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VIRGINIA LAWYER REGISTERThe Official Publication of the Virginia State Bar

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December 2015Volume 64/ Number 4

The Official Publication of the Virginia State Bar

Virginia Lawyer

Features

NoteworthyVSB NEWS

36 VSB TECHSHOW

PEOPLE

37 In Memoriam

37 Virginia Law Foundation to InductFellows Class of 2016

37 UR Graduate Receives Award

ET AL.

38 Justice Sotomayor Offers RichmondStudents Advice, Reflection

Departments6 Correction

19 Law Stories

35 Access to Legal Services

39 Conference of Local BarAssociations

46 CLE Calendar

52 Professional Notices

54 Classified Ads

Columns10 President’s Message

12 Executive Director’s Message

40 Diversity Conference

41 Law Libraries

42 Technology and the Practice of Law

43 Risk Management

45 Book Review

GENERAL INTEREST16 Arbitration of Magnuson-Moss Warranty Act Claims

by David A. Hirsch

VIRGINIA LAWYER REGISTER

47 Disciplinary Proceedings

48 Disciplinary Summaries

49 Notices to Members

49 Supreme Court of VirginiaApproves Amendments

49 Comments Sought on Proposalto Fund the DiversityConference

49 Criminal Law Seminar

49 Indigent Criminal DefenseSeminar

49 Nominations Sought for Awards

49 Volunteers Sought for VSBCommittees

49 Law in Society Essay Contest

49 2016 Techshow

49 YLC Celebration of Women andMinorities in the LegalProfession Bench Bar Dinner

50 Nominations Sought forCommittee Vacancies

51 Committee Preference Form

Cover: Photo by Bill Dickinson of Sky Noir Photography. See more of his work at www.skynoirphotography.com.

CONSTRUCTION LAW & PUBLIC CONTRACTS20 Construction and Public Contracts

by Shannon J. Briglia

22 The Effective Use of Jury Instructionsin Construction Casesby Kristan B. Burch

26 The Fate of Cumulative Impact Claimson Public Works Contracts in Virginia by Shiva S. Hamidinia

30 The Elusive Permissibility of Pass-Through Claims in Virginiaby Melisa A. Roy

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2015-16 OFFICERSEdward L. Weiner, PresidentMichael W. Robinson, President-electKevin E. Martingayle, Immediate Past President Karen A. Gould, Executive Director and Chief Operating Officer

EXECUTIVE COMMITTEEEdward L. Weiner, Fairfax, PresidentMichael W. Robinson, Tysons Corner, President-electKevin E. Martingayle, Virginia Beach, Immediate Past PresidentBrian L. Buniva, RichmondMarni E. Byrum, AlexandriaNancy C. Dickenson, AbingdonLeonard C. Heath, Jr., Newport NewsMichael HuYoung, RichmondDaniel L. Rosenthal, RichmondJack “JB” W. Burtch, Jr., Richmond, CLBA ChairProvidence E. Napoleon, Richmond, Diversity Conference ChairRobert T. Vaughan, Jr., Danville, SLC ChairNathan J. Olson, Fairfax, YLC President

COUNCIL

1st CircuitNancy G. Parr, Chesapeake

2nd CircuitSteven G. Owen, Virginia BeachJudith L. Rosenblatt, Virginia BeachDaniel M. Schieble, Virginia Beach

3rd CircuitNicholas D. Renninger, Portsmouth

4th CircuitAnn B. Brogan, NorfolkGary A. Bryant, NorfolkNeil S. Lowenstein, Norfolk

5th CircuitCarl Phillips “Phil” Ferguson, Suffolk

6th CircuitPeter D. Eliades, Hopewell

7th CircuitLeonard C. Heath, Jr., Newport News

8th CircuitMarqueta N. Tyson, Hampton

9th CircuitW. Hunter Old, Williamsburg

10th CircuitCharles H. Crowder, III, South Hill

11th CircuitDale W. Pittman, Petersburg

12th CircuitGraham C. Daniels, Chester

13th CircuitPaula S. Beran, RichmondBrian L. Buniva, RichmondDabney J. Carr, IV, RichmondLeah A. Darron, RichmondChristy E. Kiely, RichmondGeorge W. Marget, III, RichmondEric M. Page, Richmond

14th CircuitJon A. Nichols, Jr., Glen AllenDaniel L. Rosenthal, RichmondRhysa G. South, Henrico

15th CircuitJennifer L. Parrish, Fredericksburg

16th CircuitJames M. Hingeley, Jr., CharlottesvilleR. Lee Livingston, Charlottesville

17th CircuitTimothy B. Beason, ArlingtonRaymond B. Benzinger, ArlingtonJohn H. Crouch, ArlingtonHarry A. Dennis, III, ArlingtonRachelle E. Hill, Arlington

18th CircuitBarbara S. Anderson, AlexandriaFoster S. B. Friedman, AlexandriaCarolyn M. Grimes, Alexandria

19th CircuitJames F. Davis, FairfaxJoyce M. Henry-Schargorodski, FairfaxChidi I. James, FairfaxSean P. Kelly, FairfaxDavid L. Marks, FairfaxGary H. Moliken, FairfaxJay B. Myerson, RestonLuis A. Perez, Falls ChurchWilliam Boyle Porter, FairfaxDennis J. Quinn, TysonsWilliam L. Schmidt, FairfaxMelinda L. VanLowe, FairfaxJames A. Watson, II, FairfaxMichael M. York, Reston

20th CircuitChristine H. Mougin-Boal, LeesburgT. Huntley Thorpe, III, Warrenton

21st CircuitJoan Ziglar, Martinsville

22nd CircuitLee H. Turpin, Chatham

23rd CircuitMark K. Cathey, RoanokeEugene M. Elliott, Jr., Roanoke

24th CircuitDavid B. Neumeyer, Lynchburg

25th CircuitRoscoe B. Stephenson, III, Covington

26th CircuitW. Andrew Harding, Harrisonburg

27th CircuitRichard L. Chidester, Pearisburg

28th CircuitWilliam M. Moffet, Abingdon

29th CircuitJoseph M. Bowen, Tazewell

30th CircuitWilliam E. Bradshaw, Big Stone Gap

31st CircuitGifford R. Hampshire, Manassas

MEMBERS AT LARGEMarni E. Byrum, AlexandriaNancy C. Dickenson, AbingdonAfshin Farashahi, Virginia BeachWilliam E. Glover, FredericksburgMichael HuYoung, RichmondBeverly P. Leatherbury, EastvilleTodd A. Pilot, AlexandriaLorrie A. Sinclair, LeesburgA Benjamin Spencer, Charlottesville

Conference of Local Bar Associations ChairJack “JB” W. Burtch, Jr., Richmond

Diversity Conference ChairProvidence E. Napoleon, Richmond

Senior Lawyers Conference ChairRobert T. Vaughan, Jr., Danville

Young Lawyers Conference PresidentNathan J. Olson, Fairfax

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VIRGINIA LAWYER | December 2015 | Vol. 646

Correction

James Lofton, who was recently namedGovernment Attorney of the Year by theABA Section of Environment, Energyand Resources, managed Power PlanInitiative cases resulting in the elimina-tion of millions of tons of air pollutants.The quantity of air pollutants was mis-stated in an article about Lofton in theOctober 2015 issue of Virginia Lawyer.

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Virginia CLE® 2015 VolunteersAggarwal, AlviAghdami, FarhadAhmad, Hassan M.Albo, David B.Allen, Charles M.Allen, DennisAllen, Jr., W. ColemanAmorosi, Edmund M.Anderson, Phillip V.Angle, Robert A.Archer, Dr. Robert P.Atlee, Jr., Hon. Richard Y.Babcock, Jr., William L.Bacigal, Prof. Ronald J.Ballou, Hon. Robert S.Balnave, Prof. Richard D. Baril, Stephen E. Barker, Michael H.Barkley, James W.Barnes, Edward D.Barnhart, Kelly M.Barrett, Peter J.Barton Jr., Harold H.Basha, Leigh-AlexandraBattaglia, John Baugh, David P.Beale, J. BurkhardtBelger, Sarah A.Bell, Alex H.Bell, Harold E.Bell, Jr., Thomas G.Bellegarde, Paul A.Benos, William J.Bernstein, Michael L.

Beskin, Herbert L.Beyer, Prof. Gerry W.Black, Hon. Paul M.Blain, Lynne JonesBlank, Irving M.Bliley, Jr., Paul S. “Chip”Blydenburgh, Candace AliBobzien, David P.Bowers, LesBradburn, DouglasBranca, Michael A.Bredehoft, John M.Brice, Hon. Lynn S.Briglia, Shannon J.Bristow, John D.Brody, Stephen D.Brothers, Carter R.Broughton, N. Reid Broughton, Turner A.Brown, Craig A.Brown, Hon. John W.Brown, KateBrown, Tyler P.Bryan, Hon. Deborah V.Buckner, Elliott M.Burch, Kristan B.Burns, Robert L.Burton, David C.Butler, III, Harris D.Butler, Susan M.Byers, Barbara K.Byrum, Jr., John K.Cales, Jr., Hon. James A.Campion, III, Thomas F.

Campsen, Paul K.Canada, Hon. Joseph Capsalis, Hon. Manuel A.Caramore, Megan B.Carlton, Heather L.Carlton, Mark G.Carnell, Susanne H.Carpenter, IV, Joseph H.Carson, LaShondaCarter, AdamCarwile, Timothy C.Casey, Brian N.Casola, Francis H.Casterline, Jr., William H.Cathey, Mark K. Chess, Richard B.Chucker, Hon. G. Barton Cillo, JulieCiolfi , AngelaClancy, JamesClaytor, John M.Cohen, Ralph A.Cole, Michael A. Coley, Lindsey A.Commander, Mary G.Connelly, Hon. RebeccaConnors, Jenny H.Conrad, Hon. Glen E.Conrad, Jr., Hon. Robert J.Conway, Richard A.Cooper, Heather A.Cooper, Jr., Hon. Samuel H.Cooper, Massie P.Cox, David

Cox, III, James P. Cox, Robert K.Creasman, Kay M.Crigler, Hon. B. Waugh Crockett, Christina M.Croshaw, Hon. Glenn R.Cunningham, Joseph F.Curley, Paul M.Curtin, Kevin J.Curtis, Kenneth W.Dahl, Stephanie M.Dahnk, Jeannie P.Daniel, James A. L. Daniel, LarsDare, R. MarkDavenport, DariusDavidson, John E.Davis, Edward L.Decker, Hon. Marla G.Delano, Jr., Robert B. “Chip”Dellinger, Mark W.Demarest, III, William F.Denslow, Taylor Towe Dewing, Douglass W.Dezio, John A.Diehl, Lawrence D.Dietrich, Raymond S.DiMuro, Bernard J.Donald, Hon. Bernice B.Donato, Brian J.Dorsey, Hon. Charles N.Dougherty-Cunningham,

ChristiannaDuane, Prof. James J.Duffan, Kevin M.Dunlap, Thomas M.Dunn, Stephen E.Durst, Daniel J.Dyer, III, William B.Eason, Carl A.Easterling, Robert B.Eells, Lauren S.Ellerman, LaurenEllis, Dr. C. RickEnglish, J. BenjaminEpps, John D.Fain, III, Hugh M. Fallon, Dana M. Farmer, John B.Farrell, John W.Fauls, Thomas E. duB. “Ted”Feil, III, Otto F.Feldmann, Mark E. Ferrance, Leon P.Fessier, Rosalie PembertonField, RobertFields, Deborah A.Finney, Michael J.Fishwick, John P.Fitch, Daniel L.Flage, Jessica M.Fogg, T. Keith Folds, J. DavidFoley, Douglas M.Folk, Thomas R.Fontham, Michael R.Ford, Millicent Fountain, Edwin L.French, Catherine M.Frucci, Hon. Steven C.Gaden, Hon. Barbara J.Gambardella, Anthony J. Gammon, T. BrentGarcia, J. ConradGarczynski, Eileen

Geibel, Erica J.Geiger, Jeffrey Hamilton Georges, FrancieGershen, Kim R.Gibbons, Sean M.Gilmore, Jeffrey G.Ginsberg, David L.Girinakis, RenaGlickman, Amanda L.Gogal, David J.Goodman, Michael L.Gorham, Charles B.Gorsline, Melissa S.Gould, Karen A.Gracik, Jr., L. MichaelGraham, Mark P.Grana, Stephanie E.Graves, Terrence L.Gray Jr., J. WilliamGray, Daniel L.Gray, Elizabeth L.Grey, Jr., Robert J.Grigg, Virginia H.Grimes, Carolyn M.Gunn, ElizabethGuzinski, Joseph A.Habeeb, Gregory D.Hager, Kristen FrancesHaley, Leslie A.T.Ham, Jason J.Hammer, Amberley G.Han, John Hanson, Hon. Edward W.Hanssen, John C.Harbert, III, Guy M.Hardenbergh, C. VanHarless, Warren DavidHarllee, Edmund D. “Ed” Harrell, Nicole J. Harris, Laura D.Hart, James R. Harter, Alyson M.Hayes, Dion W.Hegeman, BlakeHeilberg, David Heinberg, DeanHenderer, Peter L.Henenberg, Hon. Karen A.Henley, III, Robert P.Hicks, Hon. Gary A.Hicks, SusanHiggs, Steven L.Hill, Christopher G.Hill, IV, R. BraxtonHill, Travis Hirsch, Brian M.Hite, Collin J.Hite, Kelly S.Hoagland, Prof. Roy A. Hodges, Elizabeth S.Holzheimer, Jr., Richard D.Hook, Andrew H.Hoppe, Hon. Joel Horne, Hon. Thomas Horvath, Rachel D.G.Horvath, Stephen A.Hosmer, Kyle R. Howard, Jr., Roscoe C.Howard-Smith, Richard H.Howell, III, Henry E. Howley, Sean M.Howsie, Elliot C.Huddle, John M.Huddleston, Jon D.Hudgins, David D.

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Huennekens, Hon. Kevin R.Humphreys, Hon. Robert J.Hutman, Hannah W.HuYoung, MichaelInman, Michael A.Isaacs, H. TimothyIsler, Edward LeeIvey, Gerald Jackson, J. BrianJackson, KariJackson, Linda M.Jackson, Stephen R. Jarvis, Hon. William E.Jenkins, Jr., Hon. C.N. Jenkins, Lauren A.Jhun, Helen Johnson, Hon. Traci L.Jones, Christopher A.Jones, Hon. Jerrauld C.Jones, T. ColeKachel, Lynn Morris Kageleiry, Peter, Jr.Keeley, HilaryKeenan, Kim M.Keene, Jesse S.Keith, John A.C.Kellam, Mary M.Kelleher, Jean K. Kelly, Michael P.Kelly, Sean P.Kelsey, Hon. D. Arthur Kenney, Hon. Brian F.Kessler, Neil S.Kim, Steve J.King, BradKitts, Zachary A.Klein, Hon. StanleyKonrad, Otto W.Konvicka, Jason W.Kowalski, Scott W.Kozlowski, Christopher M.Kraftson, Daniel J.Krasnegor, Daniel G.Kuhnel, Paul C.Kummer, JeffreyLahren, Anne C.Lain, Prof. Corinna BarrettLangberg, Jason LaPar, Kelly B.Larson, Edward J.Lee, Paul S.Leffler, Mark C.Leffler, Rodney G.Leggette, Thomas A.Lester, Nancy S.Levay, Jr., Alexander N.Lewandowski, Dennis T.Lewis, Bretta Z.Lewis, Dr. Don S.Lewis, III, Hon. W. RevellLhospital, DeanLittle, John V. Livingston, Lee Loftis, Mark D. Loupassi, G. ManoliLowe, John Lowry, Edward B.Lucy, J. BarrettLudwig, Hon. Victor V.Maddock, III, John H.Magee, Corinne J.Mahar, Jennifer A.Majette, R. ShawnManuel, Elisabeth L.Manz, Angela N.

Marchant, Hon. William R.Marston, K. BrettMartin Jr., Harold G.Martin, Jr., Everett A.Martingayle, Kevin E. Marzouk, Tobey B.Maschke, Michael C.Mason, Arnie B.Mason, ThomasMasterman, DavidMatheson, Michael G.Mauck, Jr., William R.Maxwell, Richard C.McCallum, Hon. Steven ColinMcCarroll, MonicaMcCarthy, Christopher M.McCauley, James M.McCauley, Kathleen M.McClintock, J. ThomasMcConnell, III, Malcolm P.McCullough, Stephen R.McElligott, Jr., James P.McElroy, Howard C.McElwain, Larry J.McEwen, James G.McGavin, John D.McGowan, ChristopherMcGrath, Richard Tyler McHugh, Timothy L.McLaughlin, Lauren P.McMullan, C. Grice McPhillips, Charles V.Melnick, Paul H.Memmer, C. KailaniMenges, Charles L.Mercer, David S.Metz, Todd R.Michaud, Lori A.Midgett, John T.Migdail, Rhonda G.Mijal, Mara S.Miller, Charles L.Minor, Steven R. Mitchell, Hon. Faye W.Monday, Monica T.Montgomery, Diane U.Moore, Hon. Becky J.Moore, Jr., Hon. William S.Morabito, Erika L.Morgan, Jr., Hon. Henry CokeMorgan, Mary T.Morin, Donald R.Morin, Michael A.Morris, Dewey B. Morrison, Frank W.Morrison, Hon. Cynthia P.Morrison, Jr., Hon. John C.Moseley, Andrea L.Moye, E. Kristen Mulligan, Stephen P.Mullins, Alison R.Muncie, Jr., James G.Muncy, Johnie R. Murphy, Stephen W.Murphy, Thomas P.Murtagh, Elizabeth P.Mutnick, Stephen A.Nabhan, Douglas M.Narron, James W.Nath, Robert G.Naughton, John F. Neale, James F.Neff, Prof. Laurie ForbesNelson, Dr. Michelle K.Nelson, Sharon D.

Neskis, GeorgeNolan, ThomasNoona, Stephen E.Norman, John L.Norris, Jr., John S.Norton, Beth A.Nunley, Chip Nunnallee, Walter H.Nusslock, Kathy L.O’Malley, Carrie HallbergO’Grady, Hon. Liam O’Grady, John B.Ortiz, Hon. Daniel E.Osborne, Caroline L. Ostdiek, Jane Owens, JessicaPace, Jr., G. MichaelPachucki, Mark A.Padrick, Jr., Hon. H. ThomasPage, Rodney F.Palais, Douglas M.Palmer, Timothy K.Papadopoulos, Mark E.Pascal, Lawrence J.Pedraza, Ryan J.Perkins, Eric C.Perrine, Nicholas A.Petty, Hon. William G.Phillips, Hon. Keith L.Pogoda, Kevin T.Pollard, V, Henry R.Protas, KristinPurcell, Jr., Francis E. Pustilnik, Hon. Robert A.Quadros, Robert P.Quagliana, Rhonda Quinn, Dennis J.Rack, Kevin B.Rash, Matthew P.Ratner, ToddRay, Steven W.Raynor, Steven L.Redd, H. Carter Redick, JamesRephan, Jack Richardson, Robert K.Rigsby, Michael L.Rizek, Christopher S.Roberts, SeasonRobinson II, C. ArthurRobinson, Stephen W.Roche, Brien A. Rodriguez-Howdershell,

Brenda R.Rogers, Louis J. Rosensweig, Daniel H.Roski, SuzanneRoss, Robert Tayloe Roush, Hon. Jane M.Rowe, William L. S.

