Clicking a bright blue button on this page opens the form where attorneys can identify themselves and type in a question for the VSB gurus. The ethics inquiries land in a new e-mail inbox at the office of Ethics Counsel Jim McCauley.

McCauley said getting ethics questions electronically makes it easier to keep a record of the inquiries and responses. Lawyers may find it easier than sending a letter or using the phone call to help a staffer make a record of the question.

By Peter Vieth

A three-judge panel concluded that Brown made a false statement to a judge and disrupted a judicial proceeding.

Brown misrepresented to a Chesapeake Circuit Court judge in front of a jury the circumstances surrounding a deposition in the case, according to the order.

The misrepresentation disrupted the proceeding as did his disrespectful comments to the judge at a subsequent hearing on a motion for sanctions when Brown asked the judge to recuse himself.
Brown did not comply with the court’s order to pay attorney’s fees and costs to defendant’s counsel following that proceeding.

The panel properly considered during the penalty phase of the hearing a prior reprimand with terms that had been issued to Brown at an earlier proceeding, the court said.

Two magistrate judges in Virginia, one in the Eastern District and the other in the Western District, ruled recently that the pleading standards set by the U.S. Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal apply to affirmative defenses as well as complaints.

Those cases held that pleadings must contain facts that show an alleged claim is plausible; a conclusory statement that an action establishes liability is not enough.

Magistrate Judge James G. Welsh in a sex discrimination case in Harrisonburg and Magistrate Judge M. Hannah Lauck in a racial discrimination case in Richmond said the application of “Twiqbal” to affirmative defenses is an issue bubbling in the lower federal courts.

No appellate court has weighed in on it yet, but the majority of lower courts have extended the rationale to affirmative defenses, Welsh and Lauck wrote.

Lauck did so with considerable trepidation about extended battles over the sufficiency of pleadings. “It is the Court’s firm hope that litigants will continue to develop the heart of their claims rather turn to secondary events to gain litigative advantage,” she said. “Undue motions practice by either always fails to serve the interest of justice.”

The cases are Palmer v. Oakland Farms Inc. from the Western District and Francisco v. Verizon South Inc. in the Eastern District.
By Alan Cooper

The donation from Bobby Thompson, whose whereabouts are now unknown, was the second largest individual contribution to Cuccinelli’s campaign, reports The Roanoke Times.

Thompson had sought relief from Virginia regulation of charitable solicitations. He apparently fled after press inquiries questioning the legitimacy of the U.S. Navy Veterans Association.

By Peter Vieth

“Reminiscent of a scene from a Cheech & Chong* movie,” Judge Glenn Harrell begins his majority opinion, police raided a Baltimore residence where occupants were found to be “shrouded in a haze of marijuana smoke.” The appellant, who sat within an arm’s reach of the drugs, but had none on his person, “remained ‘groovy,’” but was arrested nonetheless.

The appeals court upheld his conviction of simple possession of marijuana.

Judge Clayton Greene dissented, biting back with a familiar line from the animated Comedy Central series, Southpark:

“Although, in the immortal words of Mr. Mackey*, ‘[d]rugs are bad,’ the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs.”

*Those unfamiliar with these characters can refer to the handy footnotes provided on pages 3 and 44 of the opinion.

By Sarah Rodriguez

Tower, who will turn 70 next year, said in a letter to VBA President Steve Busch that he believes “this is an opportune time for transition” for both the association and himself.

Tower cited a series of accomplishments, including the development of a strategic plan that he and Busch expect to be completed before this retirement.

Other projects included the Pro Bono Summit held in Richmond earlier this year, the Rule of Law Project that brings the concept to state middle school students, the Principles of Professionalism for Virginia Lawyers, and raising almost $100,000 to help restore the legal infrastructure in Louisiana after Hurricane Katrina.

“I am particularly proud of the VBA’s work to advance the highest ideals of the legal profession through advocacy – especially in its law reform work at the Virginia General Assembly – and public service,” Tower said.

Before joining the VBA, Tower was a partner at Hunton & Williams in Richmond and Kaufman & Canoles in Norfolk. He also was a founding member of The McCammon Group, a mediation and arbitration firm, and director of judicial education for the Supreme Court of Virginia.

That broad experience “propelled our organization to new heights,” Busch said. “This is evidenced by our legislative successes, enhanced relationships with other bar-related organizations and the Supreme Court of Virginia, and the excellent staff that he has developed in support of our mission.”

