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complete magazine

Virginia Lawyer
VOL. 64/NO. 5 • FEBRUARY 2016
VIRGINIA LAWYER REGISTER
The Official Publication of the Virginia State Bar
Bankruptcy Law
Cuba Opening Brings Opportunities
Top Pro Bono Attorneys
Electronic Evidence in the Courtroom
Life, Long-Term Care, Health,
Disability & Fixed Annuities
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VIRGINIA
BARRISTERS
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A subsidiary of The Virginia Bar Association
Virginia Lawyer
February 2016
Volume 64/Number 5
Features
GENERAL INTEREST
Access to Legal Services
12 I mprovements in US-Cuban Relations Bring Business Opportunities
and Challenges
by Geoffrey M. Goodale and Louis K. Rothberg
34The Benefits Outweigh the Sacrifice:
Two of Virginia’s Top Pro Bono
Attorneys Discuss Attorney Service
Noteworthy
BANKRUPTCY LAW
18 Bankruptcy Law Impacts Most Practice Areas
by Angela M. Scolforo
20
Stripping it Down — Real Estate Issues in
Bankruptcy
by Sarah Beckett Boehm
VSB News
29 Bar Leaders Institute
36VSB TECHSHOW
PEOPLE
37Ben Spencer Adds Army Reservist to
Expansive Resumé
38 In Memoriam
24
Scheduling and Protecting Personal Injury and
Other Causes of Action in Bankruptcy Cases
by Angela Scolforo, Mark C. Leffler, and
Emily Fort
30
Demystifying Domestic Support Obligations
in Bankruptcy
by David Cox
Departments
VIRGINIA LAWYER REGISTER
46 Disciplinary Proceedings
47 Disciplinary Summaries
48 Notices To Members:
48 Ethics Committee Seeks Comments
49YLC Celebration of Women and
Minorities In the Legal Profession
Bench Bar Dinner
6 Letters to the Editor
17 Law Stories
39Conference of Local Bar
Associations
44 CLE Calendar
52 Professional Notices
54 Classified Ads
49 License Forfeitures
49Nominations Sought For
Committee Vacancies
Columns
48 Criminal Law Seminar
50Nominations Sought For District
Committee Vacancies
48 Nominations Sought for Awards
51 Committee Preference Form
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48Supreme Court of Virginia
Approves Amendments
492016 TECHSHOW
“Sea of Debt” cover and illustrations for Bankruptcy Law features by Madonna Dersch
President’s Message
Executive Director’s Message
Law Libraries
Technology and the Practice of Law
Risk Management
Virginia Lawyer
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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
23219-0026; 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
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inclusion of an advertisement herein does not include
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otherwise. Periodical postage paid at Richmond,
Virginia, and other offices.
Virginia State Bar
2015-16 OFFICERS
Edward L. Weiner, President
Michael W. Robinson, President-elect
Kevin E. Martingayle, Immediate Past President
Karen A. Gould, Executive Director and Chief
Operating Officer
17th Circuit
Timothy B. Beason, Arlington
Raymond B. Benzinger, Arlington
John H. Crouch, Arlington
Harry A. Dennis, III, Arlington
Rachelle E. Hill, Arlington
EXECUTIVE COMMITTEE
Edward L. Weiner, Fairfax, President
Michael W. Robinson, Tysons Corner,
President-elect
Kevin E. Martingayle, Virginia Beach,
Immediate Past President
Brian L. Buniva, Richmond
Marni E. Byrum, Alexandria
Nancy C. Dickenson, Abingdon
Leonard C. Heath, Jr., Newport News
Michael HuYoung, Richmond
Daniel L. Rosenthal, Richmond
Jack “JB” W. Burtch, Jr., Richmond, CLBA Chair
Providence E. Napoleon, Richmond, Diversity
Conference Chair
Robert T. Vaughan, Jr., Danville, SLC Chair
Nathan J. Olson, Fairfax, YLC President
18th Circuit
Barbara S. Anderson, Alexandria
Foster S. B. Friedman, Alexandria
Carolyn M. Grimes, Alexandria
COUNCIL
1st Circuit
Nancy G. Parr, Chesapeake
2nd Circuit
Steven G. Owen, Virginia Beach
Judith L. Rosenblatt, Virginia Beach
Daniel M. Schieble, Virginia Beach
Frequently requested bar contact
information is available online at
www.vsb.org/site/about/bar-staff.
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VIRGINIA LAWYER | February 2016 | Vol. 64
VIRGINIA LAWYER | December 2015 | Vol. 64
21st Circuit
Joan Ziglar, Martinsville
22nd Circuit
Lee H. Turpin, Chatham
4th Circuit
Ann B. Brogan, Norfolk
Gary A. Bryant, Norfolk
Neil S. Lowenstein, Norfolk
23rd Circuit
Mark K. Cathey, Roanoke
Eugene M. Elliott, Jr., Roanoke
5th Circuit
Carl Phillips “Phil” Ferguson, Suffolk
6th Circuit
Peter D. Eliades, Hopewell
7th Circuit
Leonard C. Heath, Jr., Newport News
8th Circuit
Marqueta N. Tyson, Hampton
9th Circuit
W. Hunter Old, Williamsburg
10th Circuit
Charles H. Crowder, III, South Hill
12th Circuit
Graham C. Daniels, Chester
13th Circuit
Paula S. Beran, Richmond
Brian L. Buniva, Richmond
Dabney J. Carr, IV, Richmond
Leah A. Darron, Richmond
Christy E. Kiely, Richmond
George W. Marget, III, Richmond
Eric M. Page, Richmond
14th Circuit
Jon A. Nichols, Jr., Glen Allen
Daniel L. Rosenthal, Richmond
Rhysa G. South, Henrico
Virginia State Bar Staff Directory
20th Circuit
Christine H. Mougin-Boal, Leesburg
T. Huntley Thorpe, III, Warrenton
3rd Circuit
Nicholas D. Renninger, Portsmouth
11th Circuit
Dale W. Pittman, Petersburg
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19th Circuit
James F. Davis, Fairfax
Joyce M. Henry-Schargorodski, Fairfax
Chidi I. James, Fairfax
Sean P. Kelly, Fairfax
David L. Marks, Fairfax
Gary H. Moliken, Fairfax
Jay B. Myerson, Reston
Luis A. Perez, Falls Church
William Boyle Porter, Fairfax
Dennis J. Quinn, Tysons
William L. Schmidt, Fairfax
Melinda L. VanLowe, Fairfax
James A. Watson, II, Fairfax
Michael M. York, Reston
15th Circuit
Jennifer L. Parrish, Fredericksburg
16th Circuit
James M. Hingeley, Jr., Charlottesville
R. Lee Livingston, Charlottesville
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
William M. Moffet, Abingdon
29th Circuit
Joseph M. Bowen, Tazewell
30th Circuit
William E. Bradshaw, Big Stone Gap
31st Circuit
Gifford R. Hampshire, Manassas
MEMBERS AT LARGE
Marni E. Byrum, Alexandria
Nancy C. Dickenson, Abingdon
Afshin Farashahi, Virginia Beach
William E. Glover, Fredericksburg
Michael HuYoung, Richmond
Beverly P. Leatherbury, Eastville
Todd A. Pilot, Alexandria
Lorrie A. Sinclair, Leesburg
A Benjamin Spencer, Charlottesville
Conference of Local Bar Associations Chair
Jack “JB” W. Burtch, Jr., Richmond
Diversity Conference Chair
Providence E. Napoleon, Richmond
Senior Lawyers Conference Chair
Robert T. Vaughan, Jr., Danville
Young Lawyers Conference President
Nathan J. Olson, Fairfax
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Letters
On Legal Aid
This responds to the two-page article
on Virginia legal aid by Bar President
Edward L. Weiner in the December 2015
issue of Virginia Lawyer magazine titled
“Holding Out for A Hero.” As a year’s
end fund-raising vehicle, the effort meets
the expected standards. There is the
quote from the late Justice Powell and
the references to justice and access to
legal assistance as part of justice.
As is typical of this sort of thing,
the central premise of Mr. Weiner’s
column is that the only “access” question that matters is whether programs
have enough money. The implication is
that more money for programs would
also mean more services to people who
could not otherwise pay private lawyers
for legal assistance. Focusing exclusively
on the external macro-economic fact of
available resources, Mr. Weiner distracts
attention from other access issues within
the control of the local programs and the
Virginia legal aid establishment. Because
the Virginia Lawyer is an official publication of the bar, it is important that
lawyers know of these other issues.
When a person seeks help from a
Virginia legal aid program, whether or
not he or she will receive services may
very well depend on the arbitrary accident of geography. Each of the ten programs has its own substantive guidelines,
which may or may not coincide with
the guidelines of other programs. The
fact that there is no “master” eligibility
guideline applicable to all areas means
that eligibility for services will depend on
geographic accident. Under this patchwork non-system, persons with identically serious problems could be treated
differently purely because of geography.
In 2000, an unsuccessful effort was made
to persuade other project directors to
adopt state-wide guidelines to eliminate
this blatant discrepancy. I do not know
whether there have been any more recent
attempts but the patchwork remains and
the inequality.
According to the facts offered by
Mr. Weiner, which he urges readers to
consider, the vast majority of “cases”
closed by Virginia legal aid programs in
2014 involved the provision of information and advice to low income persons.
When I began my legal services career in
1973, the expected function of legal aid
programs was to provide representation
to people by raising issues and questions
which were frequently inconvenient in
sometimes hostile forums. Providing
quick information and advice to clients
in the hope they might ultimately benefit
from knowing more is a nice thing to do
and an easy way to increase the number
of closed cases; but pretending it has
much to do with the realities of poverty
and powerlessness requires a more than
heroic stretch. The plain truth is that the
shift to advice cases is really more about
institutional survival than equal justice.
There is nothing heroic or even mildly
brave about the activity. Indeed, the
suggestion that lack of information is the
principal obstacle when people without
means navigate the legal system smacks
of Lady Bountiful and those “who sit in
darkness” awaiting enlightenment.
Hugh F. O’Donnell
St. Paul
“When Trial Lawyers
Need Appellate Lawyers”
Jackson & Campbell’s Appellate Section
concentrates on state court appellate
practice in DC, MD, & VA.
Robert N. Kelly, Chair
202.457.1600
[email protected]
Letters
Send your letter to the editor to:
[email protected] or
Virginia State Bar,
Virginia Lawyer Magazine,
1111 E Main Ste 700,
Richmond VA 23219-0026
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/.
www.jackscamp.com
6
www.vsb.org
by Edward L. Weiner
Character Matters
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;
• Advance the availability and quality
of legal services provided to the people of Virginia; and
• I mprove the legal profession and the
judicial system.
At its core, the mission of the VSB
is really to protect the public.
Among the many joys of being
VSB president is coming to understand
more deeply the nuts and bolts of our
profession and observing the VSB
machinery at work.
A critical tool in the VSB’s public
protection role is the difficult and
much-appreciated work of the
Committee on Lawyer Discipline
(COLD). COLD and its seventeen
Local District Committees throughout the state oversee the disciplinary
process. This includes receiving complaints, conducting investigations,
hearings, and imposing sanctions (if
warranted) including reprimands,
license suspensions, and revocations.
Those of us who have been members of the bar for “a while” (more
than half of my life, in my instance)
may have forgotten the bar’s first line
of public protection: vetting those
who apply for membership in the
Virginia State Bar to practice law in
our commonwealth.
8
Recently, while attending a faculty meeting of the Virginia State Bar
Professionalism Course, I had the
pleasure of meeting Stephen A. Isaacs,
director of the Character and Fitness
Committee of the Virginia Board
of Bar Examiners. Steve walked me
through the process followed by applicants for bar membership, once they’ve
passed the bar exam.
As part of the licensing process,
each individual who passes the bar
exam undergoes a character and fitness
screening. The screening is part of the
Supreme Court mandated process to
assure the protection of the public and
safeguard the system of justice.
across the state. The current members
of the committee are: Henry M. Sackett
III (chair), Lynchburg; Julia B. Judkins,
Fairfax; Linda L. Laibstain, Norfolk;
Curtis M. Hairston Jr., Richmond; and
Nancy C. Dickenson, Abingdon.
The character and fitness screening is an in-depth investigation, which
includes a twenty-four page application, criminal background checks,
driver’s license transcripts, credit
reports, medical certifications, and
fingerprinting.
If an applicant’s history indicates
any probable cause that there is a “deficiency in the honesty, trustworthiness,
diligence or reliability…” a hearing is
At its core, the mission of the VSB is really
to protect the public.
Since 1995, these screenings have
been administered by the Character
and Fitness Committee, which investigates, conducts hearings, and makes
recommendations to the Virginia
Board of Bar Examiners.
The process is administered by
Steve Isaacs and a committee of five
attorneys, who are appointed by the
Supreme Court and are selected from
scheduled. At the hearing, the burden
is on the applicant to prove by clear
and convincing evidence that he or
she possess the qualifications of good
moral character and general fitness
required for a practicing attorney.
The committee is guided by two
fundamental principles:
• The practice of law is not a right, it is
a privilege; and
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• The sole purpose of character and
fitness certification is to protect the
public.
The committee determines if there
is an issue and whether the applicant has
taken responsibility for rehabilitation.
Where an applicant has a record reflecting irresponsible behavior, disregard for
the safety of others, or disrespect for the
law, the committee considers the age and
maturity of the applicant at the time of
the negative conduct. The central issue
to be considered is rehabilitation, and
the applicant’s current character and
fitness. Applicants who have entered into
an alcohol rehabilitation monitoring
agreement have nearly a 100 percent
success rate of eventual licensing. Other
issues such as serious driver records or
financial difficulty are often deferred for
rehabilitation and eventual licensure.
A denial of licensure by the committee results in a two-year moratorium
before the applicant may reapply. An
applicant may appeal directly to the
board and then the Supreme Court of
Virginia.
Members of the Virginia State Bar
should be proud that the standards for
character and fitness for admission to
practice law in Virginia have remained
consistently high. This can only be
accomplished through vigilance. As an
agency of the Supreme Court of Virginia,
the Board of Bar Examiners and
Character and Fitness Committee have
faithfully and diligently carried out their
responsibility as our gatekeeper’s. As
required by the Virginia Supreme Court
rules: “the public is better served by
those who have met rigorous educational
requirements, has been certified of honest demeanor and good moral character
and are subject to high ethical standards
and strict disciplinary rules in conduct of
their practice.”
As the Board of Bar Examiners
has stated; “An attorney should be one
whose record of conduct justifies the
trust of clients, adversaries, courts and
others with respect to the professional
duties owed them.”
Thank you Mr. Isaacs and the committee for making this a reality in our
commonwealth.
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Vol. 64 | February 2016 | VIRGINIA LAWYER
9
Executive Director’s Message
by Karen A. Gould
Judicial Performance Evaluation Program:
Why You Should Participate
The Chief Justice of the Supreme
Court of Virginia sent an e-mail on
January 7, 2016, to all active members
of the Virginia State Bar about participating in the Judicial Performance
Evaluation Program. The e-mail is set
forth in part below:
To: All Active Members of
the Virginia State Bar
From: Donald W. Lemons,
Chief Justice
Re: Judicial Performance
Evaluation Program
The Supreme Court of Virginia
has re-established the Judicial
Performance Evaluation Program
(JPE Program) as provided by
Virginia Code § 17.1-100. The
purpose of the JPE Program is to
provide an internal self-improvement mechanism for judges and
a source of information for the
re-election process.
This e-mail is being sent to
all active members of the
Virginia State Bar by Virginia
Commonwealth University’s
Survey and Evaluation Research
Laboratory, in the L. Douglas
Wilder School of Government
and Public Affairs (VCU-SERL).
The link below will allow you to
respond to VCU-SERL to iden-
10
tify yourself as a potential survey
respondent for one or more of the
judges being evaluated in the next
six months. Your prompt and
accurate response to this survey
is very important in order that a
sufficient number of evaluation
surveys can be distributed for each
evaluated judge. This should only
take a few moments of your time.
You may expect to receive these
links twice per year. The survey is
expected to close on ….
The eligibility survey is sent to
attorneys throughout the state to
ensure that the attorneys who may
practice in localities distant from their
offices are included. VCU-SERL uses
the eligibility survey responses as well
as attorney data obtained from the
courts’ case management systems to
identify potential respondents for each
judge’s evaluation. It is important for
attorneys to respond to the eligibility
surveys because case management data
may not identify all attorneys who
appear in court. Even when attorney
names are available through the case
management systems, they are not
necessarily linked to a particular judge.
The sources complement each other.
If a sufficient number of attorneys
are identified for a particular judge,
then VCU-SERL randomly selects the
judge’s evaluation survey respondents.
Where less than 250 attorneys are
identified, all attorneys identified are
surveyed.
If an attorney is selected as an
evaluation survey respondent, he
or she will receive a letter mailed by
VCU-SERL on behalf of the Chief
Justice. The letter is followed about a
week later with an e-mail that includes
a link to the evaluated judge’s survey.
If an attorney has received a survey but
has not actually appeared before the
evaluated judge, he or she need only fill
out the first three questions to establish
that circumstance.
Your survey responses help all
judges identify ways they can improve
their performance. For judges whose
terms are expiring, your evaluation
responses are useful to the General
Assembly during the re-election process. Your participation in the JPE
Program is critical. The attorneys of
the commonwealth have valuable
information to share and should want
their opinions to be considered. This
is one important way to be heard.
Please do your part to give the General
Assembly and our judges the best
feedback possible.
www.vsb.org
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Improvements in US-Cuban Relations
Bring Business Opportunities and Challenges
by Geoffrey M. Goodale and Louis K. Rothberg
Cuba old map with Havana insert plan. Created by Vuillemin and Erhard, published on Le Tour du Monde, Paris, 1860. © shutterstock.com
As soon as President Obama announced that the United States would pursue
improved relations with Cuba on December 17, 2014, many US companies and
law firms began to wonder what it would be like to do business with or in Cuba.
While certain new opportunities have been created by amendments made to
Cuban-related regulations administered by the US Department of Treasury’s
Office of Foreign Assets Control (OFAC) and the US Department of Commerce’s
Business of Industry and Security (BIS), many of the comprehensive sanctions
imposed against Cuba by the US for decades remain in effect, and will continue
unless Congress takes action.
Statutory Restrictions Limit Business
Opportunities with Cuba
We must recognize that several US statutes
currently in effect constrain the ability of the
president – acting alone without Congress – to
further substantially ease or lift many of the
existing sanctions against Cuba. These statutes include: (1) the Cuban Democracy Act of
1992; (2) the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996; and
12
VIRGINIA LAWYER | February 2016 | Vol. 64 | GENERAL INTEREST FEATURES
(3) the Trade Sanctions Reform and Export
Enhancement Act of 2000.