Salas, MarioSaltzburg, Prof. Stephen A.Samorajczyk, Stanley J.Sampson, Craig W.Sanderson, William I.Santoro, Hon. Frank J.Sargent, Hon. Pamela M.Sayers, Stephen M.Schaefer, Hon. George E.Schenkel, LisaSchwab, John A.Scolforo, Angela M.Sellers, Jane Whitt Shaner, Leslie Ann Sheridan, Hon. Paul F.Shin, Crystal Sue Shirkey, Jennifer E. Shockley, Jr., Hon. A. BonwillSibley, III, George P.Simek, John W.Simmons, Hon. Mark C.Simonsen, David R.Sinclair, Prof. Kent Sinnen, Hon. Tina E.Sinsabaugh, Larry L.Skilling, Elizabeth S.Skilling, James C. Slaughter, Alexander H. Slaughter, D. FrenchSlaughter, M. BryanSlone, Daniel K.Smith, Adam W.Smith, Richard F. Smith, Ronald E.Smith, Sandra L.Spahn, Thomas E.Spiro, David K.St. John, Hon. Stephen C.Stafford, Debra S. Stark, Charles W.Steffens, Joley L. (Eason)Stemland, Karen M.Stephenson, III, Roscoe B.Stevens, Christopher W.Stickley, Dillina W.Stiles Jr., William A.Stillman, Hon. F. BradfordStockment, Andrew B.Stoltz, JosephStone, BruceStone, Jonathan L.Stosh, Sen. Walter A. Strand, Russell W.Summers, Jeffrey M.Suski, Emily Swersky, Hon. Alfred D.Szablewicz, James J.Tavenner, Lynn L.Terpak, Paul B.Terry, Michael H.

Terry, Roy M.Thomas, David W.Thomas, Derrick Thomas, III, Frank A. Thomas, Jeree Thomas, Jr., Colin J. S.Thomas, Norman A.Thompson, Kelly A.Thomson, Christine Thorsen, James B.Tittermary, Michael P. Titus, Bruce E. Tomasik, Jr., Timothy S.Trainum, James I.Trenga, Hon. Anthony J.Trigiani, Lucia Anna “Pia”Turner, Lori H. Urbanski, Hon. Michael F.Van Horn, James E.Vaughan, Anne M.Vaughan, C. DanielVella, Brian J.Vetter, Gerard R.Wall, LisaWalters, Neal L.Ware, Jr., Henry N. “Harry” Warns, JimWarren, Jr., T. VadenWarwick, Robert A. Wasserman, Richard L.Welsh, Hon. Deborah C.West, Kimberly R.Westermann, Robert S.Wetzel, III, Richard Carl White, Ronald Whitehurst, Kenneth N.Whitlock, III, Edward S.Whitt, Burt H.Wiegard, Maxwell H.Wiegard, Spencer M.Wiemken, Christopher J.Williams, III, C. James Williamson, Jr., Thomas W. Wiltsie, Susan F. Windsor, James L.Wintory, Randall H. Wise, David Hilton Wolf, Thomas M.Wood, R. CraigWoodfield, NicholasWorthy, Clark H.Wright, Bradley C.Wright, Wiley R.Yates, Thomas D.Yoder, P. MarshallYoung, H. KimberleeZaritsky, Howard M.Zeydel, Diana S.C.Zimmerman, Eric V.Zogby, Michael C.

Virginia CLE® is a non-profit educational division of the Virginia Law Foundation.


President’s Messageby Edward L. Weiner

Holding Out for a HeroHero: One who, in the face of danger and adversity or from a position of weakness, displays courage, bravery or self-sacrifice for some greater good.

LIKE MOST KIDS, I had quite a fewheroes when I was growing up. As apracticing attorney, I have learned agreat deal about a different type ofheroism—the fight for access to justice—and the heroes who fight that fightevery day.

Supreme Court Justice LewisPowell, Jr. said:

Equal justice under law is notmerely a caption on the facade ofthe Supreme Court building, it isperhaps the most inspiring ideal of our society. It is one of the endsfor which our entire legal systemexists...it is fundamental that justice should be the same, insubstance and availability, with-out regard to economic status.Access to justice is in the first line

of our Constitution and the last line ofour Pledge of Allegiance. Unfortunately,too many Americans—too manyVirginians—are, as ABA PresidentPaulette Brown says, “Outside of theumbrella of our justice system.”

The Supreme Court’s 1963 unani-mous ruling in Gideon v. Wainwrightaffirmed that those accused of a crimehave a constitutional right to a lawyerwhether or not they can afford one.Despite what is widely considered oneof the most significant judicial declara-tions of equality under law, many saythat the promise inherent in the Gideonruling remains unfulfilled because somany legal needs still go unmet. Thereis no right to counsel for civil matters. The chasm between the promise of“equal justice under the law” and thereality of America’s working poor isoften called the “Justice Gap,” and it’sgrowing.

Legal Services Corporation ofVirginia helps to bridge the JusticeGap. LSCV provides grants to astatewide network of non-profit orga-nizations that enable low-incomeVirginians to address critical legalissues affecting their families, homes,income, jobs, and access to vital ser-vices such as education and healthcare.1

Legal Services assists clients wholive in households with annual incomesat or below 125 percent of the federalpoverty guidelines:2

12 Month Income

100% 125%Family Poverty PovertySize Guideline Guideline

1 $11,770 $14,713

2 $15,930 $19,913

3 $20,090 $25,113

4 $24,250 $30,313

Today, more than one millionVirginians (one in eight) are eligiblefor Legal Aid.3 Nationwide, sixty-three million Americans (one in five)are eligible.

While the number of those eligiblefor and in need of Legal Aid assistancegrew sharply during the recession,funding dropped for three consecutiveyears beginning in FY 2010–11. Thiswas due to tight federal and state bud-gets, as well as minimal interest incomefrom IOLTAs. Even with a slightincrease in funding last year, Legal Aidorganizations in Virginia operated withthirty-seven fewer attorneys and forty-two fewer support staff than in 2009.

Last year, LSCV Legal AidAdvocates:

• Closed 28,688 civil cases, providingdirect measurable benefits to 68,857Virginians. (Of these cases, 2,674[9.3 percent] were handled by pri-vate attorneys pro bono or for aminimal fee.)

• Helped 553,990 Virginians to under-stand and act upon their legal rightsand responsibilities as tenants, par-ents, employees, spouses, and con-sumers via:

° telephone legal “hotlines,”

° pro se (self-help) assistance, and

° community legal education.But the Justice Gap is huge. Legal

Services estimates that 80 percent ofthe legal needs of the poor go unmet—all while huge numbers of newlawyers remain unemployed or under-employed. At the 2011 National Pro Bono

Summit, then Attorney General EricHolder said:We are bound by a responsibility touse our unique skills and training—not just to advance cases, but toserve a cause; and to help our nationfulfill its founding promise of equaljustice under law...The obligation ofpro bono service must become a partof the DNA of both the legal profes-sion and of every lawyer.Here’s what we can do:

Get the Facts:1. Review Legal Services Corporation ofVirginia Report to the Commonwealthand the General Assembly FY2013–2014. It’s brief and lays out theissue clearly. (http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD552015/$file/RD55.pdf)

2. Learn about the Virginia Access toJustice Commission, one of thirty-eight in the United States.(http://www.courts.state.va.us/programs/vajc/home.html)

Vol. 64 | December 2015 | VIRGINIA LAWYER 11

3. Visit the Access to Legal Services pageon the VSB website (http://www.vsb.org/site/pro_bono) to learn moreabout the Access to Legal ServicesCommittee.

4. Like the “VSB Access to LegalServices” page on Facebook to getaccess to articles and events.

Volunteer:5. Contact Legal Aid to volunteer:• Blue Ridge Legal Services(www.brls.org/)

• Central Virginia Legal Aid Society(http://cvlas.org)

• Legal Aid Justice Center (www.justice4all.org )

• Legal Aid Society of EasternVirginia (http://sites.lawhelp.org/Program/1647)

• Legal Aid Society of Roanoke Valley(http://lasrv.org/)

• Legal Services of Northern Virginia(www.lsnv.org/)

• Rappahannock Legal Services(www.rapplegal.com)

• Southwest Virginia Legal AidSociety (www.svlas.org)

• Virginia Legal Aid Society(http://vlas.org)

• Virginia Poverty Law Center(www.vplc.org)

6. Attorneys in Central Virginia canaccess JusticeServer™ (www.justiceserver.org), a collabora-tion of the Richmond Bar Foundationand local legal aid organizations.JusticeServer is an online, pro bonocase management/referral system.Private attorneys can accept andwork on pro bono cases right fromtheir own computers. Areas of thelaw include consumer, education,elder, employment, family, and hous-ing law. Most cases take five to fifteenhours to complete. Online trainingand resources are available in each ofthese substantive areas. The Legal AidJustice Center and Central VirginiaLegal Aid Society, collaborators onJusticeServer, are available to providetechnical assistance.

Donate:7. Donate to your local Legal Aid orother non-profit legal services organizations.

8. Provide “Low Bono” services toclients.

9. Attend your local Jazz4Justice concert,which benefits your local Legal Aidand pro bono programs. (www.facebook.com/Jazz4Justice.)Let’s all be someone’s hero!

Endnotes:1 LSCV is funded in part by Legal ServicesCorporation, an independent nonprofitestablished during the Nixon Administrationto provide state-level financial support forcivil legal aid to low-income Americans.

2 US Department of Health and HumanServices (http://aspe.hhs.gov/2015-poverty-guidelines).

3 According to the US Department ofAgriculture’s Economic Research Service,approximately 940,000 Virginians live at or below US Poverty Level. (www.ers.usda.gov/data-products/county-level-data-sets/poverty.aspx). When Legal Aid’s additionalconstituencies are factored in, the total topsone million Virginians.

President’s Message

www.vsb.org

Do you know a Virginia high school student with an interest in the law?

The VSB is sponsoring an essay competition for high school students that offers an excellent college resume builder and almost $7,000 in prize money.

Do High School Students Have a Right to Privacy?

For details on the Law in Society contest, please visit www.vsb.org/site/public/law-in-society and enter before February 12, 2016. For more information, please contact Dee Norman at [email protected] or 804-775-0594


Executive Director’s Messageby Karen A. Gould

www.vsb.org

THERE ARE TWO LEVELS of adjudica-tion involving volunteer lawyers in theVSB disciplinary system: the districtdisciplinary committees and theDisciplinary Board.1 The purpose ofthis column is to help you understandthe appointment process, if you wishto be appointed to a district commit-tee or the Disciplinary Board.

District Committee AppointmentsAppointment to a district committeecan be difficult because so many peopleapply, particularly in the more popu-lated areas of the state. You must be anactive member in good standing of theVirginia State Bar to serve.

Virginia’s ten districts are dividedinto thirty-one judicial circuits. Themap following this column shows howthe circuits are assigned to the districts.Some district committees have two orthree sections in order to adequatelycover the disciplinary cases arising inthat district. Each fall, the VSB adver-tises in Virginia Lawyer what vacancieswill be available on the district com-mittees. The advertisement for vacan-cies coming up on July 1, 2016, alsoappears after this column. Note thatsome of the “vacancies” are actuallyreappointments. A member can servetwo three-year terms on a district com-mittee. If a member has faithfullyserved during his or her first term, thenthey will be reappointed. Therefore,reappointments are not true vacancies.There may be only one or two truelawyer vacancies on a district commit-tee. Each district committee also has atleast two lay members.

If a lawyer vacancy exists on thedistrict committee in your jurisdic-tion, i.e., the same jurisdiction aswhere you live or work, and you wishto apply to serve, please follow theinstructions in the advertisement andsubmit your resume and a letter ofinterest as indicated.

Your efforts in obtaining the posi-tion should not end here, however. Thedistrict committee appointments aremade by the VSB Council. You need tolet the council member(s) who repre-sents your circuit know of your interestin the position. You can identify yourcouncil member by going to the VSBcouncil directory at http://www.vsb.org/site/about/council. In perusingthat list, you will note that there arenumbers beside the council members’names. These are circuit numbers.Therefore, if you live or work in the3rd Circuit, your council representativeis Nick Renninger from Portsmouth,and you would want to let him knowof your interest in the district commit-tee position. Council members areurged to get to know the candidates forthe district committee positions, sothat they can select the best candidates.

Council members are looking forVSB members with sufficient experi-ence to know how to practice law ethi-cally. Volunteers should also have agood reputation in the legal commu-nity. Paragraph 13-4.F sets forth crite-ria rendering candidates ineligible toserve. Another selection criterion isdiversification of the district commit-tees, including practice diversity, ethnicdiversity, gender diversity, and geo-

graphic diversity. Each committeeshould have a prosecutor and a crimi-nal defense attorney, if possible. A fam-ily law lawyer would be helpful, as wellas a real estate lawyer.

Because several circuits may com-prise the jurisdiction of a district com-mittee, multiple council members maybe involved in the decision-makingprocess, but generally decision-makingdeference is given to the memberwhere the vacancy is occurring. Aneffort is made to keep the committeeproportionally balanced by the numberof attorneys in the predominant geo-graphic areas comprising the district,and reassignment of seats occurs onoccasion to reflect that rebalancing.

The ballot of district committeeappointments and reappointmentsgoes to the council at its June meeting,and the council as a whole approvesthe slate.

Disciplinary Board AppointmentsBy Rule of Court, you must haveserved on a district committee to bequalified to serve on the DisciplinaryBoard.2 Paragraph 13-6.B delineateswho is ineligible for appointment. Theboard consists of sixteen lawyers andfour lay members. Each member mayserve two three-year terms, and theterms are staggered.

Disciplinary Board appointmentsare made by the Supreme Court ofVirginia. The process is started in Julyto replace outgoing members the fol-lowing July 1, with a request in VirginiaLawyer for interested candidates tosubmit their resumes and letters of

Service in the VSB Disciplinary System


interest or nomination. Letters of sup-

port may be submitted. The VSB’s

Nominating Committee, composed of

council members and chaired by the

VSB immediate past president, meets

and considers the candidates. For each

vacancy, two individuals are selected to

give the Supreme Court a choice as to

whom to appoint. The Nominating

Committee’s recommendations are then

voted on by the council at the October

meeting, and the names are submitted

for consideration by the Supreme Court

of Virginia. The bar is usually notified

after the Court’s December business

meeting as to whom has been selected to

replace outgoing members effective the

next July 1.

If you have any questions regarding

either the district committee appoint-

ment process or the Disciplinary Board

appointment process, please do not hesi-

tate to contact me at [email protected] or

(804) 775-0550.

Endnotes:1 A respondent may also request that his

case be considered by a three-judgepanel, which consists of circuit courtjudges.

2 Paragraph 13-6.A, Rules of the SupremeCourt of Virginia Part 6, § IV.

Executive Director’s Message

www.vsb.org

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District Committees as of January 1, 2003

District Committee consists of Judicial Circuits 1 1, 3, 5, 7, 8 2 (2 Sections) 2 and 4 3 (3 Sections) 6, 11, 12, 13, 14 4 (2 Sections) 17 and 18 5 (3 Sections) 19 and 31 6 9 and 15 7 16, 20, 26 8 23 and 25 9 10, 21, 22, 24 10 (2 Sections) 27, 28, 29, 30

Map of Judicial Circuits and Districts of Virginia

Executive Director’s Message


The Standing Committee on Lawyer Discipline calls for nomi-nations for district committee vacancies to be filled by Councilin June. Note that there are vacancies which may not becomeavailable because some members are eligible for reappointment.

To review qualifications for eligibility, see Rules of theSupreme 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 forAppointment).

FIRST DISTRICT COMMITTEE: 3 attorney vacancies (2 cur-rent members are eligible for reappointment). Vacancies are tobe filled by members from the 1st, 3rd, 5th, 7th or 8th judicialcircuits.

SECOND DISTRICT COMMITTEE, SECTION I: 4 attorneyvacancies (2 current members are eligible for reappointment).Vacancies are to be filled by members from the 2nd or 4th judi-cial circuits.

SECOND DISTRICT COMMITTEE, SECTION II: 2 attorneyvacancies (both members are eligible for reappointment); 2non-attorney vacancies. Vacancies are to be filled by membersfrom the 2nd or 4th judicial circuits.

THIRD DISTRICT COMMITTEE, SECTION I: 3 attorneyvacancies (2 current members are eligible for reappointment).Vacancies are to be filled by members from the 6th, 11th, 12th,13th or 14th judicial circuits.

THIRD DISTRICT COMMITTEE, SECTION II: 3 attorneyvacancies (all 3 current members are eligible for reappoint-ment); 1 non-attorney vacancy (current member is eligible forreappointment). Vacancies are to be filled by members from the6th, 11th, 12th, 13th or 14th judicial circuits.

THIRD DISTRICT COMMITTEE, SECTION III: 1 attorneyvacancy (current member is eligible for reappointment).Vacancies are to be filled by members from the 6th, 11th, 12th,13th or 14th judicial circuits.

FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorneyvacancies (1 current member is eligible for reappointment); 1non-attorney vacancy (current member is eligible for reap-pointment). Vacancies are to be filled by members from the17th or 18th judicial circuits.

FOURTH DISTRICT COMMITTEE, SECTION II: 3 attorneyvacancies (1 current member is eligible for reappointment); 1non-attorney vacancy. Vacancies are to be filled by membersfrom the 17th or 18th judicial circuits.

FIFTH DISTRICT COMMITTEE, SECTION I: 2 attorneyvacancies (both current members are eligible for reappoint-ment); 2 non-attorney vacancies (1 current member is eligiblefor reappointment). Vacancies are to be filled by members fromthe 19th or 31st judicial circuits.

FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorneyvacancies; 1 non-attorney vacancy. Vacancies are to be filled bymembers from the 19th or 31st judicial circuits.

FIFTH DISTRICT COMMITTEE, SECTION III: 3 attorneyvacancies (2 current members are eligible for reappointment); 1non-attorney vacancy (current member is eligible for reap-pointment). Vacancies are to be filled by members from the19th or 31st judicial circuits.

SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. Vacancies are to be filled by members fromthe 9th or 15th judicial circuits.

SEVENTH DISTRICT COMMITTEE: 4 attorney vacancies (3current members are eligible for reappointment). Vacancies areto be filled by members from the 16th, 20th or 26th judicial cir-cuits.

EIGHTH DISTRICT COMMITTEE: 1 attorney vacancy (cur-rent member is eligible for reappointment); 1 non-attorneyvacancy. Vacancies are to be filled by members from the 23rd or25th judicial circuits.

NINTH DISTRICT COMMITTEE: 1 non-attorney vacancy(current member is eligible for reappointment). Vacancies areto be filled by members from the 10th, 21st, 22nd or 24th judi-cial circuits.

TENTH DISTRICT COMMITTEE, SECTION I: 2 attorneyvacancies; 1 non-attorney vacancy. Vacancies are to be filled bymembers from the 27th, 28th, 29th or 30th judicial circuits.

TENTH DISTRICT COMMITTEE, SECTION II: 1 attorneyvacancy; 1 non-attorney vacancy. Vacancies are to be filled bymembers from the 27th, 28th, 29th or 30th judicial circuits.

