The VLW Blog

George W. Shanks, an attorney in Luray, says he wants to be president of the Virginia State Bar in 2011-12.

So far, he is the only candidate for the position of president-elect designate. Lawyers who have been members of the VSB Council for two of the previous five years are eligible for the position.

Candidates have until Oct. 1 to submit a petition with the names of 50 attorneys on it. If more than one candidates files a petition, an election will be conducted by a ballot mailed to VSB members by Nov. 5.

Shanks, 64, joined the six-lawyer firm of Miller, Earle & Shanks PLLC in 2006 after spending 25 of the previous 30 years as a solo practitioner. He is the commissioner accounts and the county attorney for Page County.He has been active in VSB matters for the past 20 years and has served as president of both the Conference of Local Bar Associations and the Senior Lawyers Conference. He represents the 26th Circuit on VSB Council and is a member of its executive committee.

By Alan Cooper

U.Va. law student Leo Wolpert will start his second year with a big grin and a fat wallet.

The former professional poker player won a World Series of Poker event in Las Vegas last month, pocketing $652,000 in winnings, according to the law school.  Wolpert is living in Sin City for the summer, interning with the Nevada affiliate of the American Civil Liberties Union.

Wolpert decided to enter the World Series of Poker tournament on a whim after seeing a friend fare well in a similar competition, according to the school. “A bunch of my friends I’m staying with are all excellent tournament players, and that kind of made me want to catch the bug again and play tournaments,” he said.

By Peter Vieth

Lawyers  accustomed to a lockstep accord between the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court may be seeing the tide turn.  In bygone days, disagreements were rare between the conservative high court and the like-minded appellate panel.

But this accord between the courts has been decreasing gradually during the past few terms, according to a tally by On the Record. The justices, in their October Term 2006, disagreed with the 4th Circuit in one of the two appeals they heard; in the October Term 2007, the number was two out of three.

And during this Supreme Court session, October Term 2008, the justices rejected the 4th Circuit’s decision in all five written opinions they issued in appeals from the Richmond-based court. The high court reinstated a firearms conviction (U.S. v. Hayes) overturned an order for arbitration (Vaden v. Discover Bank); reversed a felony drug conviction (Abuelhawa v. U.S.); vacated the denial of an asylum seeker from Cameroon’s motion to stay a federal removal order (Nken v. Holder); and vacated the sentence in a drug conviction (Nelson v. U.S.).

In a sixth case, the justices issued an order vacating the 4th Circuit’s decision upholding the continued detention of a suspected Al-Qaida agent without trial in the United States and dismissing the case as moot. The high court took the step at the request of the Obama administration, which told the justices that the suspect, Ali Al-Marri, will face trial on federal charges of conspiracy and providing support to terrorists.

High-court prognosticators, take heed.

General District Judge Norman deVere “Dev” Morrison retired yesterday after 24 years on the bench.

Before his judicial appointment in 1985, Judge Morrison served as the Berryville town attorney and as a substitute judge. During his career, he has sat in every court in the 26th Judicial Circuit, but mainly ruled over cases in Clarke and Shenandoah counties and Winchester.

Judge Morrison tells The Northern Virginia Daily that he wants to be remembered as someone who made a positive difference in people’s lives.

Amy Tisinger was sworn in Monday to replace Judge Morrison on the general district bench.

Mistakenly telling a client that his criminal conviction won’t force his departure from U.S. shores can let the client overturn the conviction, as a new federal case illustrates.

Alexandria Senior U.S. District Judge T.S. Ellis III granted a Pakistani citizen’s § 2255 motion to vacate his conviction of operating an illegal gambling business in violation of 18 U.S.C. § 1955. Ellis was sitting in the Western District of North Carolina when he decided Alam v. U.S. on June 23, but his opinon draws on 4^th Circuit cases, including unpublished opinions and decisions of other district courts within the circuit.

