Who did Tom Cruise portray in "A Few Good Men?"

We have been following the stories of the several U.S. Attorneys fired by the Bush administration under a little known clause in the Patriot Act. The Washington Post included this story of one of the fired attorneys fighting back. Reading the story, we were struck by this quote: "[David] Iglesias, 49 and the son of a Baptist minister, is a Navy Reserve commander whose role as a defense lawyer in a famous military hazing case was the basis for the Tom Cruise character in the movie 'A Few Good Men.'" For years, we have seen and heard the advertisements for Virginia Beach attorney Don Macari whose website claims that he "first gained national attention when his exploits as a young defense attorney with the U.S. Navy JAG Corp became the basis for the motion picture 'A Few Good Men.'" Who is the real Tom Cruise? Inquiring minds want to know.

Court of Appeals determines that same-sex cohabitation did not violate property settlement agreement

This article reports on the Court of Appeals decision that an ex-wife did not violate the terms of a property settlement agreement when she cohabited with a same-sex partner. The Court of Appeals, reversing the trial court, based its decision solely upon the contractual terms of the PSA, stating that "we are concerned with a contract between a man and a woman, husband and wife, not a statute defining or to be interpreted as defining 'cohabitation,' which is the subject of the Opinion on which the trial court relied."

Appeals Granted

Here's the most recent posting of appeals granted by the Virginia Supreme Court.

Updates

As posted here previously, Judge Doumar had permitted a lawsuit brought by the families of sailors killed in the Cole bombing to proceed against the Republic of Sudan. Yesterday, Judge Doumar, in a final pre-trial hearing, refused to dismiss the case although the defendant, Sudan, will not participate.

Also, a bit more information on the Hunton & Williams lawsuit in which a former partner of the firm has sued H&W for his partnership distribution.

Hunton & Williams sued by former partner

An interesting lawsuit was filed in DC Superior Court against Hunton & Williams by a former partner. According to the detailed lawsuit, a copy of which is available here, the former partner had a capital account in the amount of approximately $150k at the end of the fiscal year, March 31, 2006. However, between then and June 30, 2006, the date of the partner's withdrawal, H&W claimed a loss of $17 MILLION during that three-month period. The partner's share of that loss was approximately $130k leaving a balance owed to him of $20k, payable in equal installments over the next 20 quarters. Got that? Makes for interesting reading, and the Complaint even includes the H&W partnership agreement.

General Assembly approves waiver of compensation caps for court appointed counsel

As the Times-Dispatch pointed out, the General Assembly took a small step to rectify the horrendously low pay for court appointed counsel by passing Senate Bill 1168. The bill permits the attorney to request a waiver from the statutory fee caps, and gives discretion to both district court judges and circuit court judges to waive those fee limitations. This change is small and long overdue, but at least is a step in the right direction.

Another thrown beverage cup case in Northern Virginia

It's an epidemic.

Virginia Real Property issues

First, the General Assembly passed a bill placing some limitations on the use of eminent domain.

Second, a VMRC case from Poquoson is back in the news. Seems this couple, ordered by VMRC to remove their unapproved dock, has refused to do so. The couple appealed the VMRC order to the Circuit Court for York-Poquoson, and the judge upheld VMRC. Two years later, with the dock still in place, VMRC requested an injunction for the dock to be removed. Judge Smiley, in a sensible preliminary decision, told the VMRC that the easiest thing for the state to do is ask for a hearing to determine if the Jewetts are in contempt of court. Makes sense, the VMRC already has an order, you don't need an injunction to enforce an order.

Sting Operation on Vermont Criminal Defense Attorney

This article recounts a troubling occurrence, the police conducted a sting operation on a criminal defense attorney. Seems the police acted on a wiretap warrant and "pretended to be a witness for whom authorities were searching in a domestic-assault case; the lawyer was representing the suspect. The investigator asked whether he should duck police attempts to serve him with a subpoena, or, if agents found him, whether he should violate the order and skip the court date." According to the article, the attorney told her client that "if prosecution witnesses don't show up at trial, the state loses." Whether the answer is proper can be debated in law school ethics classes, but this kind of state action is terribly troubling.