The Cuban Democracy Act of 1992
(CDA), among other things, prohibits foreign
subsidiaries of US companies from engaging
in trade with Cuba.1 The CDA also prohibits
entry into the US for any seagoing vessel to
load or unload general freight if it has been involved in trade with Cuba within the previous
180 days.2
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GENERAL INTEREST
The LIBERTAD Act of 1996 codified
the then-existing economic embargo against
Cuba.3 This included all restrictions set
forth under OFAC’s Cuban Assets Control
Regulations (CACR).4 While possessing broad
authority to amend the CACR, the president
cannot eliminate those regulations without
making a determination that a transition government is in power in Cuba pursuant to the
provisions of the LIBERTAD Act,5 and no such
transition government is expected to assume
power in Cuba in the foreseeable future.
Moreover, the LIBERTAD Act also states
that Congress must believe that a satisfactory resolution of property claims by a Cuban
government recognized by the US remains
an essential condition for the full resumption
of trade and diplomatic relations between
the US and Cuba.6 Talks between the US and
Cuban governments on claims amounting
to billions of dollars held by US nationals for
property expropriated or nationalized by the
Castro regime over the past 55 years began in
December 2015, and the satisfactory resolution
of these claims will likely take several years to
implement.
While the Trade Sanctions Reform and
Export Enhancement Act of 2000 (TSRA) authorizes certain commercial exports to Cuba
(e.g., relating to certain foods, medicines, and
medical products), it also includes prohibitions on US credit extensions such as financing for purchases, and requires “payment of
cash in advance” or third-country financing
for the exports.7 The TSRA also prohibits
tourist travel to Cuba.8
Although some bills have been introduced
in Congress that would end various aspects of
the comprehensive sanctions referenced above
since President Obama made his policy announcement, none of them have been able to
garner much support, and in fact, numerous
members of Congress have expressed opposition to them. Given this fact, it seems unlikely
that these comprehensive sanctions will be
eliminated anytime soon.
Easing of Certain Sanctions Under the CACR
However, OFAC has made numerous amendments to the CACR to ease certain sanctions
during the past year. While these amendments
create certain limited opportunities, many
aspects of OFAC’s comprehensive embargo
against Cuba remain in effect.
As a result of amendments made to the
CACR in January 2015, US persons may now
travel to Cuba under a general license (i.e., a
self-executing regulatory authorization not
requiring that an application be filed with
OFAC) provided that the purpose of their
travel falls within one of the twelve existing
categories of travel for which a specific license
could have been issued by OFAC in the past
(e.g., professional research and meetings,
educational activities, journalistic activities,
religious activities, humanitarian projects,
public performances, exhibitions, and athletic
competitions) and all other applicable requirements.9 It is important to note that each traveler who relies on a general license for travel to
Cuba must retain specific records for five years
indicating that the travel was covered by the
terms of a general license. Moreover, travel
to Cuba for general tourist activities remains
prohibited.
OFAC has also amended the CACR to
make it easier for US persons traveling to Cuba
to purchase items and to bring certain kinds
of items back. Towards this end, the CACR
have been amended to permit US persons
to use US debit and credit cards to purchase
items in Cuba and to open and maintain bank
accounts in Cuba in order to access funds for
authorized transactions,10 although actually
doing so is somewhat impractical because no
major US banks or financial institutions have
entered the Cuban market as of this writing.
Moreover, as a result of amendments to the
CACR, US persons may now bring back up to
$400 worth of Cuban items, including up to
$100 worth of alcohol and tobacco products,
provided that the items were purchased in
Cuba and are for personal use.11
In addition, OFAC has also amended the
CACR to increase trade opportunities with
Cuba. For example, the CACR have been
amended to authorize persons subject to
US jurisdiction to establish and maintain a
business presence in Cuba, including through
subsidiaries, branches, offices, joint ventures,
franchises, and agency or other business relationships with any Cuban individual or entity,
to provide authorized telecommunications
and internet-based services.12 Furthermore,
persons subject to US jurisdiction are now
authorized to enter into certain licensing
agreements and to market such services.13
OFAC has further amended the CACR
to authorize certain persons subject to US
jurisdiction to establish a physical presence,
such as an office or other facility, in Cuba,
to facilitate authorized transactions.14 This
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GENERAL INTEREST FEATURES | Vol. 64 | February 2016 | VIRGINIA LAWYER
13
GENERAL INTEREST
authorization covers news bureaus, exporters
of goods authorized for export pursuant to
sections 515.533 or 515.559, providers of authorized mail and parcel transmission services
and cargo transportation services, providers
of telecommunications or internet-based
services, entities organizing or conducting
certain educational activities, religious organizations, and providers of travel and carrier
services.15 OFAC has also amended the CACR
to authorize such individuals and entities to
open and maintain bank accounts at financial
institutions in Cuba for authorized transactions, and to close such accounts.16
Most recently, OFAC amended the CACR
on January 27, 2016. Significantly, pursuant to
these amendments, restrictions on payment
and financing terms for authorized exports
and re-exports, except for agricultural commodities and agricultural items, have been
removed, and US depository institutions may
now provide financing, including, for example, issuing a letter of credit for such exports
and re-exports.17 These latest amendments
also expand certain existing general licenses
to authorize certain additional travel-related
transactions that are directly incident to the
conduct of market research, commercial marketing, sales or contract negotiation, accompanied delivery, installation, leasing, or servicing
in Cuba of items consistent with the export or
re-export licensing policy of the Department
of Commerce.18 Use of these expanded general
licenses is subject to the condition that the
traveler’s schedule of activities does not include free time or recreation in excess of that
consistent with a full-time schedule.19
Liberalization of Certain Export Controls
Relating to Cuba
Since President Obama made his historic policy announcement in December 2014, BIS has
made numerous amendments to the Export
Administration Regulations (EAR) to liberalize certain Cuban-related export controls.20
However, many items still require an export
license to be sent to Cuba.
BIS has liberalized export controls by
expanding certain license exceptions under
the EAR, pursuant to which certain items
can be exported to Cuba provided that all
of the requirements of the specific license
exception are satisfied. For example, BIS
expanded License Exception Consumer
Communications Devices (License Exception
CCD) to remove the donation requirement
14
VIRGINIA LAWYER | February 2016 | Vol. 64 | GENERAL INTEREST FEATURES
and to update the list of eligible items.21 BIS
has also expanded License Exception Gift
Parcels and Humanitarian Donations (License
Exception GFT) in 15 CFR § 740.12 of the
EAR to permit the export and re-export of
multiple gift parcels in a single shipment.22 BIS
has also expanded the availability of License
Exception Aircraft, Vessels and Spacecraft
(License Exception AVS) to pertain to Cuba,
so that certain categories of seagoing vessels,
when engaged in specified activities eligible
for the license exception, can remain in Cuba
for no more than fourteen consecutive days
before returning to the US or departing for a
country to which it may be exported without a
license.23
BIS has also created a new License
Exception Support for the Cuban People
(License Exception SCP).24 It permits, among
other things, the export and re-export of the
following types of equipment:
• Building materials, equipment, and tools
for use by the private sector to construct or
renovate privately-owned buildings, including privately-owned residences, businesses,
places of worship, and buildings for privatesector social or recreational use;
• Tools and equipment for private-sector agricultural activity; and
• Tools, equipment, supplies, and instruments
for use by private-sector entrepreneurs.25 Items eligible for export and re-export
to Cuba pursuant to this portion of License
Exception SCP are limited to those designated as EAR99 or that are specifically identified
on the Commerce Control List (CCL) and
controlled only for anti-terrorism [AT] reasons.26
License Exception SCP also authorizes
the export and re-export of items for use by
US persons to establish, maintain, or operate
a physical presence in Cuba.27 In addition,
License Exception SCP authorizes certain
temporary (not to exceed one year) exports
and re-exports to Cuba of certain EAR99
items and items controlled on the CCL only
for AT reasons under some circumstances
(e.g., commodities and software as tools of
trade for use by exporters or their employees
to install, service, or repair items that are subject to the EAR and that have been exported
or re-exported to Cuba under a license or
license exception).28
Most recently, on January 27, 2016, BIS issued guidance indicating that it will generally
approve license applications for exports and
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GENERAL INTEREST
re-exports of some kinds of commodities and
software to certain Cuba entities.29 This new
licensing policy applies to items controlled on
the CCL that relate to the following areas: civil
society, news gathering, agriculture, telecommunications, civil aviation safety, and meeting
the needs of the Cuban people.30
Conclusion
In summary, OFAC has relaxed numerous
sanctions against Cuba, and BIS has liberalized export controls relating to many kinds of
items that can be exported and re-exported to
Cuba. However, many aspects of the comprehensive US embargo against Cuba remain
in effect and will continue unless Congress
passes new legislation to amend or rescind existing statutes, which seems unlikely to occur
in the foreseeable future. Accordingly, careful
analysis of the amendments that have been
made to the CACR and the EAR is critical to
ensure that law firms and businesses comply
fully with all applicable requirements.
Endnotes:
1The Cuban Democracy Act of 1992, Pub. L.
No. 102-484, Title XVII.
2 See id.
3The Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996, Pub. L.
No. 104-114.
4
See id. The Cuban Assets Control Regulations
are codified at 31 C.F.R. Part 515.
Geoffrey M. Goodale is the founder and
managing partner of Trade Law Advisors
PLLC. He regularly counsels companies on
a wide range of issues relating to the Export
Administration Regulations, the International
Traffic in Arms Regulations, and the economic
sanctions regulations administered by the
Treasury Department’s Office of Foreign Assets
Control. He is the immediate past chair of the
International Practice Section of the Virginia
State Bar and currently serves as co-chair of
the ABA Section of International Law’s Export
Controls and Economic Sanctions Committee.
www.vsb.org
5 See id.
6 See id.
7The Trade Sanctions Reform and Export
Enhancement Act of 2000, Pub. L. No. 106387, Title IX.
8 See id.
9
See 31 C.F.R. §§ 515.533, 515.545, 515.560515.567, and 515.574-515.576.
10 See 31 C.F.R § 515.560.
11 See id.
12 See 31 C.F.R. §§ 515.542 and 515.578
13 See id.
14 See 31 C.F.R. § 515.573.
15 See id.
16 See id.
17 See 31 C.F.R. § 515.584.
18
See 31 C.F.R. §§ 515.533, 515.545, and 515.567.
19 See id.
20The Export Administration Regulations are
codified at 15 C.F.R. Parts 730-774.
21 See 15 C.F.R. § 740.19.
22 See 15 C.F.R. § 740.12.
23 See 15 C.F.R. § 746.2.
24 See 15 C.F.R. § 740.21.
25 See id.
26 See id.
27 See id.
28 See id.
29
See 81 Fed. Reg. 4,580 (Jan. 27, 2016).
30 See id.
Louis K. Rothberg is of counsel in Morgan
Lewis’s International Trade & Economic
Sanctions Practice. He represents a diverse
range of US and non-US entities on national
security matters, e.g., economic sanctions,
munitions and dual use export controls, and
embargoes, Department of Defense contract issues, and the Committee on Foreign
Investment in the United States. He has experience in compliance by US and non-US companies with all Office of Foreign Assets Control
regulations regarding US embargoed countries
and entities and ITAR and EAR export controls
as well. In addition, he advises on export control and technology transfer issues arising under
US Department of Defense contracts. He is a
member of the VSB International Law Section.
GENERAL INTEREST FEATURES | Vol. 64 | February 2016 | VIRGINIA LAWYER
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SPACE STILL AVAILABLE IN WEBCAST LOCATIONS
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Law Stories
Beware the Bailiff
by David S. Holland
I am one of those attorneys whose
careers have mostly been on the fringes
of the law. The motivation to attend law
school was not so much to be a lawyer
as to prepare myself for a variety of possibilities.
My first job after graduation from
Virginia Law significantly increased the
likelihood that a traditional legal career
path was not in the cards. I spent four
years in the islands of Micronesia in the
far Pacific with a US government claims
commission settling World War II
claims the Micronesians had against the
United States and Japan. The job market
was pretty tight when I returned to the
states, so I entered the MBA program
at the College of William & Mary in my
hometown of Williamsburg. Just for a
little legal experience, I opened a parttime law practice on the side. The work
consisted mostly of court-appointed
juvenile and misdemeanor matters.
One of the juvenile cases involved
a young man with problems attending
school. I don’t recall the particulars, but
the judge ruled that a return to a juvenile
home in the lower Peninsula area was
warranted. The young man was placed in
a sort-of holding area to the side of the
courtroom as the judge continued with
his extensive docket.
After a bit, the bailiff came over
and said that my now-former client
needed to use the restroom, which was
off a public corridor in the courthouse.
Would I accompany the young man and
return him to the courtroom?
Not thinking clearly, I said “Sure.”
So my recent client and I went to the
restroom. But on the way back, he
bolted. Out the front door of the courthouse. Gone. At extreme speed.
Well, I wasn’t about to return to the
courtroom empty handed and face that
bailiff. I took off after the fugitive. Only
he was much bigger than me. Thus
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a physical apprehension was out of the
question. But I was a runner back in the
day before everyone was, so I stayed in
pursuit. He eventually slowed to a walk.
I did too.
To make the proverbial long story
short, I followed him around the environs of the Old Colonial Capital for
about three hours, staying about ten
yards behind. He accepted my presence.
Finally, a police car appeared (where is
a cop when you need one?). I flagged it
down, and the officer, the young man,
and I were soon back in the courtroom.
Although deprived of a story about
the doofus neophyte attorney who let
his client escape, the bailiff gave a hardy
thumbs-up.
I eventually finished the MBA, spent
a professional career mostly in consulting and research, and only returned to
the law in retirement as an occasional
electronic document reviewer. But document review is a story for another day.
he had anything to say after the officer
testified.
The defendant proceeded with a
somewhat lengthy statement in response.
The substitute judge then remarked, “Do
you think that explanation is worthy of
a finding of not guilty?” The defendant
replied, “Well, yes sir, because last week
you got me off with this same story in
Chesapeake.”
Ashton H. Pully Jr. practices law and lives in
Virginia Beach.
David S. Holland is in semi-retirement in
Alexandria. He writes occasional books, the
latest being, “Who’d You Vote For, Er. . .
Against?”
The Substitute Judge
by Aston H. Pully Jr.
Some years ago, a prominent and very
active attorney was presiding as a substitute judge in the Norfolk District Court.
When the defendants were brought
forward for arraignment the judge asked
their names. One of the defendants
commented that the judge was not a
judge but a lawyer. The judge responded
(paraphrased), “Well, today I have on
the robe so I am the judge.” The female
defendant responded, “Well, just because
I have a dress in my closet, that don’t
make me Cinderella.”
Another very prominent and active
lawyer in Norfolk was sitting as a substitute judge. The defendant was asked if
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. Keep them
short — about 400 words or less —
and send them in.
E-mail your stories to us at
[email protected].
17
Bankruptcy Law Impacts
Most Practice Areas
by Angela M. Scolforo
On behalf of the Bankruptcy Section of the
Virginia State Bar I hope you find this edition interesting and educational. Those of us
who practice in this area often see how other
practice areas impact and inform what we do.
We offer you three articles on how consumer
bankruptcy law impacts the practice of law
in real estate, personal injury, and domestic
relations — the three practice areas that most
often intersect with bankruptcy.
Real estate attorneys may learn more
about the ability to change the nature of debt
on real estate and homes through the application of bankruptcy laws. For example, debtors
may strip off a wholly unsecured mortgage
in Chapter 13 bankruptcy. In some circumstances, the debtor can modify the terms of
a mortgage. For mobile homes, which are
treated as personal property in Virginia, the
debt may be stripped down to the ever-depreciating value of the collateral. Often debtors
are able to retain real estate, and still get out
from under the burden of debt, with a bankruptcy payment plan.
Personal injury attorneys, and medical
malpractice or employment law attorneys,
may not be aware of the ways in which a bankruptcy filing impacts the debtor’s claim and
recovery. If a debtor files a Chapter 7 bankruptcy petition, his standing to file a lawsuit
belongs to the bankruptcy trustee. The statute
of limitations may toll before the personal
injury attorney even knows his client had no
standing to bring the lawsuit. Exempt personal
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injury claims and proceeds must be disclosed
in the bankruptcy case, or the debtor (and
his attorney) may be judicially estoppel from
recovery. Sometimes, the exempt recovery may
have to be paid over to the bankruptcy trustee.
Personal injury attorneys are cautioned to
investigate if the debtor is in a bankruptcy
case, and if so to reach out to his bankruptcy
attorney.
Domestic relations attorneys know that
their clients often slide into bankruptcy as the
household splits in half. There are great protections in bankruptcy for domestic support
obligations, a term of art in the bankruptcy
court. Figuring out which obligations are,
or are not, domestic support obligations in
bankruptcy is often tricky and requires a thorough analysis reading behind the words of
an agreement. Our article walks you through
the analysis so that you can better advise your
clients. A debtor’s failure to timely pay child
or spousal support may even be grounds to
dismiss a bankruptcy case. Knowing the difference between the discharge of such debts in
Chapter 7 and 13 may help you reassure your
client.
Please feel free to reach out to me, or
other members of the Bankruptcy Section,
when you find bankruptcy issues arise in your
practice. We are a cordial bar and enjoy helping one another. If you practice bankruptcy
law and are not yet active in our section, come
join us. We learn from each other every day.
BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER
19
Stripping it Down – Real Estate Issues in Bankruptcy
by Sarah Beckett Boehm
Bankruptcy law encompasses
many areas of practice, including
real estate. Addressing real property
issues and assisting debtors in keeping
their home is often the driving force
behind a Chapter 13 case. This article summarizes real estate issues that
frequently arise in individual reorganization cases under Chapter 13 of the
Bankruptcy Code and suggests practice pointers for handling them.
Lien Stripping
There are fundamental differences between
Chapters 7 and 13 of the Bankruptcy Code.
Chapter 7 contemplates liquidation of the
estate, while Chapter 13 enables individuals1
to develop a plan to repay all or part of their
debts over three to five years and save their
homes from foreclosure. The United State
20
VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION
Supreme Court also has drawn an important
distinction — a Chapter 7 debtor cannot
“strip down” a partially underwater mortgage2 or “strip off” a wholly underwater mortgage,3 while a Chapter 13 debtor may strip off
a wholly unsecured mortgage.