The sparse case law in Virginia appears to make post-conviction relief dependent on whether a lawyer has made affirmative misrepresentations about the immigration consequences of a criminal conviction, or merely kept mum.

In the North Carolina case, Imran Alam worried that a guilty plea would forfeit his permanent legal resident status. His lawyer said “several” immigration attorneys he contacted told him § 1955 was not an aggravated felony, information he relayed to his client. The lawyer advised Alam that a conviction would not lead to removal from the country. During a Rule 11 colloquy before a magistrate judge, immigration consequences were not addressed.

However, before sentencing, an immigration lawyer contacted the criminal lawyer to alert him that in fact a § 1955 conviction would trigger immediate removal upon conviction, and to suggest that counsel move to withdraw the guilty plea. The lawyer met with Alam to say his previous advice was wrong, but specifically advised Alam not to withdraw his plea because it would affect Alam’s participation as witness in a public corruption trial against a former county sheriff whom Alam said he bribed to keep his gambling operation open.

Alam readily proved constitutionally ineffective assistance of counsel, according to Ellis’s opinion.

The lawyer’s advice on immigration was “grossly inaccurate,” Ellis said, and it was compounded by his later advice to leave the plea alone, based on the lawyer’s assumption that he could persuade the government to exercise its non-existent discretion not to pursue deportation.

By Deborah Elkins

Amy Tisinger was sworn in yesterday as the first female judge on the general district bench in Shenandoah County.

She replaces Judge Norman Morrison, who is retiring, reports the Northern Virginia Daily.

For the past 10 years, Tisinger has been a prosecutor with the commonwealth’s attorney’s office, and spent four years working for Shenandoah Circuit Judge William B. Allen III before that.

A persistent police officer who decided to enter a darkened house to investigate suspicious circumstances is vindicated as an appeals court accords him immunity from a lawsuit by homeowners who claimed they were startled by the officer’s intrusion.

The decision by a panel of the 4th U.S. Circuit Court of Appeals reverses the ruling of U.S. District Judge Sam Wilson, who held the officer’s search was unreasonable under clearly established law.

The appeals court opinion court today focuses on the unusual circumstances at the Botetourt County home of the Hunsberger family on a winter night in 2007.  It turns out that a furtive teen drinking party was going on, but the officer called to the scene by a suspicious neighbor did not know that.  He found a darkened house where people were moving about, apparently trying to avoid detection.

No one answered the doorbell.  When the officer finally entered the home after midnight, no one responded to his shouts.

With the officer was a worried citizen who was trying to locate his minor stepdaughter.  Her car was parked outside, but she could not be seen and she was not answering her cellphone.

The officer apparently startled a sleeping child and woke up the Hunsbergers.  The Hunsbergers claimed the officer’s entry was a Fourth Amendment violation, but the 4th Circuit today held the circumstances justified the deputy’s intrusion.

The officer was told the family might have been out of town, and a nearby home had recently burned.  The officer was rightly suspicious that vandalism was afoot, the court held.  “We believe that the objective circumstances at the time of Wood’s entry would cause a reasonable officer to believe that there was an emergency requiring prompt entry.”  (The analysis contrasts with that of Judge Wilson.  His opinion highlights facts suggesting the officer accurately suspected a teenage drinking party, not random vandalism.)

Furthermore, the 4th Circuit panel reasoned, the officer knew there was a minor girl missing in the middle of the night, possibly in the home and in need of help.  “When a child goes missing, time is of the essence,” wrote Judge J. Harvie Wilkinson III for the panel.

The court found it was reasonable for the officer to bring the worried stepfather along as he entered the house to identify the missing girl if she were found.

Elizabeth Dillon,  attorney for the officer, welcomed the reversal by the 4th Circuit panel.  She said the officer had no choice but to enter the Hunsberger home.  “He did what any officer in that situation would have done.  He went into the house to make sure everything was okay.”