Nominations, along with a brief resume, should be sent byFebruary 28, 2016, to:Stephanie Blanton, Virginia State Bar,1111 East Main Street, Suite 700, Richmond, VA [email protected]

NOMINATIONS SOUGHT FOR DISTRICT COMMITTEE VACANCIES

SAVE THE DATE: NOTE:THURSDAY, MAY 5, 2016 THIS YEAR ON THURSDAY

THE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF VIRGINIA

THE MEMBERS OF THE CHIEF JUSTICE’S INDIGENT DEFENSE TRAINING INITIATIVE

AND THE VIRGINIA STATE BAR

INVITE ALL PUBLIC DEFENDERS AND COURT-APPOINTED COUNSEL

WHO HAVE BEEN CERTIFIED BY THE VIRGINIA INDIGENT DEFENSE COMMISSION

TO REPRESENT INDIGENT CRIMINAL DEFENDANTS

TO MARK THEIR CALENDARS FOR

A DAY-LONG ADVANCED TRIAL SKILLS CLE

RICHMOND CONVENTION CENTER(LIVE PROGRAM)

BLUE RIDGE COMMUNITY COLLEGE, WEYERS CAVE(WEBCAST)

AND

WYTHEVILLE MEETING CENTER, WYTHEVILLE(WEBCAST)

Registration information and details will be available in early January at http://www.vsb.org/site/events.

TWELFTH ANNUAL

INDIGENT CRIMINAL DEFENSEADVANCED SKILLS FOR THE EXPERIENCED PRACTITIONER

16 www.vsb.orgVIRGINIA LAWYER | December 2015 | Vol. 64 | GENERAL INTEREST FEATURES

GENERAL INTEREST

Although federal public policystrongly favors alternative dispute resolu-

tion1 and Virginia’s public policy follows

suit,2 when it comes to the Magnuson-

Moss Warranty Act (MMWA or the Act),

courts have been divided regarding arbi-

trability.3 While courts at the federal level

have found that arbitration can be pre-

empted by another federal statute,4 many

federal claims can be compelled to arbi-

tration.5 Two cases potentially block the

path to arbitration of MMWA claims in

Virginia, but these cases have miscon-

strued the law.

In Browne v. Kline Tysons Imports,6 the buyer’sorder for the sale of a motor vehicle included anarbitration clause. The buyer filed a lawsuit forviolations of the Act and state law, and the sellermoved to compel arbitration. In its decision, thecourt ruled that all claims except the MMWAclaim could be compelled to arbitration. “A clearreading of the statute evinces Congress’ intent toencourage informal dispute resolution settlementmechanisms, yet not deprive any party of theirright to have the written warranty dispute adju-dicated in a judicial forum.”7 The court furthernoted that Federal Trade Commission (FTC)findings supported such a conclusion.

Coming to the same result by different analy-sis is Tucker v. Ford Motor Co.8 Tucker analyzedthe statutory language and the legislative historyand found nothing to forbid arbitration. It wrote,

Arbitration of Magnuson-MossWarranty Act Claimsby David A. Hirsch

GENERAL INTEREST FEATURES | Vol. 64 | December 2015 | VIRGINIA LAWYER 17www.vsb.org

GENERAL INTEREST

“binding arbitration does not inherently conflictwith the purpose of the MMWA.”

The court reviewed FTC regulatory inter-pretation of the Act and noted that 16 C.F.R.§703.5(j) states that any informal dispute resolu-tion processes may not be binding. It found theFTC’s interpretation reasonable and entitled todeference and refused to compel arbitration ofthe MMWA claim. It did compel arbitration ofthe state law claims, however, including theVirginia Lemon Law claim.9

The key to understanding why Browne,Tucker, and cases like them are in error is the lan-guage of 15 U.S.C. §2310(a), which encourageswarrantors to use informal dispute resolutionprocedures.

The critical FTC regulation is 16 C.F.R.§703.5(j): “Decisions of the Mechanism shall notbe legally binding on any person.” “Mechanism”under the Act is the informal dispute resolutionprocess, if any, established by a warrantor.

Neither the Act nor the FTC regulations statewhat kind of informal dispute resolution processmust be used—should a warrantor choose to doso—so long as the process meets stated criteria,including that it be informal. The FTC’s positionthat any such process cannot be binding is consis-tent with the Act; else, it would not be informal.

Neither do the Act or regulations address thenature of the subsequent “legal remedy” or “civilaction” that would follow if the informal disputeresolution process failed to resolve the matter.The informal process and formal complaint areseparate and distinct steps in the life of anMMWA claim.

As noted in Walton v. Rose Mobile Homes,LLC,10 the United States Supreme Court has con-sistently approved compelled arbitration of fed-eral statutory claims where the statutes did notexpressly forbid arbitration. Citing the SupremeCourt, Walton observed, “In order to overcomethis presumption in favor of arbitration, theparty opposing arbitration bears the burden ofdemonstrating that ‘Congress intended to pre-clude a waiver of judicial remedies for the statu-tory rights at issue.’”11

Walton further observed, “The MMWA doesmake clear that [informal dispute resolutionprocesses] are to be used before filing a claim incourt. Yet binding arbitration generally is under-stood to be a substitute for filing a lawsuit, not aprerequisite.”12

Reaching the same outcome as Walton, Davisv. Southern Energy Homes, Inc.,13 further faultedthe FTC’s interpretation of the Act as prohibitingarbitration: “The Supreme Court ... has held thata statute’s provision for a private right of actionalone is inadequate to show that Congressintended to prohibit arbitration.”14

Abela v. General Motors Corporation15 alsocompelled arbitration of an MMWA claim. Thecourt noted that while the federal district courtswere split on the issue, the federal courts ofappeal that had ruled on it were unanimous inholding that MMWA claims could be compelledto arbitration. With one exception no longerapplicable,16 no federal circuit court has ruledcontrary to Walton and Davis, supra.

In response to the split in authorities, thecourt in Jones v. General Motors Corp.17 chose todo its own analysis. Reviewing the statute, thelegislative history, and the FTC regulations, itconcluded that MMWA claims could be com-pelled to arbitration, permitting courts or arbi-trators to interpret the law where the FTC hadnot so acted.18 It further observed that arbitra-tion is often more beneficial to consumers and isthus consistent with MMWA’s purpose.19

The Jones court noted that there is a substan-tive difference between arbitration and informaldispute settlement processes:

“The language of the MMWA ... thatdescribes the required characteristics of an infor-

mal dispute settlement procedure provides that ifa given procedure meets those requirements, then‘the consumer may not commence a civil action... unless he initially resorts to such procedure,’15 U.S.C. §2310(a)(3)(emphasis added). Thus,instead of referring to such procedures as a meansof finally resolving a dispute, an informal disputesettlement procedure is meant to operate beforethe filing of a claim as a prerequisite that a war-rantor may require a consumer to exhaust. TheMMWA’s use of the term ‘informal dispute settle-

The informal process and formal complaint

are separate and distinct steps in the life of an

MMWA claim.

18 www.vsb.orgVIRGINIA LAWYER | December 2015 | Vol. 64 | GENERAL INTEREST FEATURES

GENERAL INTEREST

ment procedure’ therefore does not govern howformal claims, once brought, may beadjudicated.”20

Despite any apparent obstacle, the Brownedecision discussed above is isolated even withinthe Fourth Circuit. Two other district courtswithin the Fourth Circuit have ruled that arbitra-tion of MMWA claims may be compelled.21 Indicta, an appellate decision stated that the FTCregulations actually permit binding arbitration ofMMWA claims once the informal dispute resolu-tion process has concluded.22

Arbitration of MMWA claims is supportedby the greater weight of authority. The federalappellate courts that have ruled on the issue haveunanimously compelled arbitration, and theFourth Circuit suggested that it would rule thesame if called upon to squarely decide the issue.This is consistent with the strong public policyfavoring arbitration.

The issues and facts in MMWA claims areoften the same as in state law consumer claims.Decisions like Browne either double the cost andtime to the consumer (and to the business) inpursuing common claims or force the consumerto decide between pursuing their MMWA claimand their state claims.

MMWA is a tool to apply state warranty law,not to override it.23 Accordingly, it should com-plement state claims, not create division. Judicialeconomy and consumer protection both favorpermitting MMWA claims to be compelled toarbitration when related state law claims may beas well.24

Endnotes:1 See the Federal Arbitration Act, 9 U.S.C. Sections 1

through 16.2 See the Uniform Arbitration Act, Virginia Code

Sections 8.01-581.01 through 8.01-581.016 andTM Delmarva Power, L.L.C. v. NCP of Virginia,L.L.C., 263 Va. 116, 122-123, 557 S.E.2d 21 199(2002).

3 Contrast Rickard v. Taynor’s Homes, Inc., 279F.Supp.2d 910 (N.D.Ohio 2003), Koons Ford ofBaltimore, Inc. v. Lobach, 919 A.2d 722, 398 Md. 38(2007), Higgs v. The Warranty Group, 2007 WL2034376 (S.D.Ohio 2007), and Breniser v. WesternRecreational Vehicles, Inc., 2008 WL 5234528(D.Oregon 2008), with Borowiec v. Gateway 2000,Inc., 808 N.E.2d 957, 209 Ill.2d 376 (2004),McDaniel v. Gateway Computer Corporation, 2004WL 2260497 (Court of Appeals of Ohio 2004),

and Hemphill v. Ford Motor Co., 206 P.3d 1, 41Kan.App.2d 726 (2009).

4 See, e.g., Louis v. Geneva Enterprises, Inc., 128F.Supp. 2d 912 (E.D.Va. 2000), in which the Courtruled that the Fair Labor Standards Act precludedcompelled arbitration of its claims.

5 See Disston Co. v. Sandvik, Inc., 750 F.Supp. 745,748-749 (W.D.Va. 1990)

6 190 F.Supp.2d 827 (E.D.Va. 2002).7 190 F.Supp.2d at 831.8 72 Va. Cir. 420 (Fairfax County 2007).9 Id.10 298 F.3d 470 (5th Cir. 2002).11 298 F.3d at 473 (citation omitted).12 298 F.3d at 475-476 (emphasis in the original).13 305 F.3d 1268 (11th Cir. 2002).14 305 F.3d at 1274.15 669 N.W.2d 271, 257 Mich.App. 513 (2003).16 The Ninth Circuit in Kolev v. Euromotors West/The

Auto Gallery, 658 F.3d 1024 (2011) did reach acontrary result, but the Court later withdrew itsopinion. See 676 F.3d 867 (9th Cir. 2012).

17 640 F.Supp.2d 1124 (D. Arizona 2009).18 640 F.Supp.2d at 1137.19 640 F.Supp.2d at 1138.20 640 F.Supp.2d at 1140.21 See Seney, Inc. v. Rent-A-Center, Inc., 909 F.Supp.2d

444 (D.Md. 2012), and Krusch v. Tamko BuildingProducts, Inc., 34 F.Supp.3d 584 (M.D.N.C. 2014).Seney was affirmed on different grounds, 783 F.3d631 (4th Cir. 2013), cert. denied, 134 S.Ct. 2305,189 L.Ed.2d 176 (2014).

22 See 738 F.3d at 634.23 S ee Himes v. Mercedes-Benz USA, LLC, 358

F.Supp.2d 1222 (N.D.Ga. 2005).24 The Author thanks Mark E. Sharp and Amanda

Goehring for their assistance.

David A. Hirsch is Of Counsel to TheMyerson Law Group. His ADR experienceincludes twenty-five years of service as anarbitrator with the American ArbitrationAssociation, service to the Fairfax Courts asa motions conciliator and a neutral caseevaluator, and representation of individualsand businesses in arbitrations and media-tions. Hirsch also practices criminal defense,commercial litigation, construction defectclaims, and representation of students inpublic school disciplinary proceedings.

A Sense of Satisfactionby James P. Downey

Of many cases over the past forty-oneyears, one from back in the 1980s standsout. I am reminded of it each time I seea truck go by carrying landscapingequipment. “Robert” was about 19 or 20years old, a “walk-in” client with a smalldebt collection case. I had him sit down,and began to take his contact informa-tion on my yellow pad.

When I asked for his address, hesaid he lived in the woods by the localhigh school. I set down my pen andasked him to tell me more about his cir-cumstances.

He told me that for a while he hadbeen living with his mother in her car ina remote rural area. I noticed that heneeded serious dental work, in additionto his other problems. I also noticedthat, despite his disturbing situation, hewas remarkably free of self-pity.

I had my law student clerk help mewith the court case, and then we setabout helping Robert get a job, a place tolive, and some dental work. A local hard-ware store owner, known in our townfor his big heart, gave Robert a job. Alocal homeless shelter group found hima home, and a free dental clinic at one ofthe schools of dentistry in Washingtontook care of his dental problems. And sothe collection case ended, and Robertwas stabilized. He was grateful. We didn’tsee him again.

At the end of the summer, Ireviewed with my clerk the run of caseswe had worked on, and we got aroundto Robert. I said, “What about Robert?You know, we did more than just hiscollection case—maybe we, sort of,saved his soul.”

“Yes, maybe we did . . .” About five years later, I was in the

bank across the street from my office,and someone called out to me fromacross the lobby. “Hey, Mr. Downey!How are you? Do you remember me?” Iturned and saw Robert and said, “Hi,Robert, I’m fine. What have you beenup to?”

Full of enthusiasm, he said, “I’mdoing great. I have my own landscapingbusiness. My truck is right outside inthe lot.” I saw it out there, with the rakesand mulch bales piled up in the back.

“Great, Robert. I’m glad it has allworked out for you.” I told him. I couldtell that with his good attitude, and witha little help, he was doing well.

I had a silent yet deep sense of satis-faction as I walked back to my officefrom the bank on that sunny day manyyears ago.

James P. Downey, of Downey & Mayhugh PC, wasadmitted to the bar in 1974 and has practiced formost of his career in Warrenton.

To Examine or Not toExamine?by Jim Grandfield

We all do it, we speak in our own lingoand use 50-cent words when a 10-centword would do (or suffice, in lawyerspeak). Sometimes, our efforts to soundlawyerly can lead to breakdowns in com-munication, even when we are speakingto a fellow lawyer or judge who weassume speaks our language. And some-times, those breakdowns might even be a bit funny.

Several years ago I represented aman on charges of burglary and grandlarceny. He had elected a trial by jury.On the morning of trial, I spoke to himin a conference room just outside thecourtroom, twenty minutes before wewere due in court. The client advised methat he was bleeding from his rectum,that he needed immediate medicalattention, and that the case would haveto be continued. Skeptical that he mightbe conjuring up a medical issue to avoidgoing to trial, I was nonethelessintrigued by the specificity, and perhaps,imagination, of his complaint. I askedhim a few questions, as to when thisbegan and whether he had ever experi-enced symptoms like this before. Heanswered my questions, but I did notfeel I could represent to the court theveracity (there’s that lawyer-speak again)of his complaints.

We entered the courtroom, thejudge took the bench, and with the jurynot yet present, we began the colloquy todetermine if we were ready to proceed. Iadvised the judge of my client’s com-plaint. The judge asked me several ques-tions, and I answered as best I could.Figuring that I would cut out the middleman and let the judge decide whetherthis was a genuine medical situationwarranting attention, or an attempt tostall, I invited the judge to ask my clientdirectly any questions he had about thebleeding. As best I recall, it went some-thing like this:

Me: “Your honor, at this point I canonly relay what my client has told me. Ifyou would like to examine him yourself,perhaps that would be appropriate.”

Without missing a beat, and with anever so subtle smile, the Honorable JohnE. Clarkson replied: “Oh, I don’t thinkthat will be necessary, counsel. I’d muchrather have a trained medical person dothat task.”

In addition to being a fine jurist,Judge Clarkson must have also hadmiraculous healing powers. He offeredto have the sheriffs take my client imme-diately to the local emergency room, gethim checked out, and commence thetrial that afternoon. Amazingly, my clientsuddenly felt better; jury selection beganten minutes later.

James L. Grandfield is a public defender in Suffolk.


Law Stories

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Tell Us Your Favorite Law Story

Every lawyer has a story set aside forgatherings of friends or relatives. It’s aspecial tale about a legal battle won, orlost. Or about an amusing encounter witha judge. Or a story with a surprising twist.Maybe it’s a story that will bring a know-ing smile, or shake of the head, from acolleague.

Pick your best Law Story, yourincredible adventure, your unusual court-room or even boardroom escapade, andsend it to us. Keep them short—about400 words or less—and send them in.

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

I remember interviewing for jobs asa judicial law clerk and being told by

one interviewer who was trying to

encourage me to consider joining her

firm, “Construction law is easy— it’s

just contract law—offer, acceptance and

consideration, so we don’t have to spend

much time on the law, we get to focus

on the facts, which are fascinating.” As

my time in the construction industry

has progressed, I often reflect, somewhat

ruefully, upon those words. I have to

agree that the facts are, frequently, fasci-

nating, but the law applicable to the

construction industry is not as easy as

that interviewer asserted. In fact, con-

struction lawyers are often faced with

complex, confusing legal issues arising

out of applicable statutes and regula-

tions or the intertwining contractual

relationships necessary to construct

buildings, roads, dams, and industrial

facilities or civil works. The path is not

always clear, yet our clients expect us to

map out the best, most efficient and

cost-effective route to resolution,

whether that means drafting an “iron-

clad” contract, brokering a settlement, or

presenting the case to a decision maker.

20

Construction and Public Contractsby Shannon J. Briglia

www.vsb.orgVIRGINIA LAWYER | December 2015 | Vol. 64 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION

Photo: Bill Dickinson/Sky Noir Photography

The articles solicited and collected by thechair of our publications committee, ArnieMason, in this edition of the Virginia Lawyerwere written by members of the ConstructionLaw and Public Contracts Section with the goalof educating and helping lawyers in Virginia findthe best, most efficient and cost-effective routefor our clients to reach their business goals. Eacharticle contributes to the ongoing discourse ontopics of interest to our section members, butthey also provide interesting reading for lawyerswho are not section members. Kristan B. Burchsubmits The Effective Use of Jury Instructions inConstruction Cases which, although written froma construction law perspective, easily translates toany area of the law. She counsels developing juryinstructions as a matter of first importance, usingthe instructions to frame the case, the pleadings,discovery, and even the motions practice as wellas using the instructions in more traditional ways.By providing sources of model jury instructions,tips on preparing customized jury instructions,and insight on timing requirements, Kristan givespractitioners the practical assistance they need tosuccessfully present any case to a jury.

Shiva S. Hamidinia tackles a more arcanearea of construction law in her article, The Fate of Cumulative Impact Claims on Public WorksContracts in Virginia. She provides an excellentprimer on cumulative impact claims, from theirimportance to their ubiquity in constructioncases. Next, she discusses the limiting effect theVirginia Public Procurement Act may have onpresentment of such claims and the somewhatnovel approach recently taken by a federal judgein applying the act’s notice requirements to a typi-cal cumulative impact claim. Finally, she discussesthe more liberal notice requirements applicable tocumulative impact claims in the federal arena,along with the dangers lurking within standardcontract modification or change order language.

Rounding out the trio of articles, Melisa A.Roy analyzes another common, but esoteric con-struction law topic in her article The ElusivePermissibility of Pass-Through Claims in Virginia.Pass-through claims, referring to a subcontrac-tor’s claim for increased costs caused by theaction (or inaction) of an owner, which are“passed-through” the prime contractor to theowner, have long been permitted on federal gov-ernment contracts. They have a more inglorioushistory in Virginia. She discusses how such claimsfared in the courts before and after a legislativeamendment permitting pass-through claims oncontracts with the Virginia Department ofTransportation before turning her attention to

suggesting ways in which a pass-through claimmight pass muster under other contracts.

The articles in this edition of Virginia Lawyercover topics as diverse as the industry that weserve, and provide a sample of the many educa-tional events and programs offered by theConstruction Law and Public Contracts Section.Our section is one of the more active sections ofthe State Bar, with contributions provided fromattorneys with all levels of experience. Along withour section’s goal of publishing annually inVirginia Lawyer, we issue semi-annual newsletterscontaining articles, case summaries, and legisla-tive updates. We also maintain and publish aConstruction Law Handbook that identifies,indexes, and summarizes virtually every Virginiastate and federal case having to do with construc-tion law. On the programming front, our section’sflagship is our two-day CLE program in earlyNovember of each year, where we gather for pre-mier presentations and networking. This year oursection will be teaming with the LocalGovernment Law and Litigation sections to pre-sent a showcase CLE program at the VSB AnnualMeeting in Virginia Beach. Assembling an elitepanel to examine the actions of public servants inthe wake of U.S. v. McDonnell, this program issure to be a show-stopper.

