Virginia Lawyer · Virginia Lawyer The Official Publication of the Virginia State Bar February 2016...

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Cuba Opening Brings Opportunities

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V O L . 6 4 / N O . 5 • F E B R U A R Y 2 0 1 6

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Virginia LawyerThe Official Publication of the Virginia State Bar February 2016

Volume 64/Number 5

Features

GENERAL INTEREST

12 Improvements in US-Cuban Relations Bring Business Opportunities and Challenges

by Geoffrey M. Goodale and Louis K. Rothberg

BANKRUPTCY LAW

18 Bankruptcy Law Impacts Most Practice Areas

by Angela M. Scolforo

20 Stripping it Down — Real Estate Issues in

Bankruptcy

by Sarah Beckett Boehm

24 Scheduling and Protecting Personal Injury and

Other Causes of Action in Bankruptcy Cases

by Angela Scolforo, Mark C. Leffler, and

Emily Fort

30 Demystifying Domestic Support Obligations

in Bankruptcy

by David Cox

VIRGINIA LAWYER REGISTER

46 Disciplinary Proceedings

47 Disciplinary Summaries

48 Notices To Members:

48 Ethics Committee Seeks Comments

48 Supreme Court of Virginia Approves Amendments

48 Criminal Law Seminar

48 Nominations Sought for Awards

49 2016 TECHSHOW

49 YLC Celebration of Women and Minorities In the Legal Profession Bench Bar Dinner

49 License Forfeitures

49 Nominations Sought For Committee Vacancies

50 Nominations Sought For District Committee Vacancies

51 Committee Preference Form

Access to Legal Services34 The Benefits Outweigh the Sacrifice:

Two of Virginia’s Top Pro Bono Attorneys Discuss Attorney Service

Departments6 Letters to the Editor17 Law Stories39 Conference of Local Bar

Associations44 CLE Calendar52 Professional Notices54 Classified Ads

Columns8 President’s Message10 Executive Director’s Message40 Law Libraries41 Technology and the Practice of Law42 Risk Management

NoteworthyVSB News29 Bar Leaders Institute36 VSB TECHSHOW

PEOPLE37 Ben Spencer Adds Army Reservist to

Expansive Resumé38 In Memoriam

“Sea of Debt” cover and illustrations for Bankruptcy Law features by Madonna Dersch

VIRGINIA LAWYER | February 2016 | Vol. 644 www.vsb.org

Virginia State Bar Staff DirectoryFrequently requested bar contact

information is available online at

www.vsb.org/site/about/bar-staff.

http://www.vsb.org

Editor:Gordon Hickey

([email protected])

Advertising: Dee Norman

([email protected])

Graphic Design:Caryn B. Persinger

([email protected])

Illustration:Madonna G. Dersch

([email protected])

VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473)

is published six times a year by the Virginia State Bar,

1111 East Main Street, Suite 700, Richmond, Virginia

23219-0026; Telephone: (804) 775-0500. Subscription

Rates: $18.00 per year for non-members. This material

is presented with the understanding that the publisher

and the authors do not render any legal, accounting,

or other professional service. It is intended for use by

attorneys licensed to practice law in Virginia. Because of

the rapidly changing nature of the law, information

contained in this publication may become outdated. As

a result, an attorney using this material must always

research original sources of authority and update

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specific client’s legal matters. In no event will the

authors, the reviewers, or the publisher be liable for

any direct, indirect, or consequential damages resulting

from the use of this material. The views expressed herein

are not necessarily those of the Virginia State Bar. The

inclusion of an advertisement herein does not include

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Virginia LawyerThe Official Publication of the Virginia State Bar

2015-16 OFFICERSEdward L. Weiner, PresidentMichael W. Robinson, President-electKevin E. Martingayle, Immediate Past President Karen A. Gould, Executive Director and Chief

Operating Officer

EXECUTIVE COMMITTEEEdward L. Weiner, Fairfax, PresidentMichael W. Robinson, Tysons Corner,

President-electKevin E. Martingayle, Virginia Beach,

Immediate Past PresidentBrian L. Buniva, RichmondMarni E. Byrum, AlexandriaNancy C. Dickenson, AbingdonLeonard C. Heath, Jr., Newport NewsMichael HuYoung, RichmondDaniel L. Rosenthal, RichmondJack “JB” W. Burtch, Jr., Richmond, CLBA ChairProvidence E. Napoleon, Richmond, Diversity

Conference ChairRobert T. Vaughan, Jr., Danville, SLC ChairNathan J. Olson, Fairfax, YLC President

COUNCIL

1st CircuitNancy G. Parr, Chesapeake

2nd CircuitSteven G. Owen, Virginia BeachJudith L. Rosenblatt, Virginia BeachDaniel M. Schieble, Virginia Beach

3rd CircuitNicholas D. Renninger, Portsmouth

4th CircuitAnn B. Brogan, NorfolkGary A. Bryant, NorfolkNeil S. Lowenstein, Norfolk

5th CircuitCarl Phillips “Phil” Ferguson, Suffolk

6th CircuitPeter D. Eliades, Hopewell

7th CircuitLeonard C. Heath, Jr., Newport News

8th CircuitMarqueta N. Tyson, Hampton

9th CircuitW. Hunter Old, Williamsburg

10th CircuitCharles H. Crowder, III, South Hill

11th CircuitDale W. Pittman, Petersburg

12th CircuitGraham C. Daniels, Chester

13th CircuitPaula S. Beran, RichmondBrian L. Buniva, RichmondDabney J. Carr, IV, RichmondLeah A. Darron, RichmondChristy E. Kiely, RichmondGeorge W. Marget, III, RichmondEric M. Page, Richmond

14th CircuitJon A. Nichols, Jr., Glen AllenDaniel L. Rosenthal, RichmondRhysa G. South, Henrico

15th CircuitJennifer L. Parrish, Fredericksburg

16th CircuitJames M. Hingeley, Jr., CharlottesvilleR. Lee Livingston, Charlottesville

17th CircuitTimothy B. Beason, ArlingtonRaymond B. Benzinger, ArlingtonJohn H. Crouch, ArlingtonHarry A. Dennis, III, ArlingtonRachelle E. Hill, Arlington

18th CircuitBarbara S. Anderson, AlexandriaFoster S. B. Friedman, AlexandriaCarolyn M. Grimes, Alexandria

19th CircuitJames F. Davis, FairfaxJoyce M. Henry-Schargorodski, FairfaxChidi I. James, FairfaxSean P. Kelly, FairfaxDavid L. Marks, FairfaxGary H. Moliken, FairfaxJay B. Myerson, RestonLuis A. Perez, Falls ChurchWilliam Boyle Porter, FairfaxDennis J. Quinn, TysonsWilliam L. Schmidt, FairfaxMelinda L. VanLowe, FairfaxJames A. Watson, II, FairfaxMichael M. York, Reston

20th CircuitChristine H. Mougin-Boal, LeesburgT. Huntley Thorpe, III, Warrenton

21st CircuitJoan Ziglar, Martinsville

22nd CircuitLee H. Turpin, Chatham

23rd CircuitMark K. Cathey, RoanokeEugene M. Elliott, Jr., Roanoke

24th CircuitDavid B. Neumeyer, Lynchburg

25th CircuitRoscoe B. Stephenson, III, Covington

26th CircuitW. Andrew Harding, Harrisonburg

27th CircuitRichard L. Chidester, Pearisburg

28th CircuitWilliam M. Moffet, Abingdon

29th CircuitJoseph M. Bowen, Tazewell

30th CircuitWilliam E. Bradshaw, Big Stone Gap

31st CircuitGifford R. Hampshire, Manassas

MEMBERS AT LARGEMarni E. Byrum, AlexandriaNancy C. Dickenson, AbingdonAfshin Farashahi, Virginia BeachWilliam E. Glover, FredericksburgMichael HuYoung, RichmondBeverly P. Leatherbury, EastvilleTodd A. Pilot, AlexandriaLorrie A. Sinclair, LeesburgA Benjamin Spencer, Charlottesville