Legal resources

This website offers some free resources to manage your practice, including A Lawyer's Guide to E-Lawyering Risks and A Lawyer's Guide to Records Management Issues.

Fulbright & Jaworski attorney in the middle of racial controversy at Duke

This article in the Texas Lawyer, and this blog, discuss in general terms a racial controversy at Duke regarding a statement made by a Fulbright & Jaworski attorney during a "training interview." Both sources quote in full the response from the Dean of the Duke University School of Law to the students. That response includes this passage: "The hiring partner called back within minutes, clearly upset at the behavior of his partner. Shortly thereafter he reported back that he raised the issue to the highest levels of the firm, that the firm was taking internal measures dealing with the individual involved, and that the offending lawyer will not be permitted to return to Duke to meet with students."

I guess we won't know the whole story, but the article says that the partner was "telling a story about Leon Jaworski’s defense of a black man during a murder trial in the 1920s, [and he] used the 'n-word' when vividly recounting the prosecutor’s remarks about Jaworski’s client during that trial." Without a doubt we must be sensitive when using racially charged words. On the other hand, an historical recitation of an event would seem to demand the use of such words. For F&J to issue such an apology must indicate more to this story than has been reported, we would think.

Judicial Selections - Continued

We just can't get through a session without some controversy on judges.

Hampton Delegate Tom Gear refused to fill a vancancy for a J&DR judge for his judicial circuit because his sister was one of the candidates. Otherwise, we may look admirably at his decision to leave the choice up to "the Circuit Court judges because they dealt with local lawyers regularly," yet his past decisions have been directly contrary to that position. As the article points out, Gear has held up the reappointment of Hampton Circuit Court Judge William Andrews since 2004 despite overwhelming support for the judge from the local bar and from legislators in the surrounding jurisdictions. For what it's worth, the sentiment here is that Kathy Gear Owens will be a fine judge.

We also noted that Deputy Attorney General Richard B. Campbell was named to to be a judge of Richmond's Juvenile and Domestic Relations Court. I don't know his qualifications, but on many levels it does seem like an atypical career move from the AG's office to J&DR court bench. On the other hand, it is rather refreshing that Judge-to-be Campbell has a hobby that doesn't involve the law.

Finally, Judge Sword won reappointment to the Circuit Court in Portsmouth. Democratic Delegate Melvin from Portsmouth, a lawyer, led a spirited opposition to Judge Sword, which was joined by many Republicans, but the final vote generally followed party lines.

Eminent Domain update

This article says that it looks like both the House and the Senate are attacking eminent domain concerns by modifying the Virginia Code rather than the Virginia Constitution. Competing bills "are headed to a conference committee."

Bar investigations

In a surprising move, a "panel of three judges rejected a deal . . . that would have suspended, but not revoked, the law license of former [Suffolk] mayor Johnnie Mizelle because of misconduct toward six female clients." This decision came only a day after newspapers reported the deal that had apparently disppointed some of the complaining victims.

The Legal Times has an article about a DC bar investigation of a former U.S. Attorney for "committing criminal acts, making false statements in court, offering prohibited payments to witnesses, and interfering with the administration of justice." In an interesting twist, retired Judge Thomas P. Jackson indicated his willingness to testify for G. Paul Howes, even though Howes is a pariah in the office of the U.S. Attorney's office, as stated by the Deputy U.S. Attorney: "His name is a synonym around our office for no-no. You don’t want to do what he did.” You may remember Judge Jackson from the Microsoft antitrust case from some years back.

Judicial Selections made

See this link.

General Assembly - the good and the bad

HB2203 approved a proposal to convey land to two property owners on the Elizabeth River who had paid taxes on land they owned, but that was under water making it the property of Virginia. Fill from dredging operations created above-water land. This bill clears the title of the land by conveying the state's rights to the landowners.

On the other hand, HB1778 permits certain localities to install cameras at intersections to nab red light runners. SW Virgina Law Blog provides this link to a VDOT study showing this enforcement tactic decreases certain crashes, but increases rear-end crashes, leaving a net zero with respect to safety issues. The report only provides this nothing statement regarding safety: "it can be said only that Virginia’s programs potentially improve safety but that additional data are desirable." Furthermore, because of the costs of the program, localities may have to wait for a long time to notice any increase in revenue. The report includes this statement: "The fiscal feasibility of the program as it is currently administered is questionable." So let's see, it doesn't increase overall safety, and it's expensive. Oh well, I guess it's too late now.

