The VLW Blog

A police officer is talking to a criminal defendant when the defendant offers some information and asks about a plea deal. The officer calls the commonwealth’s attorney’s office and asks if he can talk to the defendant about some horse trading.

The request should set off ethical alarm bells for the prosecutor who takes that call, says Virginia State Bar Counsel Edward L. Davis. If the defendant is represented by a lawyer, talking about plea deals through a police officer is misconduct under the Rules, Davis explains in a comment posted on the VSB website this week.

The prohibition stands even if the accused defendant is the one who brings up the subject, Davis says. Furthermore, it won’t help to argue that “everyone else is doing it.” Davis says the fact that a procedure is commonplace is no defense.

Davis says he wrote the piece based on an inquiry from someone concerned about the practice. He declined to say whether his advice was prompted by the case of Caroline County Commonwealth’s Attorney Tony Spencer. Spencer is asking the Supreme Court to overturn an admonition for talking to a jail inmate without notifying the inmate’s lawyer.

By Peter Vieth

There are a least five potential candidates for a pending seat on the Court of Appeals.

Appeals Court Judge James Haley will be retiring later this year, so the General Assembly will be choosing a successor this session.

Maybe. That’s if the House and Senate can get along and the evenly split Democrats and Republicans can reach an agreement.

The Senate was later than usual in organizing, which may account for the slowness in candidates coming forward; Haley made his announcement in December.

The Virginia State Bar will be vetting candidates early next month and other bars have announced their interview plans as well.

So far, we have been able to glean the names of five potential candidates:

• Tazewell County Circuit Judge Teresa Chafin. The candidate backed by Del. Terry Kilgore.
• Collin Hite, a commercial litigator at the Richmond office of McGuireWoods LLP.
• Monica Monday, a Roanoke lawyer who specializes in appellate practice
• Fairfax Circuit Judge Lorraine Nordlund. The candidate backed by Del. David Albo and other legislators from Northern Virginia.
• Larry Shelton, the federal public defender in the Western District

Stay tuned as more candidates may come forward by next week’s VSB deadline of Feb. 1.

- Paul Fletcher and Peter Vieth

The Virginia General Assembly reelected incumbent judges today, but did not elect two former legislators to the bench. Former Front Royal delegate Clay Athey, a Republican, was up for a seat on the 26th Judicial Circuit in Harrisonburg and former delegate Bud Phillips of Castlewood, a Democrat, was nominated for the 30th General District Court bench in Wise.

Supreme Court Justice Donald W. Lemons was reelected to another 12-year term on the high court.

Judges reelected to the circuit court bench are: Judge W. Allan Sharrett, 6th Circuit; Judge Michael S. Irvine, 25th Circuit; Judge Malfourd W. Trumbo, 25th Circuit; and Judge Lon E. Farris, 31st Circuit. Norfolk Circuit Judge Norman A. Thomas, who ran into trouble during House and Senate committee interviews, was not on today’s list.

Incumbents returned to the general district court bench are: Judge Gordon S. Vincent (2-A); Judge Roxie O. Holder (3); Judge S. Clark Daugherty (4); Judge Richard C. Kerns (7); Judge Philip V. Daffron (12); Judge Thomas L. Vaughn (12); Judge L. Neil Steverson (14); Judge John R. Stevens (15); Judge Stewart P. Davis (19); Judge Lisa A. Mayne (19); Judge Donald P. McDonough (19); Judge Mark C. Simmons (19); Judge J. Frank Buttery Jr. (20); Judge George A. Jones Jr. (22); Judge Vincent A. Lilley (23); Judge Joseph M. Serkes (24); Judge Louis K. Campbell (25); Judge W. Dale Houff (26); Judge J. D. Bolt (27); Judge R. Glennwood Lookabill (27); and Judge Sage B. Johnson (28).

Judges reelected to the juvenile and domestic relations courts are: Judge Deborah M. Paxson (2); Judge Winship C. Tower (2); Judge Joel P. Crowe (3);Judge William P. Williams (4); Judge Robert S. Brewbaker Jr. (5); Judge Barry G. Logsdon (7); Judge Valentine W. Southall Jr. (11); Judge Ashley K. Tunner (13); Judge Margaret W. Deglau (14); Judge Denis F. Soden (14); Judge Richard S. Wallerstein Jr. (14); Judge Edward DeJ. Berry (16); Judge Frank W. Somerville (16); Judge Gayl Branum Carr (19); Judge Glenn L. Clayton II (19); Judge Thomas P. Mann (19); Judge Sarah A. Rice (22); Judge Joseph P. Bounds (23); Judge John B. Ferguson (23); Judge Charles L. Rickets III (25); Judge Ronald Lewis Napier (26); and Judge H. Lee Chitwood (27).

