATERIAL” or “ADVERTISMENT ONLY” at “BOTH THE BEGINNING AND ENDING OF THE MESSAGE.”; (3) an explanation of “how the lawyer learned of the need for legal services,” under those circumstances; (4) the following language, incorporated into the “Understanding Your Right” statement of Ohio Prof.Cond.R. 7.3, if the lawyer sends the text “to prospective clients or relatives of prospective clients within ‘thirty days of an accident or disaster that gives rise to a potential claim for personal www.vsb.org

IN-PERSON SOLICITATION: NEW VIRGINIA RULE AND EVOLVING NATIONAL TRENDS

injury or wrongful death’”: “‘THE SUPREME COURT OF OHIO, WHICH GOVERNS THE CONDUCT OF LAWYERS IN THE STATE OF OHIO, NEITHER PROMOTES NOR PROHIBITS THE DIRECT SOLICITATION OF PERSONAL INJURY VICTIMS. THE COURT DOES REQUIRE THAT, IF SUCH A SOLICITATION IS MADE, IT MUST INCLUDE THE ABOVE DISCLOSURE.’ (Emphasis in Prof.Cond.R. 7.3(e).).” This 2013 Ohio Bar opinion sounds like an April Fool’s joke. One must wonder if the committee members were unfamiliar with the technology and ordinary practice of texting, or were trying to avoid some constitutional challenge that a flat prohibition might have prompted. Among other things, the opinion may reflect a generational issue apparent in other state bar marketing opinions — bar committee assignments often go to more experienced and less tech-savvy bar members. The final frontier of electronic communications (at least so far) involves real-time electronic communication such as chat rooms. They seem more intrusive than an envelope tossed into a mailbox. However, they seem less intrusive than a face-to-face confrontation or a telephone call. Starting in the late 1990s, states usually applied their in-person solicitation restrictions to chat rooms and other forms of real-time electronic communication. In 1998, Virginia took this approach. Virginia Adver. Op. A-0110 (4/14/98). In 2002, the ABA explicitly expanded the definitional reach of its in-person solicitation restrictions to include “real-time electronic contact” in addition to the traditional “in-person” and “live telephone” solicitation. ABA Model Rule 7.3(a). However, two recent bar opinions take a different approach. In 2010, the Philadelphia Bar refused to apply the in-person solicitation restrictions to chat rooms. Philadelphia LEO 2010-6 (6/2010). As the Philadelphia Bar explained, “we think it also relevant that the social attitudes and developing rules of interne t etiquette are changing. It seems to us that with the increasing sophistication and ubiquity of social media, it has www.vsb.org

become readily apparent to everyone that they need not respond instantaneously to electronic overtures, and that everyone realizes that, like targeted mail, e-mails, blogs and chat room comments can be readily ignored, or not, as the recipient wishes.” Id. North Carolina took essentially the same basic approach one year later. North Carolina LEO 2011-8 (7/15/11). Given the mix of evolving forms of electronic communication and the age-old temptation of some government regulators to think that ordinary people are too stupid to make rational decisions, states’ marketing restrictions are bound to keep evolving. In 2013, Virginia took a large step in the right direction by amending its marketing rules.

Thomas E. Spahn is a partner at McGuireWoods LLP in Richmond. He has served on the ABA Standing Committee on Ethics and Professional Responsibility and on numerous Virginia State Bar and Virginia Bar Association committees. Mr. Spahn has spoken at more than 1,200 CLE programs throughout the United States and in several foreign countries.

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The Duty to Self-Report Malpractice to the Client

© shutterstock.com

by James M. McCauley

Imagine that you are a commercial litigation partner in a law firm. You get a call from one of your transactional partners. He explains to you: “The big deal I was working on fell apart and now our client is being sued. It appears that a loan on which our client was surety was breached by the primary obligor and our client is being called upon to pay the obligation. There are some issues regarding the language in the agreement we prepared. We might have fallen short on our due diligence. Can you handle the case?”

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Reactively, you say “yes, of course, send me the file.” After all, isn’t that what litigators are for—to get clients out of trouble? But lurking in the background is a nagging question over which lawyers agonize: Do we have an ethical duty to self-report our error to our client? If the commercial litigator discovers that the primary reason for the transaction falling apart was a drafting error committed by his transaction partner, must he reveal this mistake to the client, who is now saddled with the costs and fees of litigating the consequences of this mistake? Is it ethical for the firm to continue representing the client in order to “save the client” from consequences caused by the law firm’s own negligence?1 In regard to lawyers’ candor with client in general, law professor Benjamin Cooper points to the work of Professor Lisa Lerman who con-

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THE DUTY TO SELF-REPORT MALPRACTICE TO THE CLIENT

ducted interviews of twenty (20) lawyers and concluded that lawyers deceive their clients more often than acknowledged by the rules of conduct or the organized bar.2 Professor Lerman wrote “[o]ne of the most common reasons that lawyers deceive clients is to avoid having to disclose their mistakes.”3 However, our hypothetical litigation partner could well have assumed that the transactional partner’s work was performed competently when he agreed to litigate the dispute. But if the litigation partner later discovers that his corporate partner’s legal work (e.g. the insertion of a poorly drafted term into the critical contract) may have been to blame for the failure of the deal and the subsequent litigation, then the firm may have an ethical obligation to report that fact to the client, and the lawyers involved might be subjected to discipline for failing to do so.4 See, e.g., In re Hoffman, 700 N.E.2d 1138, 1139 (Ind. 1998)(Respondent attorney failed to explain adequately to his clients the effect of a dismissal of the tort claim in violation of Ind. Prof. Conduct Rule 1.4(b). Further, he continued to represent the clients after it became apparent that the representation might be materially limited by the respondent’s own interests, in violation of Prof. Cond. Rules 1.7(b) and 1.16(a)(1)). The ethical misconduct would not be the drafting error itself, but rather the failure to communicate with and inform the client that a material mistake was made in the course of the representation. From an ethical perspective, concealing the mistake from the client is more serious than the mistake itself. The lawyer might also reasonably believe that whatever mistake was made can be “fixed” so that disclosure to the client is not necessary. Support for the duty to self-report a material mistake to the client can be found in the Virginia Rules of Professional Conduct. Rule 1.4(a) and (c) require that a lawyer keep a client reasonably informed about the status of a matter and inform the client of pertinent facts that may significantly affect settlement or resolution of the matter. Rule 1.4(b) requires that the lawyer “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Among the most critical decisions that the client has to make regarding the representation in this situation are (1) whether the client has a viable malpractice claim arising out of the representation, and, if so, whether to pursue it now or later and (2) whether to continue the current representation. Obviously, the www.vsb.org

client can’t make an informed decision regarding these issues without being informed about the potential claim. Comment [5] to Rule 1.4 states in pertinent part “[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.” Comment [7] states in part “[a] lawyer may not withhold information to serve the lawyer’s own interest or convenience.” According to The Restatement (3d) of the Law Governing Lawyers “[i]f the lawyer’s conduct of the matter gives the client a substantial malpractice claim against the lawyer, the lawyer must disclose that to the client.”5 As Professor Cooper notes: The only case cited in the Restatement for this proposition is In re Tallon, 447 N.Y.S.2d 50 (App. Div. 1982), a two-page attorney disciplinary opinion from the New York Appellate Division. In Tallon, the attorney allowed the statute of limitations to run on his client‘s claim for property damages resulting from an auto accident, and thereafter paid the client out of his own funds, without disclosure of his error. Citing New York DR 1-102(A)(4), which provides that a lawyer shall not [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation, the appellate court noted that “[a]n attorney has a professional duty to promptly notify his client of his failure to act and of the possible claim his client may have against him.” The court found that Mr. Tallon was subject to discipline because, inter alia, “he had obtained a general release [from the client] without advising her . . . of the claim she had against him for malpractice in letting the Statute of Limitations run on her property damage claim.”6

From an ethical perspective, concealing the mistake from the client is more serious than the mistake itself. Aside from the duties set out in the Rules of Professional Conduct, the fiduciary duties of loyalty, candor and communication require that the lawyer disclose his or her malpractice on the client’s matter. Not cited in the Restatement is Neel, v. Magana, Olney, Levy, Cathcart & Gelfand,

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THE DUTY TO SELF-REPORT MALPRACTICE TO THE CLIENT

6 Cal. 3d 176, 491 P.2d 421, 98 Cal. Rptr. 837 (1971) where the court stated: Finally, the dealings between practitioner and client frame a fiduciary relationship. The duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests. . . .Thus the fact that a client lacks awareness of a practitioner’s malpractice implies, in many cases, a second breach of duty by the fiduciary, namely, a failure to disclose material facts to his client. Postponement of accrual of the cause of action until the client discovers, or should discover, the material facts in issue vindicate the fiduciary duty of full disclosure; it prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.

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Similarly, another court observed, in deciding whether the statute of limitations for filing a malpractice claim against a law firm was tolled for nondisclosure: We are persuaded that the general rule, as distinguished from the discovery rule, may not be strictly applied in favor of an attorney, however, because, in addition to his position of trust and confidence with respect to his client, he also has a legally imposed duty to disclose facts material to his representation. Rice v. Forestier, 415 S.W.2d 711 (Tex. Civ. App. – San Antonio 1967, writ ref’d n.r.e.). This duty, and the effect of its breach, was not considered by the respective courts of civil appeals in Pack and Crawford. We conclude that the relationship creates the duty, and breach of the duty is tantamount to con-

Aside from the duties set out in the Rules of Professional Conduct, the fiduciary duties of loyalty, candor, and communication require that the lawyer disclose his or her malpractice on the client’s matter. cealment. We, therefore, hold that the failure to disclose operates to toll the statute of limitations for so long as the duty exists, and that the duty to disclose ceases when the relationship giving rise to the duty ends. The Indiana Supreme Court expressed this rule in a case concerning the physician-patient relationship: “[W]here the duty to inform exists by

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reason of a confidential relationship when that relationship is terminated the duty to inform is also terminated; concealment then ceases to exist. After the relationship of physician and patient is terminated, the patient has full opportunity for discovery and no longer is there a reliance by the patient nor a corresponding duty of the physician to advise or inform. The statute of limitations is no longer tolled by any fraudulent concealment and begins to run.” Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891, 895 (1956). It is clear that by “fraudulent concealment” the Indiana Court meant silence or breach of a duty to disclose rather than any other affirmative act of concealment. We believe this rule appropriate as well to the attorney-client relationship. McClung v. Johnson, 620 S.W.2d 644 (Tex. App. Ct.1981). Other authorities have likewise held that a lawyer has a duty to reveal his or her malpractice to the client.7 For example, in N.Y. State Bar Ass’n, Ethics Op. 734 (2000), the ethics committee concluded that because lawyers have an obligation to keep their clients reasonably informed about a matter and to provide information that their clients need to make decisions relating to the representation, lawyers have an obligation to a client to disclose the possibility that they have made a significant error or omission. Moreover, with or without disclosure to the client, doesn’t the law firm have a conflict of interest continuing to represent the client in litigation while at the same time the client has a potential malpractice claim against the firm? See, e.g., N.Y. City Bar Ass’n, Formal Op. 1995-2 (1995)(Where client has a possible malpractice claim against a legal services organization, the organization must withdraw from the representation, advise the client to get new counsel, and assist the client in obtaining new counsel.). Virginia Rule 1.7(a)(2) requires a lawyer to withdraw from representation if there is a significant risk that the representation will be “materially limited” by the lawyer’s own personal interests; or obtain the informed consent of the affected client. Again, this would necessitate disclosure of the lawyer’s error and potential malpractice claim to the client. However, this type of conflict should not be curable with consent. Comment [19] to Rule 1.7 explains that “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask www.vsb.org