In addition to these more formal publicationsand programs, our section sponsors a multitude ofother CLEs, webinars, and networking eventsthrough the year and throughout the state. Weencourage each of you to consider joining our sec-tion, or becoming more engaged in our section, asopportunities for involvement and contributionare abundant. Please contact me if you want tofind out more about our section or its offerings.

CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 64 | December 2015 | VIRGINIA LAWYER 21www.vsb.org

Shannon J. Briglia is a founding member of the construc-tion law firm of BrigliaMcLaughlin PLLC, where she con-centrates her practice in the resolution of public and privateconstruction disputes. With more than twenty-seven yearsof experience in the construction industry, she representsclients in federal and state court trials and appeals, arbitra-tion, mediation, and before commissions and boards ofcontract appeal. An A.V. rated lawyer and the recipient ofnumerous professional accolades, she is also a frequentauthor and speaker on construction and surety issues. She isthe chair of the board of governors of the Construction Lawand Public Contract Section of the Virginia State Bar.

22

Because not all construction casesare the same, each requires its own set of

jury instructions. The instructions vary

based on the claims at issue, the damages

sought, the affirmative defenses raised,

and the type of evidence to be presented.

Yet despite the variations, there are some

common issues for jury instructions in

construction cases.

Start with Model Jury InstructionsUnder most scheduling orders in state and federalcourt, jury instructions are one of the last itemsfiled before trial. Nevertheless, they should be afocus in case preparation from the very start ofeach construction case. Applicable jury instruc-tions should also be reviewed early and often as acase develops.

Various model jury instructions (outlinedbelow) are available. Knowing them helps todefine claims and defenses in pleadings. Plaintiffsshould review model jury instructions whendrafting complaints to ensure that claims anddamage demands are properly pleaded.

Defendants should review them when draftingmotions to dismiss, demurrers, special pleas, andanswers to ensure proper motions are filed tochallenge improperly pleaded claims and toensure proper affirmative defenses are pleaded.

As discovery begins and parties work todetermine how they are going to prove certainaspects of their case, model jury instructions canhelp determine the scope of discovery requests.The instructions can also help determine certaindeposition questioning for witnesses. As eviden-tiary issues arise, model jury instructions canassist in shaping how the issues are raised withthe court through motions in limine and objec-tions. As legal issues emerge, model jury instruc-tions can help shape summary judgment andother dispositive motions.

Review and Adapt the Model Jury InstructionsThe Virginia Model Jury Instructions – Civil1 are astarting point for cases filed in Virginia courts.Virginia trial judges routinely deal with theVirginia Model Jury Instructions and may be morewilling to adopt them. These instructions rangefrom general to specific on claims and damages.

The general instructions included in theVirginia Model Jury Instructions provide guidance


The Effective Use of Jury Instructions

in Construction Cases

The Effective Use of Jury Instructions

in Construction Casesby Kristan B. Burch

shutterstock.com

CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION | Vol. 64 | December 2015 | VIRGINIA LAWYER 23

on topics such as credibility of witnesses, admis-sion of evidence, and burden of proof.2 Generalinstructions are intended to help the jury betterunderstand its role and responsibilities in a case.As evidentiary issues develop in cases, the generalinstructions may provide assistance on case spe-cific issues including adverse witnesses, unex-plained failures to produce important witnesses,and jury views.3

In addition to general instructions for civilcases, the Virginia Model Jury Instructions includemore specific instructions tied to various causesof action and damages claims that may bepleaded in construction cases.4 Those instructionscan, and should, be tailored to fit the facts of aspecific case.

Other sources of model jury instructionsinclude, but are not limited to:• Instructions for Virginia and West Virginia (4thed.) contain instructions relevant to various evi-dentiary, contract, and damages issues.

• Federal Jury Practice and Instructions5 containgeneral instructions on issues such as the dutiesof the jury, burden of proof, and credibility. Inaddition, they address specific claims that maybe brought in federal court in a diversity case,including contract actions. • Pattern Jury Instructions have been assembledfor the various federal circuits, which includegeneral instructions and instructions relevant tocertain federal causes of action. Some construction-specific jury instructions

also are offered by various providers. One exam-ple is those originally assembled by the AmericanBar Association in 2001.6 The ABA Model JuryInstructions addresses many of the more specificand complicated issues that may arise in a con-struction case. These instructions address essen-tial contract formation issues, including offer andacceptance, consideration, and intent.7 In addi-tion, they address breach of contract and breachof warranty claims, defective construction, termi-nation, and damages.8 The ABA also outlinesclaim issues, including changes and extra workand delay and disruption.9

Draft Additional Jury Instructions For issues that are not addressed by the modeljury instructions, counsel should draft their owninstructions. Sources are decisions issued byVirginia courts, along with construction treatisesand other treatises that address case-specificissues. The Construction Law and PublicContracts Section of the Virginia State Bar issuesregular newsletters and annually updates a hand-

book of construction cases, both of which canserve as resources to consult when crafting juryinstructions.10

As a case develops, counsel should considerwhether specific instructions are needed to definethe parties at issue. For example, if one of the par-ties is a joint venture, the jury may need a betterunderstanding on what that means and whichparties make up the joint venture. In addition,counsel may need to draft instructions to addressspecific contract provisions that are relevant tothe issues in the lawsuit. For example, if the con-tract contains a strong notice provision that maybar a claim, counsel may draft a specific instruc-tion that includes the notice provision.

The bottom line is to keep the instructionssimple and straight-forward in order to ensurethat the jury can follow them. Using complicatedverbiage and legal terms can create confusion andprevent the instructions from serving their ulti-mate goal of educating the jury on the relevantissues in the case.

Courts require citations of authority to belisted at the bottom of each jury instruction on atleast one set of the proposed instructions. Thisrequirement is particularly important when pro-posed instructions are drafted from scratch.Counsel should bring with them to trial copies ofthe cases and treatises used to craft instructions asthe court may ask to review source materialsbefore determining whether to give the instruc-tions to the jury. In addition, counsel should beprepared to offer alternative language on impor-tant issues if the court rejects the original instruc-tions proposed.

Review Relevant Scheduling Order andProcedural RulesDeadlines and instructions for submission of juryinstructions generally are contained within thecourt’s scheduling order and procedural rules. For many circuit courts in Virginia, the relevantscheduling order is the Uniform PretrialScheduling Order described in Rule 1:18(B) and

THE EFFECTIVE USE OF JURY INSTRUCTIONS IN CONSTRUCTION CASES

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As a case develops, counsel should considerwhether specific instructions are needed todefine the parties at issue.

24

Appendix 3 of the Rules of the Supreme Court ofVirginia. The Uniform Pretrial Scheduling Orderstates that (1) counsel shall “exchange” proposedjury instructions “two business days before a civiljury trial date”; (2) before the trial starts, thecounsel shall “tender to the court the originals ofall agreed upon instructions and copies of all con-tested instructions with appropriate citations”;and (3) counsel can offer additional instructionsat the trial.

The Code of Virginia provides additionalguidance on civil jury instructions (and closingarguments) for state court proceedings, including: • “Notwithstanding any other provision of law,any party in any civil action may inform the juryof the amount of damages sought by the plain-tiff in the opening statement or closing argu-ment, or both. The plaintiff may request anamount which is less than the ad damnum inthe motion for judgment.”11

• “A proposed jury instruction submitted by aparty, which constitutes an accurate statement ofthe law applicable to the case, shall not be with-held from the jury solely for its nonconformancewith the model jury instructions.”12

Federal courts in Virginia issue schedulingorders that vary by division and district.Generally, these scheduling orders contain dead-lines and requirements for submitting juryinstructions. Counsel should consult the localrules issued by the applicable federal court inorder to determine if there are any requirementsfor jury instructions. For example, Local CivilRule 51 of the Local Rules of the United StatesDistrict Court of the Eastern District of Virginiadictates that jury instructions shall be submittedin duplicate at least five business days before thescheduled trial date, with each instruction setforth on a separate page and with the citation ofauthority at the bottom of each instruction.

In addition, Rule 51 of the Federal Rules ofCivil Procedure provides as follows regarding juryinstructions: (1) after the close of the evidence,parties may file requests for jury instructions “onissues that could not reasonably have beenanticipated by an earlier time that the court setfor requests” and “with the court’s permission”may file “untimely requests for instructions onany issue”; (2) before instructing the jury, thecourt “must inform the parties of its proposedinstructions and proposed action on the requests”and “must give the parties an opportunity toobject on the record and out of the jury’s hearingbefore the instructions and arguments aredelivered”; and (3) the party who “objects to an

instruction or the failure to give an instructionmust do so on the record, stating distinctly thematter objected to and the grounds for theobjection.”

Incorporate Jury Instructions into ClosingArgumentSubject to the particular rules of the court inwhich the case is tried, counsel should work toincorporate important issues from the juryinstructions into their closing argument. This isparticularly true for plaintiffs who can incorpo-rate relevant instructions into their rebuttal clos-ing argument when they have the last word withthe jury.

In courts where the instructions are sentback to the jury room, the jury will have the abil-ity to review the instructions further and notethat the words being used by counsel in closingarguments are the same words contained in thejury instructions from the court. Counsel shoulddetermine the trial judge’s practices for juryinstructions in advance of trial in order to beprepare their closing argument to most effec-tively use the instructions.

ConclusionFrom the beginning of a construction case, coun-sel should be aware of the relevant jury instruc-tions that may frame the issues. Jury instructionscan assist with pleadings, discovery, evidentiaryissues, and motions practice. If the model juryinstructions do not cover all of the relevant issues,counsel should draft their own instructions andbe prepared to defend them at trial. It is never istoo early to begin reviewing jury instructions andusing them to shape case preparation.

Endnotes:1 Model Jury Instructions Committee, “Virginia

Model Jury Instructions – Civil” (1993 & Supp.2015).

2 Examples of such instructions include InstructionNo. 2.000 (Preliminary Instructions to Jury), No.2.020 (Credibility of Witnesses), and No. 9.010(Reasonable Proof).

3 Examples of such instructions include InstructionNo. 2.030 (Adverse Witnesses), No. 2.080(Unexplained Failure to Produce ImportantWitness), No. 2.090 (Jury View), No. 2.130 (PriorInconsistent Statement by Witness), No. 2.135(Prior Inconsistent Statement by Party), and No.2.170 (Rejected and Stricken Evidence).

4 Examples of such instructions include No. 9.020(Duty to Mitigate Damages), No. 9.080 (GeneralPunitive Damages), No. 45.090 (Meeting ofMinds), No. 45.310 (Construction against the




Drafter), No. 45.400 (Material Breach), and No.45.540 (Liquidated Damages).

5 Kevin F. O’Malley et al., “Federal Jury Practice andInstructions” (6th ed. 1993 & Supp. 2015).

6 “Model Jury Instructions: ConstructionLitigation” (Melissa A. Beutler and Edward B.Gentilcore eds., 2nd ed. 2015).

7 Examples of such instructions include No. 1.03(Offer and Acceptance), No. 1.04 (Consideration),and No. 1.05 (Intention and Formation).

8 Examples of such instructions include No. 6.19(Liquidated Damages), No. 8.12 (MaterialBreach), No. 9.01 (Breach of Express Warranty),No. 9.02 (Implied Warranty), and No. 18.03(Compensatory Damages – Breach of Contract).

9 Examples of such instructions include No. 5.02(Change Orders), No. 5.05 (Disputed ExtraWork), No. 6.02 (Critical Path), No. 6.06(Compensable Delay), and No. 7.02 (Differing SiteConditions Explained (Type I and Type II)).

10 http://www.vsb.org/site/sections/construction . 11 Va. Code Ann. § 8.01-379.1.12 Va. Code Ann. § 8.01-379.2.


www.vsb.org

Kristan B. Burch is an equity partner at Kaufman &Canoles PC and focuses on construction law and intellec-tual property. She is a member of the firm’s GovernmentContracts and Construction Law Practice Group and isco-chair of the firm’s Infrastructure & TransportationTeam. She served on the Board of Governors for theConstruction Law and Public Contracts Section of theVirginia State Bar for eight years, serving as chair of thesection from 2011 to 2012.

http://www.vsb.org/vlrs/

26

Labor costs on a construction projectoften constitute the largest component

of a contractor’s bid. They are the most

volatile component and the most critical

to control. Major swings in the labor

estimated to complete a project can wipe

out the contractor’s expected profits on

a project. These margins are often slim,

given that the competitive bidding process

encourages each contractor to put her

best foot forward in estimating costs.

Beyond direct damages from project disruptions,indirect impacts often result from major projectdisruptions, placing the contractor in a precariousposition if left uncompensated. Before a contrac-tor can even get to the question of quantifying its

impact claim, and proving causation, these claimsare often shot dead in their tracks on Virginiapublic works contracts because of the onerousnotice requirements of the Virginia PublicProcurement Act (VPPA).

The fate of cumulative impact claims inVirginia was briefly played out in a case of firstimpression before the US District Court for theWestern District of Virginia involving construc-tion of the Fontaine Avenue Fire Station inCharlottesville. An opinion ruling on a motionto dismiss filed by the City of Charlottesville(City) sheds some light at least on satisfying thepleading requirements for asserting such claimsunder the VPPA. However, many of the legalquestions reserved by the court for later deter-mination on summary judgment or trial wereleft unanswered when the parties reached a set-tlement. Nonetheless, the court’s ruling denyingthe city’s motion to dismiss sheds important lighton the unique challenges of complying with the


The Fate of Cumulative Impact Claims on Public Works Contracts in Virginia by Shiva S. Hamidinia



notice requirements of the VPPA. The court’sruling may also serve as a forecast for how courtsin Virginia may treat these claims in future cases.

What Is a Cumulative Impact Claim?Often thought of as an amorphous category ofdamages, the seminal case of Centex BatesonConstruction Co.1 provides a good definition of a cumulative impact claim:

Impact costs are additional costs occurring as a result of the loss of productivity; … also termed inefficiency … if productivitydeclines, the number of man-hours of laborto produce a given task will increase…

Cumulative impact is the “ripple effect” ofchanges on unchanged work that causes adecrease in productivity and is not analyzedin terms of spatial or temporal relationships.This phenomenon arises at the point the rip-ple … disturbs the project such that entitle-ment to recover additional costs resultingfrom the turbulence spontaneously erupts . . .Cumulative impact has also been describedin terms of the fundamental alteration of theparties’ bargain resulting from the change.

External disruptions on a project can includenumerous owner-directed changes, unanticipatedconditions on the project, interference, delays,design defects, changes to the schedule, or failureto timely respond to requests for information. Asa result of these impacts, the contractor mustchange its method of performance or plannedsequence of work compared to what it contem-plated at the time the project was bid. The mea-sure of damages is the increased labor costs thatstem from the disruption to labor productivityresulting from the impacts. Analysts often com-pare this to a rolling snowball that results fromexternal disruption, and, in the aggregate, forcesthe contractor to expend far more in labor coststhan estimated to perform the same tasks on theproject.2

Requirements of the VPPA and the UniqueChallenges of Satisfying Them to Assert aCumulative Impact Claim on Virginia Public ProjectsIn Costello Construction Co. of Maryland v. Cityof Charlottesville,3 the plaintiff, CostelloConstruction Company of Maryland (Costello),was awarded a contract to construct the FontaineAvenue Fire Station in Charlottesville. Costellosought cumulative impact claims for the city’s

alleged numerous defects and inconsistencies inits contract documents provided to Costello pre-bid, which manifested itself in 387 RFIs and 191proposed change orders submitted to the city, andwhich allegedly increased the duration of the pro-ject and Costello’s costs of completion.4 Costelloalleged that the city failed to respond in a timelyand complete manner to many of Costello’s RFIs,resulting in significant construction delays. Inaddition, even though Costello submitted 191proposed change orders to the city for the directdamages associated with the defective contractdocuments, Costello alleged that it also expresslyreserved and exempted from those claims theright to claim additional damages for the “cumu-lative impact of the defects and resulting changedirectives” until such time that they could beascertained. Costello filed suit to recover$1,638,225.28 in cumulative impact damages forthe design defects and delays allegedly attributableto the city.5 The city moved to dismiss Costello’scomplaint on the grounds that Costello providedinadequate notice of its cumulative impact claimspursuant to the VPPA’s requirements.6

Notice Under the VPPAUnder the VPPA, a public body will not incur anylegal obligation to the claimant unless the writtennotice for that claim is received.7 Although a con-tractor has up to sixty days after final payment tosubmit its written claim, written notice of anintention to file a claim must be provided to thepublic owner “at the time of the occurrence” or“the beginning of the work upon which the claimis based.”8

The Supreme Court of Virginia and theFourth Circuit Court of Appeals have interpretedthe VPPA’s requirement for notice of intention tofile a claim to require the contractor to deliver “a

written document” to the public body “clearlystating the contractor’s intention to file a claim.”9

This immediate notice of intention to file a claimrequirement becomes difficult to satisfy in thecontext of a cumulative impact claim, whichattempts to capture the labor losses resulting from

THE FATE OF CUMULATIVE IMPACT CLAIMS ON PUBLIC WORKS CONTRACTS IN VIRGINIA

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Under the VPPA, a public body will not incurany legal obligation to the claimant unlessthe written notice for that claim is received.

28

the inefficiencies experienced by numerouschanges to the contractor’s scope of work, andoften cannot be calculated until near or at the endof the project.

Judge Conrad’s opinion in Costello recog-nizes that not all claims arise under the samecircumstances. Quoting the 2001 SupremeCourt of Virginia decision in Dr. William E.S.Flory Small Business Development Center, Inc. v.Commonwealth, 541 S.E.2d 915, 919 (Va. 2001),Judge Conrad reiterated that the VPPA does not“specifically require that the notice of intent [tofile a claim] be separate and distinct from theclaim itself in time or form.” 10 Ruling in favor ofCostello, the court found that Costello satisfiedthe notice pleading requirements of Federal Ruleof Civil Procedure 8(a) for alleging a cause ofaction by Costello’s broad allegation that itsclaims provided sufficient written notice to thecity. Moreover, the court found that the face ofthe cumulative impact claims “themselves unam-biguously state that they are ‘Notice[s] ofClaims[s].’”11 The court concluded that the com-plaint and its exhibits suggested that Costello hadpleaded compliance with the VPPA’s notice provi-sions when considering that a notice does notneed to be separate from a claim under Virginialaw. In a footnote, however, the court cautionedthat the ultimate question of whether the cumula-tive impact claims satisfied all of the act’s noticerequirements would require additional considera-tion after further development of the courtrecord.12

Notice Under Federal ProjectsWhen compared to the federal notice of claimrequirements for public construction contracts,the arduousness of the VPPA’s immediate noticeof claim requirements is self-evident. On federalconstruction projects, the notification require-ments for changes in a fixed-price contract (FAR52.243-1), cost-reimbursement contract (FAR52.242-2), and time and materials or labor hourscontract (FAR 52.243-3) allow the contractor toassert its right to an adjustment within thirtydays of receipt of the contracting officer’s writ-ten change order, unless otherwise modified bythe construction contract. Moreover, a contrac-tor has up to six years from the date of accrualto submit a written claim to a contracting officerfor decision.

