The VLW Blog

The wife of a former Greensboro, N.C., lawyer won a $9-million award for alienation of affection against a former college dean who was accused of luring the lawyer-husband away from domestic fidelity.

The verdict might have been inflated by the fact that the defendant, Anne Lundquist, didn’t show up to defend herself at trial. She told the (Greensboro) News & Record she was not given enough notice of the trial date. Lundquist, of Aurora, N.Y., said she now is looking for a North Carolina lawyer to help her appeal the judgment.

Apparently, she can’t look to the plaintiff’s estranged husband for help. Allan L. Shackelford’s N.C. law license is suspended, according to online bar records. His current address also is listed as Aurora, N.Y.

North Carolina is one of the few states that allows lawsuits for interference with marriage. The terminology requires some translation. “Alienation of affection” is what some might call “home-wrecking.” “Criminal conversation” refers to what Virginians term “adultery.”

By Peter Vieth

When it comes to pleading adultery, a lawyer can’t use a claim of smoke to ferret out a fire.

In a Keeler v. Keeler, a new divorce case from Fairfax, the wife suspected adultery. In her divorce complaint, her lawyer cited the husband’s alleged use of Craigslist to solicit sexual partners and a computer forensic report that indicated the husband had e-mailed nude photos of himself to someone.

Borrowing language from an 1895 Virginia Supreme Court case, the wife’s lawyer said “particular information” would be “more fully developed through the conduction of discovery.”

When Fairfax Circuit Judge Jonathan Thacher called the lawyer on the lack of detail, he said he had omitted necessary facts to avoid embarrassment to either side.

Thacher was not impressed by these delicate sensibilities. Citing Ford Motor Co. v. Benitez, a sanctions case that originated in Thacher’s own courtroom, he sanctioned the wife’s lawyer under Va. Code § 8.01-271.1, ordering him to pay $2,638 of the husband’s requested $5,355 in lawyer fees.
By Deborah Elkins

The University of Richmond law school will present its highest honor, the William Green Award for Professional Excellence, this Friday to Judge Roger Gregory of the 4th U.S. Circuit Court of Appeals.

Gregory was first appointed to the court in 2000 by President Clinton; President George W. Bush renominated him the following year and he was confirmed by the U.S. Senate. Gregory was the first African-American to sit on the 4th Circuit.

UR Law Dean John Douglass said in a release, “Judge Gregory’s skill and professionalism across decades of service as lawyer and judge make him an outstanding role model for our students and for all members of our legal community.”

Gregory holds degrees from Virginia State University and the University of Michigan law school. He practiced with a firm in Michigan and with Hunton & Williams in Richmond before he and L. Douglas Wilder formed the firm of Wilder & Gregory.

The Green award will be presented to Gregory at a noon luncheon at the Jepson Alumni Center on the UR campus.

- Paul Fletcher

A former McGuireWoods partner has admitted violating securities laws by trading unregistered shares of client companies.

If that sounds more like a New York City crime than an item on a Virginia docket, it is. The defendant is Louis Zehill, who worked at McGuire’s New York office, where about thirty lawyers practice.

As reported by Bloomberg, Zehil told the judge he knows he did wrong and takes full responsibility.

“What Louis Zehil did is contrary to everything McGuireWoods stands for,” Richmond McGuire lawyer William Allcott told the news service.

By Peter Vieth

A freeze on filling judicial vacancies seems like pretty tame stuff compared with the steps being taken in Los Angeles to address California’s budget woes.

The county superior court is laying off 379 workers and closing 17 courtrooms, according to the National Law Journal.

That’s in the context of 5,400 workers and 580 courtrooms, which would apparently make the county system larger than the entire Virginia system, which has just over 400 judges total.

Audio recordings of federal court hearings may soon be available from a court near you, but you can forget about that eight-cent price tag used in a recent pilot project. Downloading a digital audio file from a court session will cost $2.40 through the PACER system under the plan approved today by the U.S. Judicial Council.

Availability of court audio recordings will not be universal, either. Putting audio files online is up to the presiding judge of the court in question, according to the council’s news release. Still, downloading an audio file for $2.40 beats paying $26 for a CD version, as now available at some courts.

