The VLW Blog

Virginia Beach lawyer Claude M. Scialdone pleaded guilty yesterday to possession of cocaine.

Scialdone, 65, had disposition of the charge deferred for a year under the Virginia law that applies to first-time drug offenders.

The charge will be dismissed if he gets in no further trouble while undergoing probation and performing 100 hours of community service. His driver’s license also was restricted for a year.

In announcing the plea, Commonwealth’s Attorney Harvey L. Bryant said police found Scialdone next to his car on Indian River Road on Aug. 8 after a city resident called to report that he had seen a car drive into a ditch.

Scialdone appeared to be drunk and was charged with drunken driving, reckless driving and refusing to take a blood or breath test. After he was arrested, police found cocaine in his pants pocket.
He had pleaded guilty earlier to DUI and was given a suspended jail term and fined $250 for that offense.

Virginia Beach Circuit Judge Patricia West cited Scialdone for summary contempt of court in July 2006 because she believed he had falsified a document he attempted to submit in a criminal case. The Supreme Court of Virginia reversed the citation last month because the circumstances required a hearing before Scialdone could be convicted of contempt.
By Alan Cooper

While standing by his contention that he lacks the authority to ban employment discrimination on the basis of sexual orientation as a matter of overall state policy, Gov. Bob McDonnell made it clear this afternoon that he will not tolerate such discrimination in the state’s executive branch.

“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United State Constitution,” he said in Exeutive Directive 1.

“Therefore discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.”

The second clause is important because sexual orientation is not a status protected from discrimination in the Human Rights Act.

“I hereby direct that the hiring, promotion, compensation treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance…,” he said.

“Civility, fair treatment, and mutual respect shall be the standard of conduct expected in state government.”

By Alan Cooper

The General Assembly unanimously elected former attorney general and legislator William C. Mims this afternoon to the Supreme Court of Virginia, effective April 1.

The election was a foregone conclusion after his appearance Monday before the House and Senate Courts of Justice Committees as the only candidate for the position. Our report on that appearance and background on Mims is here.

Mims will replace Justice Barbara Milano Keenan, who was to be sworn in today as a judge of the 4th U.S. Circuit Court of Appeals after President Obama signed her commission yesterday.

The General Assembly reappointed three other judges this afternoon: Franklin Circuit Judge William N. Alexander II and 27th General District Judges Edward M. Turner III and Randall J. Duncan.

Alexander’s appointment had been held up because of questions about his handling of a special grand jury investigation of Franklin Sheriff Ewell Hunt. Alexander attempted to defuse criticism with a letter saying that, on reflection, he should have recused himself from any involvement with the grand jury.

Turner ran into questions about his membership in the New River Land Trust, a conservation organization. Members were concerned about the propriety of correspondence that listed him as a member of the organization’s board of directors.

Turner said no correspondence with this name on it had been used to solicit money by the organization, and he indicated that he would withdraw from it if legislators thought his membership created a problem.

No one suggested any impropriety on the part of Duncan, but he apparently was caught up in muscle flexing between senators and delegates and Democrats and Republicans.

By Alan Cooper

A Richmond federal jury has awarded family law practitioner Terry Batzli damages in his suit against his legal malpractice carrier.

A client complained about an alleged drafting error in a settlement agreement and sued Batzli for malpractice. Batzli notified his carrier, Minnesota Lawyers Mutual Insurance Company.

MLM said the notice of claim came too late, and filed a dec action in Richmond U.S. District Court, saying Batzli had knowledge of sufficient facts that could have supported a claim more than two years prior to the date of notice to MLM.

Batzli counterclaimed for breach of contract and took his claim for damages to a jury.

On March 2, the jury found in favor of Batzli and his firm and awarded $8,400 in damages.
By Deborah Elkins

Adoption of a first-time set of local rules in federal courts of the Western District will mean elimination of a long-standing strict order barring lawyers from disclosing details of criminal cases.

The 1983 standing order prohibits disclosure of information about a pending criminal case “that is not part of the public records of this Court.” The rule bars any disclosure about proceedings in chambers or otherwise outside the presence of the public.

Under local rules announced today and a companion order abrogating certain standing orders, the restrictive language is eliminated. The rules take effect April 8.

Virginia Lawyers Weekly subscribers can read the full story here.

By Peter Vieth

Former Franklin lawyer J. Edward Moyler Jr. today was sentenced to one and a half years in prison for stealing more than $4 million from his client accounts. Most of the money came from the estate of a well-known Franklin woman.