The main challenge in federal cases is not somuch in satisfying an immediate written notice ofclaim requirement, but rather making certain thatexecution of a bilateral modification, including

boilerplate release language, does not absolve thecontractor’s claims for cumulative impact anddisruption. This is what occurred in Bell BCI Co.v. United States, where the Federal Circuitreversed the district court, concluding that therelease language present in a bilateral modifica-tion “plainly” and “unambiguously” “released thegovernment from any and all liability.”13 Thecourt reached this conclusion even though thecontractor’s claim was for the cumulative impactof multiple change orders, many of which hadnot yet been issued when the modification wassigned and the disruptive impact of the changeorders was not yet fully known. Although theFederal Circuit agreed that the contractor sufferedcumulative impact damages as a result ofgovernment-caused delays, it denied thecontractor’s claims based on this broad releaselanguage.

ConclusionMany of the complex VPPA provisions withrespect to cumulative impact claims discussedin the Costello opinion were on track for resolu-tion at summary judgment or trial. However,following a settlement conference held on July20, 2015, the parties decided to settle their dis-pute, the terms of which were undisclosed in thecourt record.

The Costello case demonstrates that contrac-tors bear significant risks in preserving and prose-cuting cumulative impact claims. Althoughcontractors may wish to start on a good footingwith the public owner from whom they may seekrepeat business, contractors must balance thispractical interest with the need to preserve theirrights and provide timely written notice of anintention to file a cumulative impact claim assoon as it is clear that direct damages on changeorders are not capturing losses to productivity asa result of numerous disruptions on a project.

As with federal cases, boiler plate releaselanguage will likely present a challenge forcontractors working on Virginia public projectswho experience labor productivity losses as aresult of numerous disruptions, design defects, orchange orders. If an owner requires execution ofrelease language as a precondition to issuingprogress payments or change orders, thecontractor must expressly reserve its rights to laterassert a cumulative impact or disruption claim onthe face of the release or change order. Otherwise,the contractor will have to resort to arguing amutual mistake or ambiguity in the releaselanguage in order to introduce extrinsic evidence




concerning the parties’ intent, which can be achallenging argument to win in court.

Endnotes:1 VABCA Nos. 4613, 5162-5165, 99-1 BCA ¶ 30,153

at 149, 257 (Dec. 3, 1998).2 ROBERT F. CUSHMAN ET AL., PROVING AND

PRICING CONSTRUCTION CLAIMS § 3.01 at 69 (3ded. 2001).

3 No. 3:14-CV-00034, 2015 WL 1274695, at *1(W.D. Va. Mar. 19, 2015).

4 Id.5 Id. 6 See VA. CODE § 2.2-4300, et seq.7 Mills v. Moore’s Super Stores, Inc., 217 Va. 276, 280,

227 S.E.2d 719, 723 (1976).8 See VA. CODE § 2.2-4363(A). 9 Costello Constr., 2015 WL 1274695, at *3 (citing

Commonwealth v. AMEC Civil, LLC, 280 Va. 396,699 S.E.2d 499, 507 (2010) (interpreting VA. CODE§ 33.1–387, which contains a notice requirement“identical” to that in the VPPA); Carnell Constr.Corp. v. Danville Redevelopment & Hous. Auth.,745 F.3d 703, 722 (4th Cir. 2014) (a notice underthe VPPA “must identify specifically each claim fordamages and ‘conspicuously declar[e] that, at leastin the contractor’s view, a serious legal threshold

has been crossed,’ and that [it] intends to claimreimbursement for the particular damages”)).

10 Costello Constr., 2015 WL 1274695, at *4.11 Id. 12 Id. at *4 n.1.13 570 F.3d 1337, 1341 (Fed. Cir. 2009) (emphasis

added).


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Shiva S. Hamidinia is an associate at the law firm ofBrigliaMcLaughlin PLLC in Tysons Corner. Her practicefocuses on representing owners, engineers, design profes-sionals, general contractors, subcontractors, and suretycompanies in all aspects of commercial litigation, statu-tory compliance, government contracts, and suretyship.

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30

Pass-through claims have become aninstrument in construction contract

litigation for the efficient resolution of

subcontractor claims against an owner.

Indeed, refusing to allow pass-through

claims would result in a waste of

resources, greater expense, and duplica-

tive litigation where a contractor would

be required to sue the project owner and

separately defend against the same claims

by one or more subcontractors.

Federal courts (and several states) have longallowed pass-through claims, given their practicaland administrative benefits.1 The allowability ofpass-through claims in Virginia is less clear, how-ever. The Supreme Court of Virginia has never

opined on the permissibility of pass-throughclaims in the commonwealth, and the state legis-lature has only permitted them with respect tocontracts with the Virginia Department ofHighways and Transportation (VDOT).Nevertheless, pass-through claims may be per-missible in Virginia if certain conditions are sat-isfied. There appears to be an opening topass-through claims where a contractor presentsthe claims in its own name and as its own dam-ages based on potential future liability.

What Are Pass-Through Claims?A typical construction project involves the projectowner, the prime contractor, and various subcon-tractors hired by the prime contractor to performportions of the work. Disputes on constructionprojects often arise over claims for additionalcosts incurred by a contractor or subcontractor asa result of a defective design, changes to the work,and delays to the job, among other possibilities,


The Elusive Permissibility of Pass-Through Claims in Virginiaby Melisa A. Roy



attributable to the owner. A subcontractor, how-ever, generally cannot bring a claim directlyagainst an owner due to the lack of contractualprivity between the subcontractor and owner.

Pass-through claims address the lack of priv-ity that prevents the subcontractor from claimingdirectly against the owner for damages, while alsoavoiding the gross inefficiency that would resultby requiring separate lawsuits between only thoseparties that do maintain privity (i.e., subcontrac-tor-contractor and contractor-owner).Specifically, because the subcontractor has nocontract with the owner, the prime contractor“passes through” the subcontractor’s claim to theowner in the contractor’s name.

Pass-Through Claims in Federal GovernmentContractingThe United States Supreme Court long-agoaffirmed the use of pass-through claims in federalgovernment contracting as set forth in UnitedStates v. Blair 2:

But it does not follow that [the contractor] is barred from suing for this amount. [Thecontractor] was the only person legallybound to perform his contract with theGovernment and he had the undoubtedright to recover from the Government thecontract price for the…work whether thatwork was performed personally or throughanother…. [The contractor]’s contract withthe Government is thus sufficient to sustainan action for extra costs wrongfullydemanded under that contract. (emphasisadded)3

The Severin DoctrineThe prosecution of pass-through claims in federalgovernment contracting was, for a time, signifi-cantly limited by what has come to be known asthe Severin Doctrine. The Severin Doctrine, whicharose out of the 1943 decision in Severin v. UnitedStates,4 applies only to breach of contract actionsand states that a contractor has no standing to suethe federal government for actual losses incurredby one of its subcontractors unless the contractorhas some obligation to the subcontractor for theamount claimed. In Severin, the subcontractstated that the contractor was not “responsible forany loss…or delay caused by the Owner….” Thecontractor was able to recover its delay damagesagainst the government, but not its subcontrac-tor’s damages because the contractor was unableto prove that it suffered any actual damages as aresult of the subcontractor’s damages arising fromthe government’s breach.

Liquidating AgreementsFederal courts have allowed contractors to bypassthe Severin Doctrine through properly draftedliquidating agreements. Liquidating agreementsare a favored risk allocation tool among contrac-tors in which a contractor and subcontractoragree that the contractor is liable to the subcon-tractor for the owner’s acts, omissions, andresponsibilities to the extent that the contractor isable to recover from the owner for the same.

In J.L. Simmons v. United States,5 for exam-ple, the Court of Federal Claims allowed a con-tractor to pass through the claims of twelvesubcontractors, including nine that had executeda release discharging all claims against the con-tractor “with the exception of [their] claim forlosses because of engineering errors in designcommitted by the [owner].”6 Notably, the courtallowed the pass-through claims even though thecontractor’s obligations to the subcontractorsregarding the amount in dispute would be extin-guished if the court denied the claim against theowner, finding that the contractor’s liability wasnot negated by the releases.

Pass-Through Claims in VirginiaPass-through claims in Virginia, however, havebeen denied except where allowed by statute orwhere the contractor has asserted its own dam-ages independent of the subcontractor’s dam-ages. Moreover, unlike in federal governmentcontracting, the use of liquidating agreements inVirginia could result in a denial of the pass-through claim if the contractor’s liability is madecontingent on recovery from the owner. OneVirginia statute expressly allows pass-throughclaims, but the statute applies only to VDOTcontracts. As explored below, however, a moregeneral Virginia statute may allow a contractorto claim against an owner for its subcontractor’sdamages if the claims are presented as the con-tractor’s own damages.

THE ELUSIVE PERMISSIBILITY OF PASS-THROUGH CLAIMS IN VIRGINIA

www.vsb.org

The Supreme Court of Virginia has never opined

on the permissibility of pass-through claims in

the commonwealth, and the state legislature has

only permitted them with respect to contracts

with the Virginia Department of Highways and

Transportation (VDOT).

32

In George Hyman Construction Company v.McLean Hotel Associates Limited Partnership,7

Judge Griffith of the Fairfax Circuit Courtallowed a contractor’s pass-through claimbrought in the contractor’s own name against aprivate owner under Virginia Code § 8.01-281(A),which provides that a claim asserted

…may be based on future potential liability,and it shall be no defense thereto that theparty asserting such claim, counterclaim,cross-claim, or third-party claim has madeno payment or otherwise discharged anyclaim as to him arising out of the transactionor occurrence. (emphasis added)8

The court reasoned that, under the statute,the contractor could maintain suit against theowner on behalf of its subcontractors without yethaving paid those subcontractors. To recover, thecontractor would have to prove damages allegedlysuffered by each subcontractor that can bedirectly recovered by the subcontractor as well asevidence as to the damages, which may have beensuffered by [the contractor] as a result of [theowner’s] breach of contract and the subsequentobligations [the contractor] incurred to their sub-contractors due to this breach.

It seems fitting that the court relied uponVirginia Code § 8.01-281(A), the primary proce-dural purpose of which, to “promote judicialeconomy by having all claims, actual or potential,arising from the same transaction or occurrencedetermined in one proceeding,”9 echoes a pri-mary purpose for allowing pass-through claims aswell.10

Two years after Hyman, the Court of Appealsof Virginia did not allow a contractor to bring apass-through claim against VDOT in APAC-Virginia, Inc., ex rel., etc. v. VDOT.11 In APAC, thecourt rejected the contractor’s argument that,under VA. CODE ANN. § 33.1-192.1,12 the com-monwealth waived sovereign immunity13 and,with it, waived privity of contract. The courtstated that privity of contract is a prerequisite inVirginia for an action based solely upon eco-nomic loss, and held that a contract action “mustbe brought in the name of the party in whom thelegal interest is vested.” The opinion in APACmakes no mention of Hyman or VA. CODE ANN. § 8.01-281(A), but is distinguishable from Hymannevertheless. Importantly, the contractor allegeddamages that only the subcontractor sustained. Inaddition, the contractor brought the action “exrel.” or “on behalf of” its subcontractor, whereasin Hyman, the contractor alleged its own damagesand brought suit only in its own name. 14

As a result of the holding in APAC, the legis-lature responded by amending the Virginia Codein 1991 to expressly permit subcontractor pass-through claims on VDOT projects.15 To date,however, Virginia has not yet expanded the statuteto permit pass-through claims in connection withother non-highway state construction projects.16

Soon after APAC, in Marriott Corporation v.Thomas P. Harkins, Inc.,17 Judge Griffith distin-guished his previous decision in Hyman anddenied the contractor’s pass-through claims.Thecourt relied on APAC in holding that lack of priv-ity barred the pass-through claims. The court inMarriott found it significant that the contractorasserted its entitlement on behalf of the subcon-tractors in addition to claiming its own damagesresulting from the same actions. The court distin-guished Hyman, in which the contractor was“prepared to show that the claims were recover-able as its own damages,” from both APAC andMarriott where the contractors framed theirclaims ex rel.

The contractor in Marriott also entered intoliquidating agreements with the subcontractors,which limited the contractor’s liability to thatportion recovered from the owner. Contrary tofederal decisions (such as J.L. Simmons) that allowsuch liquidating agreements for pass-throughclaims, the court in Marriott held that, becausethe contractor’s liability was contingent on itsrecovery from the owner, the contractor had noreal fear of being held liable to the subcontractorsand lacked any potential future liability. Underthis reasoning, liquidating agreements in Virginiawould have to preserve at least some liability forthe contractor if the contractor is unable torecover from the owner.

Three years later in Tyger ConstructionCompany, Inc. v. VDOT,18 the Court of Appeals ofVirginia arguably limited its previous holding inAPAC when it again faced a situation in which ageneral contractor sued VDOT based upon dam-ages that its subcontractor sustained. In permit-ting the suit to continue, the court distinguishedAPAC by emphasizing that, in Tyger, the contrac-tor’s petition in the circuit court was brought inthe contractor’s name as the aggrieved party, andthe petition alleged injury and consequent dam-ages suffered by the contractor. According to thecourt, this form of pleading took Tyger “out of theambit of APAC.”

Although not expressly holding that pass-through claims are permissible in Virginia, thecourt in Tyger favorably cited to the US SupremeCourt’s Blair decision allowing pass-through




claims in stating that “the general contractor isordinarily the party who has contracted to per-form the work and who has the right to sue forrecovery under the contract.” Moreover, thecourt’s reasoning made no reference to the 1991statutory change (presumably because the con-tract was entered into in 1985 prior to theamendment), relying instead on the fact that thecontractor brought the claim in its own name forits own damages, thereby “facially satisfying theprivity of contract doctrine.” The Court ofAppeals declined to opine regarding whether thecontractor suffered damages and whether thecontractor was entitled to recover under the con-tract, but also did not indicate that costs would beunallowable to the extent they included the sub-contractor’s costs.

Lessons Learned in Asserting Pass-ThroughClaims in VirginiaBased on the case law examined above, contrac-tors cannot bring claims “on behalf of” their sub-contractors against a private or public owner inVirginia, with the exception of claims againstVDOT. Nevertheless, contractors may still be ableto recover costs incurred by their subcontractorsarising out of owner acts, omissions, or responsi-bilities in Virginia if: (1) the action is brought inthe contractor’s own name, (2) the costs areasserted as the contractor’s own damages basedon potential future liability under VA. CODE§8.01-281(A), and (3) the contractor has notentered into liquidating agreements making itsliability entirely contingent on recovery from theowner. Absent further clarity from the SupremeCourt of Virginia and the General Assembly, how-ever, the success of such an approach remainsuncertain.

Endnotes: 1 In a 2004 decision examining the allowability of

pass-through claims, the Texas Supreme Courtnoted that, of the nineteen states to address theissue in published opinions, only Connecticutexpressly rejected pass-through claims. InterstateContracting Corp. v. City of Dallas, 135 S.W.3d 605,613-14 (Tex. 2004).

2 321 U.S. 730 (1944).3 Id. at 737-38.4 99 Ct. Cl. 435 (1943). Under Severin, the contrac-

tor maintained the burden of proof in showingthat it remained liable to the subcontractor for theamount at issue. The courts have reversed courseand now place the burden of proof on the govern-ment to prove that the contractor has no liabilityto the subcontractor for the amount in dispute.See Harper/Nielsen-Dillingham Builders, Inc. v.United States, 81 Fed. Cl. 667, 675 (2008); Ace

Constructors, Inc. v. United States, 70 Fed. Cl. 253,289 (2006).

5 304 F.2d 886 (Ct. Cl. 1962).6 Id. at 887.7 14 Va. Cir. 187 (Fairfax 1988).8 Id.9 Gemco-Ware, Inc. v. Rongene Mold & Plastics

Corp., 360 S.E.2d 342, 344 (Va. 1987).10 “As a practical matter, the practice of allowing

claims of subcontractors and suppliers to bebrought as part of the contractor’s claim has longbeen recognized by the judiciary as promotingjudicial economy and efficiency by obviating theneed for each subcontractor and supplier to bringits own suit against its higher tier subcontractor,contractor, and surety. Proliferation of proceed-ings in different courts arising out of the same setof facts has been a result not welcomed by thejudiciary.” 6 Bruner & O’Connor ConstructionLaw § 19:25 (West 2015).

11 9 Va. App. 450 (1990).12 VA. CODE ANN. § 33.1-192.1 is now cited as VA

CODE ANN. § 33.2-1102 (West 2015). This articlerefers to the former citation.

13 Pass-through claims on public contracts inVirginia could be complicated by issues of sovereignimmunity and the requirement that the sovereignmust consent to be sued. The commonwealth hasprovided limited consent to be sued in contractcases as reflected in VA CODE § 8.01-192. Virginiahas a long-standing policy of consenting to besued, as Judge Bouldin observed, that since 1778,it has been the “cherished policy of Virginia” toallow citizens “the largest liberty of suit againstherself” in contract cases. XL Specialty Ins. Co. v.Com., Dep’t of Transp., 47 Va. App. 424, 433 (2006)(citations omitted) (finding courts have notextended the commonwealth’s waiver of sovereignimmunity for contractual suits to equitable reme-dies absent an explicit statutory waiver). APACexpressly did not decide whether VA. CODE § 33.1-192.1 was intended to waive VDOT’s sovereignimmunity, instead focusing entirely on privity ofcontract. APAC, 9 Va. App. at 453. The court inTyger Construction Company, Inc. v. VDOT, 17 Va.App. 166 (1993), discussed herein, similarlyfocused on privity of contract in its analysis andmade no reference to sovereign immunity.

14 The Supreme Court of Virginia referenced APACin dicta in XL Specialty Insurance Company v.Commonwealth, Department of Transportation, 269Va. 362, 372 n. 4 (2005) in examining whether asurety qualified as a “contractor” under VA. CODE§ 33.7-387 (now cited as VA. CODE § 33.2-1103)for purposes of bringing an equitable subrogationclaim against VDOT. The decision, however, didnot opine on the allowability of pass-through con-tract claims.

15 Specifically, Virginia Code §§ 33.1-386 (now citedas VA. CODE § 33.2-1101), 33.1-387 (now cited asVA. CODE § 33.2-1103), and 33.1-192.1 (now citedas VA. CODE §33.2-1102) were amended to addlanguage reflecting that, in addition to claimingfor himself against VDOT, a contractor couldclaim “on behalf of a subcontractor or person fur-nishing material for the contract.” See 1991


www.vsb.org

Access to Justice HeroAre you providing service to someone who can’t afford legal representation, is your law firm, or another attorney you know? We’d like to tellthe 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 anyaccess to justice program or issue that needs assistance. The VSB is continuing its focus on access to justice by regularly raising awareness ofoutstanding 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 VirginiaLawyer. 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 aVolunteer Lawyer Spotlight. Please send a brief “blurb” (3 to 5 sentences and a photo) about an outstanding contribution by a volunteerlawyer or law student. The Special Committee on Access to Justice will update the spotlight each month. Please send your “blurbs” [email protected].

34

Virginia Laws Ch. 691 (H.B. 1512). Pass-throughclaims have been allowed against VDOT by sub-contractors since the 1991 amendments. See, e.g.,Asphalt Roads & Materials Co., Inc. v. Com., Dept.of Transp., 257 Va. 452, 512 S.E.2d 804 (1999);Driggs Corp. v. Com. of Va., 1996 WL 1065551 (Va.Cir. Ct. 1996).

