The VLW Blog

The judicial nominations committee of the Virginia State Bar announced its endorsements for seats on the 4th U.S. Circuit Court of Appeals at the VSB’s Executive Committee meeting at Stratford Hall yesterday and this morning.

Committee chair Joe Condo, VSB President Karen Gould and several others met with Sens. John Warner and Jim Webb earlier this week. Condo said Webb was “delighted” with the format the VSB chose, naming potential nominees as either “highly qualified” and “qualified,” and including a detailed summary of the candidate’s qualifications. Condo added that Webb pressed the bar to rank the candidates, but the VSB declined to do so, citing confidentiality concerns.

But Condo said that for the “highly qualified” candidates, the bar was providing the committee votes on those people, and that the senators could let those tallies be a reflection of any ranking.

Of the “highly qualified” candidates, Virginia Supreme Court Justice Donald W. Lemons and Charlottesville lawyer Thomas E. Albro both gained a 12-0 vote. The others were:

• U.S. District Judge Glen E. Conrad, 11-1
• Roanoke lawyer Frank E. Friedman, 10-2
• Richmond lawyer E. Duncan Getchell Jr., 9-3
• Washington DC lawyer H. Christopher Bartolomucci, 7-5

The committee found three potential nominees to be “qualified.” The bar does not announce vote totals for candidates in this category. They are:
• Virginia Supreme Court Justice G. Steven Agee
• Richmond lawyer Orran L. Brown
• William and Mary law school Professor Alan J. Meese

Ray Diaz and Ed O’Connell, both experienced community association lawyers, have left Vienna-based Rees, Broome & Diaz to join Whiteford Taylor & Preston. The latter firm, with its home base in Baltimore, has over 155 lawyers in five offices throughout Maryland, DC and Virginia.

Both men will staff WTP’s new Northern Virginia office, which will open later this year, according to a statement from Andrew Terrell, head of the firm’s present Virginia office in Alexandria.

Diaz has practiced in Northern Virginia since earning his law degree from Georgetown in 1973; he was one of the pioneers of condominium law and community association work in the metro DC area. He served as president of the Virginia State Bar in 1991-92. He is counsel to WTP.

O’Connell, who received his law degree in 1994 from the Catholic University law school, is a partner with the new firm.

What happens when a speaker leaves a voice-mail message for an attorney, whose recording device doesn’t shut off?

The message left on the machine can come into evidence in a real estate case, according to Loudoun County Circuit Judge Thomas D. Horne. In Pacific Century Development & Realty Inc. v. Wheatland Farms LLC (VLW 005-8-197), a developer is asking for specific performance of a contract to buy a vineyard.

On March 28, Horne handed down discovery rulings in the case, including denying the plaintiff developer’s motion in limine to exclude evidence of the conversation between two parties to a planned three-party call that was inadvertently left on the attorney’s voice mail.

The parties apparently planned a three-way call. When the attorney’s voice mail answered, the callers left a message. But “the device, unbeknownst to the parties to the conversation, continued to record a conversation between the two parties,” Horne wrote in his March 28 decision (VLW 007-8-112).

Any lawyer who has had her voice mail roll over on a long-winded caller knows what she is hearing is a monologue, not a conversation. The law agrees, according to the court.

Virginia’s statute on using recorded conversations, Va. Code § 8.01-420.2, deliberately uses the word “conversations,” not “communications,” which doesn’t cover the one-way message left on a voice mail.

Two Virginia Supreme Court justices, two federal judges and two law professors are among the Virginia Bar Association’s recommendations for two vacancies on the 4th U.S. Circuit Court of Appeals.

Virginia Sen. Jim Webb asked bar groups earlier this year to submit recommendations for the vacancies created by the senior status of Judge H. Emory Widener Jr. and the resignation of Judge J. Michael Luttig. Webb and Sen. John Warner will submit names to the Bush administration, which will nominate candidates subject to confirmation by the Senate.

The VBA list in alphabetical order:

Supreme Court Justice G. Steven Agee

Thomas E. Albro, a civil litigator in the Charlottesville firm of Tremblay & Smith LLP who typically represents plaintiffs in personal injury cases

H. Christopher Bartolomucci, a partner in the Washington firm of Hogan & Hartson and a former special assistant to President Bush in the White House counsel’s office who specializes in appellate litigation

U.S. District Judge Glen E. Conrad of Roanoke

John G. Douglass, a University of Richmond law professor and a former federal prosecutor

Frank K. Friedman, a partner and appellate specialist at Roanoke’s Wood Rogers PLC

E. Duncan Getchell Jr., a partner in the Richmond office of McGuireWoods who argues cases frequently in appellate courts

U.S. District Judge Walter D. Kelley Jr. of Norfolk

Virginia Court of Appeals Judge D. Arthur Kelsey

Virginia Supreme Court Justice Donald W. Lemons

William and Mary law school Professor Alan J. Meese who teaches antitrust, economic analysis of law and torts

The news of Monday’s shootings at Virginia Tech was horrific and unsettling and unfathomable. Our thoughts are with the families and friends of the victims, and with all who have been affected. The support for the school from all corners of the commonwealth and of the nation has been strong and resounding. Much has been written and said over the last few days, and much more will be added as the story continues to unfold.