THE DUTY TO SELF-REPORT MALPRACTICE TO THE CLIENT

for such agreement or provide representation on the basis of the client’s consent.” A disinterested lawyer could not reasonably believe that he could diligently and competently represent a client, and exercise independent professional judgment on behalf of a client who intends to sue the lawyer for malpractice on the very subject matter of the representation. Another issue is what mistakes must be reported to the client? The general consensus is that the mistake or error has to be “material.” Not every error a lawyer makes needs to be reported to the client. Minor errors such as a typo in a pleading and errors that can be corrected without any significant adverse effect on the representation need not be reported. For example, if a missed deadline can be overcome by obtaining an extension of time for filing a motion or pleading and has no meaningful consequences for the client, there is no obligation to report such matters to the client.8 On the other hand, if the client’s claim is time-barred because the lawyer failed to file a complaint within the applicable statute of limitations, few would argue that this should not be reported to the client.9 In other words, “materiality” comes down to (1) how bad was the mistake? and (2) what harm did it cause? Or, stated in terms of the communication duty under Rule 1.4, how important is the mistake to the client in making decisions about the goals and objectives of the representation and the continued representation of the client by the lawyer or law firm? Beyond these simple guidelines, though, figuring out the self-reporting duty will at times be quite difficult, contextual and fact-specific. But if the lawyer learns of an act, error or omission that could reasonably be expected to be the basis of a legal malpractice claim, the client must be informed. It would also behoove the lawyer or law firm to consult with their professional liability insurer’s claims counsel or consultant before having any dialogue with the client. Because of the resulting conflict of interest in this situation, the firm’s need to withdraw from the representation, and the adversity between the interests of the client and the firm, it would be prudent for the lawyer, in communicating with the client, to treat the client as an unrepresented person under Rule 4.3, being careful to not provide any legal advice to the client other than advising the client to seek the advice of independent counsel. Once the lawyer has disclosed the error to the client, advised the client to seek the advice of independent counsel and withdrawn from the representation, it is not improper for the lawyer to negotiate a possible settlement of the www.vsb.org

malpractice claim with the former client. See e.g. LEO 1550 (1992)(not improper for lawyer, who failed to file client’s lawsuit within the statute of limitations, to attempt negotiating a settlement with former client once the relationship is terminated provided the latter is advised to seek the advice of independent counsel; lawyer may, for consideration paid in settlement, obtain a release of liability from former client provided that the transaction was not unconscionable, unfair or inequitable when made.) Endnotes: 1 This hypothetical is based on a substantially similar scenario presented by law professor Benjamin Cooper in his article The Lawyer’s Duty to Inform His Client of His Own Malpractice, 61 BAYLOR L. REV. 174 (2009) (hereinafter “Cooper”). 2 Cooper, supra at 188, citing Lisa G. Lerman, Lying to Clients, 138 U. PA. L. REV. 659 (1990). 3 Lerman, supra at 725. 4 Cooper, supra at 176. 5 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 20 cmt. c (2000). 6 Cooper, supra at 181 citing In re Tallon, 447 N.Y.S.2d at 51. Since then, other the Restatement has added additional authority for the duty to report the lawyer’s own malpractice to his client. See Leonard v. Dorsey & Whitney LLP, 553 F.3d 609, 629 (8th Cir. 2009)(court found breach of duty for failing to inform client it might have committed malpractice in loan closings but no malpractice claim unless potential claim created a conflict of interest that would disqualify continued representation of client); Olds v. Donnelly, 150 N.J. 424, 443, 696 A.2d 633, 643 (1997)(attorney still required to advise client that he might have a legal malpractice claim, even if notification against lawyer’s own interest). 7 Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 662 A.2d 509, 514 (N.J. 1995) (Under New Jersey Rules 1.4 and 1.7, an attorney has an ethical obligation to advise a client that he or she might have a claim against that attorney, even if such advice flies in the face of that attorney’s own interests.), abrogated on other grounds by Olds v. Donnelly, 696 A.2d 663 (N.J. 1997); Shumsky v.Eisenstein, 726 N.Y.S.2d 365 (N.Y. 2001); In re Tallon, 447 N.Y.S.2d 50 (N.Y. App. Div. 1982) (“An attorney has a professional duty to promptly notify his client of his failure to act and of the possible claim his client may thus have against him.”); ABA Informal Op. 1010 (1967); Col. Bar Ass‘n, Formal Op. 113 (2005) (discussing the ethical duty of an attorney to disclose errors to clients); N.J. Op. 684 (1998); N.Y. Op. 734 (2000); N.Y. City Op. 1995-2 (1995); Beal Bank v. Arter & Hadden, 167 P.3d 666, 672 (Cal. 2007)(stating in dicta that attorneys have a fiduciary obligation to disclose material facts to their clients, an obligation that includes disclosure of acts of malpractice.); and 2 Mallen & Smith, Legal Malpractice §14.22 (2007). 8 Cooper, supra at 195. 9 Id.

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GENERAL INTEREST

Fracking and Zoning Law in Virginia

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by James A. Howard II

The western portion of the Commonwealth of Virginia contains portions of the Marcellus/Utica Shale Shield/Appalachian Natural Gas Plug, which contains valuable oil and natural gas deposits.1 The Marcellus Shale, also referred to as the Marcellus formation, has been described as a middle-Devonian-age black, low density, carbonaceous (organic rich) shale that occurs in the subsurface.2 The Utica shale is another rock unit thicker than the Marcellus, more geographically extensive and has already shown that it can be of commercial value, and this rock unit with enormous commercial potential is a few thousand feet below the Marcellus.3 In other areas of the country, a technology known as fracking has been developed to extract the valuable oil and natural gas from the shale formations. Fracking involves drilling a deep vertical well, then a horizontal well into layers of rock sandwiched in between impermeable layers of shale.4 Drillers use explosives to pop small perforations in the sides of pipes placed in the 24

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horizontal well, then blast down millions of gallons of water mixed with sand to pulverize the rock and open up fractures, enabling the oil and gas to escape.5 There are environmental risks with fracking. Applications for drilling permits have been filed in a number of areas of western Virginia. This article will address the issue of whether, and to what extent, the Commonwealth of Virginia and/or its cities and counties can control drilling for oil and natural gas and fracking. The Stage is Set — The New York Experience On June 30, 2014, the State of New York’s highest court held that towns may ban fracking regardless of state law.6 This decision created much media interest.7 On appeal, the energy companies argued that the energy policy of New York, as exemplified by the state law, required a uniform approach and could not be subject to regulation by a mélange of the state’s 932 towns. The appellate court held for the towns, noting with approval the following legal principles. The Court noted the legislature had authorized towns to adopt zoning laws for the purpose of fostering the health, safety, morals, and general welfare of the community, and that, as a fundawww.vsb.org

GENERAL INTEREST

mental precept, the legislature had recognized that local regulation of land use is among the most significant powers and duties granted to a town government. The Court noted, however, that as a political subdivision of the state, a town may not enact ordinances that conflict with the state constitution or any general law, and that under the preemption doctrine, a local law promulgated under a municipality’s home rule authority must yield to an inconsistent state law as a consequence of the untrammeled primary power of the legislature to act with respect to matters of state concern. The Court continued that it did not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake, but, ra ther, the Court would invalidate a zoning law only where there is a clear expression of legislative intent to preempt local control over land use. The Court concluded that the towns acted appropriately within their home rule authority in adopting the challenged zoning laws, and the Court added it could find no legislative intent, much less a requisite “clear expression,” requiring the preemption of local land use regulations. The Court further cited the rule that a municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole. The question then reduces itself as to whether the same result would obtain under Virginia law. To examine this, Virginia law and the comprehensive plans and zoning ordinances of two affected Virginia counties, Frederick and Rockingham, will be examined.

governing body to prohibit the use of property for landfills altogether, the language was also sufficient, by necessary implication, to permit a local governing body to prohibit the use of property for that purpose by a private person or entity. Whether, in a given case, the enforcement of a prohibition against the private ownership or operation of a landfill would be found unreasonable and discriminating would depend on the circumstances, continued the Court. In light of the arguable conflict or uncertainty in Virginia law as to whether, as ruled upon by the New York court, localities may ban fracking, a review of the appropriate plans and zoning ordinances is indicated. Virginia Statutes VA. CODE ANN. § 45.1-381 authorizes the governor to execute with other states an interstate compact to conserve oil and gas. Of particular interest is the Virginia Gas and Oil Act, supra, Sections 45.1-361.1, et seq. of the Code of Virginia. VA. CODE ANN. § 45.1-361.5 provides that no county, city, town or other potential subdivision of the commonwealth shall impose any condition, or require other local license, permit, fee, or bond to perform any gas, oil, or geological operations which varies from or is in addition to the requirements of this chapter. The section continues that, however, no provision of this chapter shall be construed to limit or supersede the jurisdiction and requirements of other state agencies, local land-use ordinances, regulation of general programs, or VA. CODE ANN. §§ 58.1-3712, 58.1-3712.1, 58.1-3713, 58.13713.3, 58.1-3741, 58.1-3742 and 58.1-3743.