Although Moyler is under order to pay back the missing money, prospects for restitution are not good.

“I don’t want to seem pessimistic, but there doesn’t appear to be much chance of recovering the money unless his financial circumstances change,” said Southampton County Commonwealth’s Attorney Eric Cooke.

Moyler, 79, regularly withdrew money from his client accounts to support his ailing hotel business, according to earlier testimony. He pleaded guilty to six counts of embezzlement in state court and one count of bankruptcy fraud in federal court. He faces sentencing on the federal charge in May.

The Tidewater News reports Moyler is scheduled for surgery in March. He has been allowed until April 20 to report to prison.

By Peter Vieth

In a state that’s fond of nicknames, family names and compound names, how much latitude does a car-crash plaintiff get when she scrambles the defendant’s first and middle names?

None, according to an Albemarle County Circuit Court.

The plaintiff’s lawsuit listed “Maggie Walker” as the defendant. Her correct name was “Ann Maggie,” or “Ann Margaret Walker” to you.

When the plaintiff attempted service on Walker, it was returned “refused wrong name.” The plaintiff said the name mix-up was a “pure misnomer,” like a mere misspelling.

Showing a more nuanced perception, Judge Cheryl V. Higgins found that “the name Ann Margaret Walker” was a different name from “Margaret Walker.” On Feb. 25, 2010, she refused to reconsider her decision that the lawsuit in Snow v. Walker (VLW 010-8-045) was barred.
By Deborah Elkins

William C. Mims will become only the second person to serve as a Virginia legislator, an attorney general and a member of the Supreme Court of Virginia.

Any doubts that he will replace Justice Barbara M. Keenan, who was confirmed last week as a judge of the 4th U.S. Circuit Court of Appeals, disappeared this afternoon when House Minority Leader Ward L. Armstrong of Martinsville introduced him to a joint meeting of the Senate and House Courts of Justice Committees.

Each committee must certify a candidate for a judgeship before that candidate can be considered by their respective bodies. Mims was the only person interviewed for the position.

Armstrong noted that he and Mims were part of a class of 21 delegates who entered the legislature in 1992.

‘He was always a gentleman, he was always fair, he was always respectful of the process,” Armstrong said of Mims as a legislator.

Mims, 52, was named chief deputy attorney general in 2006 after serving 14 years in the legislature and became attorney general last year after Robert F. McDonnell stepped down as AG to run successfully for governor.

He became a lobbyist for Hunton & Williams in January but is expected to be elected to the Supreme Court before the legislature’s scheduled adjournment on Saturday.

The only other person to be legislator, AG and Supreme Court justice was Albertis S. Harrison, who had the added distinction of being elected attorney general and also serving as governor.

Virginia Lawyers Weekly subscribers can read the rest of the story here.
By Alan Cooper

This paper has reported on some high-dollar med-mal cases involving Caesarean sections, but an unpublished 4th Circuit case out of Roanoke offers a new twist.

Nickeshia M. Lawrence sued Carilion Roanoke Community Hospital for medical malpractice in failing to perform a Caesarean section when she was giving birth to her son.

After a five-day trial, the jury returned a verdict for Carilion. On appeal to the 4th Circuit, Lawrence argued the trial court erred when it rejected her Batson v. Kentucky challenge to Carilion’s peremptory strike of an African-American juror.

Not a problem, according to the 4th Circuit’s March 4 unpublished opinion. The defense also struck two white jurors who had undergone C-sections. A white juror who had had two C-sections stayed on the jury, but her procedures had occurred 20 years earlier. Because each side had only three peremptory strikes, it was “entirely reasonable that Carilion’s counsel chose to leave on the jury” a woman whose procedures had occurred so remotely, the panel wrote in its per curiam opinion.
By Deborah Elkins

The Virginia State Bar is pursuing ethics charges against a prosecutor and her former assistant who are accused of coaching a witness in a 1997 death penalty case. The decision to refer the matter to VSB’s disciplinary board could quiet claims that bar ethics investigators have turned a blind eye to alleged misconduct by prosecutors.

The Virginia Gazette reports York County Commonwealth Attorney Eileen Addison and Newport News attorney Cathy Krinick have been notified of charges including “engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.”

In 2008, a circuit court judge commuted Daryl Atkins’ death sentence to life in prison after hearing evidence of the alleged witness coaching prior to his capital murder trial.

By Peter Vieth