Conference of Local Bar Associations ChairJack “JB” W. Burtch, Jr., Richmond

Diversity Conference ChairProvidence E. Napoleon, Richmond

Senior Lawyers Conference ChairRobert T. Vaughan, Jr., Danville

Young Lawyers Conference PresidentNathan J. Olson, Fairfax

Virginia State Bar

VIRGINIA LAWYER | December 2015 | Vol. 644 www.vsb.org

Dec VL 2015_vl1215 12/7/15 11:39 AM

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Letters

On Legal AidThis responds to the two-page article on Virginia legal aid by Bar President Edward L. Weiner in the December 2015 issue of Virginia Lawyer magazine titled “Holding Out for A Hero.” As a year’s end fund-raising vehicle, the effort meets the expected standards. There is the quote from the late Justice Powell and the references to justice and access to legal assistance as part of justice.

As is typical of this sort of thing, the central premise of Mr. Weiner’s column is that the only “access” ques-tion that matters is whether programs have enough money. The implication is that more money for programs would also mean more services to people who could not otherwise pay private lawyers for legal assistance. Focusing exclusively on the external macro-economic fact of available resources, Mr. Weiner distracts attention from other access issues within the control of the local programs and the

Virginia legal aid establishment. Because the Virginia Lawyer is an official pub-lication of the bar, it is important that lawyers know of these other issues.

When a person seeks help from a Virginia legal aid program, whether or not he or she will receive services may very well depend on the arbitrary acci-dent of geography. Each of the ten pro-grams has its own substantive guidelines, which may or may not coincide with the guidelines of other programs. The fact that there is no “master” eligibility guideline applicable to all areas means that eligibility for services will depend on geographic accident. Under this patch-work non-system, persons with identi-cally serious problems could be treated differently purely because of geography. In 2000, an unsuccessful effort was made to persuade other project directors to adopt state-wide guidelines to eliminate this blatant discrepancy. I do not know whether there have been any more recent

attempts but the patchwork remains and the inequality.

According to the facts offered by Mr. Weiner, which he urges readers to consider, the vast majority of “cases” closed by Virginia legal aid programs in 2014 involved the provision of informa-tion and advice to low income persons. When I began my legal services career in 1973, the expected function of legal aid programs was to provide representation to people by raising issues and questions which were frequently inconvenient in sometimes hostile forums. Providing quick information and advice to clients in the hope they might ultimately benefit from knowing more is a nice thing to do and an easy way to increase the number of closed cases; but pretending it has much to do with the realities of poverty and powerlessness requires a more than heroic stretch. The plain truth is that the shift to advice cases is really more about institutional survival than equal justice. There is nothing heroic or even mildly brave about the activity. Indeed, the suggestion that lack of information is the principal obstacle when people without means navigate the legal system smacks of Lady Bountiful and those “who sit in darkness” awaiting enlightenment.

Hugh F. O’DonnellSt. Paul

Letters

Send your letter to the editor to:

[email protected] or

Virginia State Bar,

Virginia Lawyer Magazine,

1111 E Main Ste 700,

Richmond VA 23219-0026

Letters published in Virginia Lawyer may be edited for length

and clarity and are subject to guidelines available at

http://www.vsb.org/site/publications/valawyer/.


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President’s Messageby Edward L. Weiner

The mission of the Virginia State

Bar, as an administrative agency of the

Supreme Court of Virginia, is to:

• Regulate the legal profession of

Virginia;

• Advance the availability and quality

of legal services provided to the peo-

ple of Virginia; and

• Improve the legal profession and the

judicial system.

At its core, the mission of the VSB

is really to protect the public.

Among the many joys of being

VSB president is coming to understand

more deeply the nuts and bolts of our

profession and observing the VSB

machinery at work.

A critical tool in the VSB’s public

protection role is the difficult and

much-appreciated work of the

Committee on Lawyer Discipline

(COLD). COLD and its seventeen

Local District Committees through-

out the state oversee the disciplinary

process. This includes receiving com-

plaints, conducting investigations,

hearings, and imposing sanctions (if

warranted) including reprimands,

license suspensions, and revocations.

Those of us who have been mem-

bers of the bar for “a while” (more

than half of my life, in my instance)

may have forgotten the bar’s first line

of public protection: vetting those

who apply for membership in the

Virginia State Bar to practice law in

our commonwealth.

Recently, while attending a fac-

ulty meeting of the Virginia State Bar

Professionalism Course, I had the

pleasure of meeting Stephen A. Isaacs,

director of the Character and Fitness

Committee of the Virginia Board

of Bar Examiners. Steve walked me

through the process followed by appli-

cants for bar membership, once they’ve

passed the bar exam.

As part of the licensing process,

each individual who passes the bar

exam undergoes a character and fitness

screening. The screening is part of the

Supreme Court mandated process to

assure the protection of the public and

safeguard the system of justice.

Since 1995, these screenings have

been administered by the Character

and Fitness Committee, which inves-

tigates, conducts hearings, and makes

recommendations to the Virginia

Board of Bar Examiners.

The process is administered by

Steve Isaacs and a committee of five

attorneys, who are appointed by the

Supreme Court and are selected from

across the state. The current members

of the committee are: Henry M. Sackett

III (chair), Lynchburg; Julia B. Judkins,

Fairfax; Linda L. Laibstain, Norfolk;

Curtis M. Hairston Jr., Richmond; and

Nancy C. Dickenson, Abingdon.

The character and fitness screen-

ing is an in-depth investigation, which

includes a twenty-four page appli-

cation, criminal background checks,

driver’s license transcripts, credit

reports, medical certifications, and

fingerprinting.

If an applicant’s history indicates

any probable cause that there is a “defi-

ciency in the honesty, trustworthiness,

diligence or reliability…” a hearing is

scheduled. At the hearing, the burden

is on the applicant to prove by clear

and convincing evidence that he or

she possess the qualifications of good

moral character and general fitness

required for a practicing attorney.

The committee is guided by two

fundamental principles:

• The practice of law is not a right, it is

a privilege; and

Character Matters

At its core, the mission of the VSB is really to protect the public.

Vol. 64 | February 2016 | VIRGINIA LAWYER 9www.vsb.org

• The sole purpose of character and

fitness certification is to protect the

public.

The committee determines if there

is an issue and whether the applicant has

taken responsibility for rehabilitation.

Where an applicant has a record reflect-

ing irresponsible behavior, disregard for

the safety of others, or disrespect for the

law, the committee considers the age and

maturity of the applicant at the time of

the negative conduct. The central issue

to be considered is rehabilitation, and

the applicant’s current character and

fitness. Applicants who have entered into

an alcohol rehabilitation monitoring

agreement have nearly a 100 percent

success rate of eventual licensing. Other

issues such as serious driver records or

financial difficulty are often deferred for

rehabilitation and eventual licensure.

A denial of licensure by the com-

mittee results in a two-year moratorium

before the applicant may reapply. An

applicant may appeal directly to the

board and then the Supreme Court of

Virginia.