Frederick County 2030 Comprehensive Plan Virginia Law The above plan was adopted by the Frederick County Board In an attorney general’s opinion dated January 11, 2013, it was of Supervisors on July 14, 2011.10 It is noted that most of Frederick County’s land area is rural in character and located opined that although a local governing body may adopt a zonwest of Interstate 81.11 The plan continues that the rural areas ing ordinance that places restrictions on the location and siting best exhibit the beauty, view sheds, and tranquility for which of oil and gas wells that are reasonable in scope and consistent the county is known.12 The primary land uses in the rural areas with the Virginia Gas and Oil Act8, a local governing body cannot ban altogether the exploration for, and the drilling of, oil are agricultural and forestal operations.13 9 and natural gas within the locality’s boundaries. However, it is noteworthy that that opinion did not disclose any consideration Frederick County Zoning Ordinance of, or discussion concerning, the ruling of the Supreme Court Granted as a permitted use in the RA Rural Areas District is of Virginia in Resource oil and natural gas exploration, Conservation Management, Inc. v. provided that the following Board of Supervisors of Prince requirements are met: (1) all William County, 238 Va. 15, 380 requirements of the Code of ... local regulation of land use is among S.E.2d 879 (1989). That case Virginia, as amended, and all involved the issue of whether the applicable federal, state, and local the most significant powers and duties governing body of a locality regulations shall be met; (2) a could prohibit by an ordinance site plan shall be reviewed and granted to a town government. the operation of privately owned approved meeting all requireand operated debris landfills. ments of the Frederick County The Court concluded that a Code; (3) approval of the site locality was expressly authorized by VA. CODE ANN. § 15.1plan and use shall be for ninety days, with subsequent 486 to adopt a zoning ordinance to prohibit a specific use of renewals being approved by the board of supervisors.14 land. The Court further concluded that since the language of Fracking continued on page 43 VA. CODE ANN. § 15.1-486 was sufficient to allow a local www.vsb.org

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Access to Legal Services

Webinars Spread the Word on Pro Bono by Karl Doss

Since I joined the Virginia State Bar staff in August 2013, the Special Committee on Access to Legal Services and I have largely focused our work on increasing the number of private attorneys engaged in pro bono. Over the past few months, I have spoken with nearly 100 people about Virginia’s access to justice needs and what the VSB should be doing to increase participation in pro bono legal services. These discussions included • legal aid project directors; • directors of independent legal services providers; • attorneys at firms of all sizes that have a proven track record of pro bono work; • leaders of state, local, and specialty bar associations; • law school pro bono/civil law clinical directors, and • access to justice commission leaders in other states. These discussions have been very enlightening. One consistent theme of these conversations is that free CLE programs can help to spread information about critical issues such as the “justice gap,” the difference between the level of legal assistance available and the level needed to meet the legal needs of the poor. Only 20 percent of the legal needs of Virginia’s indigent people are being served by legal aid and leg al services organizations.1 Free CLE programs also serve as powerful recruitment tools for pro bono attorneys. The discussions also informed me that there is significant activity in Virginia to engage and train pro bono attorneys, but there is little or no coordination or information sharing about these training opportunities. I shared these findings with my supervisors at the VSB and with the Access to Legal Services Committee. My recommenda26

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tions for addressing these issues ultimately became the impetus for developing and implementing a webinar-based pro bono training program. The curriculum development process included representatives from • the VSB; • licensed and independent legal aid and legal services programs; • pro bono directors from law firms; • corporate counsel; • members of the private bar; • law schools, and • state, local, and specialty bar organizations and foundations. We agreed that the webinars would provide “nuts and bolts” training on substantive and procedural law on matters that are often encountered by indigent people in Virginia as well as ethics for lawyers who provide pro bono services. Webinars also provide information on where and how to find cases, resources, and mentorship when lawyers represent pro bono clients. The webinars are often co-sponsored by legal services and non-profit organizations

Only 20 percent of the legal needs of Virginia’s indigent people are being served by legal aid and legal services organizations. that specialize in or provide services to clients facing issues that are the subject of the webinar. These organizations help with recruiting faculty, creating and distributing training materials, and marketing these seminars. Attorneys who attend the webinars earn at least one hour of MCLE credit at no cost in exchange for certifying that they will

provide at least one hour of pro bono work for each hour of MCLE credit earned, or take on at least one pro bono case to conclusion over the course of the next twelve months. Alternatively, attorneys could make a financial contribution to a legal aid or pro bono legal services organization. Strategic and coordinated training of pro bono lawyers has proven successful in other jurisdictions. In fact, I found the training partnership between the Legal Aid Society of New York City and several major New York law firms to be a particularly impressive model for our training program. However, unlike that program, the VSB program is a statewide effort involving input and support from a variety of stake-holders beyond legal aid and big law firms. Further, our seminars are delivered via webinars, and recordings are available at any time on the VSB website’s Pro Bono/Access to Legal Services pages. The VSB Access to Legal Services Committee has assigned a subcommittee, which has met twice, to explore the establishment of a Pro Bono Consortium that would develop a broader strategy for recruiting, training, mentoring, supporting, and recognizing pro bono lawyers. This consortium idea is very much a work in progress. However, on a much smaller scale, the Access Committee has already begun to put the consortium concept into action through our pro bono webinars. In 2013, the VSB conducted two free webinars about pro bono. The first, An Introduction to Pro Bono: We Can All Do Something, was held in October and the second, Pro Bono: What’s In It for Me? How Private Attorneys Can Do Well by Doing Good, was held in December. These webinars offered information about the ethical rules concerning pro www.vsb.org

Access to Legal Services bono, the need for pro bono, the professional and personal benefits of pro bono, and how and where to find pro bono opportunities. The Access Committee worked with attorneys from legal aid offices; large, medium and small law firms; solo practitioners; and bar organizations from across Virginia to develop curricula that would hopefully resonate with attorneys regardless of the region where they work, their practice area, or size of their firm or practice. It was also critical that our faculty reflected this diversity of professional perspective and experiences. The attendees earned two hours of MCLE credits for the two programs, including one hour of ethics. For 2014, the VSB has developed additional free webinars for pro bono lawyers. On March 26, 2014, the Access to Legal Services Committee and Legal Information Network for Cancer (LINC) began a five-part webinar series, Meeting the Legal Needs of Individuals Facing Serious Illness through Pro Bono. • Part 1 – Introduction and Opportunities was held on March 26; • Part 2 – Relief from Creditors on April 23; • Part 3 – Medicare, Medicaid, and the ACA on May 15; • Part 4 – Social Security Benefits on June 19; • Part 5a – Housing Law (LandlordTenant) on July 23; • Part 5b – Housing Law (Foreclosure) (Date TBD). This webinar series, which offers nine hours of MCLE credit, consists of basic presentations on substantive law in matters that individuals with serious illness, and their families, frequently face. Like the previous webinars, we sought input from a variety of sources to develop a curriculum that offers information about pro bono opportunities through a variety of providers, such as legal aid, Medical Legal Partnerships, and independent legal services organizations, as well as about the types of cases and service areas they cover. However, www.vsb.org

Editor’s note In recognition of the American Bar Association’s National Pro Bono Celebration on October 19–24, the October issue of Virginia Lawyer will be dedicated to access to legal services for all Virginians. We will offer the views of Supreme Court of Virginia Chief Justice Cynthia D. Kinser; Justice S. Bernard Goodwyn; Legal Services Corporation President James J. Sandman; John E. Whitfield, executive director of Blue Ridge Legal Services; Mark D. Braley, executive director of the Legal Services Corporation of Virginia; and others. We hope to provide insight into the “justice gap,” the vast unmet legal needs of the poor, and to suggest some solutions to the problem.

unlike the 2013 webinars, we asked registrants to agree to accept a pro bono referral from a legal aid office or pro bono legal services provider or make a financial contribution to legal aid or legal services organization that provides pro bono representation to people facing serious illness. The VSB and LINC also offered to help attendees connect with pro bono providers in their jurisdictions. Additionally, VSB collaborated with the Virginia Department of Aging and Rehabilitative Services and the Virginia Poverty Law Center to offer a free webinar, Pro Bono and Elder Law: End of Life Planning, on May 23. This webinar covered estate planning, simple wills, powers of attorney, and advanced medical directives. Attendees again were asked to volunteer assistance or financial contributions to legal service organizations that represent elderly clients. To date, about 300 attorneys have attended these webinars and feedback has been overwhelmingly positive. In the fall, the access committee will follow-up with attendees on whether they have followed through with their pro bono commitment. The committee is also working with the Virginia Poverty Law Center and Good Samaritan Advocates to develop a pro bono webinar series on representing survivors of domestic violence. In addition, the committee has partnered with Sands Anderson PC and the Pro Bono Clearinghouse of The Greater Richmond Bar Association to develop a webinar series on board gover-

nance. Both webinar series will be offered in the fall and winter. Each of these webinars, as a standalone program, provides basic, useful information to attendees, who are encouraged to seek out additional training on the subject matter. Attorneys attending the entire series will not only meet their annual MCLE requirement but also be better equipped to provide assistance on a variety of legal issues to Virginians who are unable to afford counsel. Ideally, the VSB, and the consortium, when it is established, will continue offering more programs that provide coordinated, issue- and needbased training in a strategic manner; connect volunteer lawyers directly with organizations providing pro bono representation on these issues; and help provide support and incentives for the attorneys handling these cases. 1

Suyes, Joanna and Whitfield, John, “Is There a Pro Bono Gap in Virginia?” Virginia Lawyer, Feb. 2014, Vol. 62, pp 46–49.

Karl Doss is the Virginia State Bar Director of Access to Legal Services.

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27

Noteworthy

> VSB NEWS

3vote q

Voting for President-Elect This year for the first time the election for president-elect of the Virginia State Bar will be conducted online rather than with paper ballots. Balloting will begin on October 31 and continue until the close of business on December 1. The change is being made to cut down on paperwork, save money and staff time, and ensure accuracy. The VSB has partnered with Survey & Ballot Systems (SBS) to administer the 2014 election. Voting members will receive an e-mail from SBS with instructions on how to register their vote. To ensure broadcast e-mail with voting information arrives safely in your inbox on or around October 31, simply add the following e-mail address as an approved sender: [email protected]. Members who have not already done so should add their e-mail addresses to VSB records to ensure that the information arrives.

Have You Moved? To check or change your address of record with the Virginia State Bar, go to the VSB Member Login at

SBS will begin sending e-mails to all members on October 31 but because of the high volume, some may take more than a day to arrive. Members without e-mail addresses will receive an instruction letter. Those voters who prefer to vote by paper ballot will have to request the ballot by November 24.

https://member.vsb.org/vsbportal/. Go to “Membership Information,” where your current address of record is listed. To change, go to “Edit Official Address of Record,” click the appropriate box, then click “next.” You can type your new address, phone numbers, and email address on the form. Contact the VSB Membership Department ([email protected] or (804) 775-0530) with questions.

Court Forms on Website

The VSB E-News

The Office of the Executive Secretary of the Supreme Court of Virginia would like to remind attorneys that certain district court and circuit court forms are available to members of the Virginia State Bar on the Virginia State Bar’s website. These forms are available in a “fillable” PDF format so that the necessary information can be entered on the electronic form, which can then be printed for filing with the court. Upon logging in as a member on the VSB’s website, the forms are available in the member’s area under “Forms and Downloads.” In addition to the court forms that have been accessible on the VSB’s website, form DC-645, Income Withholding

Have you been receiving the

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for Support, has recently been added to the website. This form is the required federal form for income withholding in cases involving support, and includes information and statutory requirements specific to Virginia. Form DC-645 may be used by attorneys for submission to the courts in appropriate cases, as employers have been directed by the federal Office of Child Support Enforcement to reject any income withholding orders that are not submitted in the required federal format.