Virginia Beach JDR Judge Ramona Taylor, who was censured in 2009, was not considered for reelection.

The legislature also reelected Fauquier prosecutor James P. Fisher to the Judicial Inquiry & Review Commission, and Judge Judith Williams Jagdmann to the State Corporation Commission.

–Deborah Elkins

WILLIAMSBURG–The Virginia Bar Association presented its Award for Excellence in Legal Journalism to Virginia Lawyers Weekly and Virginia Business on Jan. 20 at the group’s winter meeting.

The award is given in recognition and appreciation of exceptional legal journalism. In 2010, the VBA presented the award to the Bristol Herald Courier for a Pulitzer Prize-winning series of articles about the mismanagement of natural gas royalties in Virginia’s coalfields.

Virginia Lawyers Weekly and Virginia Business both celebrated 25 years of publication in 2011, which VBA President Lucia Anna “Pia” Trigiani called “a tremendous achievement, particularly in this day of electronic media and the challenges faced by print media.”

She said that the VBA was recognizing both publications for “their independence, quality reporting and for their service to the legal profession.”

Trigiani called Virginia Lawyers Weekly “an essential resource for Virginia lawyers.” She asked, “How many lawyers have been heard to say, ‘It is malpractice not to read Virginia Lawyers Weekly.’”

She continued, “The reporting is fair, sometimes tough … but, with the focus on accuracy and attention to detail, Virginia Lawyers Weekly has accomplished so very much in connecting lawyers across our vast and varied commonwealth.”

The paper has “lifted up the legal profession, without being untrue to fair reporting,” Trigiani said.

VLW Publisher Paul Fletcher accepted the award on behalf of the paper.

Trigiani hailed Virginia Business as a publication that is “the leading source of information about the people and industries most significantly affecting Virginia’s economy.”

She added, “As the practice of law has morphed more and more into the business of law, Virginia Business’s coverage of the legal profession has grown.” The magazine has partnered with the VBA for 10 years to produce the “Legal Elite” survey.

“Virginia Business has been a friend of lawyers, an essential source and resource for connecting law and business,” Trigiani said.

Accepting the award for Virginia Business was Publisher Bernard Niemeier.

Both Fletcher and Niemeier serve on the VBA’s Committee on Special Issues of National and State Importance.

A political clash in the state Senate Tuesday delayed otherwise routine Virginia judicial elections at least until Thursday.

Democrats and Republicans differed over whether to elect a slate of 49 judges that included two new faces – both former delegates. Democrats claimed they had an understanding that only incumbent judges would be up for re-election, but Republicans wanted to vote on the entire slate, including the two delegates.

With the Senate evenly split between parties, and with Lt. Gov. Bill Bolling barred from voting as a tie-breaker in judicial elections, the session devolved into stalemate.

Each side accused the other of being obstructionist.

“We’re ready to go right now on these 47 incumbent judges,” said Richard L. Saslaw, D-Fairfax. “It’s the opposition of the other party that’s brought this thing to a halt.”

Tommy Norment, R-Williamsburg, prodded Saslaw to explain the Democrats’ unwillingness to vote on the two former delegates, suggesting it was merely payback for the GOP’s takeover of the Senate. “Is this a judicial selection issue or is this a bruised feelings and political ego question?” Norment said.

Saslaw responded it was best for neither party to question the other’s motivations.

The two new judge candidates are former Del. Bud Phillips of Castlewood and former Del. Clay Athey of Front Royal. Phillips is a Democrat and Athey a Republican. Both are nominated for circuit court seats. No legislator has publicly opposed their election.

Sen. Jill Vogel, R-Winchester, said lawyers in her district were “deeply upset” over the judicial vacancy in the 26^th circuit where Athey would replace Judge John R. Prosser, who retired last March.

The Senate showdown ended when Norment withdrew a motion to suspend the rules. The judgeships issue could be taken up again on Thursday, according to published reports.

-Peter Vieth

Sen. Creigh Deeds, D-Bath Co., has introduced a bill to abolish the Virginia Court of Appeals.

Senate Bill 630 would simply do away with Virginia’s 28-year-old intermediate appellate court effective Oct. 1, restoring the Supreme Court’s authority to hear criminal, traffic, domestic and administrative appeals.

The judges of the Court of Appeals would remain in office through the end of their terms, with salaries, but it’s not clear what they would do after October.