Judicial Selections - Today's the day

As we've discussed in many posts, the judicial selection process is sometimes controversial, but always interesting. Today, the General Assembly should announce the selections to fill various vacancies for state court judgeships. However, one candidate seems to be in serious trouble for reappointment. Circuit Court Judge Dean W. Sword Jr.'s "reappointment was attacked by five attorneys from Portsmouth and Norfolk, including two delegates, at a joint House-Senate Courts of Justice judicial panel meeting." His "interview" last over two and a half hours. That can't be good news for him.

Herb Kelly passes away

Respected Newport News attorney Herbert V. Kelly Sr. passed away. This quote from his firm's managing partner, Richard Donaldson, says it all: "The community and the legal field have lost a giant."

Miscellaneous Matters

Today is "interview day" at the General Assembly for prospective judges looking to fill vacancies throughout the state courts in Virginia. Tomorrow is selection day.

This article describes Delegate and attorney Donald McEachin's pursuit of a master of divinity degree. Oh, and he has three daughters, too. A nice article, but I'm wondering, where does he find the time to do all that? I feel like a slacker.

An article referenced on SW Virginia Law Blog opines on whether Virginia judgeships are "for sale." Another article that doesn't provide any specific alternatives, and that certainly cannot make an allegation that unqualified judges are being appointed. Political contributions do not make a judicial candidate unqualified (unless, of course, the judicial candidate is a substitute judge whereby the contributions would be improper).

University of Richmond law dean Rod Smolla is taking the same job at the Washington & Lee School of Law.

As an academic pursuit, the Capital Defense Weekly blog has an analysis of the ethics of blogging. Fortunately, the short answer is, keep your clients and their cases out of your discussions and you should be okay.

Updates

For the impending judicial vacancy in the York-Poquson General District Court, the York-Poquoson Bar Association endorsed York Deputy Commonwealth's Attorney Benjamin Hahn. Notwithstanding, the conventional wisdom is that Williamsburg/James City Commonwealth's Attorney Mike McGinty will receive the appointment.

Delegate Leo Wardrup keeps talking and the story keeps getting stranger. As previously posted, the delegate received a traffic ticket for running a red light and causing an accident. Thereafter, the Virginia Beach police chief alleged that the delegate invoked "legislative privilege" in an attempt to avoid a ticket. Afterwards, the police chief alleged that the delegate telephoned the police chief, disputed the officer's recollection of events, told the chief that he had recorded the event because "everything I do is recorded," but added that the recorder was at the repair shop with the tape inside. In today's saga, the delegate "accused the Virginia Beach Police Department of trying to discredit him." He clarified his story, claiming that he didn't mean that the recorder was being repaired, he "meant that his car was being repaired, and that the recorder was in the car." He further explained that he no longer has the exculpatory tape recording because he "put the tape in a drawer with dozens of others and may have inadvertently recorded over it." Hmmmm.

Miscellaneous Matters

Can you believe that Justice Clarence Thomas has been on the Supreme Court for 15 years? It just doesn't seem that long, but a new book examines his opinions from a conservative's perspective.

Ken Lammers on his CrimLaw blog highlights the challenges of practicing in several jurisdictions. Although we operate using the same body of law, every court does things a little bit differently.

If you watch (and like) The Office, you may get a smile out of this blog that "analyzes" the episodes because "it is fascinating to consider how many zeros a company would have to add to the settlement check if the antics of the folks at Dundler Mifflin appeared in a real lawsuit."

This article follows a seemingly simple General District Court case. The case involved a car purchased from a dealer. The dealer represented that the car had a single owner and had never been wrecked. Both representations were proven to be false. The plaintiff won a $10,000 verdict in General District Court, but the defendant appealed. The parties agreed to arbitration and the arbitrator awarded the plaintiff $114,400 which included punitives and attorneys' fees. As Kenny Rogers once said, "You got to know when to hold 'em, know when to fold 'em."