One significant benefit of Chapter 13,
then, is that a wholly unsecured mortgage
lien can be “stripped off” to render the debt
unsecured.4 Lien stripping is available against
junior mortgages on the debtor’s principle
residence if the senior mortgage equals or
exceeds the value of the property. In order to
strip off a junior mortgage lien, the debtor
must file a separate adversary proceeding.5 If
the debtor is successful, the order stripping
off the junior lien may be filed in the appropriate state court land records.
While a Chapter 13 plan may modify the rights of holders of certain secured
claims, it may not modify a security interest
in real property that is the debtor’s principal
residence, subject to limited exceptions.6 One
exception is that if the last payment on the
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STRIPPING IT DOWN – REAL ESTATE ISSUES IN BANKRUPTCY
original mortgage payment schedule is due
before the final payment on the Chapter 13
plan is due, it may be subject to modification by the Chapter 13 plan.7 For example,
if a final mortgage balloon payment matures
before the end of the Chapter 13 plan, the full
amount could be stretched out over the life
of the plan rather than being paid in a lump
sum.
Additionally, if the debtor owns investment or other property that is not his or her
principal place of residence, the mortgage can
be “crammed down” through the Chapter 13
plan. This process allows the debtor to reduce
the principal balance of the mortgage to the
value of the real estate, and then to pay that
amount with interest. It also may allow the
debtor to reduce the mortgage interest rate.
Exemptions
Know them. Use them. 11 U.S.C. § 522(f)
enables a debtor to eliminate, in whole or
in part, liens8 that impair an exemption
to which the debtor is entitled. Virginia
provides minimal homestead protection,
so debtors should take advantage of what
little is available, including: $5,000 per
person ($10,000 per person for anyone 65
or older), plus $500 for each dependent;9
an additional $10,000 for any veteran with
a service-connected disability of 40 percent
or more;10 $2,000 per month up to $24,000
during a one-year period of administration
of the decedent’s estate for a surviving spouse
and minor children;11 and $20,000 from the
decedent’s estate in lieu of any share passing
to the spouse from the estate.12 Generally,
property held by tenants by the entireties is
protected from the claims of all judgment lien
creditors of only one of the tenants, unless the
service was emergency medical care.13
Title Searches
Running a title search can be beneficial. The
results will reflect who owns the property,
how it is being held (e.g., individually, tenants
by the entireties), if there are any deeds of
trust or other liens against the property, and
if there are any restrictions or easements that
could affect title. If the property is allegedly
held as tenants by the entireties, ensure the
deed contains the “five unities” — interest,
title, time, possession, and marriage.14 Not
only is some of this information required for
the debtor’s Schedules of Assets and Liabilities filed in the bankruptcy court, but it also
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may provide a roadmap for real estate issues
that may arise during the bankruptcy case.
For example, if any judgment liens were filed
less than ninety days before the case was filed,
they may be subject to avoidance.15 As noted
above, if there are junior mortgages that
exceed the fair market value of the property,
they may be stripped off by filing an adversary
proceeding complaint. Moreover, the search
could turn up a title defect. If a deed of trust
was not properly recorded in the appropriate city or county, the lien may be subject
to avoidance during the bankruptcy case,
rendering the lender unsecured and subject to
a pro rata distribution with other unsecured
creditors.16
Liquidation Analysis
A Chapter 13 debtor is not required to pay
general unsecured claims in full. Rather,
the percentage to be paid is determined by
the “best interest of creditors” test and the
amount of the debtor’s disposable income.
The best interest of creditors test requires that
in order to confirm a Chapter 13 plan, the
value of property to be distributed under the
plan to unsecured creditors must not be less
than the amount that would be paid to such
creditors in a hypothetical Chapter 7 liquidation.17 Because the best interest of creditors
A Chapter 13 debtor is not required to pay general
unsecured claims in full.
test considers how much unsecured creditors
actually would receive if the assets were liquidated in a Chapter 7 proceeding, calculating
the fair market value of the real property is
critical when performing a liquidation analysis. To calculate the fair market value of the
property for a liquidation analysis, a debtor
may deduct all valid liens on the property as
a whole, and then from the debtor’s share of
the equity remaining after deducting all valid
liens, the debtor may be able to deduct the
cost of liquidation (e.g., 6 percent realtor’s
commission for improved land, 10 percent for
unimproved land), exemptions, other closing
and administrative costs, and the Chapter 7
trustee’s commission.18 Always check local
practice to determine how the trustee and
judges calculate these amounts and what
deductions they allow.
21
Valuation
Valuing real property can be vital to a Chapter 13 case. If the senior lien exceeds the fair
market value of the property, junior liens may
be stripped. The fair market value of a property also will be factored in to the best interest
of creditors test. Because of the important
role it plays, valuation may come down to a
Because of the important role it plays, valuation may
come down to a battle of the experts.
battle of the experts. The key to valuation is to
know the local custom and practice. A debtor
should consider: (i) whether the county or
city in question tends to value real estate
above or below true market value, and, if so,
to what extent; (ii) what other forms of evidence (broker’s price opinions, “comps,” etc.)
are acceptable to counter a current tax-assessed value; and (iii) any recent changes to
the house or land, or any needed repairs, that
would affect its current value, but might be
unknown to the tax assessor.
Mobile Homes
A mobile home may be converted to real
property or it may remain a vehicle and,
therefore, personal property.19 If the mobile
home remains personal property,20 it may be
crammed down to the fair market value in the
debtor’s Chapter 13 plan. If the debtor wishes
to have it deemed real property, the owner
must submit to the Department of Motor
Vehicles an Affidavit for Manufactured Home
Conversion to Real Property Form. Once the
DMV cancels the title, the owner must file an
Affidavit Regarding Manufactured Home in
the circuit court land records where the property is located. A search of DMV records and
land records may be necessary to determine
if a lender has a lien on the mobile home, the
land, or both.21
Recording the Release of Non-consensual
Liens
If a judgment or tax lien is being paid through
the Chapter 13 plan, it is important to ensure
that the release of that lien is recorded in the
state court land records. This may be done
by including language in the Chapter 13 plan
that upon entry of the debtor’s discharge,
22
the debtor may obtain an order from the
bankruptcy court releasing the lien as having
been paid in full. This can also may be accomplished by the more cumbersome route
of recording in the state court the Chapter
13 plan, confirmation order, and discharge
order. Both of these options, however, eliminate the need for the debtor to locate the lien
creditor to obtain the release.
The author would like to thank Herbert L.
Beskin, Chapter 13 trustee in Charlottesville,
Shephen E. Dunn of Stephen E. Dunn, PLLC,
and Michael T. Freeman of Samuel I. White,
P.C., for use of their materials from the
Bankruptcy Section’s Spring CLE.
Endnotes:
1To be eligible for Chapter 13, an individual
(not a corporation or partnership) must
have unsecured debts of less than $383,175
and secured debts of less than $1,149,525. 11
U.S.C. § 109(e). These figures are subject to
readjustment. Id. at § 104.
2
Dewsnup v. Timm, 502 U.S. 410, 416-20
(1992).
3
Bank of Am., N.A. v. Caulkett, 135 S. Ct. 1995,
1999-2000, 2001 (2015).
4The Fourth Circuit, among others, allows
debtors to strip off liens that are wholly unsecured under section 506(a), reasoning that
they do not represent “secured claims” subject
to the anti-modification provision of section
1322(b)(2). In re Davis, 716 F.3d 331, 334–36
(4th Cir. 2013) (“We too have affirmed, albeit
in unpublished opinions, the stripping off of
valueless liens against principal residences in
Chapter 13 cases.”) (collecting cases and describing the rationale for stripping off wholly
underwater liens).
5 Fed. R. Bankr. P. 7001(2).
6 11 U.S.C. § 1322(b)(2).
7 Id. at § 1322(c)(2).
8Statutory liens are not avoidable under
section 522. They may, however, be crammed
down in a Chapter 13 plan, with a portion
treated as priority or unsecured. Judicial liens
and non-possessory, non-purchase money
liens on household goods, tools of the trade,
or professional prescribed health aids are
avoidable.
9 Va. Code Ann. § 34-4.
10 Id. at § 34-4.1.
11 Id. at § 64.2-309.
12 Id. at § 64.2-311.
13
Id. at § 55-37 and 8.01-220.2, 55-37; see also
11 U.S.C. § 522(b)(3)(B). But see United
States v. Craft, 535 U.S. 274, 283-89 (2002)
(holding that a federal tax lien can attach to
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one spouse’s interest in tenants by the entirety
property even though the other spouse does
not owe debt).
14
In re Sampath, 314 B.R. 73, 84, 98 (Bankr. E.D.
Va. 2004); see also Va. Code Ann. §§ 55-20,
-21 (abolishing survivorship between joint
tenants and discussing joint ownership in real
and personal property).
15 11 U.S.C. § 547(b)(4)(A).
16This may be a double-edged sword for a
debtor who still has to satisfy the best interest
of creditors test.
17 11 U.S.C. § 1325(a)(4).
18
See, e.g., In re Todd, Case No. 02-04451
(Bankr. W.D. Va. Mar. 17, 2003) (Stone, J.);
In re Neal, No. 01-80851, 2001 WL 36268654,
*2-4 (Bankr. E.D. Va. Oct. 24, 2001) (conducting a liquidation analysis); In re Leedy,
230 B.R. 678, 683 (Bankr. E.D. Va. 1999) (discussing the inclusion of sale costs with respect
to the best interests of creditors test).
19Va. Code Ann. § 46.2-653.1; see also In re
Banks, 259 B.R. 848, 850-51 (Bankr. E.D. Va.
2001).
20If a mobile home is taxed as personal property, then a debtor can use the tax records as
evidence that it remains personal property.
21
See Ennis v. Green Tree Servicing (In re Ennis),
558 F.3d 343 (4th Cir. 2009) (holding that
a mobile home titled by the DMV, taxed
as personal property, and secured so that it
“would ‘not become a fixture or part of [] real
property’” without the lender’s consent did
not satisfy the real property requirement of §
1322(b)).
Sarah Beckett Boehm is an attorney at
McGuireWoods LLP in Richmond, where she
has practiced since concluding her bankruptcy
clerkships for Judges Shelley and Tice. Her
practice is focused on representing corporate
debtors, creditors’ committees, and creditors
in a variety of business Chapter 11 cases. She
also serves on the board of governors for the
Bankruptcy Law Section of the Virginia State
Bar and is a member of the executive committee of the Bankruptcy Section of the Richmond
Bar Association.
just
$95/year
we have an increased need for attorney
panel members practicing:
bankruptcy law
chapter 7 & chapter 13,
collections: debtors & creditors;
small claims and appeals
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23
Scheduling and Protecting Personal Injury and Other
Causes of Action in Bankruptcy Cases
by Angela Scolforo, Mark C. Leffler, and Emily Fort
Imagine a client who has a claim
for damages arising out of an auto
collision. The client was rear-ended,
and liability is clear. The accident
happened one year and eleven
months ago. Thankfully, the client is
organized with medical records and
evidence of damages, so you quickly
draft your complaint and file suit.
Congratulations! You have tolled the
two-year statute of limitations of Va.
Code Ann. § 8.01-243. Or have you?
After serving the complaint, defense counsel
calls you and asks, “Did your client tell
you about his bankruptcy?” Your helpful
opposing counsel then informs you that
your client filed a Chapter 7 bankruptcy one
24
month after the auto accident and, further,
that your client never disclosed the cause of
action in his bankruptcy schedules. You call
your client, who innocently explains he never
told you about his bankruptcy and never told
his bankruptcy lawyer about the accident
because he didn’t think his personal injury
claim and his financial woes were connected.
What is the next step? No one wants to be
the personal injury lawyer or the bankruptcy
lawyer in this scenario, but those who
represent debtors in bankruptcy or plaintiffs
in civil litigation need to know that filing for
bankruptcy can drastically impact a plaintiff’s
claim arising from many causes of action
such as personal injury, wrongful death, and
wrongful termination or discrimination.
In navigating this less-than-ideal
hypothetical situation, four overarching
factors will guide the analysis: disclosure,
standing, exemptions, and good faith/income
considerations that arise in a Chapter 13.
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SCHEDULING AND PROTECTING PERSONAL INJURY AND OTHER CAUSES OF ACTION IN BANKRUPTCY CASES
Disclosure
Your client’s first mistake was failing to tell
his bankruptcy lawyer about the claim for
damages arising from the auto collision.
Simply put, a debtor in bankruptcy has a duty
to disclose all property interests, including
any cause of action.1
The cause of action is property of the
estate if it arises before the bankruptcy is
filed, and—in a Chapter 13 case—property
interests acquired by the debtor postpetition
also are part of the bankruptcy estate
pursuant to 11 U.S.C. § 1306. Therefore,
a debtor’s duty to disclose is ongoing:2 if
a debtor “acquires or becomes entitled to
acquire any interest in property,” the debtor
must file a supplemental schedule within
fourteen days “after the information comes to
the debtor’s knowledge ….”3
Of course, a debtor who intentionally
withholds information about such an interest
may be prosecuted criminally pursuant to
18 U.S.C. § 152. However, even the debtor’s
unintentional failure to disclose a cause of
action can preclude the debtor from pursing
the claim. In the hypothetical, your client
did not disclose the claim for damages in
his bankruptcy schedules. When he filed
schedules without disclosing his interest in
the cause of action, he was swearing under
penalty of perjury that he had no claim for
damages. The debtor’s oversight, which serves
as an admission against his own interests,
may be grounds to judicially estop him from
pursuing any recovery.
Kimberlin v. Dollar General Corp, 520
Fed. Appx. 312 (6th Cir. 2013) shows how
strictly the duty to disclose is enforced.
Kimberlin worked for Dollar General for
nine years in a distribution center until
her termination—which she attributed to
retribution for having filed a complaint
against her supervisor. She was fired forty-one
days prior to making her final payment to the
Chapter 13 trustee, and she did not amend
her schedules during that time to disclose a
cause of action for unlawful termination. Her
Chapter 13 plan paid unsecured creditors a
dividend of only 3 percent of their claims.
Approximately one year after Kimberlin
received her discharge, she filed suit
against Dollar General, alleging unlawful
termination. The court held that judicial
estoppel barred Kimberlin from pursuing the
lawsuit because, if Kimberlin had notified
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the court of her potential claim within the
forty-one day period, the bankruptcy court
could have modified her plan to increase the
creditors’ recovery.4 In analyzing cases similar
to Kimberlin, courts in the Fourth Circuit
have emphasized that the entry of a discharge
in the bankruptcy may be a pre-condition of
judicial estoppel.5
Standing
Recall that, in the hypothetical, your client
filed his personal injury suit within the twoyear statute of limitations (and after filing a
Chapter 7 bankruptcy with less-than-stellar
schedules). We asked whether, by filing the
personal injury suit, the debtor tolled the
statute of limitations found in Va. Code Ann.
§ 8.01-243.
Unfortunately, the answer is “no.”
Your client lacked standing to file the suit. A
Chapter 7 debtor may only pursue a cause of
action if: (i) the trustee abandons the cause
of action after notice and a hearing pursuant
to 11 U.S.C. § 554(c), or (ii) the “properly
scheduled” cause of action is “not otherwise
administered at the time of [the bankruptcy
case] closing,” and is therefore abandoned
back to the debtor when the bankruptcy case
is closed.
Your client had no standing when you
filed the lawsuit because the claim was not
properly scheduled and, therefore, it had not
been abandoned back to him by the trustee.
Only the Chapter 7 trustee has standing
to pursue a cause of action.6 However,
because the cause of action was not properly
scheduled, the trustee was unaware of the
need to file a suit in order to toll the statute of
limitations.
25
As the Virginia Supreme Court held in a
case involving essentially these facts, standing
must exist before filing suit, and filing suit
without standing is a “legal nullity”—
allowing the statute of limitations to run.7
In Kocher, the court held that the lawsuit at
issue was void and did not toll the statute
of limitations, because the lawsuit was filed
before such relief was granted. The court
reached this decision notwithstanding the
bankruptcy court reopening the bankruptcy
case and granting the debtor leave to amend
the schedules to disclose the cause of action
and exempt it without objection.8
Imagine the previous scenario with a
twist: Your client was a debtor in Chapter 13
bankruptcy instead of Chapter 7. In contrast
to Chapter 7, there is no risk for plaintiff’s
counsel in filing suit for a Chapter 13 debtor,
because Chapter 13 debtors retain standing
to pursue their own causes of action. As such,
a Chapter 13 debtor who files suit tolls the
statute of limitations. This was confirmed by
the Fourth Circuit in Wilson v. Dollar General
Corp., 717 F.3d 337, 339 (4th Cir. 2013),
which held that, “because of the powers
vested in the Chapter 13 debtor and trustee
[pursuant to Bankruptcy Code Sections
1303 and 1306 and Bankruptcy Rule 6009],
a Chapter 13 debtor may retain standing to
bring his pre-bankruptcy petition claims.”
Claiming Exemptions
Let’s continue the hypothetical with the
debtor in a Chapter 13, rather than a Chapter
7. Your Chapter 13 debtor client had standing
and properly scheduled the cause of action. If
26
your client recovers pursuant to the cause of
action, will he still have to pay the proceeds to
the trustee?
The first step in resolving this issue
is asserting the proper exemptions, which
he must do in order to have any hope of
protecting the proceeds from his creditors.
11 U.S.C. § 522 grants the debtor the power
to exempt assets within the time specified in
Bankruptcy Rule 1007 (generally fourteen
days). Further, Bankruptcy Rule 1009 also
allows schedules to be “amended by the
debtor as a matter of course at any time
before the case is closed” with proper notice.
Pursuant to Bankruptcy Rule 9006(b)(1),
the debtor can even file a motion and try to
amend schedules after the case is closed if
“excusable neglect” is proven.9 If the debtor
does not initially schedule the cause of
action, he must amend the schedules, and
then he is permitted to claim an exemption.10
Even where the debtor’s cause of action
accrues postpetition—and even if it was not
timely disclosed—the debtor should amend
his schedules to fully disclose the claim,
accurately value it, and then exempt the
highest allowable value. Otherwise, the trustee
may retain an interest.11
Secondly, as you attempt to obtain the
maximum recovery for your client, you must
be aware that there may be medical providers
who have a “secured” claim, a lien on the
proceeds to guarantee their payments. The
bankruptcy court in In re Jones Const. &
Renovations, Inc., 337 B.R. 579, 586 (Bankr.
E. D. Va. 2006), found that “pre-petition
assignments are valid, and the proceeds of any
assignment that vests rights in the assignee
pre-petition are not property of the estate.”
The district court in In re Carpenter, 252 B.R.