Members of the Virginia State Bar

should be proud that the standards for

character and fitness for admission to

practice law in Virginia have remained

consistently high. This can only be

accomplished through vigilance. As an

agency of the Supreme Court of Virginia,

the Board of Bar Examiners and

Character and Fitness Committee have

faithfully and diligently carried out their

responsibility as our gatekeeper’s. As

required by the Virginia Supreme Court

rules: “the public is better served by

those who have met rigorous educational

requirements, has been certified of hon-

est demeanor and good moral character

and are subject to high ethical standards

and strict disciplinary rules in conduct of

their practice.”

As the Board of Bar Examiners

has stated; “An attorney should be one

whose record of conduct justifies the

trust of clients, adversaries, courts and

others with respect to the professional

duties owed them.”

Thank you Mr. Isaacs and the com-

mittee for making this a reality in our

commonwealth.

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President’s Message

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Executive Director’s Messageby Karen A. Gould

The Chief Justice of the Supreme

Court of Virginia sent an e-mail on

January 7, 2016, to all active members

of the Virginia State Bar about par-

ticipating in the Judicial Performance

Evaluation Program. The e-mail is set

forth in part below:

To: All Active Members of

the Virginia State Bar

From: Donald W. Lemons,

Chief Justice

Re: Judicial Performance

Evaluation Program

The Supreme Court of Virginia

has re-established the Judicial

Performance Evaluation Program

(JPE Program) as provided by

Virginia Code § 17.1-100. The

purpose of the JPE Program is to

provide an internal self-improve-

ment mechanism for judges and

a source of information for the

re-election process.

This e-mail is being sent to

all active members of the

Virginia State Bar by Virginia

Commonwealth University’s

Survey and Evaluation Research

Laboratory, in the L. Douglas

Wilder School of Government

and Public Affairs (VCU-SERL).

The link below will allow you to

respond to VCU-SERL to iden-

tify yourself as a potential survey

respondent for one or more of the

judges being evaluated in the next

six months. Your prompt and

accurate response to this survey

is very important in order that a

sufficient number of evaluation

surveys can be distributed for each

evaluated judge. This should only

take a few moments of your time.

You may expect to receive these

links twice per year. The survey is

expected to close on ….

The eligibility survey is sent to

attorneys throughout the state to

ensure that the attorneys who may

practice in localities distant from their

offices are included. VCU-SERL uses

the eligibility survey responses as well

as attorney data obtained from the

courts’ case management systems to

identify potential respondents for each

judge’s evaluation. It is important for

attorneys to respond to the eligibility

surveys because case management data

may not identify all attorneys who

appear in court. Even when attorney

names are available through the case

management systems, they are not

necessarily linked to a particular judge.

The sources complement each other.

If a sufficient number of attorneys

are identified for a particular judge,

then VCU-SERL randomly selects the

judge’s evaluation survey respondents.

Where less than 250 attorneys are

identified, all attorneys identified are

surveyed.

If an attorney is selected as an

evaluation survey respondent, he

or she will receive a letter mailed by

VCU-SERL on behalf of the Chief

Justice. The letter is followed about a

week later with an e-mail that includes

a link to the evaluated judge’s survey.

If an attorney has received a survey but

has not actually appeared before the

evaluated judge, he or she need only fill

out the first three questions to establish

that circumstance.

Your survey responses help all

judges identify ways they can improve

their performance. For judges whose

terms are expiring, your evaluation

responses are useful to the General

Assembly during the re-election pro-

cess. Your participation in the JPE

Program is critical. The attorneys of

the commonwealth have valuable

information to share and should want

their opinions to be considered. This

is one important way to be heard.

Please do your part to give the General

Assembly and our judges the best

feedback possible.

Judicial Performance Evaluation Program: Why You Should Participate

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VIRGINIA LAWYER | February 2016 | Vol. 64 | GENERAL INTEREST FEATURES12 www.vsb.org

Statutory Restrictions Limit Business Opportunities with CubaWe must recognize that several US statutes currently in effect constrain the ability of the president – acting alone without Congress – to further substantially ease or lift many of the existing sanctions against Cuba. These stat-utes include: (1) the Cuban Democracy Act of 1992; (2) the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996; and

(3) the Trade Sanctions Reform and Export Enhancement Act of 2000. The Cuban Democracy Act of 1992 (CDA), among other things, prohibits foreign subsidiaries of US companies from engaging in trade with Cuba.1 The CDA also prohibits entry into the US for any seagoing vessel to load or unload general freight if it has been in-volved in trade with Cuba within the previous 180 days.2

Improvements in US-Cuban RelationsBring Business Opportunities and Challenges by Geoffrey M. Goodale and Louis K. Rothberg

As soon as President Obama announced that the United States would pursue

improved relations with Cuba on December 17, 2014, many US companies and

law firms began to wonder what it would be like to do business with or in Cuba.

While certain new opportunities have been created by amendments made to

Cuban-related regulations administered by the US Department of Treasury’s

Office of Foreign Assets Control (OFAC) and the US Department of Commerce’s

Business of Industry and Security (BIS), many of the comprehensive sanctions

imposed against Cuba by the US for decades remain in effect, and will continue

unless Congress takes action.

Cuba old map with Havana insert plan. Created by Vuillemin and Erhard, published on Le Tour du Monde, Paris, 1860. © shutterstock.com

GENERAL INTEREST FEATURES | Vol. 64 | February 2016 | VIRGINIA LAWYER 13www.vsb.org

The LIBERTAD Act of 1996 codified the then-existing economic embargo against Cuba.3 This included all restrictions set forth under OFAC’s Cuban Assets Control Regulations (CACR).4 While possessing broad authority to amend the CACR, the president cannot eliminate those regulations without making a determination that a transition gov-ernment is in power in Cuba pursuant to the provisions of the LIBERTAD Act,5 and no such transition government is expected to assume power in Cuba in the foreseeable future. Moreover, the LIBERTAD Act also states that Congress must believe that a satisfacto-ry resolution of property claims by a Cuban government recognized by the US remains an essential condition for the full resumption of trade and diplomatic relations between the US and Cuba.6 Talks between the US and Cuban governments on claims amounting to billions of dollars held by US nationals for property expropriated or nationalized by the Castro regime over the past 55 years began in December 2015, and the satisfactory resolution of these claims will likely take several years to implement. While the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA) au-thorizes certain commercial exports to Cuba (e.g., relating to certain foods, medicines, and medical products), it also includes prohibi-tions on US credit extensions such as financ-ing for purchases, and requires “payment of cash in advance” or third-country financing for the exports.7 The TSRA also prohibits tourist travel to Cuba.8

Although some bills have been introduced in Congress that would end various aspects of the comprehensive sanctions referenced above since President Obama made his policy an-nouncement, none of them have been able to garner much support, and in fact, numerous members of Congress have expressed opposi-tion to them. Given this fact, it seems unlikely that these comprehensive sanctions will be eliminated anytime soon.