But give the final word for now to Tech professor and poet Nikki Giovanni, who closed the convocation held yesterday afternoon. She led the crowd of thousands in a defiant cheer.

“We are strong and brave and innocent and unafraid. We are better than we think and not quite what we want to be,” Giovanni said. “We are the Hokies. We will prevail. We will prevail. We will prevail. We are Virginia Tech.”

For the best continuing news coverage of the Virginia Tech story, we commend the Roanoke Times and the Collegiate Times, the Virginia Tech student newspaper. The student journalists especially have soldiered on, getting the story while dealing with the tragedy on campus.

Roger Creager, outgoing chair of the amicus curiae committee for the Virginia Trial Lawyers Association, touted a 75 percent “lifetime win rate” for the association in the 43 appellate cases heard since 1992 in which the VTLA filed a friend-of-the-court brief. In those cases, the majority of which have been in the Supreme Court of Virginia, the VTLA tallied 30 wins, 9 losses and two ties, with two cases still pending for decision by the Virginia high court. Creager congratulated association members who have written briefs at the VTLA’s annual meeting at The Greenbrier on April 13.

Last year’s highlights, according to Creager, included Ford Motor Co. v. Benitez, the sauce-for-the-gander case that applied sanctions to a defense lawyer for filing a frivolous grounds of defense, and Kondaurov v. Kerdasha, the car-crash case that originally featured some scary language on damages for plaintiff’s lawyers.

When the Supreme Court releases its next batch of opinions this Friday, the p.i. bar is looking for a decision in another case in which VTLA filed an amicus brief – Isbell v. Commercial Investment Associates Inc., which deals with the Virginia Landlord-Tenant Act as the basis for a tenant’s p.i. suit.

Creager is handing over the committee chair reins to Virginia Beach lawyer Steve Emmert and Richmond lawyer Josh Silverman.

Ray Morrogh, the longtime deputy prosecutor in Fairfax who hopes to succeed his retiring boss, Bob Horan, filed as expected for the local Democratic nomination for commonwealth’s attorney. But he’ll have an opponent this fall: Arlington assistant commonwealth’s attorney Patrick McDade will seek the GOP nod for Fairfax commonwealth’s attorney, reports the Washington Post.

With yesterday’s filing deadlines in Fairfax, Arlington and Prince William County, a pair of veteran prosecutors in the area will get a free pass for another term. In Arlington, Dick Trodden, a Democrat, won’t have a Republican opponent. Trodden said nice things about McDade, who graduated from the George Mason law school in 2004, but he won’t endorse McDade over Morrogh. Democrat Butch Ebert in Prince William likewise won’t have a GOPer running against him.

Republican prosecutor Jim Plowman in Loudoun County doesn’t have a Democrat running against him yet; the Dems in Loudoun have until April 26 to file.

The Supreme Court of Virginia approved on Friday the assessment of a $25 fee on all active members of the Virginia State Bar to support the Clients’ Protection Fund.

The approval had been expected because the VSB Council had recommended the measure and the General Assembly had adopted enabling legislation earlier this year. The assessment will be added to the VSB’s annual dues of $250.

The fund was set up to reimburse by up to $50,000 the victims of theft by lawyers when no other source of recovery is available.

The court also approved doubling the delinquency and reinstatement fees for lawyers who are late in completing their continuing legal educations requirements or in paying their annual dues. Those fees will increase to $50, $100 or $150, depending on the delinquency or reinstatement involved.

The personal injury firm of Allen, Allen, Allen & Allen has named Douglas A. Barry president.

As its name indicates, the Allen firm is a family shop and Barry is the first president who is not a family member. Founded in 1910, the Richmond-based firm has the largest personal injury practice in the state.

Barry, 49, joined the firm in 1996 after stints as a state prosecutor and an FBI agent and three years with another personal injury firm.

He has directed the firm’s non-media marketing for several years and last year began supervising all its marketing efforts.

Barry noted that the firm has brought in such lawyers as P. Christopher Guedri and Trent S. Kerns and given them the opportunity to try major cases. “It’s a family business,” he said. “They’re still the majority shareholders, but they’re letting other people succeed.”

The Ted Dalton Chapter of the American Inn of Court has given its annual Roger Groot Professionalism Award to M. Caldwell Butler, the former congressman and longtime Roanoke lawyer.

Butler is best known for the political courage he displayed as a relatively new Republican member of Congress in supporting the impeachment of President Richard M. Nixon in 1974.

He served in the House of Representatives from 1973 to 1984 and practiced at the firm of WoodsRogers in Roanoke until he retired in 1998.

Butler received the award at the Inn’s annual banquet on Tuesday at Roanoke College.

The award is named for Groot, the beloved Washington and Lee University law professor who suffered a heart attack while hunting in 2005.