905, 913, 916 (E. D. Va. 2000) found that
the employer had an equitable lien on the
debtor’s personal injury settlement proceeds
under the terms of the health insurance plan,
which is a “security interest” in the proceeds
(the “res”), and ordered the debtor to pay
the employer the proceeds up to the amount
that the debtor received under the plan. A
Chapter 13 debtor may need to provide for
medical lien creditors as secured claimants in
a Chapter 13 plan.
Additional Considerations in Chapter 13
If the debtor plaintiff is in Chapter 13
bankruptcy, he will need good counsel to
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determine whether—even if the property
is exempt—he may have to pay it to the
bankruptcy trustee for the benefit of his
creditors. The trustee may assert that the
funds constitute income that the debtor
must pay into his Chapter 13 plan in order
to satisfy the Bankruptcy Code’s disposable
income or good faith requirements.
Although courts are split on whether
Chapter 13 debtors must pledge proceeds
of exempt assets to fund their plans as
disposable income, debtors in the Fourth
Circuit have strong arguments for retaining
such proceeds. In In re Solomon, 67 F.3d 1128
(4th Cir. 1995), the court refused to require a
Chapter 13 debtor to pay the trustee exempt
IRA funds because they were exempt, saying,
“a debtor’s choice to proceed under Chapter
13 [should not] entitle creditors to more
than they would receive in Chapter 7 . . . .”
However, in contrast to Solomon, three other
circuit decisions require the debtor to pay
over exempt funds to meet disposable income
requirements.12
Often a compromise is reached between
debtors and trustees as to how the proceeds
are to be distributed when the debtor recovers
money from a cause of action.
In summary, debtors clearly have a duty to
disclose any cause of action, and plaintiff’s
counsel should carefully confirm they have
standing to pursue the cause of action before
filing suit. One simple way to avoid being
the plaintiff’s counsel in the first scenario
above is to review the federal courts’ PACER
system for bankruptcy filing histories before
accepting the case. Debtor’s counsel should
carefully guide the debtors in scheduling
their assets and asserting their full exemption
rights. Failure to disclose or exempt may strip
the debtor of his ability to pursue or benefit
from the cause of action at all, or may result
in the trustee taking the debtor’s interest.
Then, even if properly disclosed and exempt,
there is at least an argument that debtors may
have to pay over the proceeds to a Chapter 13
trustee for the benefit of creditors. Plaintiff’s
civil counsel and bankruptcy counsel will
maximize the benefits to their clients—and
perhaps even benefit creditors—when they
understand the interplay between civil causes
of action and bankruptcy.
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Endnotes:
111 U.S.C. §§ 521(a)(1)(B)(i) and 541, and
F. R. Bank. P. 1007; see also Wilson v. Dollar
Gen. Corp., 717 F.3d 337, 342 (4th Cir., 2013);
Kocher v. Campbell, 712 S.E.2d 477, 479 (Va.
2011); Canterbury v. J.P. Morgan Acquisition
Corp., 958 F. Supp. 2d 637 (W.D. Va. 2013)
(quoting Logan v. JKV Real Estate Servs., 414
F.3d 507, 512 (4th Cir. 2005)); Vanderheyden
v. Peninsula Airport Comm’n, 2013 WL 30065
(E.D. Va., 2013).
2The U.S. District Court in Vanderheyden
explained the duty to disclose as follows:
… The Fourth Circuit has observed that
“[t]he meaning of ‘property of the estate’
under the Code has been construed
‘broadly to encompass all kinds of property,
including intangibles [more] specifically,
‘property of the estate’ under § 541(a) has
‘uniformly been interpreted to include
causes of action.’ … [T]he debtor need not
know all the facts or even the legal basis for
the cause of action; rather, if the debtor has
enough information . . . to suggest that it
may have a possible cause of action, then
that is a ‘known’ cause of action such that
it must be disclosed … the debtor has an
affirmative duty to disclose such assets
and liabilities to the bankruptcy court
… This duty does not end when the
debtor files her bankruptcy petition; it
continues through the pendency of the
debtor’s bankruptcy proceedings, requiring
the debtor to update the bankruptcy court as
her financial situation changes.
Vanderheyden, is 2013 WL 30065, at *8. (most
citations omitted).
3 Fed. R. Bankr. P. 1007(h).
4 Kimberlin, 520 Fed. Appx. at *3.
5
See Collucci v. Tyson Farms, 2014 WL 6879927
(E. D. Va. 2010) (declining to apply judicial
estoppel because there is no reliance until
the discharge is entered, even though the
debtor filed an employment discrimination
complaint prior to filing Chapter 13 and
he did not initially list his cause of action);
Royal v. R & L Carriers Shared Services,
LLC, 2013 WL 1736658 (E. D. Va. 2013)
(denying judicial estoppel claim in a wrongful
termination lawsuit because “[c]ourts have
repeatedly emphasized that ‘acceptance’
in this context means that the bankruptcy
court has not merely confirmed the debtor’s
bankruptcy plan but has also taken the
ultimate step of granting the debtor relief (i.e.,
discharge or repayment)”).
6
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342
(4th Cir. 2013); Robertson v. Flowers Baking
Co. of Lynchburg, 2012 WL 830097 (W.D. Va.
2012).
27
7
Kocher v. Campbell, 712 S.E.2d 477, 480 (Va.
2011).
8 Id. at 481.
9
See In re Wilmoth, 412 B.R. 791 (Bankr. E.D.
Va. 2009).
10The Virginia exemption rights relevant to
causes of action include Va. Code Ann.
§ 34-28.1 (personal injury and wrongful
death actions); Va. Code Ann. § 34-4 ($5,000
per “householder” ($10,000 if 65 or older)
plus $500 per dependent); and Va. Code
Ann. § 34-4.1 (another $10,000 for disabled
veterans).
11
In re Webb, 210 B.R. 266 (Bankr. E.D. Va.
1997) (containing a detailed discussion of
Virginia’s unique personal injury exemption
statute); In Re Williamson, 337 B.R. 846
(Bankr. E.D. Va. 2005) (court allowed
amendment of schedules to disclose and
exempt prepetition personal injury proceeds
and the mobile home and van purchased with
such proceeds); In re Walley, 525 B.R. 320
(Bankr. E.D. Va. 2015) (allowing amendment
and exemption of postpetition assets); and In
re Barnett, Case No. 11-36220-KRH (Bankr.
E.D. Va. Feb. 18, 2015) (overruling the
Chapter 13 trustee’s objection to the debtor’s
claim of exemption in a post-petition cause of
action for personal injury).
12
See In re Hagel, 184 B.R. 793 (9th Cir BAP
1995) (Social Security Disability payment are
included in determining disposable income,
even though exempt); In re Koch, 109 F.3d.
1285 (8th Cir. 1997) (debtor required to
pay exempt worker’s compensation benefits
because 11 U.S.C. § 1325(b)(2) defines
“disposable income” to mean income not
needed for debtor’s support and the ability
to claim an exemption is an independent
issue from whether debtors have the ability to
repay their debts); In re Freeman, 86 F.3d 478
(6th Cir. 1996) (“[T]he ‘projected disposable
income’ language of section 1325(b) does
not expressly or implicitly qualify income
by reference to its exempt status under state
law” and finding that tax refunds must be
paid over as disposable income, even though
exempt.).
Angela M. Scolforo has worked for ten years
as the staff attorney to Herbert L. Beskin,
Chapter 13 Trustee for the Western District
of Virginia. Speaking on seminar panels in
Virginia and nationally, she enjoys learning
from and interacting with her peers. Before
becoming a Staff Attorney, she represented
debtors in consumer bankruptcy cases and a
myriad of other clients. She is the chair of the
Bankruptcy Section of the Virginia State Bar,
on which she has served since 2009.
Mark C. Leffler is a shareholder with the
Boleman Law Firm PC. He is president of the
NACTT Academy for Consumer Bankruptcy
Education and writes a recurring column for
the academy on post-confirmation issues in
Chapter 13. He is a frequent speaker on bankruptcy for the National Association of Chapter
13 Trustees and Virginia CLE, and he is a
member of the board of governors for the VSB
Bankruptcy Section.
28
Emily Connor Fort is an attorney with the
Boleman Law Firm PC.
www.vsb.org
Bar Leaders Institute
Lewis Ginter Botanical Garden, Richmond
March 28, 2016
8:30 a.m.–4:30 p.m.
Keynote Speaker: Jeannie P. Dahnk, Past President – Virginia State Bar
Resources for Bar Associations
Sandra Chinn-Gilstrap, At-large Member – Conference of Local Bar Associations, MODERATOR
Amy Esp, Educational Services Coordinator – ALPS Corporation
Karl A. Doss, Director of Access to Legal Services
Dr. Michael Schaefer, Assistant Commissioner of Forensic Services – Virginia Department of Behavioral Health & Developmental Services
Raymond M. White, Executive Director – VACLE
What Young Lawyers Want in a Bar Association
Jack W. Burtch, Chair – Conference of Local Bar Associations, MODERATOR
Faith A. Alejandro – Sands Anderson PC
Stacy E. Lee – VSB/YLC Circuit Representative for the 13th Circuit
Kristopher R. McClellan – Lawson and Silek, P.L.C.
Maana K. Parcham, Assistant Public Defender – Danville Public Defender’s Office
Nerissa N. Rouzer – Co-chair of the VSB/YLC Bench-Bar Dinner Committee
Preparing for Your Bar Year
Eugene M. Elliott Jr., Past President – Roanoke Bar Association, MODERATOR
Alan McGraw, President – Tazewell County Bar Association
Petula A. Metzler, Past President – Prince William County Bar Association
Gilberto Sanchez, Vice President – Hispanic Bar Association of the Commonwealth of Virginia
George W. Shanks, Past President – Virginia State Bar & Page County Bar Association
Edward L. Weiner, President – Virginia State Bar & Past President, Fairfax Bar Association
Ethics for the Bar Leader (One hour live CLE/Ethics)
Bernard J. DiMuro – DiMuroGinsberg, PC
James E. Leffler, Executive Director – Virginia Lawyers Helping Lawyers
James McCauley, Ethics Counsel – Virginia State Bar
Thomas E. Spahn – McGuireWoods LLP
Engaging Judges in Your Bar Association
Charles M. Lollar, At-large Member – Conference of Local Bar Associations, MODERATOR
The Honorable Robert J. Humphreys – Court of Appeals of Virginia
The Honorable Marilynn C. Goss – Richmond J&DR District Court
The Honorable David W. Lannetti – Norfolk Circuit Court
The Honorable Jacqueline Ward Talevi – Roanoke General District Court
ALPS CLE (One hour live CLE/Ethics)
ALPS will present a one-hour CLE as an example of programming
they can bring to the local bar.
Lunch will be included. There is no fee to attend this event.
For more information, please visit: www.vsb.org/site/conferences/clba
or contact Paulette Davidson at [email protected].
Demystifying Domestic Support Obligations in
Bankruptcy
by David Cox
Aside from generating emotional
trauma, divorce has an immediate
financial impact on the parties that
sometimes leads to bankruptcy. When
that happens, no doubt the nonfiling
spouse’s divorce lawyer will hear from
his or her client about the new development before he or she even has a
chance to examine the notice of bankruptcy filing served through the mail.
Determining how the bankruptcy
filing will impact a carefully negotiated property settlement agreement or
the terms of a divorce order between
the former spouses will typically
depend on whether any of the underlying obligations of the parties satisfy
the requirements of a “Domestic
Support Obligation” under the
Bankruptcy Code.
30
What is a Domestic Support Obligation?
The Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005 (BAPCPA)
introduced a new definition to the Bankruptcy
Code under § 101(4A): the Domestic Support
Obligation or DSO. A DSO is defined as
a debt that accrues before, on, or after the
date of the order for relief in a case under
this title, including interest that accrues
on that debt as provided under applicable
nonbankruptcy law notwithstanding any
other provision of this title, that is —
(A) owed to or recoverable by —
(i) a spouse, former spouse, or child of
the debtor or such child’s parent, legal
guardian, or responsible relative; or
(ii) a governmental unit;
( B) in the nature of alimony, maintenance, or support (including assistance
provided by a governmental unit) of such
spouse, former spouse, or child of the
debtor or such child’s parent, without
regard to whether such debt is expressly
so designated;
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DEMYSTIFYING DOMESTIC SUPPORT OBLIGATIONS IN BANKRUPTCY
( C) established or subject to establishment before, on, or after the date of the
order for relief in a case under this title, by
reason of applicable provisions of —
(i) a separation agreement, divorce decree, or property settlement agreement;
(ii) an order of a court of record; or
(iii) a determination made in accordance
with applicable nonbankruptcy law by a
governmental unit; and
(D) not assigned to a nongovernmental
entity, unless that obligation is assigned
voluntarily by the spouse, former spouse,
child of the debtor, or such child’s parent,
legal guardian, or responsible relative for
the purpose of collecting the debt.1
The statutory definition breaks down
into the four main parts identified above
in sections A through D, and each must be
satisfied for a claim or obligation to be a
DSO.2 With the exception of section C, the
definition of a DSO is written very broadly
to encompass most obligations that would
typically arise from a domestic proceeding.
Section C’s requirement, however, that the
debt be “in
the nature of alimony, maintenance, or support,” often proves to be the deciding factor
in determining whether an obligation is, in
fact, a DSO or, instead, simply an obligation
arising from property division or settlement.
As this article will explore, this distinction is
critical to understanding the consequences
of a subsequent bankruptcy on the rights of
the parties.
Impact of a Chapter 7 Bankruptcy
The BAPCPA amendments eliminated
a Chapter 7 debtor’s ability to discharge
obligations to a former spouse arising from
a divorce decree, separation agreement, or equitable distribution award. All DSOs are nondischargeable under § 523(a)(5). In addition,
any other divorce related claims, including
obligations arising from property division or
settlement, owed “to a spouse, former spouse,
or child of the debtor that are not covered by
§ 523(a)(5),” are deemed nondischargeable
under § 523(a)(15) if they were “incurred
by the debtor in the course of a divorce or
separation or in connection with a separation
agreement, divorce decree or other order of a
court of record….”3
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Between the two subsections, (a)(5) and
(a)(15) of § 523, most all divorce obligations,
regardless of whether they are in the nature of
alimony, maintenance, or support, are excepted from a Chapter 7 discharge. Further, after
BAPCPA, both the (a)(5)4 and the (a)(15)5
debts generally pass through the bankruptcy
unaffected without the need for the creditor
to timely file a complaint to determine the
dischargeability of the debts or otherwise
participate in the bankruptcy proceeding in
any meaningful way.
Impact of a Chapter 13 Bankruptcy
Analyzing the impact of a Chapter 13 bankruptcy on divorce related obligations is far
more complicated. Specifically, the determination of whether a debt is, in fact, a DSO,
as opposed to an obligation arising from a
property division or settlement, becomes critical to determining the rights of the parties.
From the creditor’s perspective, the holder of
a DSO claim has special protections under
the code. In the hands of an attentive former
spouse, these provisions offer powerful tools
for ensuring a claim is satisfied and include
the following.
• Priority and Full Payment of DSO. If an obligation is deemed a DSO, then it is considered a priority claim under § 507(a)(1)(A)
and entitled to full under the debtor’s Chapter 13 plan pursuant to § 1322(a)(2) unless
the claimant agrees to different treatment.
In the hands of an attentive former spouse, these provisions
offer powerful tools for ensuring a claim is satisfied and
include the following.
• Oversight of Ongoing DSO Payments. The
debtor has added incentive to remain
current in any post-petition DSO payments
because under § 1325(a)(8), the debtor’s
plan may not be confirmed if he or she is in
default.
• Cause for Dismissal if DSO Defaults. During
the case, the nonfiling spouse may seek
the dismissal or conversion of the debtor’s
31
Chapter 13 if the debtor fails to pay any
postpetition DSO as it comes due.
• Potential Discharge Denial for Failure to Satisfy DSO. The Chapter 13 discharge will not
be granted until the DSO amounts due both
before and after the bankruptcy filing have
been paid in full pursuant to § 1328(a).
It is not always obvious what is and what is not a DSO
from the language of a property settlement agreement or
court order.
The above creditor protections depend
on a determination that the claim to be
enforced is, in fact, a DSO. Consequently, the
most important work that can be done on
behalf of a nonfiling spouse is often to ensure
that the obligations owed to that spouse are
treated as a DSO. Such a task, however, can be
challenging because it is not always obvious
what is and what is not a DSO from the language of a property settlement agreement or
court order.
Determining Whether an Obligation is
a DSO
The majority of the requirements for defining
a DSO, that is, subsections A, C and D of
§ 101(4A), turn on objective criteria, such as
the identity of the payee, the type of instrument establishing the obligation, and whether
the obligation has been assigned. The more
difficult determination is often whether the
obligation meets the requirements of subsection B — that it be “in the nature of alimony,
maintenance, or support.”
The intent of the parties controls, but
divining that intent in hindsight and from
prior orders or agreements is not always
easy. In the Fourth Circuit, courts look at
the mutual or shared intent of the parties to
create a support obligation.6 When construing
property settlement agreements, courts are
encouraged to determine whether the parties
intended the obligation as alimony, maintenance, or support at the time of the execution
of the agreement. If the intent of the parties
32
was that the obligation was merely a division
of property, then the obligation is not a DSO.7
Unofficial Test of Intent in Fourth Circuit
for DSO
Courts in the Fourth Circuit have developed
an “unofficial” test for the intent inquiry,
which provides for the court to look at the
following factors.8
• Language of Agreement. Courts consider
the actual language and substance of the
agreement, being mindful of the context
in which the obligation arises under the
agreement.9 The labels used by the parties or
the state court should not control, and the
court will look beyond the label to examine
whether the debt actually is in the nature of
alimony, maintenance, or support. Courts
also will consider factors such as whether
the payment is to be made in a lump sum,
more akin to property division, or over a
period of time in order to provide support.
Also, in interpreting whether the language
of the agreement favors a property division
or a DSO, courts will look at factors such as
any agreed tax treatment for the obligation,
whether the parties waived support, and how
the agreement is organized. For example,
does the obligation arise from provisions
under the section of the agreement addressing support or property division?10
• Financial Situation. Courts may consider is
the parties’ financial situation at the time of
the agreement. Relevant factors include the
prior work experience, employment history,
physical health, potential earning power, and
business opportunities.11 In examining the
support versus property division question,
courts will likely also weigh the probable
needs of the parties in the future, the stability of the parties’ income at the time of the
agreement, and whether one spouse has custody of minor children from the marriage.