Easing of Certain Sanctions Under the CACRHowever, OFAC has made numerous amend-ments to the CACR to ease certain sanctions during the past year. While these amendments create certain limited opportunities, many aspects of OFAC’s comprehensive embargo against Cuba remain in effect. As a result of amendments made to the CACR in January 2015, US persons may now

travel to Cuba under a general license (i.e., a self-executing regulatory authorization not requiring that an application be filed with OFAC) provided that the purpose of their travel falls within one of the twelve existing categories of travel for which a specific license could have been issued by OFAC in the past (e.g., professional research and meetings, educational activities, journalistic activities, religious activities, humanitarian projects, public performances, exhibitions, and athletic competitions) and all other applicable require-ments.9 It is important to note that each travel-er who relies on a general license for travel to Cuba must retain specific records for five years indicating that the travel was covered by the terms of a general license. Moreover, travel to Cuba for general tourist activities remains prohibited. OFAC has also amended the CACR to make it easier for US persons traveling to Cuba to purchase items and to bring certain kinds of items back. Towards this end, the CACR have been amended to permit US persons to use US debit and credit cards to purchase items in Cuba and to open and maintain bank accounts in Cuba in order to access funds for authorized transactions,10 although actually doing so is somewhat impractical because no major US banks or financial institutions have entered the Cuban market as of this writing. Moreover, as a result of amendments to the CACR, US persons may now bring back up to $400 worth of Cuban items, including up to $100 worth of alcohol and tobacco products, provided that the items were purchased in Cuba and are for personal use.11 In addition, OFAC has also amended the CACR to increase trade opportunities with Cuba. For example, the CACR have been amended to authorize persons subject to US jurisdiction to establish and maintain a business presence in Cuba, including through subsidiaries, branches, offices, joint ventures, franchises, and agency or other business rela-tionships with any Cuban individual or entity, to provide authorized telecommunications and internet-based services.12 Furthermore, persons subject to US jurisdiction are now authorized to enter into certain licensing agreements and to market such services.13

OFAC has further amended the CACR to authorize certain persons subject to US jurisdiction to establish a physical presence, such as an office or other facility, in Cuba, to facilitate authorized transactions.14 This

GENERAL INTEREST

VIRGINIA LAWYER | February 2016 | Vol. 64 | GENERAL INTEREST FEATURES14 www.vsb.org

authorization covers news bureaus, exporters of goods authorized for export pursuant to sections 515.533 or 515.559, providers of au-thorized mail and parcel transmission services and cargo transportation services, providers of telecommunications or internet-based services, entities organizing or conducting certain educational activities, religious orga-nizations, and providers of travel and carrier services.15 OFAC has also amended the CACR to authorize such individuals and entities to open and maintain bank accounts at financial institutions in Cuba for authorized transac-tions, and to close such accounts.16 Most recently, OFAC amended the CACR on January 27, 2016. Significantly, pursuant to these amendments, restrictions on payment and financing terms for authorized exports and re-exports, except for agricultural com-modities and agricultural items, have been removed, and US depository institutions may now provide financing, including, for exam-ple, issuing a letter of credit for such exports and re-exports.17 These latest amendments also expand certain existing general licenses to authorize certain additional travel-related transactions that are directly incident to the conduct of market research, commercial mar-keting, sales or contract negotiation, accompa-nied delivery, installation, leasing, or servicing in Cuba of items consistent with the export or re-export licensing policy of the Department of Commerce.18 Use of these expanded general licenses is subject to the condition that the traveler’s schedule of activities does not in-clude free time or recreation in excess of that consistent with a full-time schedule.19

Liberalization of Certain Export Controls Relating to CubaSince President Obama made his historic pol-icy announcement in December 2014, BIS has made numerous amendments to the Export Administration Regulations (EAR) to liber-alize certain Cuban-related export controls.20 However, many items still require an export license to be sent to Cuba. BIS has liberalized export controls by expanding certain license exceptions under the EAR, pursuant to which certain items can be exported to Cuba provided that all of the requirements of the specific license exception are satisfied. For example, BIS expanded License Exception Consumer Communications Devices (License Exception CCD) to remove the donation requirement

and to update the list of eligible items.21 BIS has also expanded License Exception Gift Parcels and Humanitarian Donations (License Exception GFT) in 15 CFR § 740.12 of the EAR to permit the export and re-export of multiple gift parcels in a single shipment.22 BIS has also expanded the availability of License Exception Aircraft, Vessels and Spacecraft (License Exception AVS) to pertain to Cuba, so that certain categories of seagoing vessels, when engaged in specified activities eligible for the license exception, can remain in Cuba for no more than fourteen consecutive days before returning to the US or departing for a country to which it may be exported without a license.23

BIS has also created a new License Exception Support for the Cuban People (License Exception SCP).24 It permits, among other things, the export and re-export of the following types of equipment:• Building materials, equipment, and tools

for use by the private sector to construct or renovate privately-owned buildings, includ-ing privately-owned residences, businesses, places of worship, and buildings for private- sector social or recreational use;

• Tools and equipment for private-sector agri-cultural activity; and

• Tools, equipment, supplies, and instruments for use by private-sector entrepreneurs.25 Items eligible for export and re-export to Cuba pursuant to this portion of License Exception SCP are limited to those designat-ed as EAR99 or that are specifically identified on the Commerce Control List (CCL) and controlled only for anti-terrorism [AT] rea-sons.26

License Exception SCP also authorizes the export and re-export of items for use by US persons to establish, maintain, or operate a physical presence in Cuba.27 In addition, License Exception SCP authorizes certain temporary (not to exceed one year) exports and re-exports to Cuba of certain EAR99 items and items controlled on the CCL only for AT reasons under some circumstances (e.g., commodities and software as tools of trade for use by exporters or their employees to install, service, or repair items that are sub-ject to the EAR and that have been exported or re-exported to Cuba under a license or license exception).28 Most recently, on January 27, 2016, BIS is-sued guidance indicating that it will generally approve license applications for exports and

GENERAL INTEREST

GENERAL INTEREST FEATURES | Vol. 64 | February 2016 | VIRGINIA LAWYER 15www.vsb.org

GENERAL INTEREST

re-exports of some kinds of commodities and software to certain Cuba entities.29 This new licensing policy applies to items controlled on the CCL that relate to the following areas: civil society, news gathering, agriculture, telecom-munications, civil aviation safety, and meeting the needs of the Cuban people.30

ConclusionIn summary, OFAC has relaxed numerous sanctions against Cuba, and BIS has liberal-ized export controls relating to many kinds of items that can be exported and re-exported to Cuba. However, many aspects of the com-prehensive US embargo against Cuba remain in effect and will continue unless Congress passes new legislation to amend or rescind ex-isting statutes, which seems unlikely to occur in the foreseeable future. Accordingly, careful analysis of the amendments that have been made to the CACR and the EAR is critical to ensure that law firms and businesses comply fully with all applicable requirements.

Endnotes:1 The Cuban Democracy Act of 1992, Pub. L.

No. 102-484, Title XVII.2 See id.3 The Cuban Liberty and Democratic

Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104-114.

4 See id. The Cuban Assets Control Regulations are codified at 31 C.F.R. Part 515.

5 See id.6 See id.7 The Trade Sanctions Reform and Export

Enhancement Act of 2000, Pub. L. No. 106-387, Title IX.

8 See id.9 See 31 C.F.R. §§ 515.533, 515.545, 515.560-

515.567, and 515.574-515.576. 10 See 31 C.F.R § 515.560.11 See id.12 See 31 C.F.R. §§ 515.542 and 515.57813 See id.14 See 31 C.F.R. § 515.573.15 See id.16 See id.17 See 31 C.F.R. § 515.584.18 See 31 C.F.R. §§ 515.533, 515.545, and 515.567.19 See id.20 The Export Administration Regulations are

codified at 15 C.F.R. Parts 730-774.21 See 15 C.F.R. § 740.19.22 See 15 C.F.R. § 740.12.23 See 15 C.F.R. § 746.2.24 See 15 C.F.R. § 740.21.25 See id.26 See id.27 See id.28 See id.29 See 81 Fed. Reg. 4,580 (Jan. 27, 2016).30 See id.

Louis K. Rothberg is of counsel in Morgan Lewis’s International Trade & Economic Sanctions Practice. He represents a diverse range of US and non-US entities on national security matters, e.g., economic sanctions, munitions and dual use export controls, and embargoes, Department of Defense con-tract issues, and the Committee on Foreign Investment in the United States. He has expe-rience in compliance by US and non-US com-panies with all Office of Foreign Assets Control regulations regarding US embargoed countries and entities and ITAR and EAR export controls as well. In addition, he advises on export con-trol and technology transfer issues arising under US Department of Defense contracts. He is a member of the VSB International Law Section.