Deeds says the idea is just to save money – at least $8 million a year, he says. “It’s about getting the most bang for our buck,” he said.

Deeds said when the state is cutting services to children the judiciary ought not be immune from the budget ax. He denied any animosity for the court. “I don’t want to hurt anybody’s feelings,” he said.

Nevertheless, he said few of the Court of Appeals judges had experience in criminal, domestic or workers compensation practice before going on the bench. “We’ve used the court as a place to reward folks,” he said.

Deeds disavowed any support from other quarters. “This is my idea,” he said.

The bill has been referred to the Senate Courts committee.

Deeds’ is the second legislative proposal to address the Court of Appeals. The other measure moves in the opposite direction, seeking to give the appeals court more authority. House Joint Resolution 111, introduced by Del. Sal Iaquinto, R-Virginia Beach, would authorize a study of whether to expand the jurisdiction of the appellate court. That proposal has been assigned to a House Rules subcommittee.

On the heels of the Senate courts committee’s judicial interviews last Friday, both legislative courts committees have certified incumbent judges for possible re-election by the General Assembly this week.

Supreme Court Justice Donald W. Lemons has been certified for another 12-year term on the high court, and Fauquier prosecutor James P. Fisher has been approved for another term as chair of the Judicial Inquiry and Review Commission. Courts committees also certified Judith Jagdmann to a term on the State Corporation Commission.

The following incumbent circuit court judges have been certified: Judge W. Allan Sharrett, 6th Circuit; Judge Michael S. Irvine, 25th Circuit; Judge Malfourd W. Trumbo, 25th Circuit; and Judge Lon E. Farris, 31st Circuit. Former Delegate Clifford L. Athey Jr. has been certified for a judgeship in the 26th Circuit. Norfolk Circuit Judge Norman A. Thomas, who ran into trouble during House and Senate committee interviews, was not on today’s list.

The following names have been certified for Virginia General District Courts: Judge Gordon S. Vincent (2-A); Judge Roxie O. Holder (3); Judge S. Clark Daugherty (4); Judge Richard C. Kerns (7); Judge Philip V. Daffron (12); Judge Thomas L. Vaughn (12); Judge L. Neil Steverson (14); Judge John R. Stevens (15); Judge Stewart P. Davis (19); Judge Lisa A. Mayne (19); Judge Donald P. McDonough (19); Judge Mark C. Simmons (19); Judge J. Frank Buttery Jr. (20); Judge George A. Jones Jr. (22); Judge Vincent A. Lilley (23); Judge Joseph M. Serkes (24); Judge Louis K. Campbell (25); Judge W. Dale Houff (26); Judge J. D. Bolt (27); Judge R. Glennwood Lookabill (27); and Judge Sage B. Johnson (28). Former Delegate Clarence E. Phillips has been certified for the bench in the 30th Judicial District.

The following incumbents have been certified to return to the Juvenile and Domestic Relations Courts: Judge Deborah M. Paxson (2); Judge Winship C. Tower (2); Judge Joel P. Crowe (3);Judge William P. Williams (4); Judge Robert S. Brewbaker Jr. (5); Judge Barry G. Logsdon (7); Judge Valentine W. Southall Jr. (11); Judge Ashley K. Tunner (13); Judge Margaret W. Deglau (14); Judge Denis F. Soden (14); Judge Richard S. Wallerstein Jr. (14); Judge Edward DeJ. Berry (16); Judge Frank W. Somerville (16); Judge Gayl Branum Carr(19); Judge Glenn L. Clayton II (19); Judge Thomas P. Mann (19); Judge Sarah A. Rice (22); Judge Joseph P. Bounds (23); Judge John B. Ferguson (23); Judge Charles L. Rickets III (25); Judge Ronald Lewis Napier (26); and Judge H. Lee Chitwood (27).
– Deborah Elkins

Candidates for the seat of retiring Court of Appeals Judge James Haley Jr.  face a round of interviews.  Not only will they sit down with representatives of the Virginia State Bar on Feb. 16, they also are invited to meet with several special interest bar groups.

The Old Dominion Bar Association is making it easy for the candidates. The ODBA will conduct candidate interviews at the VSB offices on Feb. 16, the same day as the VSB’s judicial nominating committee.

ODBA president Beverly Burton says candidates should send her copies of the same materials they submit to the VSB.

Burton said electronic mail is preferred. Her address is BABurton@aol.com. Candidates also can mail a hard copy to B. A. Burton, 2506 Riverside Drive, Richmond, VA  23225.  The deadline for submission of materials is February 1, 2012.

