Virginia Lawyers Weekly

The Virginia State Bar has been kicking the mandatory legal malpractice can down the road for three years, as one VSB Council member put it, and that was enough for some council members.

They attempted to boot the concept to the side of the road at its meeting in Virginia Beach on June 19, but council voted 37 to 20 to keep it in play at least until its October meeting.

Perhaps more telling was the vote on whether to attach a disclaimer to the formal notice of the proposal that will be published between now and the meeting. Opponents were concerned that merely publishing the proposal by the VSB would suggest that the agency supports the concept. They prevailed on a 31 to 27 vote to include a disclaimer despite protests that a proposal is just that and carries no implicit endorsement with it.

The proposal generally requires attorneys to buy insurance on the open market, with minimum coverage of $100,000.

Darrel Tillar Mason, the chairman of the subcommittee studying the issue, has said support for the proposal turns on whether one views it from a “data driven” or “principle driven” perspective. Evidence of a serious problem for lawyers or their clients is slim, she acknowledged, but some lawyers believe that insurance against their own negligence is part of their fiduciary duty to their clients.

Almost 90 percent of lawyers in private practice who represent public clients have malpractice insurance now.

Manuel A. Capsalis, who took over as president of the VSB after the council meeting, said publication of the proposal will put council members in a position to talk to their constituents about the matter. “Properly vetted, we’ll be able to find out from our fellow attorneys how they feel on this issue,” he said.

And he promised, “A decision will be made up or down during my term.”

In other business, the council:

• Endorsed the appointment of Edward L. “Ned” Davis as bar counsel, the title for the head of the VSB’s Professional Regulation Department. Davis, an assistant bar counsel since 1993, will succeed George W. Chabalewski, who held the position for two years.
Chabalewski will return to the attorney general’s office, where he had served for 19 years before becoming bar counsel.

• Adopted Unauthorized Practice of Law Opinions 213 and 214. UPL 213 involves whether an attorney on associate status could act for himself and other owners in negotiating an easement over a tract in which he had an undivided interest.

The Standing Committee on the Unauthorized Practice of Law concluded that it would be improper for the attorney to represent others on the matter, although he could represent his own interest.

UPL 214 concluded that it was the unauthorized practice of law for a certified public accountant to represent a claimant in an arbitration before the National Association of Securities Dealers against the claimant’s former brokerage firm and stock broker when the representation would include drafting the legal claim against the brokerage and introducing exhibits and examining witnesses during the proceeding.

• Appointed M. Janet Palmer of Richmond to succeed Edward L. Chambers Jr. of Yorktown on the executive committee. Jon D. Huddleston of Leesburg will join the executive committee as president-elect of the VSB. Jennifer L. McClellan of Richmond, president of the Young Lawyers Conference; Homer C. Eliades of Petersburg, chairman of the Senior Lawyers Conference; and William T. Wilson of Covington, president of the Conference of Local Bar Associations, will join the executive committee as the representatives of those bar groups.

• Learned that VSB members can go the bar’s Web site at www.vsb.org and update their personal information and record their attendance at continuing legal education classes.

• Amended the rules on lawyer discipline to allow the disciplinary board to impose terms on an attorney whose license is suspended for less than a year. The rules had permitted imposing terms for a suspension of from one to five years but not for a suspension of less than a year.

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