16 See VA. CODE §§2.2-4300 et seq. In 2000, theGeneral Assembly sought to commission a studyto consider whether the Virginia PublicProcurement Act (“VPPA”) should be amended to“allow contractors to submit claims to publicowners on behalf of subcontractors and supplierswho incurred costs and expenses on public pro-jects due to acts or omissions of the publicowner,” as with VDOT contracts. H.J. Res. 229,2000 Gen. Assem., Reg. Sess. (Va. 2000) availableat http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+HJ229+pdf (last visited on October 6, 2015).Unfortunately, the resolution ultimately failed,and the study was never performed. See History ofH.J. Res. 229, 2000 available at http://lis.virginia.gov/cgi-bin/legp604.exe?ses=001&typ=bil&val=hj229.

17 30 Va. Cir. 515 (Fairfax 1990).18 17 Va. App. 166 (1993).



Melisa A. Roy is an associate with Williams Mullen in itsnationally-recognized Construction Litigation practice inTysons Corner. She focuses her practice on constructionlaw and represents clients in all phases of a constructionproject. She has extensive experience with preparing andnegotiating construction contracts and preparing and liti-gating complex construction claims on federal, state andprivate projects, in addition to advising on various typesof issues that arise from the pre-bid stage through disputeresolution.


Access to Legal Services

www.vsb.org

On October 21, George H. Hettrick was presented with the2015 Lewis F. Powell, Jr. Pro Bono Award in front of 275 attor-neys, friends, and family in Williamsburg. The evening was co-hosted by the Virginia State Bar and the Virginia Poverty LawCenter, and featured Jo-Ann Wallace, president and CEO of theNational Legal Aid & Defender Association (NLADA) as theguest speaker.

Hettrick, who is chair of Hunton & Williams’ Pro BonoLeadership Committee, helped to create pro bono offices forthe firm in Richmond’s Church Hill, Charlottesville, andAtlanta. In 2009, Hettrick was recognized by The AmericanLawyermagazine with a Lifetime Achiever Award after leadingHunton & Williams to donate almost 73,000 hours to pro bonowork in a single year.

Hettrick was nominated for the award by ChristopherMalone of ThompsonMcMullan in Richmond who said, “In myview, there is no individual lawyer who has made a more signif-icant impact in the development of pro bono in our state.George has inspired, challenged, cajoled, and begged all toaccept responsibility for making pro bono work a central partof the practice of law.”

After a welcome introduction by VSB President Edward L.Weiner, Access to Legal Services Chair Lonnie D. Nunley IIIintroduced Wallace. Prior to her role at the NLADA, Wallacehad a lengthy career in the Public Defender Service for theDistrict of Columbia, which is recognized nationally as a modelpublic defender agency. Wallace was also recently recognized bythe White House as a “Champion of Change,” and has servedon the visiting faculty for the Trial Advocacy Workshop atHarvard Law School.

Following Wallace’s remarks, Hettrick was presented hisaward by Karl Doss, director of Access to Legal Services at theVSB, and Tara Casey, vice-chair of the Access to Legal ServicesCommittee. Hettrick, who had a twenty-five-year career as acorporate and finance lawyer prior to devoting himself to probono work, also served in the US Army and as Special Counselto the Governor of Virginia during his career. He foundedFirms in Service, a pro bono collaboration among Richmond’slarge law firms, and has served on the boards of LawyersHelping Lawyers and the Partnership for Non-Profit Excellence.

More information on the Lewis F. Powell Pro Bono Awardand the nomination process can be found on the VSB websiteat: http://www.vsb.org/site/pro_bono/powell-pro-bono-award.

George H. Hettrick Receives the Lewis F. Powell, Jr.Pro Bono Award

Above, the Honorable S. Bernard Goodwyn was among the many dignitarieswho attended the Access to Legal Services Conference ceremony honoringGeorge H. Hettrick.

Below, Hettrick addresses the conference.


Agenda Please indicate your choice for each session.8:00–8:30 Registration/Continental breakfast8:30 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 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)

Technology for Trial Lawyers (Tom Mighell—Contoural, Inc., Dallas, TX/Brett Burney—Burney Consultants, Chagrin Falls, OH)

9:55–10:55 Second Sessions Microsoft 365, Matter Center and Windows 10: The Three Hottest Microsoft Topics for Lawyers (Ben Schorr-CEO, Roland, Schorr and Tower, Flagsta�, AZ) The Ethical Sand Traps of E-Discovery (Tom Mighell/Brett Burney)

11:05–12:05 Third Sessions What Are the “Reasonable” Cybersecurity Steps You Must Take to Ethically Protect Your Confidential Data (Sharon Nelson/John Simek—Vice President, Sensei Enterprises, Fairfax, VA) Essential PDF skills for Lawyers (Britt Lorish-A�nity Consulting Group, Roanoke, VA/Debbie Foster-A�nity Consulting Group, Tampa, FL)

12:05–12:45 Lunch12:45–1:45 Fourth Sessions

Using Tech to Do More Legal Work in Less Time (Reid Trautz/Natalie Kelly—Director of Law Practice Mgmt at State Bar of Georgia) 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 The Microsoft Word Power Hour for Lawyers (Ben Schorr/Debbie Foster) How Law Firms are Successfully Reinventing Themselves Through Technology (Jim Calloway)

3:05–4:05 Sixth Sessions The Ethical Perils of Marketing Online (Natalie Kelly/Reid Trautz) Budget-friendly Technology for Solo/Small Firm Lawyers (John Simek/Britt Lorish)

4:15–5:15 Plenary—60 Tech Tips in 60 Minutes(Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell)

Register now!Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026

Name

Address

City State Zip Code

Phone

E-mail address*

*Confirmations and materials will be sent via e-mail.Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made.

7 CLE hours (pending)

The Virginia State BarTECHSHOW April 25, 2016 | Richmond Convention Center403 North Third Street Richmond, VA 23219


Karen Kay Farmer BishopWise

November 1950 – September 2015

George W. Bryant Jr.Richmond

September 1926 – August 2014

Richard F. Cook Jr.Ashland

December 1947 – September 2015

John J. CzyzewskiFairfax Station

September 1944 – March 2015

Floyd M. Dickinson Jr.Richmond

August 1942 – April 2015

The Honorable Thomas D. Frith Jr.Blacksburg

January 1932 – August 2015

Jack Andrew HalprinSan Francisco, CaliforniaMay 1969 – July 2015

Marc Edward MangumArlington

February 1970 – October 2015

James M. Minor Jr.Richmond

August 1927 – November 2015

Michael Christopher NormileFalls Church

January 1944 – March 2015

Dexter C. Rumsey IIIIrvington

April 1942 – November 2015

J. Hume Taylor Jr.McDowell

December 1931 – December 2014

Marguerite Leary SeltonTysons Corner

August 1965 – June 2015

PEOPLE < Noteworthy

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In Memoriam

The Virginia Law Foundation will inductthirty lawyers at its dinner ceremony onJanuary 21, 2016, in Williamsburg duringThe Virginia Bar Association’s AnnualMeeting. The foundation is the philan-thropic arm of the practicing bar inVirginia. Since its inception in 1974, ithas provided more than $23 million ingrants to support law-related projectsthroughout Virginia. Each year the foun-dation recognizes a group of Virginialawyers, law professors, and retiredjudges for their legal excellence andcommunity involvement. The membersof the 2016 Class of Fellows are:

David G. Altizer (Tazewell)Tyler P. Brown (Richmond)Benjamin M. Butler (Winchester)Doris H. Causey (Richmond)James L. Chapman IV (Norfolk)James C. Cosby (Richmond)Hon. B. Waugh Crigler (Charlottesville)Larry W. Davis (Charlottesville)

V. Anne Edenfield (Roanoke)Lauren M. Ellerman (Roanoke)Yvonne S. Gibney (Hanover)Nina J. Ginsberg (Alexandria)Michael C. Guanzon (Danville)Michael E. Harman (Glen Allen)Adam N. Harrell Jr. (Richmond)Timothy J. Heaphy (Charlottesville)Hon. Thomas D. Horne (Leesburg)Donald E. King (Richmond)Hon. Cynthia D. Kinser

(Pennington Gap)Arlene F. Klinedinst (Norfolk)Keith B. Marcus (Richmond)Kevin E. Martingayle (Virginia Beach)Thomas H. Miller (Roanoke)Scott C. Oostdyk (Richmond)Lewis F. Powell (Richmond)Patricia E. Roberts (Williamsburg)Robert M. Rolfe (Richmond)Edward E. Scher (Richmond)J. Tracy Walker IV (Richmond)Hon. John E. “Jay” Wetsel Jr.

(Winchester)

Virginia Law Foundation to InductFellows Class of 2016

The VSB Intellectual Property Sectionpresented its 2015 Law School StudentWriting Competition award to BillyRaska, a 2015 graduate of the Universityof Richmond Law School. Raska’s paperwas titled “Where to Start? AddingObjectivity to the Profit ApportionmentProcess in Reasonable RoyaltyCalculations.” The award was pre-sented at the section’s 27th annual fall CLE meeting in Alexandria.

Each year, the IP Section runs the Law School Student WritingCompetition for students at lawschools in Virginia or Virginia resi-dents attending law schools outside ofthe state. The winning paper is chosenby former section chair Judge RichardLinn of the US Court of Appeals forthe Federal Circuit. The winnerreceives recognition by the section and a $5,000 cash award. Details about

the competition and a copy of winningpaper are available at the section’swebsite.

Pictured are Raska and sectionmember Matthew R. Osenga.

UR Graduate Receives Award

US Supreme Court Justice SoniaSotomayor, the third woman and thefirst Hispanic appointed to the Court,spent an hour discussing her new bookand answering questions from law stu-dents in the Merhige Moot Courtroomat the University of RichmondNovember 18.

Early in the event, when asked foradvice for young lawyers, JusticeSotomayor replied, “If you have theopportunity, go clerk for a judge. That’sa professional mistake I made.” Dean Wendy Perdue’s wry response: “Itworked out OK,” brought laughter fromthe students and the faculty, who filledthe courtroom and overflowed intoadjoining rooms where the event waslive-streamed.

Sotomayor’s book, My BelovedWorld, chronicles her life from growingup in a Bronx housing project to whenshe was nominated to become a federaldistrict judge in New York, and recountsher struggles with juvenile diabetes andthe death of her alcoholic father whenshe was 9. Sotomayor said the book “wasan escape back into my old life and aneffort to remain me and hang on toSonia.”

When asked by Perdue to discussher use of the term “undocumentedimmigrant” rather than “illegal alien” inMohawk v. Carpenter, a first in theSupreme Court lexicon, Sotomayorresponded, “Justice Breyer once said thatthe only currency we have in gettingpeople to accept our opinions is the lan-guage of persuasion.”

Sotomayor focused extensively onhuman issues, including empathy, givingback, the importance of making realconnections with classmates and friends,and sensitivity to the feelings of others inthe courtroom, to which she referencedSafford Unified School District v. Redding,where the court found the strip search ofa 13-year-old girl unconstitutional.

To a student who questioned whatshe would like to tell the framers of theConstitution as it effects the judiciary,Sotomayor replied, “I probably wouldhave told the framers that Congresscould not specify what our standards ofreview are.” She went on to say that shefelt too much statutory and civil law hasmoved the courts away from commonlaw, allowing, “I am a common law jus-tice more than a lot of my colleagues.”

Sotomayor said that she is aware ofher impact on others in society. Sheadmitted that she almost pulled out ofthe nomination process for the SupremeCourt because, “Many said I was notintelligent enough to be on the SupremeCourt. It was very painful.”

After a friend pointed out that thisnomination was not only about her, butabout others, including the friend’s owndaughter who would look to her as aHispanic woman in a position of power,she decided to carry on, particularlywhen President Obama encouraged herby saying, “‘Judge, remember the press isa distortion.’”

When questioned whether theSupreme Court should be a leader insocial change, Sotomayor said, “We’veled in some areas, and been behind inothers,” suggesting that the area ofwomen’s rights had lagged particularly.

As an example she mentioned that theSupreme Court was still excludingmothers from jury duty in the 1960s andthat it was not until the 1990s whenJustices Ginsburg and O’Connor wereon the bench that “finally we had a deci-sion that favored women such as theVMI case.” (United States v. Virginia)

About the role of the SupremeCourt, Sotomayor said, “If we get too farahead, our opinions will not be followed.If we get too far behind, our opinionsare not valued. We move with and growwith society.”

Responding to a question as to whatadvice she would give to children whoare growing up underprivileged,Sotomayor stressed the importance ofappreciating all accomplishments, nomatter how small, and of each persondefining their success in their own terms.She pointed out that her initial salary asa district attorney was $17,500 a year, farless than many of her law school friendswere making as private attorneys. Yet shereminded herself that this was far moremoney than her own mother, a nurse,had ever made.

She concluded, “I think that hopeis kept alive by what I call realisticexpectations.”


Noteworthy > ET AL.

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Justice Sotomayor Offers Richmond Students Advice,Reflectionby Deirdre Norman

Justice Sonia Sotomayor and Dean Wendy Perdue spoke to students and guests in the Mehrige Moot Courtroom atthe University of Richmond School of Law on November 18.


Conference of Local Bar Associations

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Asian Pacific American Bar Associationof Virginia, Inc.Shani Rosanne Else, PresidentRichard Dean Holzheimer Jr., SecretaryMatthew William Lee, Treasurer

Martinsville-Henry County BarAssociationGlen Andrew Hall, PresidentAndrew Pearsal Hynes, Vice PresidentLaura Elizabeth Frazier,

Secretary-Treasurer

Montgomery-Radford Bar AssociationBeverly McDonald Davis, PresidentChristopher Austin Tuck,

Vice President, MontgomeryRichard Waters Davis Jr.,

Vice President, RadfordRobert Cord Hall, SecretaryMarshall Jay Frank, Treasurer

Salem-Roanoke County BarAssociationSarah Jane Newton, PresidentPeter Sean Lubeck, 1st Vice PresidentNanda Elizabeth Davis,

2nd Vice PresidentBradley Ryan Thompson,

Secretary-TreasurerAdam Heath Moseley, Judge AdvocateJohn Stuart Koehler,

Corresponding Secretary

Winchester-Frederick County BarAssociationDavid Lee Hensley, PresidentMary Louise Costello Daniel,

Vice PresidentMarie Elise Acosta, SecretaryRenae Reed Patrick, Treasurer

The CLBA would like to welcome theVirginia Academy of Elder LawAttorneysLoretta Morris Williams, PresidentRhona S. Levine, President-electElizabeth Ellen Bircher, Vice PresidentJoley LaBelle Steffens, SecretaryElizabeth Louise Wildhack, TreasurerPatty W. McSherry, Executive Director

SAVE THE DATE

Bar LeadersInstituteMarch 28, 2016

Lewis Ginter Botanical GardenRichmond

Registration will open in December. See http://www.vsb.org/site

/conferences/clba/.

Local and Specialty Bar Elections

Upcoming Solo & Small-FirmPractitioner Forums

The Solo & Small-Firm Practitioner Forum focuses on issues that confrontattorneys who practice alone or in small firms. Law office management andethics are among several topics covered at these CLEs.

These CLEs are free, include lunch, and are available on a first-come, first-served basis. Registration and the agendas will be posted on the CLBA website athttp://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

Call forNominationsVSB 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 rec-

ognizes outstanding projects and pro-

grams 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.


The VSB has asked for public commenton the proposal to fund its DiversityConference. The bar’s three other con-ferences—Young Lawyer’s Conference,Senior Lawyer’s Conference, andConference of Local Bar Associations—are each fully funded by the VSB. TheDiversity Conference, in existence since2010, has never received any fundingfrom the VSB. We believe that the timehas come.

Notwithstanding all of the stridestowards inclusion in this country, thelack of minority representation in thelaw is striking. According to 2014 USCensus data, 62 percent of our country’spopulation was white, 13 percent wasblack, and 17 percent was Hispanic, withthe most significant growth coming inminority populations. By contrast, thelegal profession has been significantlyslower than other professions in recog-nizing that confidence in institutionsgoes up when the face of those who servereflects the face of those who are served.

A 2013 Microsoft-funded study,“Raising the Bar: Exploring the DiversityGap Within the Legal Profession,” states:

By 2042, the U.S. population is pro-jected to be “majority minority,” andno one race or ethnicity will anylonger be the majority in America.While America increasingly reflectsthe extraordinarily diverse peopleand cultures from around theworld, the legal profession does not.The study goes on to compare

diversity in the legal profession withthree other professions with broad edu-cation or licensing requirements: physi-cians and surgeons, financial managers,and accountants/auditors. Although thepercentage of minorities in each ofthese professions lags behind thenational workforce, the gap between thelegal profession and these other profes-sions has actually worsened over thepast decade. In other words, our legal

profession lags behind professions whoalready lag behind.

Beyond the demographic under-representation, the Virginia SupremeCourt has stated in Va. Sup. Ct. R. pt. 6,sec. IV, 9 (i) that the State Bar “Councilshall have general charge of the adminis-tration of the affairs of the Virginia StateBar, and shall have the power:…(i) Toencourage and promote diversity in theprofession and the judiciary.”

By funding the Diversity Conference,the VSB can carry out its charge ofencouraging and promoting diversity inthe profession and the judiciary, and theDiversity Conference can be on equalfooting in continuing the solid work ithas begun. Key projects of the DiversityConference include a variety of initia-tives aimed at building a pipeline ofexcellence:• Annual Meeting Mentoring Program.High potential, minority law studentswere identified by each of Virginia’seight law schools to attend the 2015VSB Annual Meeting (sponsored byindividual donations). These futurelawyers were mentored during thethree-day meeting by some of Virginia’sbest attorneys, as they attended educa-tional sessions and networking events.Through this experience, these youngpeople experienced what it means to bea Virginia attorney. • Oliver Hill/Samuel Tucker Institute. Up to fifty high school students fromdiverse ethnic and socioeconomicbackgrounds participate in an annualsummer program that introducesfuture lawyers to the legal professionand gives them the opportunity tomeet distinguished members of thebench and bar.• Diversity in the Law Program. This ses-sion, developed for presentation at lawschools, covers unique issues in repre-senting diverse client bases.

• Rule of Law. The Diversity Conferencehas collaborated on Rule ofLaw/Students’ Law Day at the CapitolProgram in Richmond each spring, aswell as partnered with the Center forTeaching the Rule of Law in presentinga CLE titled Forging in the Foundry ofJustice: The Rule of Law for We thePeople. • Award-Winning CLE presentations atthe VSB Annual Meeting:

° 2013: Diversity and the Rule of Law:Complementary or Contradictory

° 2014: Marriage in Virginia, theChanging Status of Same-SexCouples and their Families

° 2015: Blind Spot: Hidden Biases ofGood People

° And coming in 2016: The Economicsof Diversity: Value-Added to the 21stCentury Practice of Law. Presentersfrom large corporations, large andsmall law firms, and legal educationleaders will speak about the clearbusiness case for diversity in thepractice of law.The Diversity Conference will con-

tinue its work to build coalitions withinthe commonwealth, making our benchand our bar stronger by increasing thediversity in our profession.

Please take a moment to write insupport of funding the DiversityConference. Send comments [email protected].

It is time that the DiversityConference had a fully-funded seat atthe VSB table. With your support, it can.

Diversity Conference

www.vsb.org

Providence Napoleon is 2015–16 chair ofthe Diversity Conference

The Value of the Diversity Conference to the State Barby Providence Napoleon


Winston Churchill once observed, “Weshape our buildings; thereafter theyshape us.” Construction law practition-ers then are shaped by what noted prac-titioner Philip L. Bruner has described as“a towering legal edifice built out ofmodern statutes, ‘contextual’ commonlaw principles of and foundational legalconcepts sustaining and binding themultitude of parties— architects, engi-neers, contractors, subcontractors, mate-rial suppliers, material manufacturers,sureties, insurers, code officials, andtradesmen—typically engaged in vary-ing degrees on construction projects.”1

This area of practice has developed awell-deserved reputation for complexity,and staying current is imperative. Thisarticle highlights recently published edi-tions of foundational Virginia construc-tion and public contracts resources.