Virginia State Bar E-News? The E-News is a brief monthly summary of deadlines, programs, rule changes, and news about your regulatory bar. The E-News is emailed to all VSB members. If your Virginia State Bar E-News is being blocked by your spam filter, contact your email administrator and ask to have the VSB.org domain added to your permissions list.

www.vsb.org

VSB NEWS <

Noteworthy

Diversity Conference Continues to Reach Out by Eva N. Juncker, diversity conference chair

The VSB Diversity Conference and the Virginia Women Attorneys Association were recognized in June by the Conference of Local Bar Associations for our June 2013 Annual Meeting presentation, “Diversity and the Rule of Law: Complementary or Contradictory?” Not to be outdone by the preceding year’s program, this year we co-sponsored with the Family Law Section a Showcase CLE on same-sex marriage. “Marriage in Virginia: The Changing Status of Same-Sex Couples and Their Families,” included panelists from across the ideological and legal spectrum, and as always, the discussion was educational, respectful, exciting, and highly thought-provoking. If you missed this program, visit the Diversity Conference website soon for a video replay of the presentation at: www.dcvsb.org. The Virginia Beach Fore Diversity Golf Tournament, while almost rained out, was once again an excellent opportunity for members of the bar and their families to play a round of golf together while supporting the Diversity Conference. We hope to see more players on the golf course next year. Our annual Jazz 4 Justice fundraiser at James Madison University is just around the corner, on October 4, 2014. Please mark the date on your calendars and join us for an evening of amazing jazz standards, while supporting JMU college students, Blue Ridge Legal Services, and the Diversity Conference. Make sure to be on the lookout for a first-ever Diversity Conference enewsletter this year, keeping you informed of our work across the commonwealth. The Diversity Conference is YOUR conference. Help us make it about each and every one of you. Membership is free and open to every member of the Virginia State Bar. The conference was

www.vsb.org

1

2

3 1. On the June 2013 panel of “Diversity and the Rule of Law: Complementary or Contradictory,” were Freeman A. Hrabowski, president of the University of Maryland-Baltimore County; Jonathan R. Alger, president of James Madison University; Roger Clegg, president of the Center for Equal Opportunity; and the Honorable Barbara M. Keenan, U.S. Fourth Circuit Court of Appeals. 2. “Marriage in Virginia: The Changing Status of Same-Sex Couples and Their Families” was presented in June 2014 3. The Fore Diversity Golf Tournament at the Annual Meeting overcame some threatening rain to raise money for the Diversity Conference. Players included Peter D. Eliades, W. David Harless, John Tarley Jr., and Judge Walter S. Felton Jr.

established in 2010 by the VSB with approval of the Supreme Court of Virginia. Our mission includes fostering and encouraging diversity in admission to the bar, advancement in the profession and in the judiciary, facilitating

diversity in professional leadership opportunities, and ensuring that Virginians’ changing legal needs are met. We encourage you to add your voice to the conference and our mission by joining today.

Vol. 63 | August 2014 | VIRGINIA LAWYER

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Noteworthy

> PEOPLE

James C. Turk’s Life of Work and Meaning Judge James C. Turk was an extraordinary person — and not only because he continued to come to work nearly every day when he was 91 years old and would have been paid just as much to stay home. He loved coming to work. He loved his job. And his job, as he saw it, was to do justice, every day and in every way. From his first days on the bench to his last, he had little patience for rules and procedures when — as he saw it in any particular case over which he was presiding — those rules or procedures might get in the way of doing justice. On those occasions when Judge Turk and the Fourth Circuit Court of Appeals disagreed — that is, when the Fourth Circuit reversed him — it was usually because the judge had concluded that some statute or rule of procedure would impair his ability to do justice, and that the statute or rule therefore must yield. He was blazingly smart. I’m not sure that some of the lawyers practicing in front of him knew how quick his mind was. He could see where a trial was heading — or where a lawyer’s strategy was going to take her — well before anyone else in the courtroom. The law gives federal judges considerable latitude in questioning witnesses and even commenting on the evidence, and Judge Turk availed himself of that latitude. Lawyers who practiced before him lived in fear that the judge’s questions were going to torpedo their cases, but at the end of the day, I don’t know that anyone ever thought that his questions were, objectively, unfair or over the line. 30

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photo courtesy of The Roanoke Times

by Clifford Weckstein

Judge Turk had a deep and abiding faith in God and in the perfectibility of man. He gave a lot of people second — and sometimes third and fourth — chances that other judges probably wouldn’t have. But I think that the historical record would show that he was right a lot more frequently than he was wrong in those sentencing decisions, and that there are a lot of people who today are productive citizens because Judge Turk saw that possibility in them when pretty much no one else did. He was from a different time, this member of the Greatest Generation. He came from a time when hard work and integrity were a given. He came from a time when even boys trying to project toughness in the depression-era Garden City Elementary School knew better than to speak of someone discourteously — and

Judge Turk had no tolerance for incivility in the courtroom. Studs Terkel was another member of that generation, born roughly a decade before Judge Turk. In his book “Working,” Terkel said that, “Work is about a search for daily meaning as well as daily bread, for recognition as well as cash, for astonishment rather than torpor; in short, for a sort of life rather than a Monday through Friday sort of dying.” It was that attitude that kept Jim Turk on the bench, trying to do justice, at age 91.

Clifford Weckstein is a circuit court judge for the 23rd Judicial Circuit, which includes Roanoke, Roanoke County, and Salem. roanoke.com

www.vsb.org

PEOPLE <

In Memoriam Charles P. Ajemian Waynesboro September 1942 – May 2014

Charles Burdette Ramsey Alexandria November 1944 – February 2014

Lindsay Rae Aldridge Washington, DC December 1986 – February 2014

Ross C. Reeves Norfolk October 1948 – July 2014

Valerie M. Baruch Bethesda, Maryland November 1966 – September 2013

Alan Rosenblum Alexandria August 1952 – May 2014

Robert Pegram Buford Richmond September 1925 – July 2014

Arthur F. Samuel Richmond July 1929 – April 2014

M. Caldwell Butler Daleville June 1925 – July 2014

James C. Turk Roanoke May 1923 – July 2014

H. Richard Chew Arlington May 1927 – July 2014

Robert Alan Waspe Land O’ Lakes, Florida January 1952 – April 2014

George Moffett Cochran V New Canaan, Connecticut October 1950 – November 2013 Suzanne Sutton Duvall Richmond August 1976 – May 2014 Stuart Randolph Hays Williamsburg September 1934 – June 2014

Noteworthy

Local and Specialty Bar Elections Fairfax Bar Association David Lyndon Marks, President Douglas Robert Kay, President-elect Richard Alan Gray, Vice President Christie Ann Leary, Secretary Thomas William Repczynski, Treasurer Newport News Bar Association William Lewis Stauffer Jr., President James Arnold Segall, President-elect Lisa Marie Moore, Secretary Christopher Scott Johnson, Treasurer The Bar Association of the City of Richmond John Kirkland Burke Jr., President John Tracy Walker IV, President-elect Vernon Eugene Inge Jr., Vice President The Honorable Clarence Northern Jenkins Jr., Hon. Vice President Douglas Darrell Callaway, Secretary-Treasurer Virginia Association of Commonwealth’s Attorneys Nancy Grace Parr, President LaBravia Sharon Jones Jenkins, President-elect Patricia T. Watson, Vice President Eric Lawrence Olsen, Secretary-Treasurer

Albert M Orgain IV Richmond January 1943 – June 2014 Gregory Lee Meadows Alexandria April 1953 – June 2013 www.vsb.org

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Law Libraries

E-mail, Metadata, and Clouds, Oh My! Recent Changes to the Model Rules of Professional Conduct by Joyce M. Janto

In 1982, when the Model Rules of Professional Conduct were developed, the personal computer industry and the Internet were toddlers.1 There was no cloud computing or e-mail, no concerns about metadata. So it’s not surprising the drafters of the Model Rules of Professional Conduct (MRPC) didn’t consider the ethical implications of using these technologies in the practice of law. Early Days Opinions about using e-mail, even unencrypted e-mail, for client communications began appearing in 1997.2 At its August 2001 Annual Meeting, the American Bar Association adopted the recommendations of the Ethics 2000 Commission. The ethical burden for inadvertent e-mail was placed on the recipient.3 Senders were instructed to include disclosures, either in the subject line or in the body of the e-mail, stating it contained confidential information. An unintended recipient was instructed to return the e-mail unread.4 This attitude could be summed up as “caveat recipient.” The issue of metadata wasn’t addressed until 2004.5 In keeping with the “caveat recipient” attitude, the opinions focused on the actions of the recipient.6 Senders were admonished to take reasonable care; recipients were given detailed instructions as to how to behave. Recipients were not to look for metadata and they had to notify the sender if it were inadvertently discovered. Confidentiality and E-mail In August 2009 the ABA created the Commission on Ethics 20/20. One 32

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purpose of the commission was to review the MRPC with an emphasis on how technology had affected legal practice. In August 2012 the changes recommended by the commission were adopted at the ABA Annual Meeting. The most striking feature of these recommendations was the revision of the comments to Model Rule 1.1. Formerly, comments to this rule emphasized a lawyer’s need for competence in legal matters and the duty to keep abreast of changes in the law. Language was added stating lawyers had an ethical duty to keep up with changes to the law and its practice “including the benefits and risks associated with relevant technology.” 7 The use of technology by lawyers was no longer seen as a novelty where even a careful lawyer might make an unwitting error. The standard shifted to one of “caveat sender” with the ethical responsibility now on the lawyer who carelessly revealed a client confidence. This is emphasized by the new Model Rule 1.6(c) which mandates reasonable efforts to prevent inadvertent or unauthorized disclosure of client confidences.8 Five factors a lawyer should consider to preserve client confidences in order to meet the test of “reasonableness” are listed.9 This list is not exhaustive: common practice and client requirements will still be considered in determining if a breach of confidentiality rises to the level of an ethical violation. This is not to say that encryption of e-mail is now mandated. If the cost and difficulty of using a specific technology outweighs the probability sensitive information will be revealed, its use is unnecessary.10

Metadata and Cloud Computing Revisions to Model Rule 4.4(b) and its comments make it clear that metadata is included when talking about electronically stored information. In the wake of differing state ethics opinions, what it means to “inadvertently send” electronically stored information is now clearly defined. An inadvertent transmission now includes information accidentally included or attached to information that was intentionally transmitted. 11 When metadata is discovered, the receiving lawyer merely needs to notify the sender so that corrective measures can be taken, but there is nothing in the rules or comments to prevent a lawyer from reading the metadata. The only action prohibited is a routine search for metadata using software designed to recover information “scrubbed” from electronic documents.12 Even prior to their formal adoption, state bars began issuing ethics opinions endorsing the principles laid out in the Ethics 20/20 recommendations dealing with cloud computing. Alabama bluntly stated that a lawyer using cloud computing needed to understand how that technology operated.13 Other states listed the actions lawyers needed to take to ensure the confidentiality of client information when storing documents with a cloudbased server. This includes not only assuring the lawyer’s understanding of cloud computing but also that the service provider understands the confidential nature of the material stored and is prepared to notify the lawyer whenever unauthorized access occurs. Lawyers are Model Rules continued on page 34 www.vsb.org