• Function of Obligation. The function served
by the obligation at the time of the agreement (i.e. daily necessities) and the role the
obligation was intended to perform at the
time the parties entered into the agreement
will typically be considered by the court.12 In
determining whether the obligation allocates
debt or divides property, courts will consider
whether the obligation provides for daily
necessities like food and shelter and whether it was intended to balance a disparity in
incomes.
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• Evidence of Overbearing. The determinative
issue for this part of the test is whether there
is any evidence of overbearing at the time of
the agreement that should cause the court to
question the intent of a spouse. As with any
analysis of overbearing by one party over
another, relevant factors include the relative
bargaining positions of the parties, whether both parties had legal representation,
any grossly unbalanced provisions in the
agreement, the statements and admissions
of the parties, any misrepresentations of the
parties, and the age, health, intelligence, and
experience of the spouses.13
Of course, the use of these factors does
not preclude consideration of other factors,
and the court may look beyond the four
corners of a divorce decree or the agreement
of the parties to determine the nature of the
payments constituting the debts sought to be
discharged.14
9
In re Austin, 271 B.R. 97 (Bankr. E.D.Va.,
2001).
10 Ludwig at 469.
11 Austin at 105-109.
12 Id.
13 Id.
14
In re Johnson, 397 B.R. 289, 296-97 (Bankr.
M.D.N.C. 2008).
15
Jacobellis v. Ohio, 378 U.S.184, 197 (1964)
(Stewart, J., concurring).
Conclusion
Ultimately, the determination of whether a
debt is a DSO is a fact specific analysis, with
the circumstances of each individual case
carefully viewed through the prism of the
statutory language and case law tests. The
answer in some cases will be obvious and in
others will be elusive. In all cases, advising
a client requires a holistic view of the entire
case in order to weigh and balance carefully
all factors and considerations. In the end,
determining with certainty that a particular
provision of an agreement or order is in the
nature of alimony, maintenance or support is
not always easy, and lawyers tasked with such
duty may find themselves struggling to reach
a definitive decision and instead embracing
the late Justice Stewart’s oft quoted conclusion
that they will “know it when [they] see it.”15
Endnotes:
1 11 U.S.C. § 101(4A).
2
In re Forgette, 379 B.R. 623 (Bankr. W.D. Va.
2007).
3 11 U.S.C. § 523(a)(15).
4 The § 523(a)(5) debts refer to all DSO.
5The § 523(a)(15) debts refer to property division or settlement debts.
6
In re Ludwig, 502 B.R. 466, 468 (Bankr. W.D.
Va. 2013) (citing Tilley v. Jessee, 789 F.2d 1077,
1078 (4th Cir. 1986).
7 Ludwig at 469.
8
In re Krueger, 457 B.R. 465 (Bankr. D.S.C.,
Sept. 19, 2011) (citing Tilley at 1077-1078).
www.vsb.org
David Cox practices bankruptcy law throughout the Western District of Virginia. His practice focuses exclusively on the representation
of debtors in bankruptcy and related proceedings. Prior to entering private practice, David
served as a judicial law clerk for the late Hon.
William E. Anderson. He is the coeditor of
Bankruptcy Practice in Virginia and a frequent
lecturer at CLE programs related to bankruptcy. In June, 2011, David became a permanent
member of the Fourth Circuit Judicial Conference, and in March, 2013, he was inducted as a
fellow of the American College of Bankruptcy
in Washington, DC.
33
The Benefits Outweigh the Sacrifice:
Two of Virginia’s Top Pro Bono Attorneys Discuss
Attorney Service
by Deirdre Norman
Justice Lewis F. Powell Jr. once commented that “Equal justice under the
law…is one of the ends for which our
entire legal system exists…it is fundamental that justice should be the same,
in substance and availability, without
regard to economic status.”
In this light, two local bar associations recently recognized the achievements of two of Virginia’s top pro bono
attorneys. The Fairfax Bar Association
awarded Susan Stoney, the deputy director of Legal Services of Northern Virginia,
with the James Keith Public Service
Award. The Metropolitan Richmond
Women’s Bar Association bestowed the
2015 Women of Achievement Award on
Tara L. Casey, the director of the Carrico
Center for Pro Bono Service at the
University of Richmond School of Law.
Both attorneys represent the highest
order of pro bono service, having devoted the majority of their careers to helping
low-income Virginians access and navigate the legal services they need, but too
often cannot afford. Casey, who began
her legal career as an Assistant United
States Attorney for the Eastern District of
Virginia, has established twelve different
pro bono programs at the University
of Richmond School of Law and has
helped hundreds of law students devote
thousands of hours of legal service to the
community. Casey also volunteers for a
number of Richmond organizations including the Legal Aid Justice Center and
the Central Virginia Legal Aid Society.
Stoney became interested in public
service while at William & Mary Law
School. There, she interned at Peninsula
Legal Aid as part of a law school clinic
run by professor and clinic director, John Levy. She later clerked for
now-retired Judge James W. Benton, Jr.
34
Stoney
Casey
on the Virginia Court of Appeals, who
also encouraged her to give back to the
community. “It is tremendously rewarding to be able to give a voice to people
who otherwise would have little access to
justice,” Stoney said.
“I have worked with hundreds of
lawyers providing pro bono services to
Legal Aid clients. Over and over, these
lawyers report that they find as much or
more fulfillment in their pro bono cases
as they get from their regular law practice,” Stoney said.
Casey was an Assistant United
States Attorney for the Eastern District
of Virginia and 8 1/2 months pregnant
with her first child when she decided to
interview for the position as the director
of the Carrico Center at the University
of Richmond School of Law. She was
offered the position while still in the
hospital after delivering her daughter,
and has gone on to also serve as the
faculty director of the law school’s
Bridge to Practice Fellowship Program,
which has helped more than thirty-five
law students begin public service careers
upon graduation.
“If you are a young attorney, pro
bono service gives you direct client experience and innumerable other skills such
as document drafting, courtroom experience, and networking opportunities with
other attorneys,” Casey said. “Pro bono
work also allows young attorneys
Geiger
MacDonald
to develop relationships with the bench
because of the recognition of the judges
who realize that these young attorneys
are donating their skills to the service
of others. I have seen the bench be so
appreciative of our volunteers who take
the time to assist on pro bono cases.”
The Carrico Center recently
matched Sands Anderson Firm Counsel
Jeffrey H. Geiger with University of
Richmond School of Law third-year
student Zachary L. MacDonald on a pro
bono appeal involving due process rights
in a probation revocation hearing in
front of the Virginia Court of Appeals,
which they won on December 1, 2015.
According to Geiger, “Pro bono allows
me to be involved in my community
and gives me the opportunity to work
directly with law students. It gives the
law students the chance to gain valuable
courtroom experience at a time when
it is more and more difficult for young
lawyers to do so because of the expense
of trial.”
According to MacDonald, who
sucessfully presented the oral argument
during the proceedings, “Jeff knew that
I was new to the law, but he trusted me
to get the work done. He struck a great
balance in that he let me do as much as
I could while still mentoring me. Jeff
taught me how to convey the human
aspect of the case to the court — something not easy to learn in law school.”
www.vsb.org
THE ELUSIVE PERMISSIBILITY OF PASS-THROUGH CLAIMS IN VIRGINIA
Virginia Laws Ch. 691 (H.B. 1512). Pass-through
claims have been allowed against VDOT by subattorneys who never litigate preserve a
successful
pro bono program.
Geiger, whose practice focuses
on
contractors
since
the 1991 amendments.
See, e.g., These
Roads &groups
Materials
Inc. v. to
Com.,
Dept.
tenancy in a housing case in court, and
doCo.,
so much
make
our clients
civil litigation involving eminentAsphalt
domain
Transp.,
512 S.E.2d
prevailing there is as meaningful to that
feel452,
welcome,
and804
to (1999);
remove the barriers
and legal malpractice and ethics,ofsays
of 257 Va.
Corp. v. Com.
of Va.,them
1996 from
WL 1065551
attorney as it is important to the client,”
that keep
getting(Va.
the legal
pro bono, “As my firm’s GeneralDriggs
CounCir. Ct. 1996).
Stoney said. “These lawyers donate their
services
they
need,”
she
said.
sel, I understand that attorneys
need
and
16 See VA. CODE §§ 2.2-4300 et seq. In 2000, the
time forwith
theWilliams
benefitMullen
of clients
Casey
pointed
out
that
all
of
the
want to be professionally competent
and
Melisa A.valuable
Roy is an associate
in its
General Assembly sought to commission a study
Litigation
practice
in
to consider
the Virginia
Public
who simplyConstruction
cannot navigate
the
system
pro bono
work she
shepherds at the lawnationally-recognized
diligent in whatever they are doing.
I will whether
Tysons Corner. She focuses her practice on construction
Act
(“VPPA”)
should
be amended to
on
their
own.
For
these
clients,
pro
bono
school
is done
in partnership
with either
never put a pro bono case at the Procurement
bottom
clients in all phases of a construction
“allow contractors
to submit claims
to publica non-profit,law and represents
help
essential
to a fairwith
outcome.”
a professional
association,
of my things to do. Everyone deserves
project. She
hasisextensive
experience
preparing and
owners on behalf of subcontractors and suppliers
negotiating construction
contracts
andof
preparing
and litiCasey
said,
“Many
the perceived
or
private
attorneys,
including
the
law
the highest caliber of legal services
and,
who incurred costs and expenses on public progating complex construction claims on federal, state and
barriers
to
pro
bono
service
are
actually
firms
who
comprise
Firms
in
Service
and
unfortunately, there exists a real jects
unmet
due to acts or omissions of the public
private projects, in addition to advising on various types
owner,” as with companies
VDOT contracts.
Res. 229,
it’s a protective
such H.J.
as Capital
One and of issues myths.
need for these services.”
that ariseWhether
from the pre-bid
stage throughorder
disputeor
2000 Gen. Assem.,
Reg. Sess.“These
(Va. 2000)
available
resolution.
an uncontested divorce, people benefit
Dominion.
large
law firms may be
Both Stoney and Casey mentioned
at http://leg1.state.va.us/cgi-bin/legp504.exe?001
from an attorney — even one who is
competitors in the corporate world,” said
that the pro bono efforts that they
over+ful+HJ229+pdf (last visited on October 6, 2015).
working outside of their specialty. For
Casey,
“but
they
are
allies
in
pro
bono.
see involve the partnerships and Unfortunately,
assisthe resolution ultimately failed,
most pro bono lawyers, the benefits
There
is
plenty
of
pro
bono
work
to
go
tance of law firms and corporations
that
and the study was never performed. See History of
Res. 229, 2000
available
http://lis.virginia
outweigh the sacrifice.”
around.”
Inatrecent
months, McGuiredonate office space for meetings H.J.
as well
.gov/cgi-bin/legp604.exe?ses=001&typ=bil&val
Woods has begun spearheading efforts
as the time of their employees. According
=hj229.
The October issue of Virginia Lawyer
to bring the highly successful Firms in
to Stoney, Hunton & Williams, Freddie
17 30 Va. Cir. 515 (Fairfax 1990).
will
be
devoted to the topic of Access to
Service
model
to
Northern
Virginia.
Mac, AOL, Capital One, and18Hilton
are
17 Va. App. 166 (1993).
just a few of the many firms and companies who have donated the use of their
space, employee time, and food and
beverages to the clients of Legal Services
of Northern Virginia. “Volunteer lawyers
and law firms are the backbone of any
Stoney and Casey both said that
whereas young lawyers can gain client
experience and courtroom experience
from pro bono work, senior lawyers
also benefit from networking and the
mentoring skills they hone. “I have seen
Legal Services. If you are interested in
learning more about opportunities to
be of service in your community please
contact Karl Doss, director of the VSB
Access to Legal Services Committee, at
[email protected].
Access to Justice Hero
Are you providing service to someone who can’t afford legal representation, is your law firm, or another attorney you know? We’d like to tell
the members of the Virginia State Bar about it. We’d also like to hear about work lawyers have done on special pro bono projects, or any
access to justice program or issue that needs assistance. The VSB is continuing its focus on access to justice by regularly raising awareness of
outstanding service by pro bono, legal aid, and indigent defense lawyers.
So send us your story — 400 words or less — about access to justice, along with a photo. We’ll pick the best and feature it in Virginia
Lawyer. E-mail your stories to us at [email protected].
By the way, the Access to Justice/Pro Bono pages of the VSB website at http://www.vsb.org/site/pro_bono have begun featuring a
Volunteer Lawyer Spotlight. Please send a brief “blurb” (3 to 5 sentences and a photo) about an outstanding contribution by a volunteer
lawyer or law student. The Special Committee on Access to Justice will update the spotlight each month. Please send your “blurbs” to
[email protected].
www.vsb.org
VIRGINIA LAWYER | December 2015 | Vol. 64 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION
34
35
www.vsb.org
WHAT YOU DON’T KNOW
CAN HURT YOU.
The only thing changing faster than the law is technology … and staying technologically competent
not only benefits your practice, it is a key part of the Rules of the Supreme Court of Virginia.
Please plan to spend April 25th with a panel of national ABA tech speakers and
Virginia Supreme Court Justice Cleo E. Powell at the 2016 TECHSHOW.
Make sure your legal practice and your clients are benefitting from the newest concepts in tech.
We will cover topics including:
Ethics
Discovery
Marketing
Cyber Security
And a multitude of the newest tech ideas affecting the practice of law
Included in your $100 registration cost:
Free WiFi
Continental breakfast
Lunch
Coffee breaks
Seven hours of CLE credit
Networking with attorneys and IT professionals from around Virginia and the USA
For more information, please visit: www.vsb.org/site/events
Many 2014 attendees described this event as the best CLE they had ever attended.
Virginia State Bar TECH SHOW – Richmond Convention Center – April 25, 2016
We hope to see you there!
The Virginia State Bar
TECHSHOW
April 25, 2016 | Richmond Convention Center
403 North Third Street Richmond, VA 23219
Agenda
Please indicate your choice for each session.
8:00–8:30 Registration/Continental breakfast
8:30 Welcome—VSB TECHSHOW Chair Sharon
Nelson, VSB President Ed Weiner and Justice of the
Supreme Court of Virginia Cleo E. Powell
8:45–9:45 First Sessions
5 Ethics: What Does Being Competent Mean in the Digital
Era? (Sharon Nelson-President, Sensei Enterprises,
Fairfax, VA/Reid Trautz—American Immigration Lawyers
Assn, Washington, DC)
5 Technology for Trial Lawyers (Tom Mighell—Contoural,
Inc., Dallas, TX/Brett Burney—Burney Consultants,
Chagrin Falls, OH)
9:55–10:55 Second Sessions
5 Microsoft 365, Matter Center and Windows 10:
The Three Hottest Microsoft Topics for Lawyers (Ben
Schorr-CEO, Roland, Schorr and Tower, Flagstaff, AZ)
12:05–12:45 Lunch
12:45–1:45 Fourth Sessions
5 Using Tech to Do More Legal Work in Less Time (Reid
Trautz/Natalie Kelly—Director of Law Practice Mgmt at
State Bar of Georgia)
5 How to Store Your Law Firm Data in the Cloud Ethically
(Brett Burney/Jim Calloway—Director of Mgmt Asst
Program at Oklahoma Bar Assn, Oklahoma City, OK)
1:55–2:55 Fifth Sessions
5 The Microsoft Word Power Hour for Lawyers (Ben
PEOPLE <
Noteworthy
Ben Spencer Adds Army Reservist to Expansive Resumé
by Gordon Hickey
It’s not as though A. Benjamin Spencer
doesn’t already have plenty to do. He is
the Earle K. Shawe Professor of Law at
the University of Virginia School of Law,
the author of two widely used books
on civil procedure, an active member
of the VSB Council and former chair
of the Education Section, and the
father of eight children ranging in age
from 12 to newborn.
And as of October 30, Ben Spencer
has added the role of Judge Advocate
General lawyer in the US Army Reserve
to his lengthy list of accomplishments.
At the age of 41, Spencer required an
age waiver to even be considered for the
military role and he was likely the oldest
member of his six-week basic training
course at Ft. Benning, Georgia, which
started January 10.
Spencer has not been one for lingering. After graduating from Harvard
Law in 2001, he worked as an associate
at Shearman & Sterling, as a law clerk
to Judge Judith W. Rogers of the US
Court of Appeals for the DC Circuit,
was an associate professor of law at the
University of Richmond School of Law,
and then was tapped to be a professor
and the director of the Frances Lewis
Law Center at Washington and Lee
University School of Law. He finally
landed at U.Va. in 2014.
Many lawyers would have considered their new role at the law school
enough of a challenge, but not Spencer.
The JAG Legal Center and School is
adjacent to U.Va and all JAG officers
come to Charlottesville for their initial
3½ month course. It’s often said that if
you want to get something done, find a
busy person, and Spencer is clearly the
kind of person who looks up and sees
an opportunity to get involved. “They
were right outside my office window,”
Spencer said during a recent phone
interview before going off to basic training. There was also another professor at
www.vsb.org
A. Benjamin Spencer (right) is sworn in by fellow University of Virginia Professor Thomas Nachbar.
U.VA, Thomas Nachbar, who is a member of the JAG Corps who inspired him.
“Being there, and seeing the JAG School,
and Tom, and talking to my father, and
looking for some other way to serve… it
looked like a good way to contribute.”
Spencer’s father, Federal Judge
James R. Spencer of the United States
District Court for the Eastern District of
Virginia, was clearly another inspiration:
the senior Spencer served sixteen years in
the Army JAG Corps.
Spencer said that qualifying for the
JAG Corps was far more physically challenging than he imagined. First, he had
to lose weight to get under the required
limit, and then he had to pass the Army
physical fitness test.
Among his initial assignments
as a JAG lawyer was completing the
Volunteer Income Tax Assistance training program. Spencer’s unit, the 174th
Legal Operations Detachment, which is
headquartered in Miami, provides legal
services to Army entities in Florida and
Puerto Rico. The lawyers work on such
things as drafting wills for soldiers, landlord-tenant disputes, powers of attor-
ney, and free tax services. He said the
lawyers worked with Internal Revenue
Service employees who met with them
at MacDill Air Force Base in Tampa for
four days of training on how to prepare
tax returns for soldiers, veterans, and
retirees.
After basic training, Spencer
will attend JAG School back in
Charlottesville beginning February 21.
Luckily, he will be able to live at home,
which should take some of the stress
off of him and his family.
After completing his training,
Spencer will be a regular Army Reservist,
working one weekend a month and
two weeks a year with his team in St.
Petersburg, Florida. He will be assigned
to Central Command support, working
in areas such as fiscal law, compensation
for civilians killed in strikes, and legal
reviews of misconduct reports, which are
below the level of court martial.