Virginia CLE PublicationsThe Virginia Construction Law Deskbookprovides essential reference and expertanalysis for navigating through the mul-titude of issues that so often surface in aconstruction project. Content for thistwo-volume loose-leaf is contributed bya veritable “who’s who” of Virginia prac-titioners. The title covers Licensing;Codes, Permits, and Zoning;Immigration and Labor Law; BondClaims on Public Projects; ContractorRights and Remedies; Mechanics’ Liens;Bankruptcy; Insurance Coverage; OSHA;Legal Ethics; a plethora of contractissues; and other selected topics.Recognizing that resolution of disputescan be complex and litigation expensive,the Deskbook also addresses arbitrationand other alternative dispute resolutionmethods. The newly published 2015 edi-tion is available not only in print, butalso electronically on the Virginia CLEwebsite as a searchable PDF via USBFlash Drive, CD ROM, or immediatedownload. Individual chapters are alsoavailable for download.

Also newly available from VirginiaCLE is the 36th Annual Construction andPublic Contracts Law Seminar. The mate-rial is compiled by the Construction Lawand Public Contracts Section. Topicscovered in the 2015 edition include: TrialAdvocacy in a Complex, Document-Intensive Case; Evidentiary Issues in aConstruction Trial; Foundation andAdmissibility of E-Documents; Federaland State Evidentiary Rules; ProvingDamages at Trial; Direct and Cross-Examination of Construction Experts;Jury Instructions and ClosingArguments; and Advanced Mechanic’sLien Trial Issues. In addition to theextensive treatment of trial related mat-ters, there is also a chapter outliningLegal Issues and Challenges in theMWAA Dulles Silver Line Project. Asalways, there is a chapter dedicated toethical considerations as well as a chap-ter that addresses recent developments inVirginia construction and public con-tracts law. Of course, the best way to addthis title to your collection is to attendthe annual two-day meeting. For overthree decades, this event has affordedattendees an unparalleled opportunitylearn from and to network with some ofthe most talented construction and pub-lic contracts professionals from acrossthe Commonwealth and beyond. Thetitle is also available for purchase on theVirginia CLE website in print or search-able PDF via download, USB FlashDrive, or CD-ROM.

Virginia Practice SeriesVolume 14 of the Virginia Practice Series,the newly published 2015–2016 editionof Construction Law includes summariesand analysis of statutes, regulations, andcases. Written by Peckar & Abramson PCpartners Michael A. Branca and Mark R.Berry, the title covers a range of majorlegal issues including: Licensing;Building Code Compliance; Public-

Private Partnerships; Public ContractBidding and Performance; DisputeResolution; Damages; Third-PartyLiability; Liens and Bonds. This treatisealso explores the interrelation of federalprocurement and fraud statutes withVirginia law. Published by ThomsonReuters, the title is available in print as asoft-bound book as well as electronicallyin both WestlawNext and via the newlydebuted ProView™ eReader. This newelectronic platform allows a user toaccess the Thomson Reuters eBooks andperiodicals on up to 4 devices (Android,iOS, Microsoft) at a time, and offers anumber of handy features including theability to bookmark pages and highlightpassages, create color-coded notes, andsearch across owned libraries.Additionally, the platform simplifiesaccess to controlling authority by linkingto WestlawNext and KeyCite.

Whether your construction lawresource collection is in need of a fullrenovation or just a bit of sprucing up,consider adding these new editions. Afterall, “A fresh outlook is like a fresh coat ofpaint. It doesn’t cost much, but some-times it makes a huge difference.”

Endnote:1 Philip L. Bruner, The Historical

Emergence Of Construction Law, 34WILLIAM MITCHELL LAW REVIEW 14(2007).

Law Libraries

www.vsb.org

Marie Summerlin Hamm is assistantdirector for collection development atRegent University Law Library, and anadjunct professor of law at the RegentUniversity School of Law. She is a pastpresident of the Virginia Association ofLaw Libraries.

Renovating Your Virginia Construction Law Collectionby Marie Summerlin Hamm


The justice gap in Virginia has reachedhistorically wide margins. As a group,Virginia lawyers are encouraged to pro-vide 940,000 pro bono legal servicehours under Rules of ProfessionalConduct 6.1.1 But practitioners annuallycontribute only an estimated 36,600hours, or about 3.9 percent.2

As one might expect, cases in whichindividuals appear without counsel cancontribute to the backlog on the courts’dockets and undermine the perceptionthat those who come before the courtsare equal in the disbursement of justice.Repeated studies have shown that repre-sentation has a tangible effect on caseoutcomes.3 The trend is consistentamong a variety of case types fromimmigration removal proceedings tochild custody disputes. The overarchingreality is that guidance from a lawyer cantranslate into more successful outcomesfor litigants.

There are many reasons for the jus-tice gap, but one potential cause is thedifficulty connecting potential pro bonoclients with practitioners. However, itnow appears that technology can offer anear-term fix, and many states, includingVirginia, are taking action to help con-nect lawyers with indigent clientsthrough online solutions.

Tennessee is one state that under-took the monumental task of bridgingthe gap in legal justice. In 2011, theTennessee Alliance for Legal Services andTennessee Bar Association launched aninteractive pro bono website titledwww.onlinetnjustice.org where low-income residents can bring their legalconcerns into a virtual-based consulta-tion with attorneys across the state.Through a question and answer format,volunteers select an area of expertise andspecific legal questions to answer.

One attraction of the website is theease with which attorneys can addressthe variety of legal concerns. At theirconvenience, attorneys can log into thewebsite twenty-four hours a day, sevendays a week to devote as much or as littletime as they can afford. Such flexibilityhelps blend the experience of providingpro bono service into work, leave, andfamily schedules. For users, the benefit ofreceiving professional advice equipsthem with knowledge on how to proceedin their cases. As an added benefit,Tennessee’s website also serves as aresource hub to connect users with thestate’s legal aid organizations and lawyerreferral services.

The impact of Tennessee’s programin the past four years is breathtaking.Since 2011, volunteer attorneys havehelped more than 8,000 client users.4

The effectiveness of the legal advice is, inpart, assessed by the users, who areprompted at the close of the exchange toreview their experience.

The program’s success promptednot only several other states to launchsimilar websites, but has caught theattention of the American BarAssociation Pro Bono Committee. Thecommittee published a memorandum inMarch on its intention to adopt the sametechnology with the hope of makingsimilar websites available in each state.5

Efforts are underway to mobilize thestates into action by signing the pledgeto become a participant of the program.Virginia is one of the states interested inthe program’s potential.

Even with the promise of leveragingexisting technologies, a website alonewill not close the justice gap. Yet thissmall measure may help address demandfor pro bono legal services in a waynever before imagined.

Endnotes:1 SeeVa. Rules of Prof ’l Conduct R. 1.5

(2009). ”eorge T. “Buck”ociation, ProBono Committee,on has a tangibleeffects on the lives ct.

2 See Joanna L. Suyes and John E.Whitfield, Is there a Pro Bono Gap inVirginia?, VA. LAW. (February 2014)

3 SeeWebinar: Ethical Considerations inPro Bono, Virginia State Bar (Oct. 1,2015), available at https://attendee.gotowebinar.com/recording/7000011461018127105.

4 See George T. Lewis, American BarAssociation, Pro Bono Committee,National Interactive Pro Bono Website:www.ABALEGALANSWERS.ORG(2015), available at https://c.ymcdn.com/sites/ncbp.site-ym.com/resource/collection/C1A0DD33-EAD0-49B1-AC6A-2DEDD2E0A17D/1A_-_Pro_Bono_Website_Memo.pdf.

5 See Id.

Technology and the Practice of Law

www.vsb.org

Jennifer Grace Dean is the founding partnerof the Virginia Immigration Law Center, aprivate law firm in Roanoke dedicated tothe practice of immigration and nationalitylaw. She helps clients obtain work autho-rization, permanent residence, and US citi-zenship as well as defends individuals inremoval proceedings before the immigra-tion courts. She serves on the Virginia StateBar Access to Legal Services Committee andthe Special Committee on Technology andthe Practice of Law.

On the Horizon: Bridging the Justice Gap with Web-Based Solutionsby Jennifer Grace Dean


All right, I’ll admit it. I am a procrasti-nator. If there is a Procrastinator’sAnonymous, I should probably be amember. In fact, I wonder if an organi-zation such as this actually exists. I’vealways thought about checking intothat, but somehow I never got aroundto it. Now, my excuse for never check-ing has been that I tend to perform wellunder the gun. In fact, some of my bestwork often occurs when I’m workingunder a time crunch. I am able to pro-duce when I must. Even better, I like thefeeling of satisfaction that I get whenit’s all over having met the deadlinewith a job well done. It feels good. Ihave earned my place.

What’s the problem then? A falsesense of security is the problem and thisis the dark side of procrastination. I’vepulled it off at the last minute so manytimes before that I’m certain I can do itagain and often this is true. Of coursethis can only happen if no unforeseencircumstances arise; and note that I havenot shared the stories of when I didn’tmake the deadline. I assure you that Ihave had them. That said, while mymissing a deadline from time to timemight mean that I will need to ask for anextension, for an attorney in practice, amissed deadline can be disastrous.

Consider Rule 1.3 (a) of the ABAModel Rules of Professional Conductand commentary. The rule states: “Alawyer shall act with reasonable diligenceand promptness in representing a client.”Comment [3] to this rule reads “Perhapsno professional shortcoming is morewidely resented than procrastination. Aclient’s interests often can be adverselyaffected by the passage of time or thechange of conditions; in extremeinstances, as when a lawyer overlooks astatute of limitations, the client’s legal

position may be destroyed. Even when

the client’s interests are not affected in

substance, however, unreasonable delay

can cause a client needless anxiety and

undermine confidence in the lawyer’s

trustworthiness.”

Procrastination can be a dangerous

choice in the practice of law and it is so

easy to do. The reasons behind procrasti-

nation are many. An attorney may

assume that someone else is taking care

of the matter, may not have a complete

understanding as to how to best handle a

matter, or may simply have too many

matters open. Being afraid of imparting

bad news, not wanting to deal with a

“problem client,” or hoping that with

enough time the problem will go away

are other reasons that attorneys procras-

tinate. Sometimes the problem is an

inability to organize work and a matter

has been overlooked or forgotten about.

Sometimes there is an inability to appro-

priately prioritize work coupled with a

failure to appreciate the importance of

completing the work on a given matter

in a timely fashion. At other times pro-

crastination arises for reasons that are

more personal. An attorney may be

depressed or burned out, thus unable to

find the energy to finish a matter, or per-

haps is impaired and not thinking

clearly.

These examples all point to the dark

side of procrastination. Anyone could

easily rationalize his or her way through

them in order to reach a false sense of

security. Who among us has never had at

least one of the following thoughts now

and again?

“I don’t need to worry about it

because someone else will eventually

take care of it.”

“Next week I will have the time todo the research or I can call in a favorthen if necessary.”

“I can handle all this work nowbecause I was able to do it before.”

“The client doesn’t really want tohear this bad news.”

“The client wouldn’t be able to han-dle the bad news.”

“The client isn’t going to be able tounderstand this and so doesn’t need toknow.”

“If I wait long enough, this problemwill eventually go away.”

“I’m pretty sure I’m on top ofeverything so why worry?”

“I can get to this anytime.”“I just don’t have the energy today,

but I’ll make sure to do it tomorrow.”“This really isn’t that important so

it doesn’t matter if I don’t get to it for awhile.”

“I need to spend my time on thisimportant matter so these other matterscan wait.”

“I don’t have anything going onnext week so I’ll get to it then.”

“I’ll deal with this after I hear fromthem.”

Statements such as these are ratio-nalizations that bring a false sense ofsecurity and nothing else. Admittedly,many times things work out just fine.The problem did go away, the difficultconversation with the client eventuallyoccurred, someone else took care of it,or you benefited from having anextremely competent staff person makecertain that you finished the work ontime. But what if it doesn’t?Unfortunately at ALPS, we deal withthose times when things didn’t work outas planned. Something unexpected hap-pened and time ran out.

Risk Management

www.vsb.org

Procrastination’s Dark Sideby Mark Bassingthwaighte


My intent here is not to share all

the various systems that could be put in

place to help you complete all matters

in a timely fashion; and truth be told,

no system can force you to do the work

anyway. They can only remind you of

what needs to be done. For example, a

number of malpractice claims are clas-

sified as “failure to respond to the cal-

endar.” With these types of claims the

system apparently worked. It was the

attorney who dropped the ball. The

point is simply to remind you that we

as attorneys have an ethical obligation

to be diligent in the handling of all

client matters. Recognize procrastination

for what it is, an excuse. There is real

value in remembering that and, more

importantly, in learning how responsi-

bly address whatever is behind the need

to create the excuse because, sooner or

later, the unexpected will happen and

the fallout can get ugly. The bottom line

is this. Never put off until tomorrow

what can and should be done today.

Risk Management

www.vsb.org

Mark Bassingthwaight, ALPS risk manager,has conducted more than 1,000 law firm riskmanagement assessment visits, presentednumerous continuing legal education seminarsthroughout the United States, and writtenextensively on risk management and technol-ogy. His webinar on Best Practices for ClientSelection in the ALPS CLE library is athttp://alps.inreachce.com. He can be contactedat: [email protected].

The Senior Citizens Handbook is an invaluable resource with just about everything a senior would want to know about the law and a compendium of community-service organizations that provide senior services.

For more information, or to order copies of the Senior Citizens Handbook, please e-mail Stephanie Blanton at [email protected] or call (804) 775-0576.

What Seniors Need to Know.


The Art and Science of Mastering the Jury Trial is a valuable

tool for any trial lawyer regardless of his or her level of experi-

ence. Its chapters are concise, yet fecund with valuable advice

and insight. Illustrative anecdotes and vignettes are sprinkled

throughout the chapters and offer useful applicative demon-

strations of the authors’ points. Each chapter is concluded

with a summary paragraph encapsulating the major points

preceding it.

The book tracks the life of a jury trial from the moment a

potential client appears at a lawyer’s office through post-trial

motions. The authors’ presentation is unique in that it appeals

to both new lawyers and seasoned lawyers alike. Moments in

the book are plainly intended to speak to a less experienced

audience, but at the same time manage to impart pearls of

wisdom to the more experienced audience.

Likewise, the authors often offer advanced insight into

how a lawyer should approach the jury trial, but are able to

articulate it in a way even the newest lawyer can follow. The

vocabulary used in the book is to be commended as erudite

and witty without being cumbersome. A bit of somewhat

comedic irreverence at various points in the book adds levity

to the authors’ points and aids in their making a practical

connection with the reader.

The authors’ experience practicing what they preach is evi-

dent throughout the book and much of what the reader enjoys

is reaping the benefit of what the authors have experienced in

practice. This is not an academic book a law student would ever

be assigned to read in school, but as a practical matter most

certainly should. It does not read like a text book, but more as a

“how to” guide. Indeed, the book is full of unwritten rules the

authors have developed or learned in their years of experience,

from voir dire to post-trial motions, from early preparation to

managing and utilizing exhibits effectively, and from expert

witnesses to opening statement and closing argument. The

most valuable points the reader finds in the pages of this book

are not found in text books or cumbersome, laborious horn

books. Rather, it serves as a light, quick-reading resource full of

practical advice gleaned from lifetimes of experience.

The authors

intentionally place

heavy focus on the

jury throughout the

book—who are the

members of the jury, how are they selected, how does a trial

lawyer best communicate with the jury, what to do and what

not to do in front of jurors and prospective jurors, how to win a

jury over with the lawyer’s view of the case, and other gems.

The book speaks directly to the reader in an almost conversa-

tional way, which also makes it easy to read. Though the book

at times feels redundant, the reader will come away wishing for

more. Indeed, as the reader finishes the final chapter on post-

trial motions, the reader is hopeful for an epilogue or some

parting words of advice following the final chapter. One hopes

this work is a “living work” that will be augmented and devel-

oped with multiple editions from which trial lawyers will only

benefit as years pass. The book is unquestionably a must read

for trial lawyers looking to master the art and science of the

jury trial.

Book Review

www.vsb.org

The Art and Science of Masteringthe Jury Trial By Judge Samuel Johnston and Irv CantorThe Virginia Trial Lawyers Foundation, 2015$39.95

Reviewed by Nathan Veldhuis

Nathan Veldhuis is a personal injury attorneywith DiMuroGinsberg PC in Alexandria. Heserves as treasurer on the Virginia State Bar’sLitigation Section Board of Governors and ison the Standing Committee on Legal Ethics. He is a member of the Boyd Graves Conferenceand is on the Virginia Trial Lawyers AssociationBoard of Governors as chair of the College ofTrial Advocacy.

January 6Executions on JudgmentsWebcast/Telephone10 AM–NOON

January 9–1435th Annual National Trial AdvocacyCollege 2016Live — Charlottesville

January 13Representation of Children as aGuardian ad Litem — 2014 QualifyingCourseVideo — Alexandria, Charlottesville,Norfolk, Richmond, Roanoke8:30 AM–5:15 PM (RICHMOND VIDEOBEGINS AT 9 AM)

January 14Representation of IncapacitatedPersons as a Guardian ad Litem — 2014 Qualifying CourseVideo — Tysons Corner9 AM–4:05 PM

January 19Estate Planning BootcampVideo — Harrisonburg9 AM–4:05 PM

January 20Estate Planning BootcampVideo — Alexandria, Charlottesville,Fredericksburg, Hampton, Richmond,Roanoke9 AM–4:05 PM

January 20Digital Assets, Guns, and PetsWebcast/Telephone3–4:15 PM

January 21Estate Planning BootcampVideo — Abingdon, Norfolk, TysonsCorner, Warrenton, Winchester9 AM–4:05 PM

January 26Digital Assets, Guns, and PetsWebcast/Telephone3–4:15 PM

January 27Representation of IncapacitatedPersons as a Guardian ad Litem — 2014 Qualifying CourseVideo — Abingdon, Alexandria,Charlottesville, Norfolk, Richmond,Roanoke9 AM–4:05 PM

January 28Representation of Children as aGuardian ad Litem — 2014 QualifyingCourseVideo — Abingdon, Tysons Corner8:30 AM–5:15 PM

January 28Ramping Up for the 2016 Elections:What You Need to Know AboutPolitical LawLive —Charlottesville/Webcast/TelephoneNOON–1:30 PM

February 3Extraordinary Direct and Cross-Examination for Everyday CasesLive — Washington, DC5–7:15 PM (BASKETBALL GAME FOLLOWSAT 8 PM)

February 546th Annual Criminal Law Seminar2016Live — WilliamsburgTBD

February 1246th Annual Criminal Law Seminar2016Live — CharlottesvilleTBD

CLE Calendar


Virginia CLE CalendarVirginia CLE will sponsor the following continuing legal education courses. Fordetails, see http://www.vacle.org/seminars.htm.