Other groups that conduct interviews of judicial candidates include the Virginia Women Attorneys Association, the Asian Pacific American Bar Association, the Northern Virginia Association of Black Attorneys and the Hispanic Bar Association.

UPDATE: The VWAA also will do interviews at the VSB offices on Feb. 16.

The Virginia Bar Association does not do personal interviews with judicial candidates, but it requests materials be sent by Feb. 1 for consideration. The VBA seeks:

1. Responses to the VSB questionnaire,
2. A personal résumé and
3. A writing sample.

The materials should be emailed to VBA executive director Yvonne McGhee at yvonnemcghee@vba.org.

(L-R) UR Dean Wendy Perdue, Challa, Former First Lady Anne Holton (PHOTO CREDIT: Rick Deberry)

Lakshmi Challa, who heads her own four-office immigration law firm, was honored today by the Richmond Bar Association with the John C. Kenny Pro Bono Award for 2012.

Each year, the RBA honors an individual, law firm or organization that demonstrates dedication to the delivery of pro bono services in the Richmond metropolitan area.

Working with the Virginia Poverty Law Center in 2009, Challa established the immigrant Victims of Domestic Violence Project. The Project provides pro bono legal assistance to undocumented immigrants who suffer domestic abuse, helping them work toward legal status in the U.S. without relying on their abusers. Challa also has assistance from law students through the Carrico Center for Pro Bono Service at the University of Richmond Law School.

Challa and her staff have dedicated over 1,000 hours of pro bono service to the Project, and have helped more than 50 women remain in the U.S. to work legally to support their families, according to RBA President Tyler Brown, who presented the award to Challa. She also has offered pro bono services to the American Red Cross, and through the Commonwealth Catholic Charities, to assist unaccompanied minors.

Challa accepted the award on behalf of the entire team at Challa Law Offices, and expressed gratitude to other lawyers who taught her there was a difference between “just” being a lawyer, and being called to be an advocate. In particular, Challa cited former First Lady of Virginia, Anne Holton, and her husband, former Gov. Tim Kaine. Challa interned for Holton, who also served as a Richmond Juvenile & Domestic Relations Judge, and she practiced law with Kaine when both were at Mezzullo & McCandlish.

Challa said she was “honored and humbled” by the recognition. She also thanked her colleagues at partner programs, including Susheela Varky at VPLC and Tara Casey at UR Law School.

UR Law School Dean Wendy Perdue, the luncheon speaker, was especially pleased to join in the congratulations for Challa, who is a UR Law alumna.
–Deborah Elkins

If you are an employer who provides pet privileges at your workplace, be careful how you involve your employees with your animals.

Creating some distance between a pet and an employee can help protect an employer from a workers’ comp claim for a workplace injury linked to any animals in residence.

There was conflicting testimony in Reyes v. Rental Solutions LLC about Samy Reyes’ trip to Pittsburgh to pick up a dog for Gregory Berkshire, who co-owned Rental Solutions with Douglas Davitt. Reyes was on the payroll for Rental Solutions, but also did work for Berkshire’s business, Berkshire Excavating. Berkshire owned two adjacent lots. He lived on one and Rental Solutions was housed on the other lot, with a gated fence between the two.

Berkshire paid Reyes cash to fetch the dog on Dec. 5, 2009. Reyes regularly drove a truck Berkshire Excavating purportedly had sold to Rental Solutions, but there had been no title transfer. Reyes was driving the same truck on the dog run, when he was injured in an auto accident in Maryland.

Berkshire described himself as a dog hobbyist who used his beagles for field hunting trials and kept some animals as family pets. He had a kennel and dog pens on his residential property and said the dogs did not run loose on the Rental Solutions property and did not provide security for the business.

Berkshire said he did not think Reyes was “dog people,” so he directed him to just leave the Pittsburgh pick-up in its cage for the trip. Berkshire said his “one enjoyment in life” was feeding the dogs, so he didn’t think he ever asked Reyes to handle that chore.

Reyes countered testimony about his limited involvement with the dogs with his own assertion that the trip was undertaken on his employer’s order and was within the scope of his multiple job duties.

All things considered, the Workers’ Compensation Commission sided with the employer. It contrasted Reyes’ case to Prince William County School Board v. Fogarty, a 1999 case that allowed comp benefits for a claimant bitten by a school principal’s dog. The principal had ordered the employee to greet the dog.

The employer in Reyes persuaded the commission the Pittsburgh trip was voluntary, as Reyes was known for hustling for extra assignments, and had refused such trips in the past.
By Deborah Elkins