Spencer said he’s looking forward to
his new military duties. “Being a professor is great, but it’s not practice.” Being
an Army lawyer “is a way to practice, but
to do it in a way that serves.”
37
Noteworthy > PEOPLE
In Memoriam
Alexander Joseph Conn
Annandale
July 1982 – January 2016
Peder Andrew Garske
Severna Park, Maryland
January 1962 – January 2016
The Honorable Joseph F. Spinella
Henrico
February 1925 – January 2016
Charles Owen Cornelison
Fort Myers, Florida
September 1945 – October 2015
The Honorable William C. Johnson Jr.
Daytona Beach, Florida
March 1930 – November 2015
The Honorable Colon Hall Whitehurst
Chesapeake
August 1951 – December 2015
Tamara LaVonne Crouch
Chantilly
September 1954 – November 2015
Leonard W. Lambert
Richmond
October 1938 – November 2015
Elaine M. Williams
Port Orange, Florida
February 1954 – October 2015
Joseph A. DiJulio
Virginia Beach
November 1958 – July 2015
Gordon Pickett Peyton Jr.
Alexandria
January 1941 – January 2016
Robert Monte Gants
Alexandria
August 1937 – November 2015
Michael Gregory Shepard
Mechanicsville
September 1946 – January 2016
Seeking Nominations
The Virginia State Bar Young Lawyers Conference is seeking nominations for the R. Edwin Burnette, Jr., Young Lawyer of
the Year Award.
This award honors an outstanding young Virginia lawyer who has demonstrated dedicated service to the YLC, the legal
profession and the community.
Previous winners can be seen at http://www.vsb.org/site/conferences/ylc/r-edwin-burnette-jr-young-lawyer-of-the-year-award
The nomination deadline is April 1. Nominations should be sent to:
Maureen E. Danker
Kelly Byrnes & Danker, PLLC, Suite 275N, 3975 Fair Ridge Drive, Fairfax, VA 22033
[email protected]
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 www.vsb.org
/site/regulation/ethics/.
38
www.vsb.org
Conference of Local Bar Associations
Local and Specialty Bar Elections
Chesapeake Bar Association
Erin Leigh Evans-Bedois, President
Larachelle Fularon Wood,
President-elect
Melissa Jackson Howell, Secretary
Ryan Carson Samuel, Treasurer
Kristen Marie Shannon,
Executive Officer
The Virginia Bar Association
James Patrick Guy II, President
David Storey Mercer, President-elect
Virginia Law Foundation
Irving M. Blank, President
Lucia Anna Trigiani, President-elect
Stephen Donegan Busch, Vice President
Ruby Yvonne Cockram, Secretary
Karen Ann Gould, Treasurer
Call for
Nominations
VSB Conference of Local Bar
Associations nominations are due
April 29, 2016.
Awards will be presented at the
CLBA Annual Meeting and Breakfast in
June at Virginia Beach.
Award of Merit Competition recognizes outstanding projects and programs of Virginia bar associations.
Bar Association of the Year Award
recognizes a member bar association
that has best fulfilled the attributes
member associations strive to attain.
Local Bar Leader of the Year Award
recognizes past and presently active
leaders in their local bar associations
who have continued to offer important
service to the bench, bar and public.
See more information at
www.vsb.org/site/conferences/clba/view
/clba-awards.
www.vsb.org
Bar Leaders Institute
Lewis Ginter Botanical Garden, Richmond
March 28, 2016
8:30 a.m.–4:30 p.m.
• Resources for Bar Associations
• What Young Lawyers Want in a Bar Association
• Preparing for Your Bar Year
• Ethics for the Bar Leader (One hour live CLE/Ethics)
• Engaging Judges in Your Bar Association
• ALPS CLE (One hour live CLE/Ethics)
Lunch will be included. There is no fee to attend this event.
For more information, please visit:
www.vsb.org/site/conferences/clba
Upcoming Solo & Small-Firm
Practitioner Forums
The Solo & Small-Firm Practitioner Forum focuses on issues that confront
attorneys who practice alone or in small firms. Law office management and ethics are among several topics covered at these CLEs.
These CLEs are free, include lunch, and are available on a first-come, firstserved basis. Registration and the agendas will be posted on the CLBA website at
http://www.vsb.org/site/conferences/clba-calendar as soon as they are available.
Monday, April 11, 2016 Solo & Small-Firm Practitioner Forum – Eastern Shore Community College,
Melfa
Monday, May 2, 2016 Solo & Small-Firm Practitioner Forum/Regional Bench-Bar Conference –
Fredericksburg Hospitality House & Conference Center, Fredericksburg
Monday, May 16, 2016 Solo & Small-Firm Practitioner Forum – Virginia Tech, Blacksburg
39
Law Libraries
Changes to Bankruptcy Forms and Pending
Bankruptcy Rule Changes
by Kathleen Klepfer
Nearly every form used by the bankruptcy courts went through a significant overhaul in December as part of a
seven-year project designed to streamline the filing process.1 The voluntary
petition—old Form B1—has now been
split into three separate forms: B101
for individual debtors, B201 for nonindividual debtors, and B401 for foreign
proceedings. This overhaul altered
the format of most additional forms
and schedules, including the internal
“director’s forms,” all of which are now
available on the court’s main form page.2
Because most form numbers changed as
well, the courts have provided a conversion chart that aligns the old and new
form numbers with any title changes.3
Old forms can still be found on the main
court website under the “Superseded
Bankruptcy Forms” heading.4
The new format allows the forms to
better fit the applicant. Revisions were
undertaken to make both the forms and
instructions “easier for debtors to understand and complete, and are designed
to work with scheduled enhancements
to the federal courts’ case opening and
electronic case management system.”5
For example, questions specific to individuals will no longer appear on nonindividual debtor forms and instructions
are included in-line with each question
instead of appearing at the top of the
form. Separate instruction sheets for each
form have also been updated; they can
be downloaded along with the form and
include committee notes on the changes.
Although many touted the edits as a way
for debtors to file without consulting
an attorney, it remains to be seen if the
updates will increase the number of pro
se filers.6
The American Bankruptcy Institute
held a webinar in November on the
changes.7 The panel encouraged practitioners to read the new forms carefully. Judge Arthur I. Harris of the US
Bankruptcy Court for the Northern
40
District of Ohio noted that, although
Rule 5005 in the Federal Rules of
Bankruptcy Procedure directs clerks not
to reject filings that do not conform to
official forms, practitioners and pro se
individuals will still have to correct any
errors or omissions as a result of using
outdated forms.
Local forms provided by both the
Eastern and Western Districts of Virginia
should continue to be used when filing
in those courts. The local and administrative forms adapted from the national
courts have all been updated to reflect
the December changes on their respective
court websites. Administrative forms
specific to each court have only been
updated if necessary, so a local may still
be valid even if it bears a revision date
prior to 2015. For example, the Chapter
13 plan forms from the 2009 revision are
still valid, but practitioners should keep
an eye on proposed rules changes for
2016.
The only official rule change this
past year was a technical change to Rule
1007, but more changes are pending.
A collection of proposed amendments
to the Federal Rules was sent to the
United States Supreme Court for review
on October 9th. The amendments are
lengthy, but include elimination of the
three-day rule for electronic service,
changes to international bankruptcy
case procedures, and to Chapter 13
notices. Further amendments to specific
Bankruptcy Rules, the so-called “Stern
Amendments,” are the result of litigation surrounding the bankruptcy courts’
authority in Stern v. Marshall8 and were
re-submitted on October 29th.9
Proposed changes to Bankruptcy
Rules 1001 and 1006 opened for comment on August 15, 2015. The amendment to Rule 1006 would “clarify that
courts may not refuse to accept petitions
or summarily dismiss cases for failureto make initial installment payments
at the time of filing.”10 The comment
period closed February 16, 2016, and
is now being considered by the Judicial
Conference Advisory Committee on
Bankruptcy Rules.
Endnotes
1Public Notice from United States Bankruptcy
Court Eastern District of Virginia,
Amendments to the Federal Rules of
Procedure and Practice; Bankruptcy Forms,
available at https://www.vaeb.uscourts.gov/
wordpress/?wpfb_dl=648.
2Bankruptcy Forms, USCourts.gov, http://
www.uscourts.gov/forms/bankruptcy-forms.
3Modernized Bankruptcy Forms Numbering
Conversion Chart, available at http://www
.uscourts.gov/file/18167/download.
4
Superseded Bankruptcy Forms, USCourts.gov,
http://www.uscourts.gov/forms/super
seded-bankruptcy-forms (last visited Jan. 6,
2016).
5
Pending Changes in Bankruptcy Forms,
USCourts.gov, http://www.uscourts.gov/
rules-policies/pending-rules-amendments/
pending-changes-bankruptcy-forms (last
visited Jan. 6, 2016).
6Steve Rhode, New Bankruptcy Forms Make It
Easier to File Without an Attorney, Huff. Post
(Nov. 24, 2015 05:35 PM), http://www
.huffingtonpost.com/steve-rhode/new
-bankruptcy-forms-make_b_8639066.html.
7The webinar may be viewed on ABI’s website,
http://www.abi.org/newsroom/videos. See
also Diane Davis, New Bankruptcy Forms
Roll Out Effective Dec. 1, BNA.com (Nov. 17,
2015), http://www.bna.com/new
-bankruptcy-forms-n57982063647/.
8
Stern v. Marshall, 131 S.Ct. 2594 (2011).
9
Pending Rules Amendments, USCourts.gov,
http://www.uscourts.gov/rules-policies/
pending-rules-amendments (last visited Jan.
6, 2016).
10Preliminary Draft of Proposed Amendments
to the Federal Rule of Bankruptcy Procedure
and the Federal Rules of Evidence, available
at http://www.uscourts.gov/file/18375/
download.
Kathleen Klepfer is a reference and research services librarian at the University of
Richmond School of Law.
www.vsb.org
Technology and the Practice of Law
Electronic Evidence in the Courtroom:
Four Keys to Preparation
by M. Lee Smallwood II
Whether your case is civil or criminal,
it is more likely than ever that there will
be electronic evidence. When I started
as an assistant public defender in 2007,
the only cases that would always have
electronic evidence were murders. Now,
we regularly receive video, wireless phone
records, and even Internet usage data
in discovery. As transactions — and
crime — move increasingly online, we
will confront even more cases that make
demands of us as lawyers to be advocate,
counselor, and technology proficient
individuals.
A large part of technology proficiency involves being prepared to effectively
present video and other electronic evidence to judges and juries in the courtroom. This is a challenge that requires
a specific set of skills, preparation, and
occasionally good fortune. I suggest the
following four keys as necessary to your
preparations for presenting electronic
evidence in a courtroom setting:
1.Visit the courtroom where you
will be having the trial. Are there
suitable displays already installed in
the courtroom? Can the judge, the
witness, the other party, and the jury
see the evidence at the same time?
Is it going to be necessary to bring
in equipment, and if so does the
courthouse have this equipment on
site? Even before approaching the
court about the technology you need
to use, it is vital to make this visit so
you can make an effective request
about the use of your technology.
This is particularly important in jurisdictions where parties can actually
make requests to have cases heard in
particular courtrooms with different
capabilities.
2.Contact the court to make sure that
the technology resources you plan
to use are in working order, that you
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have complied with all local court
rules, and that there are no issues
you have with getting the equipment
you may need to bring with you into
the courtroom. It is a nightmare to
contemplate having the technology
ready in the courtroom and all of the
data prepared on a tablet or notebook computer only to be told by
courthouse security that the device
will not be permitted into the building without a specific court order
that has not previously been secured.
3.Arrange for a time before your trial
to use the equipment with your
evidence. There can be any number
of issues with evidence, particularly
when it is video evidence. Due to
my reputation as a technologically
conversant attorney, I was recently
called into a courtroom in a case I
had nothing to do with in order to
try to facilitate a Skype communication with a custodian of records the
parties agreed could testify remotely.
The court spent hours trying and
ultimately succeeding in getting the
connection to work, but it was a
frustration for everyone.
Online evidence is not the only concern in this area. Specialized compression
and decompression algorithms (codecs)
are often necessary when playing video
or audio evidence. I have seen on more
than one occasion an attorney who
insisted evidence worked fine at the office
have considerable trouble playing that
evidence in the courtroom because a different computer system is being used in
the courtroom than the one used in the
law office. This is almost always because a
necessary codec is missing.
Another problem that can easily be
avoided by arranging for a technology
rehearsal in the courtroom involves
the physical connection between the
computer system and the display system.
There are several display standards and
adapters that will connect just about any
modern computer or tablet to any display
system in use. These adapters often have
to be ordered and time allocated for
delivery. The day of trial is not the time
to discover that a VGA to HDMI adapter
will be required.
4.Prepare for technology to fail. No
matter what happens, it is the duty
of counsel to effectively present the
favorable and necessary evidence
so all of the important issues can
be decided. Always have a plan for
what happens if the file will not play,
the display will not work, or the
computer will not work. In addition
to preserving the record in the case,
it is necessary to make certain that
a failure does not result in a loss of
composure. Rely on the backup plan
and know the judge or jury understands and sympathizes with the
situation.
The only way to become comfortable with presenting technological
evidence in court is to practice doing it
and to embrace using this evidence every
time it will aid your client. What may at
first create panic can become an asset to
your practice.
M. Lee Smallwood II is deputy public
defender for the Public Defender Office
in Danville. He enjoys technology, a good
motions hearing, and fountain pens. Vol. 64 | February 2016 | VIRGINIA LAWYER
41
Risk Management
First Impressions Matter
by Mark Bassingthwaighte
I’ve been a consumer for years and
the older I get the more I’ve come to
recognize the impact of first impressions.
They really do matter. I can only speak
for myself but these days if I am accosted
by an aggressive sales person when first
entering a store, I often leave and rarely
return. If I’m shopping online and a
website fails to load properly because it’s
outdated or it’s simply hard to navigate,
I’m gone. If a grocery store is unclean, I
will walk out and shop elsewhere. Heck,
everyone knows that you can judge the
quality of the food an unfamiliar restaurant serves by the number and types of
vehicles in the parking lot don’t they?
First impressions matter and I don’t
think I’m alone in believing this. If you
agree, I would ask whether you’ve taken
steps to set the right impression at your
own firm because it’s certainly going
to be easier to establish an effective and
trusting attorney-client relationship if a
potential new client’s first impression is a
positive one.
I have walked into more than a firm
or two for the first time where I was
placed in an unkempt reception area or
an absolutely cluttered and dirty conference room featuring broken furniture.
Some of these spaces looked more like
old storage rooms than the client areas
that they were. I have also been kept
waiting for thirty to sixty minutes past
my appointment time without explanation and on several occasions even
forgotten about entirely. I have been the
recipient of cold greetings by staff and
treated by reception as if I was a bother.
Such experiences can’t help but result
in setting an impression. That’s normal.
Now put yourself in my shoes. What
might your response to any of the above
experiences have been? If your own
clients were to have a similar experience,
what might their response be? My initial
42
response was to question the business
and even legal acumen of the attorneys
who practiced in these firms. Certainly
my initial opinions were open to being
changed but it was now going to be an
uphill climb.
First impressions are made at first
contact, whether calling for an appointment, visiting your webpage, or walking
through your front door. They are often
set before you have a chance to meet with
a prospective client, and they’re all about
presentation and experience. Is there a
welcoming greeting? Is the space tidy and
inviting? Is your website user friendly
and functional on multiple platforms to
include mobile devices? With all this in
mind, I offer the following to help get
you started in thinking about what you
can do to make certain you’re setting the
right impression.
• Train staff to greet every individual as soon as possible, certainly
within a minute of their entering
the office, and remember that even
a sales representative who is turned
away today may be a prospective
client tomorrow. If your receptionist happens to be helping someone else, have them give a simple
“Hello, I will be with you in a
moment” in order to acknowledge
the individual’s presence.
• Never allow confidential or personal conversations to be overheard by
others, particularly in the reception
area. If conversations from an
employee break area, a conference
room, or attorney offices can be
heard in reception, consider some
type of sound proofing. Periodically remind staff and attorneys that
confidential or personal matters
should never be discussed within
earshot of any visitors. In fact, give
staff permission to briefly interrupt
a client meeting to perhaps shut a
door if voices can be overheard in
reception or by visitors elsewhere
in the office.
• Do not allow visitors to view computer screens. The receptionist’s
computer screen will often have
confidential information on it and
thus should never be visible to
anyone coming into the office. • Occasionally check the waiting
area during the day. This is an
especially good customer service
technique. If anyone sitting there
seems bored or frustrated and has
been in the reception area less than
ten minutes, there’s a problem. The
space should be designed to make
the wait as pleasant as possible.
Remember they don’t like having
to wait for you any more than
you would like having to wait for
them if you were in their office.
You might even go sit in your own
reception area for ten or fifteen
minutes just to see how it feels. For
example, does the reading material
fit the clientele? While Scientific American is probably a great
choice for an intellectual property
practice, it won’t win any points
from clients in a family law practice. If families use your waiting
area, make sure there are materials
suitable for children. All magazines
and newspapers should be current.
• Keep the reception area clean
and orderly because an unkempt
reception area is too easily seen as
a reflection of the quality of service
offered by the firm. Before the attorney-client relationship has even
started, a potential new client may
already begin to question whether the attorney has enough time
to appropriately deal with their
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Risk Management
matter simply because it appears
the attorney already doesn’t have
enough time to pick up the place.
• I n a similar vein, do not minimize
the importance of appropriate
attire. Staff and attorneys alike
need to dress the part whenever
meeting potential new clients. This
isn’t to suggest that casual Fridays
and the like are inappropriate. Just
be mindful that people will make
initial judgments about someone
they’re meeting for the first time
based upon overall appearance.
I have walked into a law firm
where I was given a nod by the
receptionist who was dressed
down, reading a romance novel,
and chewing gum with her feet
on the desk. My initial thought
was I would never hire anyone
in this firm because tolerance for
the sloppy appearance suggests
a tolerance for sloppy work. The
message was they didn’t care.
• Client information and documents
must be kept confidential at all
times. If client file material needs
to be in the reception area in order
for the receptionist to do his work,
make sure that wandering eyes can
never land on those materials. Never leave client file material, mail, or
anything else that might identify
a client on the counter or privacy
wall around the reception desk. •T
ry to prevent anyone from having
to wait longer than ten minutes.
