The VLW Blog

Virginia bar groups have announced their procedures for vetting candidates for the federal district judgeship to be vacated by the decision by Judge James Spencer to take senior status.

Spencer has announced he will become a senior judge on March 25 next year.

Besides the Virginia State Bar, as many as eight lawyers’ associations may make recommendations to Virginia’s two U.S. senators who could influence the selection made by President Obama.

The VSB’s Judicial Candidate Evaluation Committee is taking applications through June 7 and will conduct interviews of candidates on July 8. The VSB asks candidates to submit a résumé, a brief writing sample and responses to a questionnaire available on the VSB website.

The Virginia Bar Association, the Virginia Trial Lawyers Association and the Virginia Association of Defense Attorneys also are asking for résumés or CVs, the VSB questionnaires and writing samples. Those groups do not conduct interviews of candidates.

The materials should be sent by email by June 7 to VBA executive director Yvonne McGhee at yvonnemcghee@vba.org, to VTLA executive director Jack Harris at jharris@vtla.com and to VADA executive director Jill Wells Nunnally at jnunnally@vada.org.

Five other groups will receive application materials and conduct interviews of the candidates. These groups are:

• The Old Dominion Bar Association
• The Virginia Women Attorneys Association
• The Asian Pacific American Bar Association of Virginia
• The Northern Virginia Black Attorneys Association
• The Hispanic Bar Association of Virginia

Most, if not all, of the specialty bars will conduct interviews on July 8 in conjunction with the VSB interviews in Richmond.

The VWAA has its own judicial questionnaire at its website, http://www.vwaa.org/.

The ODBA asks that the same materials sent to the VSB be emailed to ODBA vice-president Beverly A. Burton at BABurton@aol.com.

We have reached out to the other specialty bar groups for information about submission of materials. We will update this post when the information is available.

-Peter Vieth

Lawyers may remember early-career advice to always start with the statutes. They can put that reflex to check the Virginia Code to good use by checking in with the Virginia Code Commission.

The commission, which is responsible for publishing and maintaining the Code of Virginia, is inviting feedback from the bar on setting coming priorities for its ongoing work of updating the statute books.

The “code talkers” are considering taking up Title 23, Educational Institutions, as the commission’s next recodification project to begin in 2014. Following that Title, the commission proposes to recodify Title 36, Housing, in 2016.

Neither title has been recodified since its enactment as part of the current Code of Virginia of 1950.

Generally, the commission selects a title to recodify based on the need to logically reorganize content, modernize language, and reflect current Code style and numbering schemes. To the extent practical, the commission avoids making substantive changes to the statutory text. In the event a substantive change is made, the change is highlighted and explained in the final report.

Other titles currently under consideration for future recodification include Titles 8.01 (Civil Remedies and Procedure), 22.1 (Education), 40.1 (Labor and Employment), 45.1 (Mines and Mining), and 55 (Property and Conveyances).

Presently, the commission is working on Title 33.1, Highways, Bridges and Ferries, assisted by an advisory panel of practitioners experienced in this area. Work on proposed Title 33.2, Highways and Other Surface Transportation Systems, should be finalized by the end of 2013 with resulting legislation introduced at the 2014 Session of the General Assembly.

More information on title recodifications can be found on the commission’s website.

Comments on proposed projects and priorities may be sent to Jane Chaffin at jchaffin@dls.virginia.gov or General Assembly Building, 2nd Floor, 201 North Ninth Street, Richmond, VA 23219, by June 18, 2013.

–Deborah Elkins

Special procedures to ensure integrity in collections actions brought by so-called “debt buyers” could be extended to Fairfax County Circuit Court.

A hearing is scheduled May 29 for comments on whether or not the circuit court should adopt guidelines concerning debt collection defaults similar to the existing “best practices” in Fairfax General District Court which have been in effect for five years, and were most recently revised in February.

After the hearing, a subcommittee of the Fairfax Bar Association circuit court committee will deliver a report for consideration by the full committee.

For anyone who cannot attend the hearing, written comments may be submitted before the end of the day on Friday, June 14 to:

 pwhiteley@lsnv.org

Plans are taking shape for the traditional first debate between candidates for Virginia’s governorship at the Virginia Bar Association Summer Meeting at The Homestead.

The debate is set for Saturday, July 20, at 11 a.m.

