The VLW Blog

Note to self: Don’t swipe a surfboard at the Cavalier Hotel in Virginia Beach when Virginia’s prosecutors are meeting there.

A couple of would-be wave riders apparently tried just that, only to run afoul of Fairfax County Commonwealth’s Attorney (and surfer) Ray Morrogh.

We hear that Morrogh was leaving a Thursday afternoon meeting at the Cavalier when he spotted someone carrying his surfboard (a 9-foot Velzy) and challenged the man. In the ensuing scuffle, Morrogh suffered a broken foot, but gamely charged after the alleged thief and made the collar.

Two men and a teenaged girl are accused of attempted larceny. Morrogh regained his board, but lost the chance to use it this past weekend. He is on the mend with crutches, a boot cast, and new item on his resume.

By Peter Vieth

Circuit Judge Colin Gibb has ruled that the juvenile court file and records related to a recent probation violation charge for Ahmad Bradshaw will remain under wraps.

The Bristol Herald Courier had sued to open up the files on the 22-year-old New York Giants running back (right), who recently pulled a 28-day jail term in Abingdon for probation violation. According to the Herald Courier, Gibb told the lawyers, “I think some things are intended to remain mysteries. This may be one of them.”

The paper reports that Bradshaw’s punishment is not over. The Bluefield, Va., native will return to jail to finish his sentence when the football season ends next year.

By Peter Vieth

What if the bank in which an attorney has his trust account goes under? As a general rule, if the account is set up properly, each of the attorney’s clients has $100,000 of FDIC protection, even if the trust account holds substantially more than that.

It gets much more complicated, as Virginia State Bar Ethics Counsel James M. McCauley points out in an article on the VSB Web site, if the attorney is holding more than $100,000 of an individual client’s funds or the client has other accounts at the bank.

McCauley has some suggestions for ways to minimize the possibility of personal liability for an attorney if a bank goes belly up. First on the list is staying away from any bank that appears to be in financial difficulty.

By Alan Cooper

Former Del. C. Richard Cranwell is considering a run for Virginia lieutenant governor, he confirmed today.

Cranwell (left), chairman of the Democratic Party of Virginia, said he is only “mulling around the possiblity” and preferred to avoid any public mention of the subject. Noting recent chatter about his political intentions, however, Cranwell conceded the importance of the news story. “You gotta do what you gotta do,” he said.

We do.

Cranwell would face Southwest Virginia businessman Jon Bowerbank, who is actively campaigning and has raised more than $220,000 for his bid for the 2009 Democratic lieutenant governor nomination. Jody W. Wagner, secretary of finance under Gov. Tim Kaine, also has been mentioned as a possible contender for the nod.

Meanwhile, Del. Steve Shannon, D-Fairfax, has raised nearly a half million dollars in his still unannounced campaign for the Democratic nomination for attorney general. Shannon is the only Democrat to surface in the AG race. Look for a story on the Shannon candidacy and the attorney general race in Monday’s Virginia Lawyers Weekly.

By Peter Vieth

Author John Grisham, best known for his legal dramas, will be campaigning with fifth district Democratic Congressional candidate Tom Perriello today in Martinsville.

The Danville Register-Bee has details.

By Peter Vieth

Payee notification of insurance checks and random audits of trust accounts are two proposals under active study as the Virginia State Bar this month convened a meeting to deal solely with protecting the public from dishonest lawyers.

As we reported last month, recent attorney defalcations in Virginia have been costly to clients and others.  The damage exceeds $10 million, according to bar president Manuel A. Capsalis.

Other ideas circulated at the recent bar meeting include:

• Quicker resolution of disciplinary matters and accountability to victims, complainants, and witnesses.
• A possible fast-track process for embezzlement receiverships. The former Receivership Task Force could be reconstituted to deal with these issues and the possibility of statutory authority for a less formal receivership when a lawyer dies or becomes disabled.
• Mandatory participation by lawyers in fee dispute resolution, which is rarely used.
• Providing pro bono assistance to clients who are victims of lawyer defalcations, to assist them through the Clients’ Protection Fund application process.
• Requiring lawyers to carry a universal fidelity bond that would protect clients from defalcation.

By Peter Vieth

Virginia Court of Appeals Judge D. Arthur Kelsey couldn’t help but imply that Robert Thurman Pilson might not be the best candidate for a home electronic monitoring program.

Not only was Pilson sentenced to the mandatory minimum one-year term for driving as an habitual offender, his criminal record includes convictions for escape, eluding police, resisting arrest, assaulting a police officer, hit and run, assault and battery, trespass, breaking and entering, unlawful wounding, larceny and various probation violations, Kelsey noted.

“Perhaps the sheriff might nonetheless find it in the public’s interest to release Pilson. We are reluctant to offer a prediction one way or the other,” Kelsey wrote in Pilson v. Commonwealth.

His attorney never asked the sheriff to consider home electronic monitoring, so the court could not consider whether the sheriff has the authority to grant it, even if state law expressly prohibits a judge from doing so and gives the judge the authority to remove an offender from an electronic monitoring program if a sheriff places him in it, Kelsey said.

By Alan Cooper

The full 4th U.S. Circuit Court of Appeals will review the constitutionality of Virginia’s law barring partial-birth abortions.

The case has along history that began with the adoption of the law by the General Assembly in 2003. A physician and a Richmond abortion clinic filed suit challenging the law, and 4th Circuit Judges M. Blane Michael and Diana Gribbon Motz found it unconstitutional in 2005, with Judge Paul V. Niemeyer dissenting.

The U.S. Supreme Court remanded the case to the 4th Circuit after concluding in 2007 while the Virginia case was on appeal that a similar federal law was constitutional. The same 4th Circuit panel, by the same vote, in May once again found the Virginia law to be unconstitutional.

Today, the 4th Circuit issued an order saying “[a] majority of judges in regular active service and not disqualified” had voted to grant en banc review. The order did reflect the votes of the individual judges or disclose the actual vote.

The court set argument in the case for the week of Oct. 18.

By Alan Cooper

An organization that sought to register new voters in Hampton may be rethinking its incentive package for canvassers.

According to this story from the Daily Press, the nonprofit group paid young workers to sign up new voters, but only if the workers turned in at least 15 registration forms a day. Three of those workers are now charged with making up names in order to meet the voter quota.

Police say 60 to 80 phony names were submitted to the registrar, and the investigation is continuing.

Maybe the canvassers were hampered by prohibitions on political activities like those imposed in the public housing developments of Bristol, Va., as described by the Bristol Herald Courier last week.

Nevertheless, voter registration fraud is a felony. As Barney Fife proclaimed, “You might believe in falsifying, but I don’t believe in falsifying!”

By Peter Vieth

Environmental groups launched a two-pronged legal attack last week on a planned $8-billion coal-burning power plant in Wise County.

The Southern Environmental Law Center, on behalf of four other groups, sued in both Richmond Circuit Court and the Supreme Court of Virginia.  Two actions filed in the circuit court are administrative appeals of decisions by the State Air Pollution Control Board.  The filing in the Supreme Court challenges approval of the coal plant by the State Corporation Commission.

The plant opponents face a tough battle.  In the air board appeal, the circuit court must limit its review to whether there was “substantial evidence” to support the regulatory decision.  Va. Code Ann. § 2.2-4027.

In the Supreme Court appeal, the environmental groups must persuade the justices that the SCC based its decision on a “mistake of law” in approving a plant required by law to use only Virginia coal.  The groups argue that limitation violates the Commerce Clause of the U.S. Constitution.

By Peter Vieth