Geoffrey M. Goodale is the founder and managing partner of Trade Law Advisors PLLC. He regularly counsels companies on a wide range of issues relating to the Export Administration Regulations, the International Traffic in Arms Regulations, and the economic sanctions regulations administered by the Treasury Department’s Office of Foreign Assets Control. He is the immediate past chair of the International Practice Section of the Virginia State Bar and currently serves as co-chair of the ABA Section of International Law’s Export Controls and Economic Sanctions Committee.

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Law Stories

Beware the Bailiffby David S. Holland

I am one of those attorneys whose careers have mostly been on the fringes of the law. The motivation to attend law school was not so much to be a lawyer as to prepare myself for a variety of pos-sibilities. My first job after graduation from Virginia Law significantly increased the likelihood that a traditional legal career path was not in the cards. I spent four years in the islands of Micronesia in the far Pacific with a US government claims commission settling World War II claims the Micronesians had against the United States and Japan. The job market was pretty tight when I returned to the states, so I entered the MBA program at the College of William & Mary in my hometown of Williamsburg. Just for a little legal experience, I opened a part-time law practice on the side. The work consisted mostly of court-appointed juvenile and misdemeanor matters. One of the juvenile cases involved a young man with problems attending school. I don’t recall the particulars, but the judge ruled that a return to a juvenile home in the lower Peninsula area was warranted. The young man was placed in a sort-of holding area to the side of the courtroom as the judge continued with his extensive docket. After a bit, the bailiff came over and said that my now-former client needed to use the restroom, which was off a public corridor in the courthouse. Would I accompany the young man and return him to the courtroom? Not thinking clearly, I said “Sure.” So my recent client and I went to the restroom. But on the way back, he bolted. Out the front door of the court-house. Gone. At extreme speed. Well, I wasn’t about to return to the courtroom empty handed and face that bailiff. I took off after the fugitive. Only he was much bigger than me. Thus

a physical apprehension was out of the

question. But I was a runner back in the

day before everyone was, so I stayed in

pursuit. He eventually slowed to a walk.

I did too.

To make the proverbial long story

short, I followed him around the envi-

rons of the Old Colonial Capital for

about three hours, staying about ten

yards behind. He accepted my presence.

Finally, a police car appeared (where is

a cop when you need one?). I flagged it

down, and the officer, the young man,

and I were soon back in the courtroom.

Although deprived of a story about

the doofus neophyte attorney who let

his client escape, the bailiff gave a hardy

thumbs-up.

I eventually finished the MBA, spent

a professional career mostly in consult-

ing and research, and only returned to

the law in retirement as an occasional

electronic document reviewer. But docu-

ment review is a story for another day.

David S. Holland is in semi-retirement in Alexandria. He writes occasional books, the latest being, “Who’d You Vote For, Er. . . Against?”

The Substitute Judgeby Aston H. Pully Jr.

Some years ago, a prominent and very active attorney was presiding as a substi-tute judge in the Norfolk District Court. When the defendants were brought forward for arraignment the judge asked their names. One of the defendants commented that the judge was not a judge but a lawyer. The judge responded (paraphrased), “Well, today I have on the robe so I am the judge.” The female defendant responded, “Well, just because I have a dress in my closet, that don’t make me Cinderella.” Another very prominent and active lawyer in Norfolk was sitting as a substi-tute judge. The defendant was asked if

he had anything to say after the officer testified. The defendant proceeded with a somewhat lengthy statement in response. The substitute judge then remarked, “Do you think that explanation is worthy of a finding of not guilty?” The defendant replied, “Well, yes sir, because last week you got me off with this same story in Chesapeake.”

Ashton H. Pully Jr. practices law and lives in Virginia Beach.

Tell Us Your Favorite Law Story

Every lawyer has a story set aside for gatherings of friends or relatives. It’s a special tale about a legal battle won, or lost. Or about an amusing encounter with a judge. Or a story with a surprising twist. Maybe it’s a story that will bring a knowing smile, or shake of the head, from a colleague. Pick your best Law Story, your incredible adventure, your unusual courtroom or even boardroom esca-pade, and send it to us. Keep them short — about 400 words or less — and send them in. E-mail your stories to us at [email protected].

BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER 19www.vsb.org

On behalf of the Bankruptcy Section of the Virginia State Bar I hope you find this edi-tion interesting and educational. Those of us who practice in this area often see how other practice areas impact and inform what we do. We offer you three articles on how consumer bankruptcy law impacts the practice of law in real estate, personal injury, and domestic relations — the three practice areas that most often intersect with bankruptcy. Real estate attorneys may learn more about the ability to change the nature of debt on real estate and homes through the applica-tion of bankruptcy laws. For example, debtors may strip off a wholly unsecured mortgage in Chapter 13 bankruptcy. In some circum-stances, the debtor can modify the terms of a mortgage. For mobile homes, which are treated as personal property in Virginia, the debt may be stripped down to the ever-depre-ciating value of the collateral. Often debtors are able to retain real estate, and still get out from under the burden of debt, with a bank-ruptcy payment plan. Personal injury attorneys, and medical malpractice or employment law attorneys, may not be aware of the ways in which a bank-ruptcy filing impacts the debtor’s claim and recovery. If a debtor files a Chapter 7 bank-ruptcy petition, his standing to file a lawsuit belongs to the bankruptcy trustee. The statute of limitations may toll before the personal injury attorney even knows his client had no standing to bring the lawsuit. Exempt personal

injury claims and proceeds must be disclosed in the bankruptcy case, or the debtor (and his attorney) may be judicially estoppel from recovery. Sometimes, the exempt recovery may have to be paid over to the bankruptcy trustee. Personal injury attorneys are cautioned to investigate if the debtor is in a bankruptcy case, and if so to reach out to his bankruptcy attorney. Domestic relations attorneys know that their clients often slide into bankruptcy as the household splits in half. There are great pro-tections in bankruptcy for domestic support obligations, a term of art in the bankruptcy court. Figuring out which obligations are, or are not, domestic support obligations in bankruptcy is often tricky and requires a thor-ough analysis reading behind the words of an agreement. Our article walks you through the analysis so that you can better advise your clients. A debtor’s failure to timely pay child or spousal support may even be grounds to dismiss a bankruptcy case. Knowing the dif-ference between the discharge of such debts in Chapter 7 and 13 may help you reassure your client. Please feel free to reach out to me, or other members of the Bankruptcy Section, when you find bankruptcy issues arise in your practice. We are a cordial bar and enjoy help-ing one another. If you practice bankruptcy law and are not yet active in our section, come join us. We learn from each other every day.

Bankruptcy Law Impacts Most Practice Areasby Angela M. Scolforo

VIRGINIA LAWYER | February 2016 | Vol. 64 | BANKRUPTCY LAW SECTION20 www.vsb.org

Bankruptcy law encompasses

many areas of practice, including

real estate. Addressing real property

issues and assisting debtors in keeping

their home is often the driving force

behind a Chapter 13 case. This arti-

cle summarizes real estate issues that

frequently arise in individual reorga-

nization cases under Chapter 13 of the

Bankruptcy Code and suggests prac-

tice pointers for handling them.