Both Republican nominee Ken Cuccinelli and Democratic contender Terry McAuliffe plan to attend, said Marilyn Shaw with the VBA. A media announcement Tuesday stated that both candidates have “acknowledged” their invitations. Shaw explained she used the less-than-definite term simply because McAuliffe’s nomination is not official yet.

“We have commitments. We’re on their schedules. Everybody plans to be there,” Shaw said.

A cocaine-possession defendant was so distraught over his court hearing Tuesday he apparently ran from the Danville courthouse and jumped into the Dan River.

As the Danville Register & Bee reports, Anthony Falden was rescued from the chilly water and taken for a mental evaluation.

Online records indicate Falden was scheduled to go on trial on the drug charge at 9 am Tuesday.

Virginia Attorney General Ken Cuccinelli says he will no longer routinely advance the contention that his office is not subject to the state Freedom of Information Act.

Cuccinelli had included a disclaimer in recent FOIA responses stating that a 2011 Supreme Court of Virginia opinion could be interpreted to exclude his office from the public records law. A spokesperson confirmed to two newspapers the AG’s position that the FOIA did not apply to him.

The same spokesperson provided a somewhat different response from Cuccinelli Monday evening:

“I have always instructed my staff to fully abide by FOIA.  Several staff members are assigned to work on FOIA requests, we have always complied with all FOIA requests and we will continue to respond to every one of the hundreds of requests we get each year,” Cuccinelli said.

“The attorneys who work on FOIA requests were diligently attempting to preserve any potential legal arguments this office may have based on a 2011 Supreme Court case.  However, I have instructed my staff to remove the recently inserted footnote referencing Christian v. SCC because it has created confusion and it does not comport with the office’s practice of fully complying with FOIA,” Cuccinelli’s statement read.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, welcomed Cuccinelli’s less strident approach.

“Taking the offending footnote out of future letters is certainly a step in the right direction,” Rhyne said in an email. “A better step would have been for the Attorney General to distance himself from the footnote altogether by confirming that his office is now and has always been subject to Virginia’s Freedom of Information Act,” Rhyne said.

Waldo Jaquith, an open government advocate who received one of the “footnoted” letters, also praised the change in stance.

“While I do wish that the attorney general had confirmed that his office is legally obliged to comply with FOIA, I’m happy to see that he’s taken a big step in the right direction. Ken Cuccinelli deserves credit for correcting his mistake promptly and transparently,” Jaquith said in an email.

A Wise County lawyer accused of using and sharing illegal drugs with former clients – and getting them to lie about it under oath – has pleaded guilty to four federal felony charges and faces 20 months in prison.

The plea by Stuart Collins follows a judge’s rejection of his contention that some of the charges against him were based on witness statements protected by the attorney work product doctrine.

Collins, 42, was accused of snorting cocaine at his office conference room table with a former client, in an account recited in an FBI affidavit. Other charges involved the use of fraud in obtaining prescription painkillers.

Collins also was charged with having former clients give sworn testimony before a court reporter that he was not involved with drugs. Those allegations apparently led to charges against the court reporter, Ernie Benko, who now faces six counts related to allegedly false testimony.

In his plea agreement Monday, Collins admitting obtaining controlled substances by fraud. If the court accepts the deal, Collins will be sentenced to 20 months, a sentence higher than the normal guideline range for those crimes.

The above-guidelines sentence reflects the prosecution’s “insistence that Collins’ obstructive conduct be taken into account in determining the appropriate punishment,” said U.S. Attorney Tim Heaphy in a news release.

Collins argued the recorded witness statements – never used by him – were attorney work product and should not form the basis of criminal charges.

The statements were not recorded by any of Collins’ attorneys, the government responded. “A defendant who happens to be an attorney cannot use the veil of ‘attorney work product’ to hide his own attempts to obstruct justice and coach witnesses,” wrote Assistant U.S. Attorney Zachary T. Lee in opposition.

U.S. District Judge James P. Jones denied Collins’ motion to dismiss charges based on the false witness statements on May 16. Collins’ guilty plea followed four days later.

Sentencing is set for Sept. 10 in Abingdon federal court.

Abingdon attorney David Scyphers, who represents Collins, did not immediately respond to a request for comment.

The attorney general’s office is not subject to Virginia’s Freedom of Information Act, Attorney General Ken Cuccinelli says.