Most people are willing to be reasonable and wait a short amount of
time for the right lawyer; but don’t
expect them to wait as long for
their lawyer as they might for their
doctor. While medical emergencies
do arise, lawyers can rarely claim a
legal emergency. If prospective clients are waiting too long, consider
altering your scheduling procedures. If a delay is unavoidable,
have staff inform them of the delay
as quickly as possible and discuss
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options. Some will wait and others
will need to reschedule. • Be mindful of the difficulties the
receptionist faces when assigned
phone answering duties. Confidentiality can easily be breached in
a law office when someone in the
reception area overhears a phone
conversation or a client name. The
receptionist should have a way of
notifying attorneys that someone
has arrived or that a client is on
the phone without being forced to
breach client confidentiality. Statements like, “You’re two o’clock
appointment is here” or “you have
a call on line one” as opposed to
“John Smith is here and he wants
to talk with you about getting a divorce” should be the norm. Viable
alternatives might include the use
of privacy glass, e-mail notifications of a waiting call, or moving
phone answering responsibilities
away from the reception area. • If your space permits, have visitor
areas and work areas separated by a
wall or partition. One never knows
what impression potential new
clients may have when they observe
people working. Some may feel
they are seeing energetic and busy
staff members and take that as a
positive sign while others may feel
the staff is overworked or unprofessional and conclude the opposite. A wall with a tasteful picture
or two is worth the investment. In
fact, some firms place all conference room areas near reception
and away from work areas for this
very reason. • Finally, don’t overlook your Web
presence. A poorly designed website, a website that doesn’t display
properly on a mobile device, or a
website that isn’t kept current can
send a message about your competency and priorities. After all, who
wants their lawyer to be someone
who appears to think halfway is
good enough or perhaps got started
on something and then neglected
to follow through?
As I shared above, all of this is about
presentation and experience. If your
presentation is poor or the experience
of any potential client is bad at first
contact, then you’re going to start off on
the wrong foot, if they even decide to get
started with you at all.
Mark Bassingthwaight, ALPS risk manager,
has conducted more than 1,000 law firm risk
management assessment visits, presented
numerous continuing legal education seminars
throughout the United States, and written
extensively on risk management and technology. His webinar on Best Practices for Client
Selection in the ALPS CLE library is at
http://alps.inreachce.com. He can be contacted
at: [email protected].
43
CLE Calendar
Introduction to Virginia’s Sentencing
Guidelines
Six-hour seminars approved for six CLE
credits, March 2, Henrico/Richmond
(Henrico Police & Fire Training Center);
March TBD, Fairfax (Fairfax Government Center); March 16, Portsmouth
(Department of Social Services); March
31, Wytheville (Wytheville Community
College – Grayson Hall). Details at
http://www.vcsc.virginia.gov/training.
html. The introduction seminar is de-
signed 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. 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 April 16 through July 11.
Send information by March 8 to hickey@
vsb.org. For other CLE opportunities, see
Virginia CLE calendar and “Current
Virginia Approved Courses” at 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.
February 17
Teaming Agreements: Lessons Learned
from the Courtroom
Live — Charlottesville/Webcast
/Telephone
Noon–1 pm
February 18
The Basics of Powers of Attorney and
Health Care Directives
Telephone
Noon–1 pm
February 23
Tom Spahn on Conflicts of Interest
Live — Charlottesville/Webcast/
Telephone
1–3 pm
February 24
The Basics of Powers of Attorney and
Health Care Directives
Telephone
Noon–1 pm
February 26
Ramping Up for the 2016 Elections:
What You Need to Know About Political Law
Webcast/Telephone
9:30–11 am
44
March 1
Free Speech, Fear, and Facebook: The
Evolving Boundary Between the First
Amendment and “True Threats” in the
21st Century
Telephone
Noon–2 pm
March 2
Tom Spahn on Conflicts of Interest
Webcast/Telephone
10 am–Noon
March 3
Business Valuation Basics for Family
Lawyers
/Telephone
1–3 pm
March 4
Teaming Agreements: Lessons Learned
from the Courtroom
Webcast/Telephone
10–11 am
March 4–5
20th Annual Advanced Real Estate
Seminar
Live — Williamsburg
Friday: 1–5:25 pm;
Saturday: 8 am–12:20 pm
March 8
Free Speech, Fear, and Facebook: The
Evolving Boundary Between the First
Amendment and “True Threats” in the
21st Century
Webcast/Telephone
Noon–2 pm
March 9
Representation of Children as a Guardian ad Litem — 2014 Qualifying Course
Video — Abingdon, Alexandria,
Charlottesville, Norfolk, Richmond,
Roanoke
8:30 am–5:15 pm (Richmond video begins
at 9 am)
March 10
Representation of Incapacitated
Persons as a Guardian ad Litem —
2014 Qualifying Course
Video — Tysons Corner
9 am–4:05 pm
March 10
Ethical Responsibilities for Client Files:
Facing Piles of Files with Smiles
Telephone
Noon–1:30 pm
www.vsb.org
CLE Calendar
March 16
Representation of Incapacitated
Persons as a Guardian ad Litem —
2014 Qualifying Course
Video — Abingdon, Alexandria,
Charlottesville, Norfolk, Richmond,
Roanoke
9 am–4:05 pm
March 17
Video — Tysons Corner
8:30 am–5:15 pm
March 18
Getting to Success: Chapter 13s in the
Eastern and Western Districts of the
U.S. Bankruptcy Court
Live — Fairfax
8:30 am–4:45 pm
March 21
Employment Law Ethics
/Telephone
Noon–2 pm
March 22
Ethical Responsibilities for Client Files:
Facing Piles of Files with Smiles
Webcast/Telephone
Noon–1:30 pm
March 23
Business Valuation Basics for Family
Lawyers
Webcast/Telephone
1–3 pm
March 24
Video — Virginia Beach
8:30 am–5:15 pm
www.vsb.org
March 29
46th Annual Criminal Law Seminar
2016
Video — Alexandria, Charlottesville,
Danville, Norfolk, Richmond, Roanoke
8:15 am–4:45 pm (Richmond video begins
at 9 am)
March 30
2016
Video — Hampton, Winchester
8:15 am–4:45 pm
March 30
Employment Law Ethics
Webcast/Telephone
1–3 pm
March 31
2016
Video — Lynchburg
8:15 am–4:45 pm
April 5
Nonprofits
Live — Fairfax
TBD
April 7
CLE and Pittsburgh Penguins vs.
Washington Capitals Hockey: Creative
Strategies for “Selling” Your Case
Live — Washington, DC
2:30–4:45 pm (Hockey game begins at
7 pm)
April 13
Best Practices for Workers’
Compensation Attorneys
Live — Richmond/Telephone
9 am–1:15 pm
Virginia State Bar
Harry L. Carrico
Professionalism Course
March 16, 2016, Alexandria
April 7, 2016, Charlottesville
May 12, 2016, Hampton
July 21, 2016, Roanoke
August 31, 2016, Alexandria
September 22, 2016, Richmond
See the most current dates and
registration information at
http://www.vsb.org/site
/members/new.
45
Virginia Lawyer Register
DISCIPLINARY PROCEEDINGS
Respondent’s Name
Address of Record
Action
Effective Date
Colonial Heights, VA
Public Reprimand
November 18, 2015
Jean Jerome Dandy Ngando Ekwalla** Woodbridge, VA
Revocation
October 29, 2015
James Willis Hilldrup
Fredericksburg, VA
Suspension – 1 month w/Terms
November 16, 2015
Tawana Denise Shephard
Alexandria, VA
Revocation November 20, 2015
James Amery Thurman
Virginia Beach, VA
Suspension – 5 months at 5:00 p.m. December 11, 2015
Nnika Evangeline White Richmond, VA
Suspension – 3 years November 20, 2015
John Paul Forest II
Fairfax, VA
Public Reprimand w/Terms
November 10, 2015
Bruce Patrick Ganey
Ashland, VA
Two (2) Public Reprimand w/Terms January 6, 2016
Blanche Miclat Garber
Newport News, VA
Public Reprimand November 24, 2015
Intak Lee
Fairfax, VA
Public Reprimand
November 24, 2015
Suspension – Failure to Pay Disciplinary Costs
Effective Date
Lifted
Clifton Carlyle Hicks
Norfolk, VA
December 4, 2015
Shane Lee Jimison
Henrico, VA
September 15, 2015
CIRCUIT COURT
Neil Kuchinsky
DISCIPLINARY BOARD
DISTRICT COMMITTEES
November 30, 2015
Bibi Bahizi Musafiri
Falls Church, VA
January 4, 2016
Darryl Arthur Parker
Richmond, VA January 4, 2016
Alexandria, VA
January 7, 2016
William L. Stables Jr.
Harrisonburg, VA November 24, 2015
Impairment
Effective Date
J. Patterson Rogers III
December 15, 2015
Danville, VA
**Respondent has noted an appeal with the Supreme Court of Virginia.
46
www.vsb.org
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.
CIRCUIT COURT
Neil Kuchinsky
Colonial Heights, Virginia
11-031-085428
On November 18, 2015, the Supreme Court of Virginia affirmed a
public reprimand issued to Neil Kuchinsky by the Circuit Court of
the City of Colonial Heights. On October 18, 2012, the the Virginia
State Bar Third District Committee Section I issued a public reprimand to Mr. Kuchinsky for violating professional rules that govern
conflict of interest and prohibited transactions, fairness to opposing
party and counsel, and misconduct. Mr. Kuchinsky appealed to
the three-judge circuit court, which affirmed. Mr. Kuchinsky then
appealed to the Supreme Court of Virginia, which found that the
circuit court erred in finding against Mr. Kuchinsky for violating
rule 3.4, fairness to opposing party and counsel, but affirmed violations of rules governing conflict of interest and prohibited transactions, and misconduct. The Supreme Court remanded the case
back to the circuit court, which again imposed a public reprimand.
Mr. Kuchinsky again appealed to the Supreme Court, arguing that
the circuit court lacked jurisdiction to impose a sanction. The
Supreme Court affirmed the sanction. RPC 1.8(a)(1-3), 8.4(a)
www.vsb.org/docs/Kuchinsky-011116.pdf
DISCIPLINARY BOARD
Jean Jerome Dandy Ngando Ekwalla
Woodbridge, Virginia
15-053-101414, 15-053-102415, 15-053-101351, 15-053-099896,
15-053-100656
Effective October 29, 2015, the Virginia State Bar Disciplinary
Board revoked Jean Jerome Dandy Ngando Ekwalla’s license to
practice law for violating professional rules that govern diligence,
communication, safekeeping property, declining or terminating
representation, fairness to opposing party and counsel, responsibilities to opposing party and counsel, responsibilities of partners and
supervisory lawyers, responsibilities regarding nonlawyer assistants,
bar admission and disciplinary matters, and misconduct. RPC
1.3(a)(b), 1.4(a)(b)(c), 1.15(a)(b)(2)(3)(4)(5)(c)(d), 1.16(d)(e),
8.1(a)(c)(d), 8.4(a)(b)(c)
www.vsb.org/docs/Ekwalla-011116.pdf
James Willis Hilldrup
Fredericksburg, Virginia
14-060-099391
On November 16, 2015, the Virginia State Bar Disciplinary Board
suspended James Willis Hilldrup’s license to practice law for one
month with terms for violating professional rules that govern diligence, declining or terminating representation, and bar admission
and disciplinary matters. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.16(e), 8.1(c)
www.vsb.org/docs/Hilldrup-011116.pdf
Alexandria, Virginia
16-000-103697
revoked Tawana Denise Shephard’s license to practice law based on
her disbarment in Maryland by the Court of Appeals of Maryland.
Ms. Shephard’s license was summarily suspended on October 1.
Rules Part 6, § IV, ¶ 13-24
www.vsb.org/docs/Shephard-011116.pdf
James Amery Thurman
Virginia Beach, Virginia
14-022-099259
Effective December 11, 2015, the Virginia State Bar Disciplinary
Board suspended James Amery Thurman’s license to practice law
for five months for violating professional rules that govern safekeeping of property. This was an agreed disposition of misconduct
charges. RPC 1.15 (2009 edition)(a)(1)(2)(b)(c)(1)(3)(4)(e)(1)(i-v)
(f)(2)(4)(i,ii)(5)(i-iii)(6); RPC 1.15 (2012 edition) (a)(1)(3)(ii)(b)
(1)(3)(4)(c)(1)(2)(4)(d)(2)(3)(i-iv)(4)
www.vsb.org/docs/Thurman-011116.pdf
Nnika Evangeline White
Richmond, Virginia
14-031-102065
suspended Nnika Evangeline White’s license to practice law for
three years for violating professional rules that govern competence;
conflict of interest: general rule; safekeeping property; candor
toward the tribunal; truthfulness in statements to others; and
misconduct. RPC 1.7(a)(2), 1.15(a)(3)(i,ii)(c)(2)(i,ii), 3.3(a)(1,2),
4.1(b), 8.4(b,c)
www.vsb.org/docs/White-011116.pdf
www.vsb.org
47
DISCIPLINARY SUMMARIES
NOTICES TO MEMBERS
DISTRICT COMMITTEES
ETHICS COMMITTEE SEEKS COMMENTS
John Paul Forest II
Fairfax, Virginia
14-052-097153, 14-052-096717
On November 10, 2015, the Virginia State Bar Fifth District
Subcommittee issued a public reprimand with terms to John Paul
Forest II for violating professional rules that govern diligence and
communication. This was an agreed disposition of misconduct
charges. RPC 1.3(a), 1.4(a)
http://www.vsb.org/docs/Forest-012816.pdf
Bruce Patrick Ganey
Ashland, Virginia
15-060-101324
On January 6, 2016, the Virginia State Bar Sixth District
Subcommittee issued a public reprimand with terms to Bruce
Patrick Ganey for violating professional rules that govern diligence
and communication. This was an agreed disposition of misconduct
charges. RPC 1.3(a), 1.4(a)
www.vsb.org/docs/Ganey-101324-012816.pdf
Bruce Patrick Ganey
Ashland, Virginia
15-060-101162
On January 6, 2016, the Virginia State Bar Sixth District
Subcommittee issued a public reprimand with terms to Bruce
Patrick Ganey for violating professional rules that govern diligence
and communication. This was an agreed disposition of misconduct
charges. RPC 1.3(a), 1.4(a)(b)(c)
www.vsb.org/docs/Ganey-101162-012816.pdf
Blanche Miclat Garber
Newport News, Virginia
15-010-100970
On November 24, 2015, the Virginia State Bar First District
Subcommittee issued a public reprimand to Blanche Miclat Garber
for violating professional rules that govern meritorious claims and
contentions, fairness to opposing party and counsel, and misconduct. This was an agreed disposition of misconduct charges. RPC
3.1, 3.4 (d), 8.4 (c)
The Standing Committee on Legal Ethics is seeking public comment of proposed amendments to Rules 1.6 and 3.3 clarifying a
lawyer’s obligations when a client discloses an intent to commit
perjury well in advance of trial.
www.vsb.org/pro-guidelines/index.php/rule_changes/item/
amendments_rules_1.6_3.3
SUPREME COURT OF VIRGINIA APPROVES
AMENDMENTS
Effective February 1, 2016, The Supreme Court of Virginia has
adopted amendments to:
Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice
of Law.
Rule 8.3: Reporting Misconduct.
www.vsb.org/pro-guidelines/index.php/rule_changes/item/
prop_5-5_and_8-3e
Effective March 1, 2016, the Court also approved amendments to:
Paragraph 13: Procedure for Disciplining, Suspending, and
Disbarring Attorneys.
www.vsb.org/docs/2015_12_17_part%206_Sect.%20IV_
Para%2013_11_13_25_13_30.pdf
Rule 1.1: Competence.
www.vsb.org/docs/SCV-rule_1-1_1-6-121815.pdf
Rule 1.6: Client Confidentiality.
www.vsb.org/docs/SCV-rule_1-1_1-6-121815.pdf
CRIMINAL LAW SEMINAR
The 46th Annual Criminal Law Seminar, sponsored by the VSB
Criminal Law Section and Virginia CLE, will be February 5 in
Williamsburg and February 12 in Charlottesville.
www.vsb.org/site/sections/criminal/annual-seminar
NOMINATIONS SOUGHT FOR AWARDS
Intak Lee
Fairfax, Virginia
14-051-0972013
On November 24, 2015, the Virginia State Bar Fifth District Section
I Subcommittee issued a public reprimand to Intak Lee for violating professional rules that govern competence, conflict of interest:
general rule, and safekeeping property. This was an agreed disposition of misconduct charges. RPC 1.1, 1.7(a)(1,2)(b)(1-4), 1.15(a)
(1)(b)(3)
The VSB is seeking nominations for the following awards:
• The General Practice Section Tradition of Excellence Award. The
nomination deadline is March 21, 2016.
• The Special Committee on Access to Legal Services Oliver White
Hill Law Student Pro Bono Award. The nomination deadline is
March 25, 2016.
• The Special Committee on Access to Legal Services Virginia Legal
Aid Award. The nomination deadline is March 25, 2016.
• The Young Lawyers Conference R. Edwin Burnette, Jr. Young
Lawyer of the Year Award. The nomination deadline is April 1,
2016.
• The Conference of Local Bar Associations Awards of Merit, Local
Bar Leader of the Year Award, and Bar Association of the Year
Award. The nomination deadline is April 29, 2016.
Please see the VSB Awards and Contests page for a list of all bar
sponsored awards and deadlines.
www.vsb.org/docs/Lee-011116.pdf
www.vsb.org/site/members/awards-and-contests/
www.vsb.org/docs/Garber-011116.pdf
48
www.vsb.org
NOTICES TO MEMBERS
Vacancies in 2016 are listed below. All appointments will be
for the terms specified, beginning on July 1, 2016, unless otherwise
noted.
2016 TECHSHOW
Registration is open for the April 25 VSB TECHSHOW at the
Greater Richmond Convention Center.
www.vsb.org/site/events/item/vsb_techshow_0416
YLC CELEBRATION OF WOMEN AND MINORITIES IN
THE LEGAL PROFESSION BENCH BAR DINNER
Save the date for the YLC Celebration of Women and Minorities in
the Legal Profession Bench Bar Dinner on March 23 at University
of Richmond Jepson Alumni Center.
www.vsb.org/site/conferences/ylc/bench-bar-dinner
LICENSE FORFEITURES
The licenses of members of the Virginia State Bar who are forfeited
from the practice of law for failure to comply with Section 54.13914, Code of Virginia, Title 54.1, Professions and Occupations
are listed on the VSB website. We have attempted to contact these
members at their last address listed with the Virginia State Bar,
however, in some instances, this has not been successful. Any member knowing the present location and/or practice status of any
person on the list should contact the Virginia State Bar as soon as
possible. These forfeitures were effective February 1, 2016. Details:
www.vsb.org/site/members/license-forfeitures
NOMINATIONS SOUGHT FOR COMMITTEE VACANCIES
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 June meeting.