Lien StrippingThere are fundamental differences between Chapters 7 and 13 of the Bankruptcy Code. Chapter 7 contemplates liquidation of the estate, while Chapter 13 enables individuals1 to develop a plan to repay all or part of their debts over three to five years and save their homes from foreclosure. The United State

Supreme Court also has drawn an important distinction — a Chapter 7 debtor cannot “strip down” a partially underwater mort-gage2 or “strip off” a wholly underwater mort-gage,3 while a Chapter 13 debtor may strip off a wholly unsecured mortgage. One significant benefit of Chapter 13, then, is that a wholly unsecured mortgage lien can be “stripped off” to render the debt unsecured.4 Lien stripping is available against junior mortgages on the debtor’s principle residence if the senior mortgage equals or exceeds the value of the property. In order to strip off a junior mortgage lien, the debtor must file a separate adversary proceeding.5 If the debtor is successful, the order stripping off the junior lien may be filed in the appro-priate state court land records. While a Chapter 13 plan may modi-fy the rights of holders of certain secured claims, it may not modify a security interest in real property that is the debtor’s principal residence, subject to limited exceptions.6 One exception is that if the last payment on the

Stripping it Down – Real Estate Issues in Bankruptcyby Sarah Beckett Boehm


STRIPPING IT DOWN – REAL ESTATE ISSUES IN BANKRUPTCY

original mortgage payment schedule is due before the final payment on the Chapter 13 plan is due, it may be subject to modifica-tion by the Chapter 13 plan.7 For example, if a final mortgage balloon payment matures before the end of the Chapter 13 plan, the full amount could be stretched out over the life of the plan rather than being paid in a lump sum. Additionally, if the debtor owns invest-ment or other property that is not his or her principal place of residence, the mortgage can be “crammed down” through the Chapter 13 plan. This process allows the debtor to reduce the principal balance of the mortgage to the value of the real estate, and then to pay that amount with interest. It also may allow the debtor to reduce the mortgage interest rate.

ExemptionsKnow them. Use them. 11 U.S.C. § 522(f) enables a debtor to eliminate, in whole or in part, liens8 that impair an exemption to which the debtor is entitled. Virginia provides minimal homestead protection, so debtors should take advantage of what little is available, including: $5,000 per person ($10,000 per person for anyone 65 or older), plus $500 for each dependent;9 an additional $10,000 for any veteran with a service-connected disability of 40 percent or more;10 $2,000 per month up to $24,000 during a one-year period of administration of the decedent’s estate for a surviving spouse and minor children;11 and $20,000 from the decedent’s estate in lieu of any share passing to the spouse from the estate.12 Generally, property held by tenants by the entireties is protected from the claims of all judgment lien creditors of only one of the tenants, unless the service was emergency medical care.13

Title SearchesRunning a title search can be beneficial. The results will reflect who owns the property, how it is being held (e.g., individually, tenants by the entireties), if there are any deeds of trust or other liens against the property, and if there are any restrictions or easements that could affect title. If the property is allegedly held as tenants by the entireties, ensure the deed contains the “five unities” — interest, title, time, possession, and marriage.14 Not only is some of this information required for the debtor’s Schedules of Assets and Liabili-ties filed in the bankruptcy court, but it also

may provide a roadmap for real estate issues that may arise during the bankruptcy case. For example, if any judgment liens were filed less than ninety days before the case was filed, they may be subject to avoidance.15 As noted above, if there are junior mortgages that exceed the fair market value of the property, they may be stripped off by filing an adversary proceeding complaint. Moreover, the search could turn up a title defect. If a deed of trust was not properly recorded in the appropri-ate city or county, the lien may be subject to avoidance during the bankruptcy case, rendering the lender unsecured and subject to a pro rata distribution with other unsecured creditors.16

Liquidation AnalysisA Chapter 13 debtor is not required to pay general unsecured claims in full. Rather, the percentage to be paid is determined by the “best interest of creditors” test and the amount of the debtor’s disposable income. The best interest of creditors test requires that in order to confirm a Chapter 13 plan, the value of property to be distributed under the plan to unsecured creditors must not be less than the amount that would be paid to such creditors in a hypothetical Chapter 7 liquida-tion.17 Because the best interest of creditors

test considers how much unsecured creditors actually would receive if the assets were liqui-dated in a Chapter 7 proceeding, calculating the fair market value of the real property is critical when performing a liquidation anal-ysis. To calculate the fair market value of the property for a liquidation analysis, a debtor may deduct all valid liens on the property as a whole, and then from the debtor’s share of the equity remaining after deducting all valid liens, the debtor may be able to deduct the cost of liquidation (e.g., 6 percent realtor’s commission for improved land, 10 percent for unimproved land), exemptions, other closing and administrative costs, and the Chapter 7 trustee’s commission.18 Always check local practice to determine how the trustee and judges calculate these amounts and what deductions they allow.

A Chapter 13 debtor is not required to pay general

unsecured claims in full.



ValuationValuing real property can be vital to a Chap-ter 13 case. If the senior lien exceeds the fair market value of the property, junior liens may be stripped. The fair market value of a prop-erty also will be factored in to the best interest of creditors test. Because of the important role it plays, valuation may come down to a

battle of the experts. The key to valuation is to know the local custom and practice. A debtor should consider: (i) whether the county or city in question tends to value real estate above or below true market value, and, if so, to what extent; (ii) what other forms of evi-dence (broker’s price opinions, “comps,” etc.) are acceptable to counter a current tax-as-sessed value; and (iii) any recent changes to the house or land, or any needed repairs, that would affect its current value, but might be unknown to the tax assessor.

Mobile HomesA mobile home may be converted to real property or it may remain a vehicle and, therefore, personal property.19 If the mobile home remains personal property,20 it may be crammed down to the fair market value in the debtor’s Chapter 13 plan. If the debtor wishes to have it deemed real property, the owner must submit to the Department of Motor Vehicles an Affidavit for Manufactured Home Conversion to Real Property Form. Once the DMV cancels the title, the owner must file an Affidavit Regarding Manufactured Home in the circuit court land records where the prop-erty is located. A search of DMV records and land records may be necessary to determine if a lender has a lien on the mobile home, the land, or both.21

Recording the Release of Non-consensual LiensIf a judgment or tax lien is being paid through the Chapter 13 plan, it is important to ensure that the release of that lien is recorded in the state court land records. This may be done by including language in the Chapter 13 plan that upon entry of the debtor’s discharge,

the debtor may obtain an order from the bankruptcy court releasing the lien as having been paid in full. This can also may be ac-complished by the more cumbersome route of recording in the state court the Chapter 13 plan, confirmation order, and discharge order. Both of these options, however, elimi-nate the need for the debtor to locate the lien creditor to obtain the release.

The author would like to thank Herbert L. Beskin, Chapter 13 trustee in Charlottesville, Shephen E. Dunn of Stephen E. Dunn, PLLC, and Michael T. Freeman of Samuel I. White, P.C., for use of their materials from the Bankruptcy Section’s Spring CLE.

Endnotes:1 To be eligible for Chapter 13, an individual

(not a corporation or partnership) must have unsecured debts of less than $383,175 and secured debts of less than $1,149,525. 11 U.S.C. § 109(e). These figures are subject to readjustment. Id. at § 104.

2 Dewsnup v. Timm, 502 U.S. 410, 416-20 (1992).

3 Bank of Am., N.A. v. Caulkett, 135 S. Ct. 1995, 1999-2000, 2001 (2015).

4 The Fourth Circuit, among others, allows debtors to strip off liens that are wholly un-secured under section 506(a), reasoning that they do not represent “secured claims” subject to the anti-modification provision of section 1322(b)(2). In re Davis, 716 F.3d 331, 334–36 (4th Cir. 2013) (“We too have affirmed, albeit in unpublished opinions, the stripping off of valueless liens against principal residences in Chapter 13 cases.”) (collecting cases and de-scribing the rationale for stripping off wholly underwater liens).