In a recent letter denying a citizen’s request for conflict-of-information training data, a senior assistant attorney general responded saying a “good-faith argument” could be made that the office is responsive to FOIA requests only as a courtesy.

A Cuccinelli spokesperson told both The Roanoke Times and The Washington Post that “FOIA doesn’t apply to a constitutional office,” including the attorney general’s office.

The AG’s office reports it now is inserting a disclaimer into all FOIA responses contending it is not bound by the FOIA based on a 2011 Supreme Court of Virginia opinion. That opinion holds the state FOIA does not apply to the State Corporation Commission.

Cuccinelli’s FOIA position is not mentioned in the three-page FOIA “Rights and Responsibilities” document posted on his office’s website. The opening sentence of the information sheet states the FOIA guarantees citizens “access to public records held by public bodies, public officials, and public employees.”

The document details how to make a request for records from the Office of the Attorney General. “The office must respond to your request within five working days of receiving it,” the document reads.

A Virginia legislator introduced a bill to reverse the Supreme Court opinion exempting the SCC from the FOIA. House Bill 2321 was left in committee in the 2013 General Assembly, but sponsor Del. Scott Surovell tells WRIC he remains hopeful for a change in the law.

The station reports Virginia was ranked low in a “state integrity” investigation because of the SCC FOIA exemption.

Former Virginia Del. Viola Baskerville has been selected as Virginia Lawyers Media’s 2013 Influential Woman of the Year.

Baskerville was elected for the honor by her fellow members of the 2013 class of Influential Women of Virginia. The award was announced Thursday at the annual ceremony in Richmond.

Baskerville is CEO of the Girl Scouts of the Commonwealth of Virginia, but her accomplishments are numerous.

She is a former member of the Virginia House of Delegates. She was Secretary of Administration in the cabinet of former Gov. Tim Kaine. In 2005, she ran for nomination for lieutenant governor of Virginia. She was a Fulbright Scholar, a former member of the Richmond city council and a city vice-mayor.

Her signal achievement as a state legislator was the passage of a bill providing scholarships for the so-called “lost generation” of Prince Edward County’s African-American students. Those students were educationally abandoned when the county closed public schools for five years.

The Influential Women program, now in its fifth year, recognizes high-achieving women in the fields of law, health care, business, education and real estate, among others.

Almost four years after the Genetic Information Nondiscrimination Act took effect, the Equal Employment Opportunity Commission recently filed and settled the agency’s first lawsuit alleging discrimination under the law.

GINA prohibits discrimination based on genetic information as well as the “acquisition” of genetic information by an employer, including an employee’s family medical history.

According to the EEOC, Oklahoma-based Fabricut Inc. ran afoul of the law when the company’s medical examiner handed a questionnaire to a prospective employee as part of a post-job offer medical exam.
–Correy Stephenson

Rhonda Jones was a temporary memo clerk who applied for a permanent position with the company. Fabricut made Jones an offer and sent her to a medical examiner for a drug test and physical. At her appointment, Jones was given a questionnaire to complete which questioned her about the presence of a variety of disorders in her family history, including cancer, diabetes, arthritis and heart disease, as well as “mental disorders.”

After her exam, Jones was instructed to visit her personal physician for further testing to determine if she suffered from carpel tunnel syndrome (CTS).

Although Jones’ doctor cleared her, the EEOC said Fabricut rescinded its offer based on the company’s belief that she had CTS.

Interestingly, the agency’s suit began simply as an Americans with Disabilities Act claim based on Fabricut’s rescinded job offer.

But during the course of the investigation, the EEOC reviewed the questionnaire completed by Jones and determined it “reflected an unlawful inquiry for genetic information” on its face, adding one count of GINA discrimination to the suit filed in Oklahoma federal court.

“Employers need to be aware that GINA prohibits requesting family medical history,” David Lopez, EEOC general counsel, said in a press release about the case. “When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.”

Under the terms of the proposed consent decree, Fabricut did not admit to a violation of the ADA, GINA or any other law but agreed to pay Jones $50,000.

The company will also initiate various ADA and GINA anti-discrimination measures, including management and human resources training as well as the dissemination of company policies to employees.

Fabricut – described by the agency as one of the world’s largest distributors of decorative fabrics – also promised to stop the practice of inquiring into genetic information of applicants and their family members and will only refer applicants to post-offer health assessments in compliance with the law going forward.