Technology and the Practice of Law

Moving to the Cloud: Is It Ethical? “Let’s move our client files to the cloud.” To where? Among many locations, the cloud can be found in Ashburn, Virginia. That’s where Amazon Web Services recently leased two factory-sized, climatecontrolled data centers, powered by independent generators, and staffed 24/7 by engineers and security personnel, to store files.1 In other words, the cloud is a real place. The cloud is also in Prineville, Oregon, the so-called “Silicon Forest,” named for the many data centers that have sprung up at the base of the Cascade Mountains.2 The air is cooler and dryer there. Thus, it is less costly to chill the thousands of computer servers built by Google, Microsoft, and Amazon for off-site storage of consumer files and business data. Storing files in the cloud is an alternative to the way most law firms currently store client files. Most law firms use local storage. They buy computer servers, put them in a room or closet, and hire local IT staff to connect the servers to the firm’s various desktop computers. The same IT staff must be available whenever the servers break down. The cloud offers a way to store client files at an off-site data center, rather than on local servers. Instead of purchasing servers, law firms lease space on data centers. Services such as Dropbox for Business, SpiderOak, and Box.net transfer the files through encrypted channels over the Internet, as opposed to an internal office network. The cost-savings and economies of scale are apparent. Given the size of the data centers, each user shares the cost of 24/7 security and IT engineers. www.vsb.org

Plus, the data is often stored redundantly at locations on both coasts. For example, Dropbox for Business uses Amazon Web Services to store its data. The Dropbox service is merely a broker between a computer and Amazon’s data center. The data is transferred via Dropbox onto Amazon’s computers via AES-256 encryption, the same secure encryption standard used by banks.3 Once the files are deposited onto Amazon’s data centers, redundant copies of the files are kept at each of its locations, including presumably the data centers in Virginia and Oregon.4 Therefore, should anything happen to the Ashburn data center, the files are safely backed up thousands of miles away. What a contrast to local storage. Even with local servers, client files are susceptible to a variety of security risks, including fire, flood, and employee theft. By contrast, cloud storage seems to offer a safer, more affordable solution to store client files. Until recently, however, there was a lingering concern whether storing files in the cloud is ethical under the Virginia State Bar Rules of Professional Conduct. When a file leaves the attorney’s office, there is a remote, unlikely possibility that a data center employee could decrypt the file to access its contents. Therefore, some worry that cloud computing violates the duty of confidentiality. Legal Ethics Opinion 1872 addressed whether “using cloud computing or any other technology that involves the use of a third party for the storage or transmission of data” complies with Rule 1.6 (“Confidentiality of Information”). The Standing Committee on Legal Ethics stated that “the lawyer is not

© shutterstock.com

by Robert E. Dean

required, of course, to absolutely guarantee that a breach of confidentiality cannot occur when using an outside service provider.” But there are certain guidelines that a lawyer must follow when using a third-party provider of file storage. First, the lawyer must exercise care in the selection of a vendor and have a reasonable expectation that the client’s information will be kept confidential. Second, the lawyer must review the vendor’s terms of service to determine whether they are adequate to protect the client’s confidences. Finally, if lawyers cannot make these evaluations on their own, they must consult a qualified person to assist them. Virginia joins Alabama 5, Arizona6, California7, and North Carolina8, among many states, in approving the use of cloud computing in law practice.9 For years, Virginia attorneys have used third-party providers to store client information away from the office, such as in safe deposit boxes or off-site storage units. The use of cloud computing is perhaps no different, and the principles are the same: attorneys must use good judgment in the selection of a reputable vendor; exercise reasonable diligence in protecting their client’s information Cloud continued on page 34

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33

Model Rules continued from page 32 also advised that clients should be informed when their information is entrusted to what is essentially a third party.14 Conclusion These changes are a welcome update to the model rules. They allow lawyers to be confident they are upholding ethical standards while at the same time allowing them to adopt the latest technology in the practice of law. One can only hope that the drafters of the rules will continue to keep abreast of the changes in technology in the coming years. Endnotes: 1 While “personal computers” were around since the late 1950s, the first commercially successful PCs were marketed in 1977. The Advance Research Projects Agency, the forerunner to the Defense Advance Research Projects Agency, sent out an RFP to computer science companies to build a network in 1968. The first commercial use of what would become the Internet was in 1981. 2 N.D. Ethics Op. 97-09 (9-4-1997); Pa. Ethics Op. 97-103 (9-26-1997); S.C.

3

4

5 6

7 8

9

Cloud continued from page 33 through strong passwords, encryption keys, and other information technology best practices; and, of course, advise their client in advance.

4

5 6

Endnotes: 1 http://www.datacenterknowledge .com/archives/2013/01/15/amazon-to -add-capacity-to-us-east-region/ 2 http://www.wired.com/2011/12 /facebook-data-center/ 3 Eliu Mendez, Dropping Dropbox in your Law Practice to Maintain your

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8 9

Ethics Op. 97-08 (6-1997); Vt. Ethics Op. 97-5 (undated) ABA Formal Ethics Op. 92-368 (Nov. 10, 1992); Assoc. of the Bar of N.Y. City Ethics Op. 2003-4 (Dec. 2003). A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2013 43 (Art Garwin, Ed. 2013). N.Y. State Bar Ass’n. Ethics Op. 782 (Dec. 8, 2004) ABA Formal Ethics Op. 06-442 (Aug. 6, 2006); Ala. Ethics Op. 2007-02 (Mar. 14, 2007); Ariz. Ethics Op. 07-03 (Nov. 2007); D.C. Bar Ass’n. Ethics Op. 341 (Sept. 2007); Md. Ethics Op. 2007-08 (Oct. 19, 2006); Me. Ethics Op. 196 (Oct. 21, 2008); Minn. Ethics Op. 22 (Mar. 26, 2010); N.Y. County, N.Y. Ethics Op. 738 (Mar. 28, 2008); N.H. Ethics Op. 2008-09 (Apr. 16, 2009); N.C. Ethics Op. 2009-02 (Jan. 15, 2010); Pa. Formal Ethics Op. 2009100 (undated); Vt. Ethics Op. 2009-01 (xxx); W.Va. Ethics Op. 2009-02 (xxx) Model Rules of Prof’l. Conduct 1.1, Comment 8. A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2013 143 (Art Garwin, Ed. 2013). Model Rules of Pro’l. Conduct 1.6, Comment 18.

Duty of Confidentiality, 36 Campbell L. Rev. 175 (2014) Amazon Web Services: Overview of Security Processes, AMAZON WEB SERVICES (Sept. 5, 2008, 5:33 PM), http://aws.amazon.com/articles/1697 http://www.alabar.org/ogc/fopDisplay .cfm?oneId=425 http://www.azbar.org/Ethics /EthicsOpinions/ViewEthicsOpinion ?id=704 http://ethics.calbar.ca.gov/LinkClick .aspx?fileticket=wmqECiHp7h4%3d& tabid=836 http://www.ncbar.com/ethics /printopinion.asp?id=855 http://bit.ly/1rFSnwA

10

Model Rules of Prof’l Conduct 1.6, Comment 18. 11 Model Rules of Prof’l. Conduct 4.4, Comment 2. 12 Miss. Ethics Op. 259 (Nov. 29, 2012); Ore. Ethics Op. 2011-87 (November 2011); Wash. Informal Op. 2216 (2012); Wis. EF-1201 (June 16, 2012). 13 Ala. Ethics Op. 2010-02 (undated). 14 Me. Ethics Op. 207 (Jan. 8, 2013); Mass. Ethics Op. 12003 (May 7, 2012); N.H. Ethics Op. 2012-13/14 (Feb. 21, 2013); N.Y. State Ethics Op. 842 (Sept. 10, 2010);Oh. Ethics Op. 2013-03 (July 25, 2013); Ore. Ethics Op. 2010-6 (undated); Pa. Ethics Op. 2011-200 (undated); Vt. Ethics Op. 2010-6 (undated).

Joyce Janto is the Deputy Director of the Muse Law Library at the University of Richmond School of Law and teaches legal research in the first-year program, as well as professional responsibility.

Robert E. Dean is a litigation associate with Gentry Locke Rakes & Moore LLP and has successfully tried cases in the areas of personal injury, medical malpractice, business disputes, and employment law. Before joining the firm, he worked as a prosecutor with the Office of the Commonwealth’s Attorney in Lynchburg.

www.vsb.org

CLE Calendar Introduction to Virginia’s Sentencing Guidelines Six-hour seminars approved for six CLE credits, October 1 through December 17 at several locations. Sponsored by the Virginia Criminal Sentencing Commission. Details at http://www.vcsc .virginia.gov/training.html. The introduction seminar is designed for the attorney or criminal justice professional who is new to Virginia’s sentencing guidelines. The seminar will begin with

general background information and progress to detailed information on scoring each of the guidelines factors to include changes that began on July 1, 2013. Register by completing the form and submit to the commission. Space may be limited. Purchase manual separately. $125 fee waived for judges, commonwealth’s attorneys, P&P, public defenders, and staff.

Virginia Lawyer publishes at no charge notices of continuing legal education programs sponsored by nonprofit bar associations and government agencies. The next issue will cover October 19 through December 18. Send information by September 5 to [email protected]. For other CLE opportunities, see Virginia CLE calendar and “Current Virginia Approved Courses” at http://www.vsb.org/site/members/mcle-courses/ or the websites of commercial providers.

