The VLW Blog

The House of Representatives has passed the Attorney-Client Protection Act of 2007, sponsored by Rep. Bobby Scott, D-Va., to protect conversations between attorneys and clients under investigation, reports The Daily Press.

Scott said the bill was needed to prevent strong-arm tactics by prosecutors toward those under investigation. Memos from the Justice Department counseled prosecutors to bring charges against “uncooperative” companies. But “uncooperative” included those companies that refused to waive privilege and turn over confidential information, according to Scott.

H.R. 3013 now goes to the Senate. Sen. Arlen Specter, R-Pa., has sponsored identical legislation in the upper house.

Yesterday in Fairfax, a trial expected to last two weeks got under way that could determine control of the property of 11 churches that voted to leave the Episcopal Diocese. Millions of dollars are at stake.

At issue is an 1867 law, Virginia Code § 57-9, that governs when a congregation can realign its allegiance and keep its property. The breakaway churches say the law favors their position. The diocese counters that the ancient statute only applies when a church governing body recognizes an internal division, which did not happen here.

The Associated Press has details.

Opponents of the art sale proposed by officials at Randolph College need to post a $10 million bond by 4:30 p.m. tomorrow to finalize the injunction stopping the auction, reports The News & Advance.

If they fail to post the bond, the school can proceed with the sale, which will be conducted by Christie’s in New York.

Last night in Richmond, Virginia Lawyers Weekly paid tribute to the 2007 class of “Leaders in the Law.” This year’s honorees are:

• Richard J. Bonnie, the University of Virginia law professor who has served as chairman of the Supreme Court’s commission on mental health reform.

• Richard Cullen, who became chairman of the Richmond-based legal giant McGuireWoods LLP.

• Kyung (Kathryn) N. Dickerson, who completed a four-year tenure as president of the Asian Pacific American Bar Association of Virginia.

• Wyatt B. Durrette Jr., who started a “virtual” intellectual property law firm, The XDL Group.

• Thomas A. Edmonds, who will retire next month as executive director of the Virginia State Bar and who completed his service to the National Association of Bar Executives this year.

• Betsy Wells Edwards, director of the Virginia Fair Trial Project, who helped to persuade the General Assembly to limit the waiver of the cap on court-appointed attorney’s fees.

• L. Steven Emmert, an appellate lawyer and chair of the Virginia State Bar’s appellate practice subcommittee of the litigation section.

• Robert L. Harris Sr., a retired Richmond Circuit judge who now mediates for The McCammon Group and who is approaching the $1 billion mark in the total value of settlements he has handled.

• Robert R. Hatten, a Newport News attorney who won a significant case in the Supreme Court of Virginia, advancing the development of law in Virginia to obtain remedies for asbestos victims.

• Corinne J. Magee, a leader in the constitutional challenge to the civil remedial fees approved by the General Assembly this year.

• Stephen A. Northup, the first pro bono partner for Troutman Sanders LLP.

• William R. Rakes, who completed his service as chair of the American Bar Association’s Section of Legal Education and Admissions to the Bar.

• Diane M. Strickland, a retired Roanoke circuit judge who served as a member of the special commission that investigated the April 16 Virginia Tech shootings.

• William R. Van Buren III, the immediate past president of the Virginia Bar Association, who helped lead the VBA’s work on the fee cap waiver and other improvements in indigent criminal defense.

• William T. Wilson, who concluded his service for the Virginia State Bar’s Senior Lawyers Conference.

Congratulations to you all! And for a fuller biography and discussion of each 2007 Leader, please see the special Leaders in the Law magazine that has been posted at our Web site.

A civil challenge to Virginia’s abusive driving fees remains alive in Roanoke County Circuit Court.

Judge James R. Swanson ruled Wednesday that the doctrine of sovereign immunity does not bar a request for a declaratory judgment on the constitutionality of Virginia Code § 46.2-206.1, which established the fees as part of a $3 billion package to finance state roads.

In September, Swanson rejected a request by attorneys John P. Fishwick Jr. and Devon J. Munro for an injunction that would have prevented enforcement of the law statewide. Swanson said then that he did not believe that he had the authority to impose such a statewide ban and added that he doubts that the plaintiffs are likely to win their case on the merits.

The judge took under advisement an assertion by Assistant Attorney General Mikie F. Melis that sovereign immunity bars the civil challenge to the law. “In our system there is nothing more fundamental than the right of a citizen to challenge a law on the basis of its unconstitutionality,” Swanson wrote in Wednesday’s opinion. “By their present action, the plaintiffs herein seek nothing more. In such limited context the doctrine of sovereignty immunity is not applicable to bar the plaintiffs’ declaratory judgment action.”
The fees drew little attention during the General Assembly session during the debate over the transportation package.
However, publicity when they were about to take effect on July 1 drew a firestorm of opposition aimed at their high cost, application to relatively trivial offenses and exclusion of out-of-state drivers.
The fees range from $750 to $3,000 payable in three installments over 26 months. Proponents projected that they would eventually raise $65 million annually for state road needs.
Some general district judges have declared the fees unconstitutional, but the first three circuit judges to rule on them have upheld the authority of the legislature to impose them.

Memo to all the members of the House of Commons and the House of Lords: Don’t die on the job. You’ll be breaking the law.

That’s right. It is illegal to die within the Houses of Parliament.