Tower said he likely will return to mediation after his retirement.
By Alan Cooper

Like the Wicked Witch of the East, the lawsuit “was ‘not just merely dead,’” but really “‘most sincerely dead,’” said Judge Designate Clifford R. Weckstein.

Plaintiff William Lockhart Boyce sued witnesses who testified at a disciplinary hearing by the Virginia Board of Veterinary Medicine. The board placed Boyce on probation after finding he violated statutes and regulations in his care for a dog that belonged to one of the witnesses.

Lockhart did not appeal the board action. Instead, he began agitating against the witnesses on his weekly radio show and in newspapers, and talking to lawyers. He eventually hired John W. Swezey, a member of the Virginia bar since 1967. Swezey filed suit in 2004.

But Swezey and Boyce should have known better, according to the trial court’s opinion, released today. Two months before Boyce filed suit, the Supreme Court of Virginia, “in a case legally indistinguishable from this one,” held that the defendants were completely immune from suit. That case was Lindeman v. Lesnick.

Weckstein ordered the veterinarian and his lawyer to pay $23,288.50 in legal fees to three law firms who represented the defendant witnesses, as well as the witnesses’ costs and costs to the clerk’s office. He also ordered payment of reasonable expenses to the Office of the Attorney General, who intervened in the suit, as well as a $6,500 punitive sanction to the AG’s Office “to reimburse the citizens of the Commonwealth of Virginia” for legal services.

The court ordered additional ethics training for Swezey and for Boyce, in their respective professions.
By Deborah Elkins

Federal judge strikes down major parts of S1070

PHOENIX–A U.S. District judge has temporarily blocked major portions of Arizona’s new immigration law, while allowing other parts of it to take effect tomorrow.

Judge Susan Bolton said the federal government is likely to succeed in arguing that federal immigration law would preempt portions of the state law that require an officer to determine the immigration status of a person stopped, detained or arrested if there is reasonable suspicion that the person is unlawfully present in the U.S. and that require verification of immigration status of any person arrested prior to releasing them from custody.

For the rest of the story and a copy of Bolton’s order, click here.

- Paul Fletcher

In Satterwhite v. Commonwealth, the victim in Norfolk was covered in blood from three bullet wounds to the chest and one to the head when he told his girlfriend, a dispatcher and police that the defendant had shot him.

The injuries were serious enough that the victim must have thought death was near, even though he survived six weeks, Judge D. Arthur Kelsey wrote for the appellate panel. The Confrontation Clause argument failed because a dying declaration was well recognized as an exception to both the hearsay rule and the Confrontation Clause at the time the Bill of Rights was adopted, Kelsey said.

In the second opinion, also by Kelsey, the same panel distinguished Armstead v. Commonwealth from the 2009 U.S. Supreme Court decision in Arizona v. Gant. The high court rejected the holding of many state appellate courts, including Virginia’s, that police could search a vehicle with no suspicion of criminal activity following the arrest of a recent occupant.

The Supreme Court said, however, that a warrantless search is permissible if it is it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In this case, a Newport News police officer arrested the driver and searched the car after the driver was unable to provide a driver’s license or registration and the officer was could not verify that the driver had a license in Virginia or the District of Columbia, as the motorist claimed.

The policeman said he hoped to find identification in the car. He did, along with cocaine and marijuana. The circumstances the police officer confronted were squarely within the exception articulated by the Supreme Court, Kelsey said.
By Alan Cooper

A 4th U.S. Circuit Court of Appeals panel affirmed a district court ruling that a Virginia law barring Ostergren’s public postings violated the First Amendment. The 3-judge panel remanded the case to Senior U.S. District Judge Robert Payne to craft an even stronger injunction against enforcement of the law aimed at Ostergren’s publications.

Ostergren publishes TheVirginiaWatchdog.com, which advocates against the government making personal information available on the Internet.  The website posts public records, including the Social Security numbers of some public officials obtained from government websites.  By posting those documents, Ostergren intends to illustrate how easy it is to obtain private information from government websites.

“Given her criticism about how public records are managed, we cannot see how drawing attention to the problem by displaying those very documents could be considered unprotected speech,” wrote Judge Allyson Duncan for the panel.

By Peter Vieth