5 Fed. R. Bankr. P. 7001(2).6 11 U.S.C. § 1322(b)(2).7 Id. at § 1322(c)(2).8 Statutory liens are not avoidable under

section 522. They may, however, be crammed down in a Chapter 13 plan, with a portion treated as priority or unsecured. Judicial liens and non-possessory, non-purchase money liens on household goods, tools of the trade, or professional prescribed health aids are avoidable.

9 Va. Code Ann. § 34-4.10 Id. at § 34-4.1.11 Id. at § 64.2-309.12 Id. at § 64.2-311.13 Id. at § 55-37 and 8.01-220.2, 55-37; see also

11 U.S.C. § 522(b)(3)(B). But see United States v. Craft, 535 U.S. 274, 283-89 (2002) (holding that a federal tax lien can attach to

Because of the important role it plays, valuation may

come down to a battle of the experts.



one spouse’s interest in tenants by the entirety property even though the other spouse does not owe debt).

14 In re Sampath, 314 B.R. 73, 84, 98 (Bankr. E.D. Va. 2004); see also Va. Code Ann. §§ 55-20, -21 (abolishing survivorship between joint tenants and discussing joint ownership in real and personal property).

15 11 U.S.C. § 547(b)(4)(A).16 This may be a double-edged sword for a

debtor who still has to satisfy the best interest of creditors test.

17 11 U.S.C. § 1325(a)(4).18 See, e.g., In re Todd, Case No. 02-04451

(Bankr. W.D. Va. Mar. 17, 2003) (Stone, J.); In re Neal, No. 01-80851, 2001 WL 36268654, *2-4 (Bankr. E.D. Va. Oct. 24, 2001) (con-ducting a liquidation analysis); In re Leedy, 230 B.R. 678, 683 (Bankr. E.D. Va. 1999) (dis-cussing the inclusion of sale costs with respect to the best interests of creditors test).

19 Va. Code Ann. § 46.2-653.1; see also In re Banks, 259 B.R. 848, 850-51 (Bankr. E.D. Va. 2001).

20 If a mobile home is taxed as personal prop-erty, then a debtor can use the tax records as evidence that it remains personal property.

21 See Ennis v. Green Tree Servicing (In re Ennis), 558 F.3d 343 (4th Cir. 2009) (holding that a mobile home titled by the DMV, taxed as personal property, and secured so that it “would ‘not become a fixture or part of [] real property’” without the lender’s consent did not satisfy the real property requirement of § 1322(b)).

Sarah Beckett Boehm is an attorney at McGuireWoods LLP in Richmond, where she has practiced since concluding her bankruptcy clerkships for Judges Shelley and Tice. Her practice is focused on representing corporate debtors, creditors’ committees, and creditors in a variety of business Chapter 11 cases. She also serves on the board of governors for the Bankruptcy Law Section of the Virginia State Bar and is a member of the executive commit-tee of the Bankruptcy Section of the Richmond Bar Association.

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Imagine a client who has a claim

for damages arising out of an auto

collision. The client was rear-ended,

and liability is clear. The accident

happened one year and eleven

months ago. Thankfully, the client is

organized with medical records and

evidence of damages, so you quickly

draft your complaint and file suit.

Congratulations! You have tolled the

two-year statute of limitations of Va.

Code Ann. § 8.01-243. Or have you?

After serving the complaint, defense counsel calls you and asks, “Did your client tell you about his bankruptcy?” Your helpful opposing counsel then informs you that your client filed a Chapter 7 bankruptcy one

month after the auto accident and, further, that your client never disclosed the cause of action in his bankruptcy schedules. You call your client, who innocently explains he never told you about his bankruptcy and never told his bankruptcy lawyer about the accident because he didn’t think his personal injury claim and his financial woes were connected.

What is the next step? No one wants to be the personal injury lawyer or the bankruptcy lawyer in this scenario, but those who represent debtors in bankruptcy or plaintiffs in civil litigation need to know that filing for bankruptcy can drastically impact a plaintiff’s claim arising from many causes of action such as personal injury, wrongful death, and wrongful termination or discrimination.

In navigating this less-than-ideal hypothetical situation, four overarching factors will guide the analysis: disclosure, standing, exemptions, and good faith/income considerations that arise in a Chapter 13.

Scheduling and Protecting Personal Injury and Other Causes of Action in Bankruptcy Casesby Angela Scolforo, Mark C. Leffler, and Emily Fort


SCHEDULING AND PROTECTING PERSONAL INJURY AND OTHER CAUSES OF ACTION IN BANKRUPTCY CASES

DisclosureYour client’s first mistake was failing to tell his bankruptcy lawyer about the claim for damages arising from the auto collision. Simply put, a debtor in bankruptcy has a duty to disclose all property interests, including any cause of action.1

The cause of action is property of the estate if it arises before the bankruptcy is filed, and—in a Chapter 13 case—property interests acquired by the debtor postpetition also are part of the bankruptcy estate pursuant to 11 U.S.C. § 1306. Therefore, a debtor’s duty to disclose is ongoing:2 if a debtor “acquires or becomes entitled to acquire any interest in property,” the debtor must file a supplemental schedule within fourteen days “after the information comes to the debtor’s knowledge ….”3

Of course, a debtor who intentionally withholds information about such an interest may be prosecuted criminally pursuant to 18 U.S.C. § 152. However, even the debtor’s unintentional failure to disclose a cause of action can preclude the debtor from pursing the claim. In the hypothetical, your client did not disclose the claim for damages in his bankruptcy schedules. When he filed schedules without disclosing his interest in the cause of action, he was swearing under penalty of perjury that he had no claim for damages. The debtor’s oversight, which serves as an admission against his own interests, may be grounds to judicially estop him from pursuing any recovery.

Kimberlin v. Dollar General Corp, 520 Fed. Appx. 312 (6th Cir. 2013) shows how strictly the duty to disclose is enforced. Kimberlin worked for Dollar General for nine years in a distribution center until her termination—which she attributed to retribution for having filed a complaint against her supervisor. She was fired forty-one days prior to making her final payment to the Chapter 13 trustee, and she did not amend her schedules during that time to disclose a cause of action for unlawful termination. Her Chapter 13 plan paid unsecured creditors a dividend of only 3 percent of their claims.

Approximately one year after Kimberlin received her discharge, she filed suit against Dollar General, alleging unlawful termination. The court held that judicial estoppel barred Kimberlin from pursuing the lawsuit because, if Kimberlin had notified

the court of her potential claim within the forty-one day period, the bankruptcy court could have modified her plan to increase the creditors’ recovery.4 In analyzing cases similar to Kimberlin, courts in the Fourth Circuit have emphasized that the entry of a discharge in the bankruptcy may be a pre-condition of judicial estoppel.5

StandingRecall that, in the hypothetical, your client filed his personal injury suit within the two-year statute of limitations (and after filing a Chapter 7 bankruptcy with less-than-stellar schedules). We asked whether, by filing the personal injury suit, the debtor tolled the statute of limitations found in Va. Code Ann. § 8.01-243.

Unfortunately, the answer is “no.” Your client lacked standing to file the suit. A Chapter 7 debtor may only pursue a cause of action if: (i) the trustee abandons the cause of action after notice and a hearing pursuant to 11 U.S.C. § 554(c), or (ii) the “properly scheduled” cause of action is “not otherwise administered at the time of [the bankruptcy case] closing,” and is therefore abandoned back to the debtor when the bankruptcy case is closed.