This Washingon Post article discusses a proposed change from the Virginia State Bar's standing committee on legal ethics to permit state lobbyists to be employed in the same law firms as state legislators. As the article contends "Richmond's leading law firms . . . would be free to hire the speaker of the House of Delegates or the Senate floor leader even as their lobbyists prowl the halls of the General Assembly." The proposed change was prompted by "Sen. R. Creigh Deeds (D-Bath), who recently joined the law firm of Hirschler Fleischer P.C., a Richmond-based firm with a small lobbying presence. Without the proposed change, Deeds would be violating state ethics rules." Here's a link to the seventeen page proposed LEO. There are good points on each side of the argument, and the discussion is sure to be spirited.

Judicial Selections - Norfolk (2)

Hopefully this is the final take on the Norfolk judicial vacancies. On Thursday, the Virginian Pilot called for a review of the judicial selection process. Today, Norfolk area Democratic legislators supported Delegate Rerras' selections to fill the vacancies. Again, the issue is more about local bar associations feeling excluded from the process. But the system is, and has always been clear: the General Assembly gets to pick, the local legislators are given preference to make the choice, and if you don't like their choices, you can use the political process because "Voters . . . have the final say on the matter."

Lawsuit goes forward in the Cole bombing

Norfolk District Judge Doumar permitted the lawsuit involving the families of sailors killed in the Cole bombing to go forward. According to the article, Judge Doumar "briefly considered whether the laws of Yemen or Sudan" but plaintiffs' attorney Andrew C. Hall of Miami, said that he didn't want the lawsuit considered under traditional Islamic law because he didn't "want to be paid in camels." File that under "things I said I wish I could take back."

General Assembly tidbits

This article contains some interesting tidbits regarding Delegate Wardrup's traffic ticket. According to the police, the delegate tried to invoke "legislative privilege" because he was due in Richmond the following day. Then later, after a summons was issued, he telephoned the police chief disputing the officer's recollection of events, telling the chief that he had recorded the event because "everything I do is recorded." I guess the police chief asked for the recording but the delegate said he'd have to wait because the recorder was at the repair shop. Huh?

Bacon's rebellion has another take on the conflict of interest matter involving Senators Norment and Stolle regarding eminent domain legislation.

I was reading several articles like this regarding a bill to ban illegal immigrants from receiving in-state tuition. Admittedly, I'm no expert, but first, how many of us knew that illegal immigrants could get accepted to and attend state colleges (supposedly at the expense of Virginia students)? Then second, how does the grant of in-state tuition square with the Virginia Code requirements on domicile? Our country welcomes those who want to come here for a better life, but doesn't it seem that law-abiding holders of visas, for example, have less rights than the illegal immigrants? Just asking, 'cause I don't know.

Judicial Selections - Norfolk

This article in the Virginian Pilot states that Nick Rerras has made his choices to fill vacancies in Norfolk Circuit Court and Norfolk J&DR. Both candidates appear to be qualified for their new positions, based upon the information in the article, but as noted in earlier posts, this doesn't hurt your chances.

Miscellaneous Matters

Three recent medical malpractice cases in Virginia, Norfolk, Prince Edward County, and Fairfax, each won a jury verdict greater than the statutory cap, as highlighted here and here.

The Virginia Supreme Court building had a scare when an employee discovered a brown, flaky substance in a letter the employee opened. Police did not indicate the nature of the substance.

The Virginian Pilot is still on the judicial selection issue, writing this editorial. The editorial offers some vague recommendation for "merit panels [to] screen and recommend judicial candidates" and then "legislators could vote on the final choice." Doesn't that put you right back into the same position? Local bars would like to have more input, but are being shut out of the process, and that really is the source of the discontent. Our system isn't pretty, but nobody suggests that the process puts unqualified candidates on the bench, because, generally speaking, that simply isn't the case.

We missed this story from January about a pro bono award given by the Richmond Bar Association. Lawrence Cohn was named the winner of the bar's annual Pro Bono award, but died prior the award ceremony. Mr. Cohn seemed to embody the best of what lawyers do for people.

Judicial Selections updates (3)

The Virginian Pilot has a front page story on the judicial selection process. This article follows the money (see also our post on this issue). Bottom line, I doubt that much has changed over the years, and it's still better than electing judges unless somebody, anybody, has a better idea.