There is good news for casual users of PACER - they can access four times as much data without incurring fees. Previously, a PACER user was not charged unless the bill exceeded $10 for a year. Now, the Judicial Council will waive billing for charges up to $10 per quarter.

For 2009, nearly half of PACER users were not billed because their use was below the $10-a-year level. That figure would have been 75 percent if the quarterly measure were in effect, the council reports.

In another step for increased public access to court data, a pilot project will publish district court and bankruptcy opinions on the free FDsys Web page.

By Peter Vieth

When Judge Wilson ordered Abbott Laboratories to turn over selected e-mails to federal investigators looking into alleged off-label marketing of Depakote, we had to wonder - why was this high-level pharmaceutical drama playing out in Abingdon, Va.?

Abbott is based in Illinois. It sells the anti-seizure drug Depakote all around the world. The Justice Department is publicly targeting off-label drug marketing, but no such actions have previously emerged in Virginia.

Western District U.S. Attorney Tim Heaphy had the answer today - it’s a qui tam action. Apparently, a whistleblower in Virginia filed an action now being used by the feds to investigate whether Abbott improperly touted Depakote for non-approved purposes.

Heaphy said the action could be unsealed in the next couple months. “It’s in the pipeline,” he said.

By Peter Vieth

Waivers on the fee caps for attorneys who represent indigent defendants will continue after all.
The Senate budget had proposed cutting $600,000 out of this year’s budget and eliminating the $4.2 million projected for each of the next two fiscal years.

The House budget maintained those amounts, and they survived negotiations among the budget conferees and have gone to Gov. Bob McDonnell for his signature. His predecessor, Tim Kaine, had recommended keeping the waivers, while McDonnell had proposed a 15 percent cut.

The program was slow to catch on, as some attorneys resisted the paperwork and timekeeping required to get the waivers, while some judges were more reluctant than others to approve them.
Attorneys finally started submitting requests for the waivers, and if this year is any indication, $4.2 million won’t be enough to cover their annual cost.

Court officials warned earlier this year that $3 million of the $4.2 million allocated for this year already had been spent by February, so that it appeared likely that no payments would be available after May until the beginning of the next fiscal year.
By Alan Cooper

An Abingdon U.S. District Court has ordered Abbott Laboratories to turn over e-mails of current and former top executives in a government investigation of health care fraud.

Abbott is under investigation for off-label marketing of its drug Depakote, approved by the FDA in 198 for treatment of bipolar disorder, epileptic seizures and migraines. The company purportedly is marketing the drug as a treatment for agitation and aggression in the elderly.

Initially, the government subpoenaed e-mails sent or received by 13 individuals from 1996 through 2008. After Abbott protested, the government whittled its request down to e-mails of three individuals: William Dempsey, Miles White and Jeffrey Leiden.

In a March 10 order, U.S. District Judge Samuel G. Wilson said it would not be unduly burdensome for the company to produce e-mails for three out of its 72,000 employees worldwide.

Abbott already had been ordered to preserve 32,300 backup tapes for other litigation. It tried to turn that conservation effort to its advantage, arguing that the sheer magnitude of its e-document files meant it would cost too much in time and money to produce the Depakote documents.

Abbott said it would have to restore 53 backup tapes, at $750 per tape, $10,000 to “establish the back-up environment” at a rate of $240 per hour, and “anywhere from $350-$650” for each gigabyte of restored data to place it in reviewable format.

Wilson was only so sympathetic.

If retrieving the requested e-mails was as tough as Abbott suggested, “the fault lies no so much with an overly broad governmental request as it does with Abbott’s policy or practice of retaining documents” in a format that “shrouds them in practical obscurity.”
By Deborah Elkins

A West Virginia lawyer with a background in computer programming has put the rules he needs for court at this fingertips with four iPhone applications.

Robert Bailey of Charleston authored apps for the United States federal rules of procedure, the West Virginia state rules of procedure, the local federal rules for West Virginia and the Fourth Circuit and the West Virginia family law rules of procedure. According to The West Virginia Record, the apps are priced from free to $7.99.

The apps are demonstrated in a YouTube video.

We are still waiting for someone to prepare similar products for Virginia attorneys.

By Peter Vieth