Virginia State BarHarry L. Carrico

Professionalism Course

January 7, 2016, Alexandria

March 16, 2016, Alexandria

April 7, 2016, Charlottesville

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

http://www.nlrg.com/


Virginia Lawyer Register

www.vsb.org

DISCIPLINARY PROCEEDINGS

DISCIPLINARY BOARD

Respondent’s Name Address of Record Action Effective Date

Jon Ian Davey Danville, VA Suspension – 1 year w/Terms October 23, 2015

Jeffrey Wayne Day Madison, VA Suspension – 91 Days September 2, 2015

Peter Robin Estes Springfield, VA Suspension – 90 Days w/Terms October 3, 2015

Cheryl D. Footman-Banks Virginia Beach, VA Suspension – 45 Days October 13, 2015

William Craig Meyer II Chatham, VA Suspension – 60 Days w/Terms November 1, 2015

Darryl Arthur Parker Richmond, VA Revocation August 28, 2015

Jerrod Myron Smith Chesterfield, VA Suspension – 60 Days October 2, 2015

Robert Langston Williams Pittsburg, PA Suspension – 5 years April 16, 2013Retroactively

DISTRICT COMMITTEES

John George Crandley Virginia Beach, VA Public Reprimand October 13, 2015

Joseph Edward McGuire Jr. Woodbridge, VA Public Reprimand w/Terms September 23, 2015

Kenneth Dane Mills Virginia Beach, VA Public Admonition October 30, 2015

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted

Timothy Paul Harris Leesburg, VA November 3, 2015

Daymen William Xavier Robinson Virginia Beach, VA September 28, 2015

Suspension – Failure to Comply with Subpoena

Jesse Eric White Woodbridge, VA September 24, 2015



www.vsb.org

DISCIPLINARY BOARD

Jon Ian DaveyDanville, Virginia14-090-099262, 15-090-099856Effective October 23, 2015, the Virginia State Bar DisciplinaryBoard suspended Jon Ian Davey’s license to practice law for oneyear, with terms, for violating professional rules that govern dili-gence, safekeeping property, bar admission and disciplinary mat-ters, and misconduct. This was an agreed disposition ofmisconduct charges. RPC 1.3(a),1.15(a)(1)(c)(1)(2)(i)(ii)(3)(d)(3)(i-iv)(4)(d), 8.1(a), 8.4(c)www.vsb.org/docs/Davey-110215.pdf

Jeffrey Wayne DayMadison, Virginia15-000-102918Effective September 2, 2015, the Virginia State Bar DisciplinaryBoard suspended Jeffrey Wayne Day’s license to practice law forninety-one days based on his earlier suspension by the SupremeCourt of Florida. His license had been summarily suspended onSeptember 2 pending the outcome of an October 2 show-causehearing. Rules Part 6, § IV, ¶ 13-24www.vsb.org/docs/Day-112315.pdf

Peter Robin EstesSpringfield, Virginia16-000-103726Effective October 3, 2015, the Virginia State Bar Disciplinary Boardsuspended Peter Robin Estes’s license to practice law for ninetydays. Mr. Estes’s license had been summarily suspended onOctober 3, 2015, based on his suspension by the Supreme Court ofCalifornia. Rules Part 6, § IV, ¶ 13-24www.vsb.org/docs/Estes-112315.pdf

Cheryl D. Footman-BanksNorfolk, Virginia15-022-100028Effective October 13, 2015, the Virginia State Bar DisciplinaryBoard suspended Cheryl D. Footman-Banks’s license to practicelaw for forty-five days for violating professional rules that governdiligence, communication, safekeeping property, declining or ter-minating representation, bar admission and disciplinary matters,and misconduct. This was an agreed disposition of misconduct

charges. RPC 1.3(b), 1.4(a), 1.15(a)((1)(b)(5), 1.16(d),8.1(a)(b)(d), 8.4(a)(c)www.vsb.org/docs/Footman-Banks-110215.pdf

William Craig Meyer IIChatham, Virginia15-090-100492Effective November 1, 2015, the Virginia State Bar DisciplinaryBoard suspended William Craig Meyer II’s license to practice lawfor sixty days with terms for violating professional rules that gov-ern diligence and communication. RPC 1.3(a), 1.4(a)(b)www.vsb.org/docs/Meyer-112315.pdf

Darryl Arthur ParkerRichmond, Virginia15-032-102633On August 28, 2015, the Virginia State Bar Disciplinary Boardrevoked Darryl Arthur Parker’s license to practice law for violatingprofessional rules that govern diligence, communication, safekeep-ing property, declining or terminating representation, truthfulnessin statements to others, bar admission and disciplinary matters,and misconduct. RPC 1.3(a-c); 1.4(a, b); 1.15(a)(3)(ii),(b)(3-5);1.16(a)(1),(c),(d); 4.1(a); 8.1(a-d); 8.4(b),(c)www.vsb.org/docs/Parker-110215.pdf

Jerrod Myron SmithChesterfield, Virginia14-031-098855On October 2, 2015, the Virginia State Bar Disciplinary Board sus-pended Jerrod Myron Smith’s license to practice law for sixty daysfor violating professional rules that govern competence, communi-cation, declining or terminating representation, and fairness toopposing party and counsel. RPC 1.1, 1.4(a), 1.16(e), 3.4(e)www.vsb.org/docs/Smith-112315.pdf

Robert Langston WilliamsPittsburgh, Pennsylvania16-000-103421Effective April 16, 2013, the Virginia State Bar Disciplinary Boardretroactively suspended Robert Langston Williams’s license to prac-tice law for five years. His license had been summarily suspendedon September 11, 2015, based on his suspension by the SupremeCourt of Pennsylvania. Rules Part 6, § IV, ¶ 13-24www.vsb.org/docs/Williams-112315.pdf

DISCIPLINARY SUMMARIESThe 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.



www.vsb.org

DISCIPLINARY SUMMARIES

DISTRICT COMMITTEES

John George CrandleyVirginia Beach, Virginia14-021-099622On October 13, 2015, the Virginia State Bar Second DistrictSubcommittee issued a public reprimand to John George Crandleyfor violating professional rules that govern fairness to opposingparty and counsel, and respect for rights of third persons. This wasan agreed disposition of misconduct charges. RPC 3.4(j), 4.4www.vsb.org/docs/Crandley-110215.pdf

Joseph Edward McGuire Jr.Woodbridge, Virginia15-053-100825On September 23, 2015, the Virginia State Bar Fifth DistrictSubcommittee issued a public reprimand with terms to JosephEdward McGuire Jr. for violating professional rules that governdiligence, communication, and safekeeping property. This was anagreed disposition of misconduct charges. RPC 1.3(a), 1.4(a)(b),1.15(a)(1)www.vsb.org/docs/McGuire-110215.pdf

Kenneth Dane MillsVirginia Beach, Virginia16-021-104013On October 30, 2015, the Virginia State Bar Second DistrictCommittee issued a public admonition to Kenneth Dane Mills forviolating professional rules that govern safekeeping property. Thiswas an alternative disposition issued after Mr. Mills failed to com-ply with the terms of an earlier private admonition. RPC 1.15(b)(5)(c)(1)(2)(i)(ii)www.vsb.org/docs/Mills-112315.pdf

NOTICES TO MEMBERS

SUPREME COURT OF VIRGINIA APPROVESAMENDMENTSEffective February 1, 2016, The Supreme Court of Virginia hasapproved amendments to two rules:Rule 5.5: Unauthorized Practice of Law; MultijurisdictionalPractice of Law.Rule 8.3: Reporting Misconduct.www.vsb.org/pro-guidelines/index.php/rule_changes/item

/prop_5-5_and_8-3e

COMMENTS SOUGHT ON PROPOSAL TO FUND THEDIVERSITY CONFERENCEThe VSB is seeking comments on a proposal to fund the DiversityConference from mandatory dues. Comments should be submit-ted by January 1, 2016.www.vsb.org/site/news/item/comments_proposal_fund_dc

CRIMINAL LAW SEMINARThe 46th Annual Criminal Law Seminar, sponsored by the VSBCriminal Law Section and Virginia CLE, will be February 5 inWilliamsburg and February 12 in Charlottesville.www.vsb.org/site/sections/criminal/annual-seminar

INDIGENT CRIMINAL DEFENSE SEMINARThe 12th Annual Indigent Criminal Defense Seminar, will be May5 at the Greater Richmond Convention Center with webcasts inWytheville and Weyers Cave.

NOMINATIONS SOUGHT FOR AWARDSThe VSB is seeking nominations for the following awards:• Betty A. Thompson Lifetime Achievement Awardwww.vsb.org/site/sections/family/lifetime-achievement-award

• Family Law Service Awardwww.vsb.org/site/sections/family/family-law-service-award

VOLUNTEERS SOUGHT FOR VSB COMMITTEESPresident-elect Robinson seeks members for Virginia State Barcommittees with terms commencing July 1, 2016. See form onpage 52 or download atwww.vsb.org/docs/cmte_form.pdf

LAW IN SOCIETY ESSAY CONTESTThe annual Law in Society essay contest for high school students isaccepting entries.www.vsb.org/site/public/law-in-society

2016 TECHSHOWRegistration is open for the April 25 VSB Techshow at the GreaterRichmond Convention Center. www.vsb.org/site/events/item/vsb_techshow_0416

YLC CELEBRATION OF WOMEN AND MINORITIES INTHE LEGAL PROFESSION BENCH BAR DINNERSave the date for the YLC Celebration of Women and Minorities inthe Legal Profession Bench Bar Dinner on March 23 at Universityof Richmond Jepson Alumni Center.



www.vsb.org

NOTICES TO MEMBERS

NOMINATIONS SOUGHT FOR COMMITTEE VACANCIES

Volunteers are needed to serve the Virginia State Bar’s boards andcommittees. The Nominating Committee will refer nominees tothe VSB Council for consideration at its June meeting.

Vacancies in 2016 are listed below. All appointments will be forthe terms specified, beginning on July 1, 2016, unless otherwisenoted.

EXECUTIVE COMMITTEE: 6 vacancies (1 current member is noteligible for reappointment, and 5 current members are eligible forreappointment). Filled from ranks of the council for 1-year terms,by council appointment.

CLIENTS’ PROTECTION FUND BOARD: 7 vacancies (2 currentlawyer members from the 2nd and 5th disciplinary districts are noteligible for reelection; 3 current lawyer members from the 1st, 4thand 9th disciplinary districts are eligible for reelection; 1 current

lawyer member at-large is not eligible for reelection; and 1 currentlay member at-large is not eligible for reelection). May serve 2 con-secutive 3-year terms. Appointment by council.

JUDICIAL CANDIDATE EVALUATION COMMITTEE: 4 lawyervacancies (of which 2 vacancies are to be filled by a member fromthe 1st, 3rd, 5th, 7th or 8th judicial circuits; 1 vacancy is to befilled by a member from the 6th, 11th, 12th, 13th or 14th judicialcircuits and 1 member at-large vacancy). May serve 1 full 3-yearterm. Appointment by council.

AMERICAN BAR ASSOCIATION DELEGATES: 1 lawyer vacancy(1 current member is eligible for reappointment). May serve 3 con-secutive 2-year terms. Appointment by council. Term commencesSeptember 1, 2016.

Nominations, along with a brief résumé, should be sent by March 11, 2016, toVSB Nominating Committee, c/o Asha Holloman, Virginia State Bar,1111 East Main Street, Suite 700, Richmond, VA 23219-0026.

2016F O R T Y - S I X T H A N N U A L

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 DatesApproved 6.5 MCLE Credits (including 1.5 ethics credit)

VIRGINIA CLE ® AND VIRGINIA STATE BAR

FEBRUARY 5, 2016DoubleTree by Hilton, Williamsburg

FEBRUARY 12, 2016DoubleTree by Hilton, Charlottesville

President-elect Robinson Seeks Members for Virginia State Bar Committees

With Terms Commencing July 1, 2016

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:

To: Members of the Bar From: Michael W. Robinson, President-elect

Standing Committees:* Budget & Finance Professionalism Lawyer Discipline Unauthorized Practice of Law Legal Ethics

Special Committees: Access to Legal Services Lawyer Referral Bench-Bar Relations Personal Insurance for Members Better Annual Meeting Resolution of Fee Disputes Communications Technology and the Practice of Law Lawyer Malpractice Insurance

*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: Phone No.: Email:

Choice Committee Name Have you ever served on this committee? Length of Service

1st Choice

2nd Choice

3rd Choice

Yes No

Yes No

Check here if you have never served on a VSB committee.

Yes No

To assist us in the committee selection process, please provide the following information:Private PracticePrimary area of practice:

Corporate Counsel

OtherGovernment attorney

Commonwealth City/County Federal


Professional Notices

www.vsb.org

Attorneys Honored for Pro Bono Work

Walter J. Dunn has joinedBuchanan Ingersoll &Rooney’s Energy Practice asa shareholder in Washington,DC. His practice focuses onthe representation of developers andoperators of electric generation facilities,and conventional, alternative, and mid-stream gas facilities across the UnitedStates and internationally.

David A. Hirsch has joined TheMyerson Law Group PC as Of Counsel.His practice includes sitting as an arbi-trator as well as representing businessesand individuals in arbitration and medi-ation, criminal and traffic defense, com-mercial litigation, public school studentdiscipline, and construction and renova-tion disputes.

Robert T. Hicks has joined Bean, Kinney& Korman as a shareholder. He repre-sents businesses in commercial and civillitigation.

Hyatt & Weber has opened an office inFairfax managed by partner Stephen B.Stern, who will split his time betweenAnnapolis and Fairfax. The office willfocus on commercial litigation, employ-ment, and insurance coverage matters.

Andrew M. Lohmann,Richmond-based partner atHirschler Fleischer, has beenelected to the firm’s board ofdirectors. He currentlyserves as co-chair of thefirm’s business section and the M&Apractice group.

Isaac A. McBeth has joinedthe Halperin Law Center inGlen Allen as an associateattorney. His practice willfocus on representing clientswhose constitutional rightshave been violated, as well as represent-ing individuals who have been seriouslyinjured by the negligence of others.

Heather Scott Miller andKathleen Broadbent Hornehave joined Sevila, Saunders,Huddleston & White PC asassociates. Miller practices inthe areas of family law andcriminal defense. Hornefocuses her practice on busi-ness law, land use, andemployment law.

Joshua A. Morehouse has joined the liti-gation department of Pesner KawamotoPLC in Tysons Corner. Previously, hewas a fellow at the National Associationof Attorneys General.

Kimberly J. Raab and FrankH. Hupfl III recently joinedthe Richmond-based per-sonal injury law firm ofGeoff McDonald &Associates. Raab leads thefirm’s Personal InjuryLitigation Section and alsoheads the firm’s newChildren and Adolescent

Dunn

Five Harrisonburg-area attorneys havebeen recognized for their extraordinarywork on behalf of the non-profit legalaid society Blue Ridge Legal Services.

The attorneys are Beth Driver ofHoover Penrod, Qinton Callahan ofClark & Bradshaw, Rachel Logan ofBotkinRose, and Marshall Yoder andMatt von Schuch of Wharton & Weaver.

John Whitfield, BRLS executivedirector, presented the awards during theHarrisonburg-Rockingham BarAssociation annual Professional Seminaron October 7. “While the bar does amagnificent job with its pro bono workacross the board, these five attorneysdeserve special recognition for theirexceptional pro bono contributions overthe last year,” Whitfield said.

Since 1982, BRLS and theHarrisonburg-Rockingham BarAssociation have collaborated in this probono referral program to provide freelegal services to financially disadvan-taged people in the area. Last year, thebar handled more than 300 pro bonocases for local low-income families.Over the last two years, more than 75percent of the bar’s firms and solo prac-titioners were involved in pro bono rep-resentation on behalf of BRLS.

The bar’s pro bono program hasearned state-wide and national acclaimover the past thirty years, including thenational Legal Services Corporation’sRural Pro Bono Attorneys of the YearAward in 1993, the Virginia State BarLewis Powell Pro Bono Award in 1998

and 2014, the American Bar AssociationHarrison Tweed Award in 1995, and thePro Bono Services Award from the LegalServices Corporation in 2011.

Driver

Yoder

Callahan Logan

von Schuch

Lohmann

McBeth

Miller

Horne

Hupfl

Raab


Professional Notices

www.vsb.org

Injury Practice Group. Hupfl leads thefirm’s Wage Hour Practice Group andrepresents clients in workers’ compensa-tion cases and all issues relating to work-place relationships.

Olga S. Tseliak has joined the Fairfaxoffice of Chadwick, Washington,Moriarty, Elmore & Bunn PC as anassociate focusing in the area of com-mon interest community associationrepresentation.

Ashley H. Waterbury hasjoined Wharton Aldhizer &Weaver PLC. She focusesher practice on civil litiga-tion and commercial, cor-porate and business law.

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Virginia State Bar Members’ Insurance Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . inside front cover

Waterbury

For confidential, free consultation

available to all Virginia attorneys on questions related to legal

malpractice avoidance, claims repair,professional liability insurance issues,and law office management, callFairfax County lawyer, John J.Brandt, who acts under the

auspices of the Virginia State Bar at

(703) 281-2600 x101

Have You Moved?To check or change your address of record with the Virginia State Bar, go to the VSBMember 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 ofRecord,” 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) 775-0530) with questions.

The VSB E-News

Have you been receiving the

Virginia State Bar E-News? The

E-News is a brief monthly sum-

mary 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 permis-

sions list.

“Not in Good Standing”Search Available at

VSB.org

The Virginia State Bar offers theability to search active Virginialawyers’ names to see if they arenot eligible to practice becausetheir licenses are suspended orrevoked using the online AttorneyRecords Search at www.vsb.org/attorney/attSearch.asp.

The “Attorneys Not in GoodStanding” search function wasdesigned in conjunction with theVSB’s permanent bar cards.

Lawyers are put on not-in-good-standing (NGS) status foradministrative reasons—such asnot paying dues or fulfilling con-tinuing legal education require-ments—and when their licensesare suspended or revoked for vio-lating professional rules.

The NGS search can be usedby the public with other attorneyrecords searches—“DisciplinedAttorneys” and “Attorneys withoutMalpractice Insurance”—to checkon the status and disciplinary his-tory of a lawyer.

Professional NoticesE-mail your news and high-resolutionprofessional portrait to [email protected] publication in Virginia Lawyer.Professional notices are free to VSBmembers and may be edited for lengthand clarity.

Positions Available

ASSOCIATE ATTORNEY —

A busy and thriving smalllaw firm in Virginia Beachseeks an energetic, hardworking Associate Attorneyexperienced in handling contested and uncontesteddivorces, custody and sup-port modifications, and othermatters related to the prac-tice of Family Law. Please e-mail your resume andsalary requirements as PDFattachment to [email protected].

LITIGATION ATTORNEY — TheAttorney General of WestVirginia is currently seeking alitigation attorney. Ideal can-didates will have highlyaccomplished academic andemployment credentials witha minimum of five (5) yearsof litigation experience.Candidates will have superiorwritten and oral communica-tion skills. Successful candi-dates will be aggressive andfocused with the ability toproduce a high-quality legalproduct that meets exactingstandards while seeking toenhance the reputation of theAttorney General's Office as atop law firm in the State ofWest Virginia. Candidateswill be expected to work longhours as needed.

In addition to the mate-rials required above, pleaseprovide a law school tran-script and writing sample.Please send your resume andpreferred salary range [email protected] with“Litigation Attorney” in thesubject line.

PI JUNIOR ASSOCIATE ATTORNEY

(JACKSONVILLE, FL)— LawFirm of Military Veterans isseeking Veterans for theirgrowing law firm. PI JrAssociate Attorneys (0-3years’ experience and recentgrads). Salary commensuratewith experience. Please sendcover letter and resume withreferences to [email protected]

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Classified Ads – Print and Online

Classified advertisements are $2.00 per word fornonmembers, and $1.50 per word for VSB mem-bers with your bar ID#. As a service to our mem-bers, there is no charge for advertisements up to50 words for full-time job openings. Online onlyclassifieds run for 30 days.

Contact Deirdre Norman at [email protected] orvisit http://www.vsb.org/site/publications/rates.

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54 VIRGINIA LAWYER | December 2015 | Vol. 64

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