EXECUTIVE COMMITTEE: 6 vacancies (1 current member is not
eligible for reappointment, and 5 current members are eligible for
reappointment). Filled from ranks of the council for 1-year terms,
by council appointment.
CLIENTS’ PROTECTION FUND BOARD: 7 vacancies (2 current
lawyer members from the 2nd and 5th disciplinary districts are not
eligible for reelection; 3 current lawyer members from the 1st, 4th
and 9th disciplinary districts are eligible for reelection; 1 current
lawyer member at-large is not eligible for reelection; and 1 current
lay member at-large is not eligible for reelection). May serve 2 consecutive 3-year terms. Appointment by council.
JUDICIAL CANDIDATE EVALUATION COMMITTEE: 4 lawyer
vacancies (of which 2 vacancies are to be filled by a member from
the 1st, 3rd, 5th, 7th or 8th judicial circuits; 1 vacancy is to be filled
by a member from the 6th, 11th, 12th, 13th or 14th judicial circuits
and 1 member at-large vacancy). May serve 1 full 3-year term.
Appointment by council.
AMERICAN BAR ASSOCIATION DELEGATES: 1 lawyer vacancy
(1 current member is eligible for reappointment). May serve 3 consecutive 2-year terms. Appointment by council. Term commences
September 1, 2016.
Nominations, along with a brief résumé, should be sent by March
11, 2016, to VSB Nominating Committee, c/o Asha Holloman,
Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA
23219-0026.
F O R T Y - S I X T H
A N N U A L
2016
Criminal Law Seminar
Recent Developments in Criminal Law and Procedure
•
Ethics Rocks: Ethical Issues in Criminal Law Practice
•
Big Brother IS Watching You (sort of): Overview of Recent Changes to Technology & Privacy Laws
•
Keeping up with the Joneses: Panel on Constitutional & Fourth Amendment Issues
•
Everybody Gets Out of Jail Eventually: Sentencing Advocacy Panel
www.vsb.org/site/sections/criminal
Video Replays in 13 Locations on Four Different Dates: March 29, 30 & 31 and April 26
Approved 6.5 MCLE Credits (including 1.5 ethics credit)
VIRGINIA CLE AND VIRGINIA STATE BAR
®
www.vsb.org
49
NOTICES TO MEMBERS
NOMINATIONS SOUGHT FOR DISTRICT COMMITTEE
VACANCIES
The Standing Committee on Lawyer Discipline calls for
nominations for district committee vacancies to be filled by
Council in June. Note that there are vacancies which may
not become available because some members are eligible for
reappointment.
To review qualifications for eligibility, see Rules of the
Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4
– Establishment of District Committees, specifically 13-4.E
(Qualifications of Members) and 13-4.F (Persons Ineligible for
Appointment).
FOURTH DISTRICT COMMITTEE, SECTION II: 3 attorney
vacancies (1 current member is eligible for reappointment); 1
non-attorney vacancy. Vacancies are to be filled by members from
the 17th or 18th judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION I: 2 attorney
vacancies (both current members are eligible for reappointment);
2 non-attorney vacancies (1 current member is eligible for
reappointment). Vacancies are to be filled by members from the
19th or 31st judicial circuits.
FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney
vacancies; 1 non-attorney vacancy. Vacancies are to be filled by
members from the 19th or 31st judicial circuits.
FIRST DISTRICT COMMITTEE: 3 attorney vacancies (2 current
members are eligible for reappointment). Vacancies are to be
filled by members from the 1st, 3rd, 5th, 7th or 8th judicial
circuits.
FIFTH DISTRICT COMMITTEE, SECTION III: 3 attorney
vacancies (2 current members are eligible for reappointment);
1 non-attorney vacancy (current member is eligible for
19th or 31st judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION I: 4 attorney
vacancies (2 current members are eligible for reappointment).
Vacancies are to be filled by members from the 2nd or 4th judicial
circuits.
SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 nonattorney vacancy. Vacancies are to be filled by members from the
9th or 15th judicial circuits.
SECOND DISTRICT COMMITTEE, SECTION II: 2 attorney
vacancies (both members are eligible for reappointment); 2 nonattorney vacancies. Vacancies are to be filled by members from the
2nd or 4th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney
vacancies (2 current members are eligible for reappointment).
Vacancies are to be filled by members from the 6th, 11th, 12th,
THIRD DISTRICT COMMITTEE, SECTION II: 3 attorney
vacancies (all 3 current members are eligible for reappointment);
6th, 11th, 12th, 13th or 14th judicial circuits.
SEVENTH DISTRICT COMMITTEE: 4 attorney vacancies (3
current members are eligible for reappointment). Vacancies are to
be filled by members from the 16th, 20th or 26th judicial circuits.
EIGHTH DISTRICT COMMITTEE: 1 attorney vacancy (current
member is eligible for reappointment); 1 non-attorney vacancy.
Vacancies are to be filled by members from the 23rd or 25th
judicial circuits.
NINTH DISTRICT COMMITTEE: 1 non-attorney vacancy
(current member is eligible for reappointment). Vacancies are to
be filled by members from the 10th, 21st, 22nd or 24th judicial
circuits.
TENTH DISTRICT COMMITTEE, SECTION I: 2 attorney
vacancies; 1 non-attorney vacancy. Vacancies are to be filled by
members from the 27th, 28th, 29th or 30th judicial circuits.
THIRD DISTRICT COMMITTEE, SECTION III: 1 attorney
vacancy (current member is eligible for reappointment).
Vacancies are to be filled by members from the 6th, 11th, 12th,
TENTH DISTRICT COMMITTEE, SECTION II: 1 attorney
vacancy; 1 non-attorney vacancy. Vacancies are to be filled by
members from the 27th, 28th, 29th or 30th judicial circuits.
FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorney
vacancies (1 current member is eligible for reappointment);
Nominations, along with a brief resume, should be sent by
February 28, 2016, to
Stephanie Blanton, Virginia State Bar,
1111 East Main Street, Suite 700, Richmond, VA 23219-0026
[email protected]
50
www.vsb.org
President-elect Robinson Seeks Members
for Virginia State Bar Committees
With Terms Commencing July 1, 2016
To: Members of the Bar
From: Michael W. Robinson, President-elect
As you know, much of the work of the Virginia State Bar is done through its committees, and we need members willing
to serve. Appointments will generally be for a three-year term, running from July 1, 2016, to June 30, 2019, with the possibility
of another three-year term to follow. The work of the committees is time consuming and in most cases requires committee
members to set aside substantial time to fulfill the requirements of the job.
To encourage participation — and recognizing the time constraints — members are generally limited to serving on only
one committee. The number of available positions is quite limited, but I will attempt to accommodate as many people as possible.
The committees are as follows:
Standing Committees:*
♦ Budget & Finance
♦ Lawyer Discipline
♦ Legal Ethics
♦ Professionalism
♦ Unauthorized Practice of Law
Special Committees:
♦ Access to Legal Services
♦ Bench-Bar Relations
♦ Better Annual Meeting
♦ Communications
♦ Lawyer Malpractice Insurance
♦ Lawyer Referral
♦ Personal Insurance for Members
♦ Resolution of Fee Disputes
♦ Technology and the Practice of Law
*Lawyer member vacancies on Standing Committees are limited due to requirements for a specific number
of Executive Committee and Council members to serve on each committee.
If you would like to be considered for appointment to any of the VSB committees listed, please complete the form below
or download the form at http://www.vsb.org/site/about and return it to the Virginia State Bar office by February 26, 2016, by mail
or e-mail to Asha B. Holloman:
Virginia State Bar
1111 East Main Street, Suite 700
Richmond, VA 23219-0026
[email protected]
VSB Committee Preference Form (term commencing July 1, 2016) (Please type or print)
Attach a separate sheet with additional comments (i.e., qualifications and reason for wanting to serve).
Name:
VSB Attorney No.:
Address:
City/State/Zip:
Choice
1st Choice
2nd Choice
3rd Choice
Phone No.:
Committee Name
Email:
Have you ever served on this committee?
Yes
No
Yes
No
Yes
No
Length of Service
Check here if you have never served on a VSB committee.
To assist us in the committee selection process, please provide the following information:
Private Practice
Corporate Counsel
Primary area of practice:
Other
Government attorney
Commonwealth
City/County
Federal
www.vsb.org
51
Professional Notices
Rodney K. Adams has
been tapped by Virginia
Commonwealth University
to teach Bioethics & Health
Law in its Master of Health Adams
Administration program.
He will continue his full-time practice defending healthcare providers at
LeClairRyan.
Blankingship & Keith
PC has added Justin M.
Contratto and Lauren A.
Fredericksen as associates.
Contratto joins the firm’s
Contratto
Family Law practice. He
previously worked for the
Legal Aid Society’s Criminal
Defense Rights and Juvenile
Rights practices in New
York City. Fredericksen’s
Fredericksen
practice focuses on commercial litigation with an
emphasis on employment law and commercial matters. Harman Claytor Corrigan &
Wellman welcomes three new
attorneys. George A. Somerville, joins
the firm as senior counsel and will concenatrate his practice in appellate litigation. Jeffrey P. Miller and Elizabeth O.
Papoulakos join the firm as associates
and will concentrate their practice in
general civil litigation, including motor
vehicle, premises, and products liability. Hirschler Fleischer has combined with
the Tysons law firm of Leach Travell PC,
adding seven partners in four practice
areas: business, litigation, bankruptcy /
creditors’ rights, and real estate. With
these attorneys, Hirschler Fleischer will
have eighty attorneys across three offices
in Virginia: Richmond, Fredericksburg
and Tysons.
Hirschler Fleischer has promoted three
attorneys to partner: Fredericksburgbased Stacie C. Bordick, and Richmondbased Lisa J. Hedrick and Benjamin
G. Thompson. Bordick is a member
of the firm’s Litigation and ADR
practice. Hedrick is a member of the
52
firm’s Mergers & Acquisitions practice.
Thompson is a member of the firm’s
Investment Management practice.
Edward H. Klees has joined Hirschler
Fleischer’s Investment Management
practice as a partner. He joins Hirschler
Fleischer from the University of Virginia
Investment Management Company,
where he served as general counsel. Klees
will lead the group’s representation of
endowments, foundations, and outsourced chief investment offices.
Jonathan P. Lienhard is a
partner at Walker Jones in
Warrenton and Washington,
Virginia. He has been with
the firm since 2011 and
Lienhard
has more than fifteen years
of legal experience. His practice areas
include civil litigation, commercial litigation, criminal law, and business law.
Paul Marcus, professor at William
& Mary Law School, was selected as
president-elect of the Association of
American Law Schools on January 9
during the association’s annual meeting
in New York.
Paul H. Melnick, principal, and Julie
K. Eppard, associate, of Melnick and
Melnick PLC of Falls Church have
merged with the law firm of Pesner
Kawamoto PLC as of January 1, 2016. The offices will be at 7926 Jones Branch
Drive, Suite 930, Tysons Corner, VA
20102 – tel: (703) 506-9440. Melnick
and Eppard practice primarily in the
areas of trust and estate administration
and estate and trust planning. They are
both former chairs of The Real Estate
Section of the Virginia State Bar.
design professionals, in line with his
practice of counseling privately held
businesses, professional practices, and
non-profits.
Griffin M. O’Hanlon has
joined the Norfolk-based
personal injury firm of
Cooper Hurley Injury
Lawyers. Previously,
O’Hanlon
O’Hanlon practiced criminal
defense in the Norfolk Public Defender’s
Office. His practice will focus on helping those injured throughout Hampton
Roads.
Owen J. Pinkerton is one of seven attorneys elected partner at Morris, Manning
& Martin LLP. His practice area is
Corporate/Real Estate Capital Markets in
Washington, DC.
Ricardo Pitts-Wiley is the newest
member of The Federal Practice Group
Worldwide Service’s Employment Law
Group. Pitts-Wiley has over a decade
of experience in employment law and
will provide representation for clients
before the Employment Opportunity
Commission, Merit System Protection
Board, Office of Special Counsel, and the
Office of the Inspector General for various agencies.
Laurie L. Proctor has become a principal with Blankingship & Keith PC. She
focuses on civil litigation with an emphasis on commercial matters, employment
law, and trust and estates litigation.
Steven D. Najarian has joined the Board
of Veterans’ Appeals in Washington DC
as an attorney advisor.
Robert M. Reiner has
joined Selzer Gurvitch
Rabin Wertheimer Polott &
Obecny PC as a partner and
member of the member of
Reiner
the Estate Planning/Trust &
Estate Administration and Tax practice
groups.
Morris A. Nunes, announces Routledge
has published his 6th book (co-authored
with Andrew Pressman, AIA) Designing
Profits, a guide to business management
for architects, engineers, and other
Eric N. Schloss has joined
the Law Offices of Lee
Saltzberg in Towson,
Maryland, where he will
continue to practice per-
Schloss
www.vsb.org
sonal injury law in Maryland, Virginia,
and Washington, DC.
Pantea F. Stevenson has joined Bean,
Kinney & Korman as a shareholder. She
focuses her practice on mergers and
acquisitions, commercial contracts, collaborations, business law, and intellectual
property transactions.
Matthew Von Schuch
has been elected partner
at Wharton Aldhizer &
Weaver. He joined the firm
in 2012 after working in the
US Justice Department’s tax
division for nearly five years. For confidential,
free consultation
The VSB E-News
available to all Virginia attorneys
on questions related to legal
malpractice avoidance, claims repair,
professional liability insurance issues,
and law office management, call
Fairfax County lawyer, John J. Brandt,
who acts under the
auspices of the Virginia State Bar at
(703) 281-2600 x101
Von Schuch
E-mail your news and high-resolution
professional portrait to hickey@vsb.
org for publication in Virginia Lawyer.
Professional notices are free to VSB
members and may be edited for length
and clarity.
“Not in Good Standing”
Search Available at
VSB.org
Have You Moved?
To check or change your address of record with the Virginia State Bar, go to the VSB
Member Login at 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 e-mail address on the form.
Contact the VSB Membership Department ([email protected] or (804) 7750530) with questions.
ADVERTISER’S INDEX
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www.vsb.org
Have you been receiving the
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.
The Virginia State Bar offers the
ability to search active Virginia
lawyers’ names to see if they are
not eligible to practice because
their licenses are suspended or
revoked using the online Attorney
Records Search at www.vsb.org
/attorney/attSearch.asp.
The “Attorneys Not in Good
Standing” search function was
designed in conjunction with the
VSB’s permanent bar cards.
Lawyers are put on not-ingood-standing (NGS) status for
administrative reasons — such as
not paying dues or fulfilling continuing legal education requirements — and when their licenses
are suspended or revoked for violating professional rules.
The NGS search can be used
by the public with other attorney
records searches — “Disciplined
Attorneys” and “Attorneys without
Malpractice Insurance” — to check
on the status and disciplinary history of a lawyer.
53
Classified Ads
Outside Counsel
Sought
THE AMERICAN NURSES
ASSOCIATION (ANA) Office
of General Counsel is accepting bids for outside counsel
services and has issued an
RFP. The deadline for submitting the completed RFP
is Monday, February 29,
2016, at 5:00 p.m. If
interested, please visit:
https://www.dropbox.com/
sh/e78oou9e2saz0eq/
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Positions Available
ASSOCIATE ATTORNEY
(FAIRFAX, VA) — Small civil
practice firm in Fairfax looking for a Virginia-licensed
associate attorney with 3+
years of experience, preferably in family law. Candidate
will deal directly with clients and will fully handle
cases from start to finish.
To apply, please send your
resume and income expectations to lawfirmposition2@
gmail.com.
COUNTY ATTORNEY
(ALBEMARLE COUNTY,
VIRGINIA) — Albemarle
County is looking for its next
County Attorney. To learn
more about this position and
Albemarle County, view the
County Attorney Position
Profile at www.albemarle.org/
jobs. Applications must be
submitted online by March 1,
2016. Anticipated Start Date:
June 1, 2016. EEO/EOE
GENERAL COUNSEL (WEST
VIRGINIA) — The Attorney
General’s Office seeks candidates for the position of
General Counsel. Ideal candi54
dates will have top academic
credentials, outstanding
transcripts, a judicial clerkship and a minimum of five
(5) years in-house counsel
or senior management experience. Candidates will have
excellent judgement and
the ability to prioritize and
manage several simultaneous
projects under deadline pressures. Successful candidates
will be expected to work long
hours, produce a high-quality legal product that meets
exacting standards, and seek
to enhance the reputation of
the Attorney General’s Office
as a top law firm in the State
of West Virginia. Candidates
must also have an active
WV license or be eligible for
admission. Please send your
resume, a writing sample
and preferred salary range
to [email protected] with
“General Counsel” in the
subject line.
PI JUNIOR ASSOCIATE ATTORNEY
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Firm of Military Veterans
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their growing law firm. PI
Jr Associate Attorneys (0-3
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with experience. Please send
cover letter and resume with
references to Ron@
youhurtwefight.com
SENIOR ATTORNEY: The
Attorney General’s Office
seeks a senior level attorney.
Candidates must have senior
management experience, be
motivated self-starters with
strong work ethic, integrity and professionalism.
Excellent interpersonal,
organizational and verbal/
written communication skills
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Ideal candidates will have
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judicial clerkship. Successful
candidates will be expected
to work long hours, produce a high-quality legal
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enhance the reputation of the
Attorney General’s Office as
a top law firm in the State of
West Virginia. Candidates
must also have an active
WV license or be eligible for
admission.
Please send your resume,
a writing sample and preferred salary range to jobs@
wvago.gov with “Senior
Attorney” in the subject line.
Rentals
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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 is available online at
http://www.vsb.org/site/publications/valawyer,
or you can contact Dee Norman at (804) 7750594 or [email protected].
www.vsb.org
78 MEETING
ANNUAL
V I R G I N I A S TAT E B A R
JUNE 16-19 2016
V I R G I N I A
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Opinions: 1967 – present
Conflict of Interest Opinions: 1994 – present
Virginia Circuit Court
31 Circuits, various dates
Legal Ethics & Unauthorized Practice
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Published: Vol. 64 (1985) – latest volume (2000)
Unpublished: 1993 – latest opinions
Virginia Constitution
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or CaseFinder® CD . . .
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Full text of earlier versions back to 2002;
Amendments back to 1994
United States Supreme Court
Vol. 338 (1949) – latest slip opinions
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450 F.2d (1971) – latest opinions
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