An end run thwarted (for once)

This article provides an interesting backstory on Terry Kilgore's attempt to introduce an amendment to statute requiring state court judges to reside in the circuit where they preside ("You must reside where you preside"). Seems that a Circuit Court judge from the 29th Circuit wanted to build a house on the river in the 30th Circuit. Mr. Kilgore proposed an amendment that would excuse sitting judges from the residency requirement. Nine days after the reporter asked about it, Mr. Kilgore tabled the proposed bill.

Miscellaneous Matters

Big New York law firm breakup and its aftermath.

Joe Waldo obtained another nice award in an eminent domain case while a Roanoke attorney filed an State Senate ethical complaint against Senators Thomas Norment and Ken Stolle alleging they have a conflict of interest in eminent domain reform.

The Williamsburg Bar Association endorsed Mike McGinty for the York County General District Court vacancy created when Judge Renne announced his retirement. McGinty's appointment to the bench would create a vacancy in his Commonwealth's Attorney position.

Wren Cross dispute gets curiouser and curiouser

This article states that a W&M alumnus, disciplined here and here and elsewhere by the Virginia State Bar, has filed suit against the College of William and Mary because he not only wants the Cross returned permanently to the Wren Chapel, but he also wants the Chapel open the same hours as the school's library. From this perspective, its seems that Gene Nichol has been an effective President and welcome addition to William and Mary. It is incredibly ironic that his decision, which he says was to make the Wren Chapel more inclusive to people of all faiths, has instead caused such divisiveness. This site touts A Movement to Defend and Honor William & Mary’s History but elsewhere it says that the Wren Chapel became part of W&M in 1723 and had no cross on permanent display until about 1940 when the local Bruton Parish Church gave the Cross to W&M because the church had obtained a new cross. Wonder how many individuals, Christian or otherwise, attend religious services at the Wren Chapel. In any case, the controversy does not diminish in any way the spirituality that embraces a person entering the Chapel.

Weird story

This article is about this guy saying Pat Robertson threatened to kill him and his family during a deposition in one of the conference rooms at the Virginia Beach Circuit Court. Face-to face. I don't know about that one, seems a bit unlikely.

Watch your emails!

More people making bad email decisions.

House bill would allow corporation to represent itself in court

House Bill 2589 passed the house and would permit an employee of a closely held corporation to represent the company in general district court when the amount in controversy is $4,500 or less. How isn't this practicing law? Seems like with this change, there are less restrictions on an employee representing a closely held corporation than for in-house counsel.

Photo Monitoring for Red Lights

I was reading this post on the SW Virginia Blog about the possibility of the General Assembly passing another red light camera law. Coincidentally, I saw this February 8 article where Delegate Leo Wardrup dropped his appeal of a general district court conviction for running a red light and causing an accident. Interestingly, I saw that Mr. Wardrup on February 6 voted yea for HB1778 which permits the use of photo-monitoring systems to enforce traffic light signals (the bill passed the House). Unfortunate timing I guess.

For you grand jury, trial, and political junkies. . .

Here and here are a couple links to the recently released recordings of Scooter Libby's grand jury testimony. Here is a link to everything about the trial: mp3's, pdf, and video files of all the trial exhibits. We don't get ready access to things like this too often.

How not to impeach a witness

In Westlake Properties, Inc., et al. v. Westlake Pointe Property Owners Association, Inc., the Virginia Supreme Court recently decided that the owners association had standing to bring a tort action for damage to the common elements because it was the record owner of the property damaged and because it had a legal duty to maintain the common elements. However, the Court included a scathing admonition of one attorney's attempt to impeach a witness including this passage: "We condemn in the strongest possible terms the use of such tactics, even if they
result from the inexperience of counsel rather than the purposeful disregard of procedural rules." Be careful out there.

Judicial Selections updates (2)

The York County general district court vacancy and the Norfolk J&DR vacancy continue to generate press time. More than likely, press coverage has no bearing upon the process, a candidate either has the support of his or her local legislator, or not. Local bar associations still conduct endorsement meetings, but they act as little more than quaint homages to the past.