Virginia CLE Calendar Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm. August 25 The Most Common Risks Facing Law Firms, and How to Avoid Them Live — Charlottesville/Webcast/ Telephone NOON–2 PM August 26 Intellectual Property How-To Jam Session Webcast/Telephone NOON–2 PM August 27 Limited Liability Companies in Virginia Live — Charlottesville/Webcast/ Telephone NOON–2 PM September 3 The Mind of the Virtuous Lawyer Live — Richmond (Glen Allen) 9 AM–12:15 PM

www.vsb.org

September 4 The Mind of the Virtuous Lawyer Live — Fairfax 9 AM–12:15 PM September 9 Attacking the Expert’s Opinion Live — Richmond (Glen Allen) 8:30 AM–4:15 PM September 9 Representation of Incapacitated Persons as a Guardian ad Litem — 2012 Qualifying Course Video — Abingdon, Alexandria, Charlottesville, Norfolk, Richmond, Roanoke 9 AM–4:05 PM September 10 Attacking the Expert’s Opinion Live — Fairfax 8:30 AM–4:15 PM

September 10 Representation of Incapacitated Persons as a Guardian ad Litem — 2012 Qualifying Course Video — Tysons Corner 9 AM–4:05 PM September 10 IRA Minimum Distributions: A Case Study Live — Charlottesville/Webcast/ Telephone 11 AM–12:30 PM September 11 23rd Annual Advanced Elder Law Update Seminar Live — Fairfax 9 AM–4:10 PM

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CLE Calendar September 11 Doing Business with the EU: What Virginia Companies and Their Lawyers Need to Know Webcast/Telephone NOON–3:15 PM September 12 The Most Common Risks Facing Law Firms, and How to Avoid Them Webcast/Telephone 2–4 PM September 16 Courtroom Survival Guide Live — Fairfax 9 AM–12:15 PM September 16 12th Annual Advanced Seminar for Guardians Ad Litem for Children — 2012 Video — Abingdon, Alexandria, Charlottesville, Norfolk, Richmond, Roanoke 9 AM–4:30 PM September 16 Limited Liability Companies in Virginia Webcast/Telephone NOON–2 PM September 17 Secrets of Bulletproof Contract Drafting Live — Richmond 9 AM–4:30 PM September 17 12th Annual Advanced Seminar for Guardians Ad Litem for Children — 2012 Video — Tysons Corner 9 AM–4:30 PM September 18 Secrets of Bulletproof Contract Drafting Live — Fairfax 9 AM–4:30 PM

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September 18 Neighbor Law 2014 Live — Charlottesville/Webcast/ Telephone NOON–2 PM

September 25 IRA Minimum Distributions: A Case Study Webcast/Telephone 11 AM–12:30 PM

September 19–20 29th Annual Mid-Atlantic Institute on Bankruptcy and Reorganization Practice Live — Charlottesville FRIDAY: 8:55 AM–5:15 PM; SATURDAY: 9 AM–NOON

September 25 VADER 2014: Training and Related Family Law Updates Live — Charlottesville/Webcast 1–3 PM

September 22 Representation of Children as a Guardian ad Litem 2014 Live — Richmond (Sandston) 8:30 AM–5:15 PM September 23 The Mind of the Virtuous Lawyer Video — Alexandria, Charlottesville, Danville, Norfolk, Richmond, Roanoke 9 AM–12:15 PM September 23 The Federal Food Safety Modernization Act (FSMA): Its Impact on Your Clients Telephone NOON–2 PM September 24 The Mind of the Virtuous Lawyer Video — Tysons Corner, Warrenton 9 AM–12:15 PM September 24 Preventing Nightmares: Preserving Issues and Avoiding Waiver Live — Charlottesville/Webcast/ Telephone NOON–2 PM September 24 VADER 2014: Training and Related Family Law Updates Live — Fairfax 4–6 PM

September 26 Attacking the Expert’s Opinion Video — Tysons Corner 8:30 AM–4:15 PM September 26 Neighbor Law 2014 Webcast/Telephone NOON–2 PM September 29 Establishing a Business Litigation Practice in Virginia Live — Charlottesville/Webcast/ Telephone NOON–2 PM September 30 Attacking the Expert’s Opinion Video — Alexandria, Charlottesville, Norfolk, Richmond, Roanoke 8:30 AM–4:15 PM (RICHMOND VIDEO BEGINS AT 9 AM) September 30 Intellectual Property How-To Jam Session Webcast/Telephone NOON–2 PM October 1 Courtroom Survival Guide Live — Arlington 9 AM–12:15 PM October 1 DUI Defense in Virginia Live — Richmond (Glen Allen) 9 AM–4:30 PM

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CLE Calendar October 1 23rd Annual Advanced Elder Law Update Seminar Video — Alexandria, Charlottesville, Norfolk, Richmond, Roanoke 9 AM–4:10 PM October 2 DUI Defense in Virginia Live — Fairfax 9 AM–4:30 PM October 2 23rd Annual Advanced Elder Law Update Seminar Video — Tysons Corner 9 AM–4:10 PM October 2 Covenants Not to Compete and the Duty of Loyalty in Virginia 2014 Live — Charlottesville/Webcast/ Telephone NOON–3:15 PM October 3 VADER 2014: Training and Related Family Law Updates Webcast 10 AM–NOON October 6 Practice in the Juvenile and Domestic Relations District Court Live — Charlottesville/Webcast/ Telephone NOON–2 PM October 7 GAIN THE EDGE!® Negotiation Strategies for Lawyers Live — Springfield 9 AM–4:30 PM October 7 Best Practices Before Your Local Commissioner of Accounts 2014 Live — Richmond (Glen Allen), Virginia Beach 9 AM–12:15 PM

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October 7 23rd Annual Employment Law Update Seminar Video — Abingdon, Charlottesville, Norfolk, Richmond, Roanoke, Tysons Corner 8 AM–4:30 PM (RICHMOND VIDEO BEGINS AT 9 AM) October 8 23rd Annual Employment Law Update Seminar Video — Harrisonburg, Wytheville 8 AM–4:30 PM October 8 What Can Lawyers Learn from Actors?SM Control in the Courtroom Live — Alexandria 9 AM–4:15 PM October 8 Best Practices Before Your Local Commissioner of Accounts 2014 Live — Fairfax/Telephone, Roanoke 9 AM–12:15 PM October 8 32nd Annual Real Estate Practice Video — Tysons Corner 9 AM–4:10 PM October 9 32nd Annual Real Estate Practice Video — Alexandria, Norfolk, Richmond, Roanoke 9 AM–4:10 PM October 9 Ethics Update for Virginia Lawyers 2014 Live — Charlottesville/Webcast/ Telephone NOON–2 PM October 10 15th Annual Virginia Information Technology Legal Institute 2014 Live — Fairfax 8 AM–4:25 PM

October 10 What Can Lawyers Learn from Actors?SM Control in the Courtroom Live — Norfolk 9 AM–4:15 PM October 10 32nd Annual Real Estate Practice Video — Charlottesville 9 AM–4:10 PM October 14 33rd Annual Family Law Seminar: Negotiating, Drafting, Attacking, and Defending Marital Agreements Live — Fairfax 9 AM–4:15 PM October 14 40th Annual Recent Developments in the Law: News from the Courts and General Assembly Video — Norfolk, Richmond, Roanoke, Tysons Corner 9 AM–4:25 PM October 14 Tom Spahn on Confidentiality: The Scope and Strength of the Duty Live — Charlottesville/Webcast/ Telephone NOON–2 PM October 15 40th Annual Recent Developments in the Law: News from the Courts and General Assembly Video — Alexandria, Charlottesville 9 AM–4:25 PM October 15 What’s New at the Virginia Supreme Court? An Overview of Recent Civil Decisions 2014 Telephone NOON–1:30 PM October 15 Preventing Nightmares: Preserving Issues and Avoiding Waiver Live — Charlottesville/Webcast/ Telephone 3–5 PM

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Virginia Lawyer Register

DISCIPLINARY PROCEEDINGS DISCIPLINARY BOARD Respondent’s Name Paul Joseph Bohnet Kiran Moolchand Dewan Reuben Voll Greene Willard Phillip McCrone

Address of Record Virginia Beach, VA Lisbon, MD Richmond, VA Monterey, CA

William Shawn McDaniel Michael S. Santa Barbara

Bristol, VA Martinsburg, WV

Action Effective Date Public Reprimand March 28, 2014 Revocation June 23, 2014 Revocation June 27, 2014 Suspension w/Terms—1 year June 27, 2014 All but 30 days stayed upon compliance with terms. Revocation May 16, 2014 Suspension—1 year April 28, 2014 Suspension—3 Months April 28, 2014

DISTRICT COMMITTEES Respondent’s Name Carter Benjamin Garrett Stephen Lynn Hewlett William Craig Meyer II Paul Andrew Murphy Dena M. Roudybush James Wicker Traylor Michael Alan Ward

Address of Record Bedford, VA Petersburg, VA Chatham, VA Falls Church, VA Falls Church, VA Hopewell, VA Fairfax, VA

Action Public Reprimand Public Reprimand Public Reprimand Public Reprimand w/Terms Public Reprimand Public Reprimand Public Reprimand w/Terms

Effective Date June 30, 2014 June 24, 2014 July 7, 2014 June 30, 2014 June 30, 2014 May 30, 2014 May 28, 2014

SUSPENSION—FAILURE TO PAY DISCIPLINARY COSTS Respondent’s Name Eduardo Justo William Magruder McKee Douglas Paul Wachholz

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Address of Record Harrisonburg, VA Norfolk, VA Reno, NV

VIRGINIA LAWYER | August 2014 | Vol. 63

Effective Date July 1, 2014 June 25, 2014 July 25, 2014

Lifted *** *** ***

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Virginia Lawyer Register Disciplinary Summaries

The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules. Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB docket numbers are provided. DISCIPLINARY BOARD

Paul Joseph Bohnet

Virginia Beach, Virginia 12-021-091818 On March 28, 2014, the Virginia State Bar Disciplinary Board issued a public reprimand to Paul Joseph Bohnet for violating professional rules that govern bar admission and disciplinary matters, and misconduct. RPC 8.1(a), 8.4(b) http://www.vsb.org/docs/Bohnet-060814.pdf

Kiran Moolchand Dewan

Lisbon, Maryland 21765 14-000-099308 On June 23, 2014, the Virginia State Bar Disciplinary Board revoked Kiran Moolchand Dewan’s license to practice law based on the revocation of his license in Maryland. In consenting to the revocation, Mr. Dewan admitted that the charges against him are true and that he could not successfully defend against them. Mr. Dewan’s license was summarily suspended on June 10, 2014. Part 6, § IV, ¶ 1324 and ¶ 13-28 http://www.vsb.org/docs/Dewan-080514.pdf

Reuben Voll Greene

Richmond, Virginia 14-000-098387 Effective June 27, 2014, the Virginia State Bar Disciplinary Board revoked Reuben Voll Greene’s license to practice law for failing to comply with the duties of a suspended lawyer. Part 6, § IV, ¶ 13-29 http://www.vsb.org/docs/Greene-080514.pdf

Willard Phillip McCrone

Monterey, California 14-000-099309 On June 27, 2014, the Virginia State Bar Disciplinary Board suspended Willard Phillip McCrone’s license to practice law for one year with terms, with all but thirty days suspended. This was a reciprocal disciplinary action based on misconduct that occurred in California and for which the California Supreme Court disciplined Mr. McCrone. Part 6, § IV, ¶ 13-24

William Shawn McDaniel

Bristol, Virginia 14-102-096442, 14-102-096421, 14-102-096290, 13-102095732, 13-102-095547, 13-102-095422 On May 16, 2014, the Virginia State Bar Disciplinary Board revoked William Shawn McDaniel’s license to practice law for violating professional rules that govern diligence, communication, safekeeping property, declining or terminating representation, bar admission and disciplinary matters, and misconduct. RPC 1.3(a), 1.4(a)(b), 1.15(a) (1)(b)(4)(5)(c)(1)(2)(i,ii)(3)(4)(d)(3)(i-iv), 1.16(d), 8.4(c), 8.5(a)(b)(1-3) http://www.vsb.org/docs/McDaniel-080514.pdf