By Peter Vieth

Virginia State Bar President Jon D. Huddleston sent a letter to the Federal Trade Commission today objecting to the inclusion of lawyers among those subject to regulation under the Fair and Accurate Credit Transactions Act (FACTA) of 2003.

The Red Flag Rules adopted under the law require creditors to develop written programs to identify, detect and respond to indications of identity theft.

The letter cites several reasons the rules shouldn’t apply to lawyers, not the least of which, Huddleston says, is that lawyers aren’t creditors. See the rest of those reasons here.

The rules have been delayed several times but are scheduled to take effect Aug. 1

Alan Cooper

The remand of the Supreme Court of Virginia’s ruling in Magruder v. Commonwealth appeared to be the most likely result of the U.S. Supreme Court’s ruling on Thursday on the application of the Confrontation Clause to lab reports.

The U.S. Supreme Court said, in essence, that an affidavit by a lab technician is no substitute for a live technician in court but described a constitutionally acceptable procedure for presenting the testimony by affidavit unless the defense insists on a personal appearance. At first glance, Virginia’s system appeared to be short of the standard set by the court.

But on the last day of its term today, the high court agreed to hear Magruder, now styled Briscoe v. Virginia, Record No. 07-11191, because Magruder, the first of three defendants in separate cases decided by the Virginia Supreme Court, did not appeal.

The grant of certiorari was especially surprising because the U.S. Supreme Court remanded cases to courts in Ohio and California for consideration in light of the Thursday opinion, Melendez-Diaz v. Massachusetts.

Veteran Supreme Court observer and analyst Lyle Denniston speculates on Scotusblog.com that the dissenters in Melendez-Diaz may be setting up a quick reversal of the case.

It was decided 5-4, and Justice David Souter, one of the five, is leaving the court.

His likely successor, Judge Sonia Sotomayor, could side with the justice who dissented in the Massachusetts case, Denniston says.

The alliance to rewrite the court’s Confrontation Clause jurisprudence differs from the high court’s predictable division. Three members usually considered part of the court’s liberal wing – Souter, John Paul Stevens and Ruth Bader Ginsburg – joined conservatives Antonin Scalia and Clarence Thomas, while the liberal Stephen G. Breyer sided with conservatives John G. Roberts Jr., Samuel A. Alito Jr. and Anthony M. Kennedy in dissent.

The Virginia attorney general’s office has a less conspiratorial view of the situation. “In Melendez-Diaz, the Court signaled its approval of ‘notice-and-demand’ statutes. The next logical step in the Court’s jurisprudence is to decide which ‘notice-and-demand’ statutes are permissible, and which are not. We did not expect a remand in light of Melendez-Diaz, because the Supreme Court of Virginia expressly declined to hold whether certificates of analysis were testimonial – the core holding of Melendez-Diaz.”

By Alan Cooper

The unhip PC promoter may be losing out in the Mac v. PC commercials, but PCs appear to be clear winners with Virginia lawyers.

In the results of a tech survey released today by the Virginia State Bar, only 9.3 percent of the 300 survey respondents use a Mac operating system, while 82.2 percent use Windows XP and 26.3 percent have Windows Vista.

Nearly 80 percent of respondents use Outlook for e-mail, with 20 percent using some form of Web-based e-mail. Over 84 percent use Microsoft Word for word processing, while 10.7 percent use WordPerfect.

More than 80 percent of the respondents are from solo and small firms, according to the report by VSB tech committee chair Sharon Nelson.

Here are some additional stats that may give pause to law office management consultants: Nearly 60 percent of the respondents do not use any case management software. Over 83 percent have no e-discovery review software; 31 percent have no technology policies and 41 percent back up their files on an external hard drive.

When it comes to legal research, no single source will do, but the top choice among respondents was Fastcase for 53.7 percent of the respondents, with 42.3 percent for Lexis-Nexis, 32.1 percent for WestLaw and 26 percent for FindLaw.

Deborah Elkins