And that statute was voted the “most ludicrous” piece of legislation on the books in the United Kingdom in a poll conducted by UKTV Gold, a television channel. Nearly 4,000 people were surveyed, according to BBC News. A short list of choices was provided for voting.

The most daft laws, in order, as voted in the poll (drumroll, please):

1. It is illegal to die in the Houses of Parliament.

2. It is an act of treason to place a postage stamp bearing the British king or queen’s image upside-down.

3. It is illegal for a woman to be topless in Liverpool except as a clerk in a tropical fish store.

4. Eating mince pies on Christmas Day is banned. (This one apparently dates back to the days of Oliver Cromwell).

5. If someone knocks on your door in Scotland and requires the use of your toilet, you are required to let them enter.

6. In the UK a pregnant woman can legally relieve herself anywhere she wants, including in a policeman’s helmet.

7. The head of any dead whale found on the British coast automatically becomes the property of the King, and the tail of the Queen.

8. It is illegal not to tell the tax man anything you do not want him to know, but legal not to tell him information you do not mind him knowing.

9. It is illegal to enter the Houses of Parliament wearing a suit of armour.

10. It is legal to murder a Scotsman within the ancient city walls of York, but only if he is carrying a bow and arrow.

The UKTV Gold poll also asked those surveyed to identify what they thought was the silliest law on an international scale.

The state of Ohio won. There, it is illegal to get a fish drunk. Of course it is.

Like to spend time at the Outer Banks? You may already know you can’t buy a mixed drink on Hatteras Island.

And that isn’t going to change.

In yesterday’s elections in North Carolina, Hatteras residents went to the polls to vote on a measure that would have allowed the sale of mixed beverages on the island. The Virginian-Pilot reports that the proposal failed by an unofficial vote of 855-657.

Moral: Have a pop at the hotel or the beach house, which is probably a better idea anyway.

From yesterday’s election results…

Two longtime commonwealth’s attorneys, one in Caroline County and the other in Albemarle, were defeated by opponents calling for change.

In Caroline, Harvey Latney Jr. has been the top prosecutor for 30 years. But newcomer Tony Spencer got 60 percent of the vote, according to The Free Lance-Star.

And The Daily Progress reports that challenger Denise Lunsford beat four-term incumbent Jim Camblos in the race for Albemarle County commonwealth’s attorney.

Embracery? No, it doesn’t mean what you think. The word comes not from the Old French word for arm but from the Middle English word to set on fire or incite—as one might do when trying to influence a juror improperly.

The Daily Progress reports that Charlottesville attorney Deborah C. Wyatt is accused of doing just that in a case that dates back to December 2004. Wyatt is accused of embracery for contacting several members of a grand jury and offering to be a witness when it considered indicting a client on hit-and-run charges.

She wanted to say that the client had a history of seizures, but she was not called, and the client was indicted only to be acquitted later.

Wyatt was actually indicted on five misdemeanor counts of the common-law offense in June 2005, but the charges were sealed while the Virginia State Bar considered whether Wyatt violated legal ethics. The agency finally decided to defer any action until the criminal case was resolved.

Wyatt insists she did nothing wrong.

The Supreme Court of Virginia reversed six decisions of the Virginia Court of Appeals today on issues ranging from restitution to the use of a penile plethysmograph test in a sentencing.

A penile plethysmograph attempts to measure the degree of a arousal to various sexual stimuli by measuring changes in the flow of blood to the penis. An attorney for a Tazewell youth convicted of forcible sodomy contended that use of the test in a risk assessment prior to sentencing was improper because it was comparable to a polygraph test and similarly unreliable under the law, and because the prosecution had presented no threshold finding of reliability. A divided panel of the court of appeals disagreed, but the Supreme Court reversed unanimously in Billips v. Commonwealth.

The court ruled in Howell v. Commonwealth that a trial judge had improperly made payment for installation of a security system part of the restitution for the burglary of a business. “Costs that result only indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote and are inappropriate for a restitution payment,” the court said.

In the other cases, the Supreme Court:

? Ruled in Jackson v. Commonwealth that the phrase “under the influence of any narcotic drug or any other self-administered intoxicant” must be construed as a whole so that a defendant was improperly convicted of driving under the influence of the narcotic pain reliever Dilaudid after it had been given to him by an emergency room physician.

? Held in Meeks v. Commonwealth that the venue for credit card theft is “where the card or number is taken from its rightful owner or is received with knowledge that it has been taken with intent to use it, sell it, or transfer it.” The case explicitly overruled the possible interpretation of an earlier case that venue was proper in every jurisdiction where the thief had a card with intent to misuse it.

? Decided in Scott v. Commonwealth that the circumstances of nine robberies in Virginia Beach were not so similar that they constituted a common scheme or plan that permitted them to be presented in the same trial.

? Ruled in McGowan v. Commonwealth that “[t]he commonwealth cannot be allowed to essentially smuggle into evidence during its cross-examination of a defendant proof of another crime not admissible in its case in chief, which is not only highly inflammatory and misleading to a jury, but lacking in serious probative value as well.” Defendant, who was arrested with cocaine two months after the offense for which she was being tried, had testified that she wouldn’t know the drug if she saw it.

The Supreme Court did not hand down Jaynes v. Commonwealth, the most eagerly anticipated criminal case from its September argument session. Jaynes was the first defendant to be sentenced to prison for illegal spamming.