Michael Shawn Santa Barbara

Martinsburg, West Virginia 14-000-099022, 14-000-099025 Effective April 28, 2014, the Virginia State Bar suspended Michael Shawn Santa Barbara’s license to practice law for one year. The board also imposed a three-month suspension to run concurrently. Mr. Santa Barbara’s license had been summarily suspended based on his July 9, 2013, suspension by the Supreme Court of Appeals of West Virginia. Rules Part 6, § IV, ¶ 13-24 http://www.vsb.org/docs/Santa-Barbara-080514.pdf

DISTRICT COMMITTEES Carter Benjamin Garrett Bedford, Virginia 14-090-097167 On June 30, 2014, the Virginia State Bar Ninth District Subcommittee issued a public reprimand to Carter Benjamin Garrett for violating professional rules that govern conflict of interest: former client, and communication with persons represented by counsel. This was an agreed disposition of misconduct charges. RPC 1.9(a), 4.2 http://www.vsb.org/docs/Garrett-080514.pdf

http://www.vsb.org/docs/McCrone-080514.pdf

www.vsb.org

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Virginia Lawyer Register Disciplinary Summaries DISTRICT COMMITTEES

Stephen Lynn Hewlett

Petersburg, Virginia 4-031-098826 On June 24, 2014, the Virginia State Bar Third District, Section I, Subcommittee issued a public reprimand to Stephen Lynn Hewlett for violating a professional rule that governs safekeeping property. This was an agreed disposition of misconduct charges. RPC 1.15 (b)(5), (c)(1) (2)(i,ii), (3) http://www.vsb.org/docs/Hewlett-080514.pdf

Dena M. Roudybush

Fairfax, Virginia 14-053-097108 On June 30, 2014, the Virginia State Bar Fifth District Subcommittee, Section III, issued a public reprimand to Dena M. Roudybush for violating professional rules that govern professional independence of a lawyer and direct contact with potential clients. This was an agreed disposition of misconduct charges. RPC 5.4(a)(3), 7.3(b) (1-4) http://www.vsb.org/docs/Roudybush-080514.pdf

William Craig Meyer II

Chatham, Virginia 14-090-096700, 14-090-096586 On July 7, 2014, the Virginia State Bar Ninth District Subcommittee issued a public reprimand to William Craig Meyer II for violating professional rules that govern diligence, communication, and disciplinary matters. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a,b), 8.1(c) http://www.vsb.org/docs/Meyer-080514.pdf

James Wicker Traylor

Hopewell, Virginia 14-031-096467 On May 30, 2014, the Virginia State Bar Third District -- Section I Subcommittee, issued a public reprimand to James Wicker Traylor for violating professional rules that govern competence, diligence, and communication. This was an agreed disposition of misconduct charges. RPC 1.1, 1.3(a), 1.4(b) http://www.vsb.org/docs/Trayler-080514.pdf

Paul Andrew Murphy

Falls Church, Virginia 11-053-087272, 12-053-092130 On June 30, 2014, the Virginia State Bar Fifth District Subcommittee, Section III, issued a public reprimand with terms to Paul Andrew Murphy for violating professional rules that govern safekeeping property. This was an agreed disposition of misconduct charges. RPC 1.15(a)(1),(b) (2),(c)(1)(2)(i,ii)(4),(d)(2)(3)(i-iv)(4)

Fairfax, Virginia 13-051-092489 On May 28, 2014, the Virginia State Bar Fifth District Committee, Section I, issued a public reprimand with terms to Michael Alan Ward for violating professional rules that govern diligence and communication. RPC 1.3(a), 1.4(a)(b)

http://www.vsb.org/docs/Murphy-080514.pdf

http://www.vsb.org/docs/Ward-080714.pdf

Michael Alan Ward

Notices to Members LEGAL ETHICS OPINION 1874

PRO BONO CONFERENCE AND CELEBRATION

The VSB’s Standing Committee on Legal Ethics issued LEO 1874 as final on July 17, 2014:

Save the date: the Special Committee on Access to Legal Services will hold its annual Pro Bono Conference and Celebration on October 22 in Portsmouth. Details to come.

Limited Scope Representation—Reviewing Pleadings for Pro Se Litigants— Substantial Assistance and “Ghostwriting.”

http://www.vsb.org/site/pro_bono

Details: http://www.vsb.org/docs/LEO/1874.pdf

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Virginia Lawyer Register Notices to Members NOMINATIONS SOUGHT FOR BOARD AND COMMITTEE VACANCIES

Disciplinary Board

Volunteers are needed to serve the Virginia State Bar’s boards and committees. The Nominating Committee will refer nominees to the VSB Council for consideration at its October meeting. Vacancies in 2015 are listed below. All appointments or elections will be for the terms specified, beginning on July 1, 2015. Council Members at Large 3 lawyer vacancies (of which 2 incumbents are not eligible for reappointment and 1 incumbent is eligible for reappointment to a second term). May serve 2 consecutive 3-year terms.

5 lawyer vacancies and 1 lay member vacancy (of which 5 lawyer members are eligible for reappointment to a second 3-year term, and 1 lay member is eligible for reappointment). District committee service is required. May serve 2 consecutive 3-year terms. Mandatory Continuing Legal Education Board 4 lawyer vacancies (of which 1 member is not eligible for reappointment and 3 current members are eligible for reappointment to a second term). May serve 2 consecutive 3-year terms. Nominations, along with a brief résumé, should be sent by September 5, 2014, to Sharon D. Nelson, chair, VSB Nominating Committee, Virginia State Bar, 1111 E. Main St., Suite 700, Richmond, VA 23219-3565, or e-mailed to [email protected].

CLIENTS’ PROTECTION FUND BOARD PETITIONS PAID 2013–14 Between July 1, 2013 and June 30, 2014, the Clients’ Protection Fund Board approved payments to fifty-seven clients. The matters involved twenty-three attorneys. Attorney/Location Christopher J. Agresto, Leesburg, VA

Amount Paid To Date $50,000 $50,000

Type of Case Funds obtained by fraud from life insurance policy of petitioner’s mother $14,400 Unearned attorney’s fees and damages in a construction litigation matter Unearned fees/Civil matter $3,717 Unearned fees/Adoption and name change matter Unearned fees/Corporate matter $8,250 Misappropriated funds from a real estate closing $74,843.50 Unearned fees/ Easement matter Unearned fees and unused advanced costs in bankruptcy matter Unearned fees/Loan modification and bankruptcy matter Unearned fees/Civil matter Unearned fees/Domestic relations matter Unearned fees/Loan modification matter Unearned fees/Loan modification and bankruptcy matter Unearned fees/Loan modification and bankruptcy matter Unearned fees/Loan modification for several properties Unearned fees/Automobile warranty matter Unearned fees/Collections matter Unearned fees/Child support matter Unearned fees/Embezzled funds in a bankruptcy matter Unearned fees/Child custody and support matter $3,250 Unearned fees/Criminal matter, post-conviction matter Unearned fees/Divorce $6,083.32 Unearned fees and misappropriation of fees in a federal employment discrimination case

Sara Elizabeth Chase, Henrico, VA

$10,000

Sara Elizabeth Chase, Henrico, VA Denny Pat Dobbins, Portsmouth, VA Denny Pat Dobbins, Portsmouth, VA Jeanne L. Dove-Taylor, King George, VA Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Michael Lawrence Eisner, Ridge, NY Pauline M. Ewald, Ashland, VA Pauline M. Ewald, Ashland, VA Jerri Lynn Fuller, Alexandria, VA

$4,400 $1,967 $450 $8,250 $1,500 $1,806 $3,500 $1,000 $2,000 $1,875 $1,500 $4,500 $4,500 $937.50 $500 $1,000 $50,000 $225 $750 $2,500 $6,083.32

(continued on following page)

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Virginia Lawyer Register Notices to Members CLIENTS’ PROTECTION FUND BOARD PETITIONS PAID 2013–14

42

Attorney/Location Robert Stephen Ganey, Deceased Olaf F. Gebhart, Jr., Tifton, GA Olaf F. Gebhart, Jr., Tifton, GA

Amount Paid To Date $1,550 $1,550 $806.25 $5,032.25 $1,500

Olaf F. Gebhart, Jr., Tifton, GA Olaf F. Gebhart, Jr., Tifton, GA Phillip Stone Griffin, II, Winchester, VA John Warren Hart, Virginia Beach, VA Robert David Jacobs, Deceased Robert David Jacobs, Deceased Robert David Jacobs, Deceased Martin Ray Johnson, Port Charlotte, FL Glenn Charles Lewis, Vienna, VA Glenn Charles Lewis, Vienna, VA Glenn Charles Lewis, Vienna, VA Richard L. J. McGarry, Roanoke, VA

$913 $1,000 $4,636.33 $16,000 $500 $2,000 $1,000 $1,100 $25,000 $13,000 $39,647.18 $3,000

Clive Allen O’Leary, Fredericksburg, VA Keh Soo Park, Fairfax, VA Marcus N. Perdue, III, Covington, VA Marcus N. Perdue, III, Covington, VA Marcus N. Perdue, III, Covington, VA Marcus N. Perdue, III, Covington, VA Thomas James Sehler, Reston, VA Thomas James Sehler, Reston, VA Robert H. Smallenberg, Ashland, VA Robert H. Smallenberg, Ashland, VA Robert H. Smallenberg, Ashland, VA Robert H. Smallenberg, Ashland, VA Robert H. Smallenberg, Ashland, VA Harte P. Stafford, Annandale, VA Marjorie Lancaster Wall, Farmville, VA Marjorie Lancaster Wall, Farmville, VA Marjorie Lancaster Wall, Farmville, VA Marjorie Lancaster Wall, Farmville, VA Marjorie Lancaster Wall, Farmville, VA Marjorie Lancaster Wall, Farmville, VA Marjorie Lancaster Wall, Farmville, VA Bradley Douglas Wein, Tucson, AZ

$1,000 $10,500 $1,900 $5,951.25 $1,200 $1,500 $5,300 $1,799 $4,250 $200 $1,000 $1,001 $10,000 $21,000 $1,200 $896 $1,300 $1,000 $896 $1,350 $1,400 $8,000

Total

$353,539.83

VIRGINIA LAWYER | August 2014 | Vol. 63

$4,636.33 $109,937.50 $9,727.09 $1,100 $77,647.18 $3,000 $5,500 $48,250 $10,551.25

$10,746 $55,241

$21,000 $8,042

$47,934.96

(continued from previous page)