The end of a 4-month trial on the "Rocket Docket"

The jury acquitted two former AOL executives after a four month trial and three days of deliberation. Judge Walter Kelley presided over the trial which began in October. However, as the article states, the government hasn't given up: the defendants face civil charges from the SEC which deferred proceedings until after the criminal case.

Judicial Selections updates

This site has the full text letter from Mary Commander regarding her interview with State Senator Nick Rerras. The Virginia Gazette has an article regarding the York County General District Court vacancy.

Is "Mold" the New "Asbestos"?

This Richmond Circuit Court jury thought so. The jury awarded the plaintiffs $780,000 based upon their claims of negligence and violation of the Landlord-Tenant Act. David Bailey, counsel for the plaintiffs, stated that "mold cases now account for more than half of his practice." The facts, as reported here, should put some fear into landlords: the plaintiffs reported the mold in October, maintenance removed the mold but it came back in November, the plaintiffs moved from the apartment in December, and although the plaintiffs suffered lingering illnesses for two years, their claim did not include future medical expenses.

Hide your pigeons!

This Virginia Beach guy has to fit the legal definition of "not guilty by reason of insanity."

The ugly side of judicial selections

Norfolk attorney Mary Commander, a candidate for the vacancy in the Norfolk J&DR court, exposed the qualifying questions she was asked by her local State Senator Nick Rerras during her interview. Ms. Commander wrote that Mr. Rerras made many disturbing, to her, comments to which Mr. Rerras agreed he may have used the word "FemiNazi," and he certainly asked about Ms. Commander's view on abortion, but didn't realize what was such a big deal because she "smiled throughout the interview." Ms. Commander was recently honored as a "Leader in the Law" by Virginia Lawyers Weekly and has been a substitute judge for seven years, accomplishments that are certainly deserving of more respect. Again, all we can say is "at least we don't elect judges in Virginia."

General Assembly tackles eminent domain

Not many of us really understand the law regarding eminent domain. With that as a backdrop, it's unnerving to think that the General Assembly is considering a constitutional amendment limiting its use. I think it's generally agreed that the locality, any locality, usually takes property from the lower to middle income areas of its jurisdiction for schools, roads, or redevelopment. That's not completely fair. It's even less fair when the property is taken simply because the new use would increase the tax base of the locality. Having said that, amending the Virginia Bill of Rights seems inappropriate. Maybe it's a better idea than amending the Virginia Code, I don't know, but the rights granted to Virginians by James Madison, George Mason, and Thomas Jefferson served us rather well, thank you, without the need for politicians to recommend amendment of our Constitution on a regular basis.

Sigh, yes he is a lawyer

The Virginia Senate voted to approve legislation that would increase the penalties for engaging in the fighting of cocks and other animals for money. This was too much for Ken Cuccinelli who asked, “Isn’t it true that if I drop two hamsters in a cage and my 11-year-old and I bet a quarter on the outcome, I could get a class 1 misdemeanor under this bill?” Uh, Ken, maybe you should find another activity for you and your child.

Pay Scale for solo practitioners

I found this site with a survey of pay scales for solo practitioners in several states and major cities. The survey actually has much more, such as average vacation weeks, billing rates, etc. However, it's an interesting and realistic look at one side of practicing law in a small office.

York County General District Vacancy

Since Judge Renne announced his retirement, two candidates have expressed interest in the vacancy setting up a battle to determine whether the job will go to York Count deputy commonwealth's attorney Ben Hahn, or Williamsburg/James City County commonwealth's attorney Mike McGinty. Typically, the local bar representative would receive the appointment meaning that Hahn would be favored, but many believe that McGinty is favored by Tommy Norment.

More hefty bills for justice

Another article reporting on the high costs of justice for localities who employ private attorneys. This time, rather than appointing a special prosecutor from a surrounding locality, Appalachia hired attorneys from Norton to prosecute the corruption and election fraud case. The attorneys estimated that their fees will total $150,000 even though they are "compensated by the Virginia Supreme Court at a rate of $90 an hour." If we subtract $10,000 for reimbursement for costs, the case took approximately 1,600 man-hours. The former mayor was enventually convicted and will serve two years in jail along with another two years of house arrest for "[buying] votes with beer, cigarettes and even pork rinds."