Type of Case Unearned fees/Criminal matter Unearned fees/Divorce Failure to use earmarked funds for intended purpose in divorce matter Unearned fees/Bankruptcy matter Unearned fees/Bankruptcy matter Fees paid for representation in a civil litigation matter Misappropriated funds from a decedent’s estate Unearned fees/Criminal matter and CPF matter Unearned fees/Criminal matter and CPF matter Unearned fees/Criminal matter and CPF matter Embezzlement in a personal injury case Unearned fees/Child support and visitation matter Unearned fees/Divorce Unearned fees/Divorce Money paid to attorney for litigation expenses that were not used for that purpose Unearned fee/Divorce Unearned fees/Immigration matter Unearned fees/Bankruptcy matter Embezzlement in a personal injury case Unearned fees/Bankruptcy matter Unearned fees/Bankruptcy matter Unearned fees/Loan modification and bankruptcy matter Unearned fees and unused advanced costs in bankruptcy matter Unearned fees/Criminal matter Unearned fees/Criminal matter Unearned fees/Petition for a pardon Unearned fees/Fraud matter Unearned fees/Civil matter Unearned fees/Immigration matter Unearned fees/Bankruptcy matter Unearned fees/Divorce Unearned fees/Bankruptcy matter Unearned fee/Corporate matter Unearned fees/Divorce Unearned fees/Divorce Unearned fees/Bankruptcy matter Unearned fees/Failure to apply advanced costs paid in legal malpractice case

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GENERAL INTEREST

Fracking continued from page 25 Defined as permitted uses in the EM Extractive Manufacturing District are oil and natural gas extraction and/or pumping, including storage of productive produced on the site; no refining is allowed.15 Rockingham County Comprehensive Plan for 2020 and Beyond This plan was adopted on February 28, 2007.16 Stated as a vision within Section II of the plan is that in the year 2020 and beyond, Rockingham County will retain the essential historic attributes that make it a great place, including the clean natural environmental resources, the beauty of the farmland and mountains, the harmonious relationship between agricultural and residential land uses, the balanced and vibrant economy, and the diverse yet harmonious society with many different cultures.17 Rockingham County Zoning Ordinance in Effect before October 1, 2014 “Well drilling” is defined in the ordinance as any drilling for the purpose of extracting of any substance except water.18 § 17-23(m) of the zoning ordinance provides that when, after review of an application and hearing thereon, in accordance with Article VIII, herein the board of supervisors finds as a fact that the proposed use is compatible with surrounding uses, is not detrimental to the character of the adjacent land, is consistent with the intent of this chapter, and is in the public interest, well drilling and related pump station and pipelines may be permitted with a special use permit in Prime Agricultural District A-1. 19 Well drilling and related pumping stations and pipelines is also allowed as a special use in General Agricultural District A-2 (§ 17-27) and Rural Service District RS7 (§ 17-31).20 Rockingham County Zoning Ordinance in Effect on October 1, 2014 This ordinance was approved by the board of supervisors on April 23, 2014, to go into effect on October 1, 2014.21

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No definition is given for well-drilling in the new zoning ordinance. Table 17-609, entitled “Land Use and Zoning Table,” as part of Article 6 to Chapter 17, “Zoning,” does not allow as a permitted use, special use, or permitted accessory use in districts A-1 or A-2, or in any zoning district, well-drilling for oil or gas. 22 Observations There appears no reasonable question but that maintaining environmental quality is paramount under the comprehensive plans and zoning ordinances of both counties. Questions of vested right and possible nonconforming use aside, it would appear that the current state of Virginia law, under the Resource Conservation case, is such that either county could make fracking unavailable as a use under their zoning ordinances; although it would further appear only Rockingham County has now provided for exclusion of such use. Frederick County, as noted, allows oil and natural gas exploration in the RA district, and oil and natural gas extraction, pumping, and storage in the EM district. There appears to be no evidence that the Commonwealth of Virginia sought to preempt the local governments’ right to use zoning to prohibit fracking. Endnotes: 1 See http://geology.com/articles /marcellus-shale.shtml. 2 Id. 3 Id. 4 See Forbes, May 5, 2014, at 84, col. 3. 5 Id. 6 In the Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp., USA v. Town of Dryden, et al., New York Court of Appeals Nos. 130 and 131 (June 30, 2014). 7 See, e.g., http://www.allgov.com/news /controversies/new-york-supreme -court-rules-that-towns-may-ban -fracking-despite-state-law-140702? news=853570; http://www.bloomberg.com/news /2014-06-30/n-y-towns-can-ban -fracking-new-york-s-highest-court -rules.html; http://online.wsj.com /articles/new-york-towns-and-cities -can-ban-fracking-court-rules

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9 10

11 12 13 14

15 16

17 18

19 20 21

22

-1404145435, the latter article leading that New York State’s highest court struck a blow Monday for home rule and against fracking, deciding that municipalities can use zoning laws to ban the natural gas extraction method that has fueled a U. S. energy boom. (Chapter 22.1 of Title 45.1, VA. CODE ANN. §§ 45.1-361.1 through 45.1361.44 (2002 & Supp. 2012)) and the Commonwealth’s Energy Policy (Chapter 1 of Title 67, VA. CODE ANN. §§ 67-100 through 67-103 (2012)) 2013 Op. Va. Att’y Gen. No. 12-102. FREDERICK COUNTY, VA, THE 2030 COMPREHENSIVE PLAN (July 14, 2011). (Id., Rural Areas, p. 1). Id. (Id.) FREDERICK COUNTY, VA., ZONING ORDINANCE, art. IV, Part 401, § 165401.02. Id., Part 608, § 165-608.02. ROCKINGHAM COUNTY, VA., COMPREHENSIVE PLAN FOR 2020 AND BEYOND (Feb. 28, 2007). Id., Section II, p. 2-2. ROCKINGHAM COUNTY, VA., ZONING ORDINANCE, (April 23, 2014), § 17-6. Id., § 17-23(m). Id., §§ 17-27 and 17-31. ROCKINGHAM COUNTY, VA., ZONING ORDINANCE, (April 23, 2014). Id., art. 6

James A. Howard II has been engaged in civil litigation matters in the Hampton Roads area of Virginia and beyond since 1978. He is a graduate of the William and Mary Law School and served as a law clerk to the late Judge Walter E. Hoffman of the U. S. District Court for the Eastern District of Virginia, Norfolk Division. He has been elected to the board of governors of the Business Law Section of the Virg inia State Bar.

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Professional Notices Autumn R. Agans, a 2013 graduate of Campbell University School of Law, has joined Thompson O’Donnell LLP in Arlington as an associate. She will be focusing on civil litigation and estate matters. Eone Moore Beck launched the first staff counsel office in Virginia for Permanent General Companies Inc., also known as The General. Her office is located in Innsbrook and opened on December 3, 2013.

Derek J. Brostek has joined Wharton Aldhizer & Weaver PLC in the litigation practice group with a focus in civil, business, and insurance issues. Brostek is a graduate of the College of William and Mary Law School. He also received his LL.M in military law from The Judge Advocate Generals’ Legal Center and School. David L. Marks, principal of the Law Offices of David L. Marks — a Plaintiff’s Personal Injury firm, has been elected president of the Fairfax Bar Association.

Professional Notices E-mail your news to [email protected] for publication in Virginia Lawyer. All professional notices are free to VSB members and may be edited for length and clarity.

Got an Ethics Question? The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the blue “E-mail Your Ethics Question” box on the Ethics Questions and Opinions web page at http://www.vsb.org/site/regulat ion/ethics/.

What Seniors Need to Know. The Senior Citizens Handbook is an invaluable resource with just about everything a senior would want to know about the law and a compendium of communityservice organizations that provide senior services. For more information, or to order copies of the Senior Citizens Handbook, please e-mail Stephanie Blanton at [email protected] or call (804) 775-0576.

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Virginia Lawyer classifieds are now available online! Print & Online and Online Only rates available: http://www.vsb.org/site/publications/rates/#class contact: Linda McElroy – [email protected]

Advertisements and Classified Ads Published six times a year, Virginia Lawyer is distributed to all members of the Virginia State Bar, judges, law libraries, other state bar associations, the media, and general subscribers. More information and complete media kits are available online at

VSB Staff Directory Frequently requested bar contact information is available online at www.vsb.org/site/about/bar-staff.

http://www.vsb.org/site/publications/valawyer, or you can contact Linda McElroy at (804) 775-0594 or [email protected].

ADVERTISER’S INDEX

For confidential, free consultation

ALPS Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . inside front cover and 5

available to all Virginia attorneys on questions related to

Charles Harvey Bayar, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

legal malpractice avoidance, claims repair, professional

Geronimo Development Corporation . . . . . . . . . . . . . . . . . . . . . back cover

liability insurance issues, and law office management,

L. Steven Emmert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

call McLean lawyer, John J. Brandt, who acts under the

National Legal Research Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

auspices of the Virginia State Bar at

Jeffrey M. Summers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Virginia State Bar Members’ Insurance Center . . . . . . . . . . . . . . . . . . . . . 7

www.vsb.org

(703) 852-7867 (direct dial) (703) 345-9300 (general number)

Vol. 63 | August 2014 | VIRGINIA LAWYER

45

A Year at the Bar 541,705 visits to the VSB website

35 MCLE programs offered 147 MCLE credits offered

$11,594

152,000 visits to the online Virginia Lawyer and Register

Donated to the Commonwealth of Virginia Campaign by VSB employees

16,000

Publications brochures mailed

Twelve Months of Numbers

illustrations by Madonna Dersch

1,533 Professionalism program attendees 3,284 MCLE program attendees 5,358 Clients scheduled through VLRS Pounds of food donated to the 7,030 Legal Food Frenzy by VSB employees 7,500 Calls to our Ethics Hotline

C th ha e W ng e or Learn How. ld.

October 22, 2014, Portsmouth The Virginia State Bar Special Committee on Access to Legal Services

Annual Pro Bono Conference & Celebration Details at vsb.org/site/pro_bono

Held in conjunction with the Virginia Legal Aid Conference Renaissance Portsmouth-Norfolk Waterfront Hotel 425 Water St, Portsmouth, VA 23704

Ever needed an earlier version of a section of the Virginia Code? CaseFinder® makes it easy: 1. We show you the text that is currently in effect . . . At the top of each section of the Virginia Code, we tell you the time period during which the displayed text is in effect. Within the text of the section, any cross-references to other Code sections are hyperlinked. If the Code section has been cited by any cases in our databases, the Cited In button at the top of the screen is active. And at the bottom, our exclusive “History” link opens up a page in our Virginia Code Archive, from which . . .

2. We show you how the General Assembly amended the section . . . A picture is worth a thousand words. Rather than a tedious written description, we simply display the words that were added, and the words that were removed. At the top, we identify the Act that made the change, and when it went into effect. If the Act included any additional clauses, which might contain relevant information, they are set out at the bottom.

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