Your client had no standing when you filed the lawsuit because the claim was not properly scheduled and, therefore, it had not been abandoned back to him by the trustee. Only the Chapter 7 trustee has standing to pursue a cause of action.6 However,

because the cause of action was not properly scheduled, the trustee was unaware of the need to file a suit in order to toll the statute of limitations.



As the Virginia Supreme Court held in a case involving essentially these facts, standing must exist before filing suit, and filing suit without standing is a “legal nullity”—allowing the statute of limitations to run.7 In Kocher, the court held that the lawsuit at issue was void and did not toll the statute of limitations, because the lawsuit was filed before such relief was granted. The court reached this decision notwithstanding the bankruptcy court reopening the bankruptcy case and granting the debtor leave to amend

the schedules to disclose the cause of action and exempt it without objection.8

Imagine the previous scenario with a twist: Your client was a debtor in Chapter 13 bankruptcy instead of Chapter 7. In contrast to Chapter 7, there is no risk for plaintiff’s counsel in filing suit for a Chapter 13 debtor, because Chapter 13 debtors retain standing to pursue their own causes of action. As such, a Chapter 13 debtor who files suit tolls the statute of limitations. This was confirmed by the Fourth Circuit in Wilson v. Dollar General Corp., 717 F.3d 337, 339 (4th Cir. 2013), which held that, “because of the powers vested in the Chapter 13 debtor and trustee [pursuant to Bankruptcy Code Sections 1303 and 1306 and Bankruptcy Rule 6009], a Chapter 13 debtor may retain standing to bring his pre-bankruptcy petition claims.”

Claiming ExemptionsLet’s continue the hypothetical with the debtor in a Chapter 13, rather than a Chapter 7. Your Chapter 13 debtor client had standing and properly scheduled the cause of action. If

your client recovers pursuant to the cause of action, will he still have to pay the proceeds to the trustee?

The first step in resolving this issue is asserting the proper exemptions, which he must do in order to have any hope of protecting the proceeds from his creditors. 11 U.S.C. § 522 grants the debtor the power to exempt assets within the time specified in Bankruptcy Rule 1007 (generally fourteen days). Further, Bankruptcy Rule 1009 also allows schedules to be “amended by the debtor as a matter of course at any time before the case is closed” with proper notice. Pursuant to Bankruptcy Rule 9006(b)(1), the debtor can even file a motion and try to amend schedules after the case is closed if “excusable neglect” is proven.9 If the debtor does not initially schedule the cause of action, he must amend the schedules, and then he is permitted to claim an exemption.10 Even where the debtor’s cause of action accrues postpetition—and even if it was not timely disclosed—the debtor should amend his schedules to fully disclose the claim, accurately value it, and then exempt the highest allowable value. Otherwise, the trustee may retain an interest.11

Secondly, as you attempt to obtain the maximum recovery for your client, you must be aware that there may be medical providers who have a “secured” claim, a lien on the proceeds to guarantee their payments. The bankruptcy court in In re Jones Const. & Renovations, Inc., 337 B.R. 579, 586 (Bankr. E. D. Va. 2006), found that “pre-petition assignments are valid, and the proceeds of any assignment that vests rights in the assignee pre-petition are not property of the estate.” The district court in In re Carpenter, 252 B.R. 905, 913, 916 (E. D. Va. 2000) found that the employer had an equitable lien on the debtor’s personal injury settlement proceeds under the terms of the health insurance plan, which is a “security interest” in the proceeds (the “res”), and ordered the debtor to pay the employer the proceeds up to the amount that the debtor received under the plan. A Chapter 13 debtor may need to provide for medical lien creditors as secured claimants in a Chapter 13 plan.

Additional Considerations in Chapter 13If the debtor plaintiff is in Chapter 13 bankruptcy, he will need good counsel to



determine whether—even if the property is exempt—he may have to pay it to the bankruptcy trustee for the benefit of his creditors. The trustee may assert that the funds constitute income that the debtor must pay into his Chapter 13 plan in order to satisfy the Bankruptcy Code’s disposable income or good faith requirements.

Although courts are split on whether Chapter 13 debtors must pledge proceeds of exempt assets to fund their plans as disposable income, debtors in the Fourth Circuit have strong arguments for retaining such proceeds. In In re Solomon, 67 F.3d 1128 (4th Cir. 1995), the court refused to require a Chapter 13 debtor to pay the trustee exempt IRA funds because they were exempt, saying, “a debtor’s choice to proceed under Chapter 13 [should not] entitle creditors to more than they would receive in Chapter 7 . . . .” However, in contrast to Solomon, three other circuit decisions require the debtor to pay over exempt funds to meet disposable income requirements.12

Often a compromise is reached between debtors and trustees as to how the proceeds are to be distributed when the debtor recovers money from a cause of action.

In summary, debtors clearly have a duty to disclose any cause of action, and plaintiff’s counsel should carefully confirm they have standing to pursue the cause of action before filing suit. One simple way to avoid being the plaintiff’s counsel in the first scenario above is to review the federal courts’ PACER system for bankruptcy filing histories before accepting the case. Debtor’s counsel should carefully guide the debtors in scheduling their assets and asserting their full exemption rights. Failure to disclose or exempt may strip the debtor of his ability to pursue or benefit from the cause of action at all, or may result in the trustee taking the debtor’s interest. Then, even if properly disclosed and exempt, there is at least an argument that debtors may have to pay over the proceeds to a Chapter 13 trustee for the benefit of creditors. Plaintiff’s civil counsel and bankruptcy counsel will maximize the benefits to their clients—and perhaps even benefit creditors—when they understand the interplay between civil causes of action and bankruptcy.

Endnotes:1 11 U.S.C. §§ 521(a)(1)(B)(i) and 541, and

F. R. Bank. P. 1007; see also Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir., 2013); Kocher v. Campbell, 712 S.E.2d 477, 479 (Va. 2011); Canterbury v. J.P. Morgan Acquisition Corp., 958 F. Supp. 2d 637 (W.D. Va. 2013) (quoting Logan v. JKV Real Estate Servs., 414 F.3d 507, 512 (4th Cir. 2005)); Vanderheyden v. Peninsula Airport Comm’n, 2013 WL 30065 (E.D. Va., 2013).

2 The U.S. District Court in Vanderheyden explained the duty to disclose as follows:

… The Fourth Circuit has observed that “[t]he meaning of ‘property of the estate’ under the Code has been construed ‘broadly to encompass all kinds of property, including intangibles [more] specifically, ‘property of the estate’ under § 541(a) has ‘uniformly been interpreted to include causes of action.’ … [T]he debtor need not know all the facts or even the legal basis for the cause of action; rather, if the debtor has enough information . . . to suggest that it may have a possible cause of action, then that is a ‘known’ cause of action such that it must be disclosed … the debtor has an affirmative duty to disclose such assets and liabilities to the bankruptcy court … This duty does not end when the debtor files her bankruptcy petition; it continues through the pendency of the debtor’s bankruptcy proceedings, requiring the debtor to update the bankruptcy court as her financial situation changes.

Vanderheyden, is 2013 WL 30065, at *8. (most citations omitted).

3 Fed. R. Bankr. P. 1007(h).4 Kimberlin, 520 Fed. Appx. at *3.5 See Collucci v. Tyson Farms, 2014 WL 6879927

(E. D. Va. 2010) (declining to apply judicial estoppel because there is no reliance until the discharge is entered, even though the debtor filed an employment discrimination complaint prior to filing Chapter 13 and he did not initially list his cause of action); Royal v. R & L Carriers Shared Services, LLC, 2013 WL 1736658 (E. D. Va. 2013) (denying judicial estoppel claim in a wrongful termination lawsuit because “[c]ourts have repeatedly emphasized that ‘acceptance’ in this context means that the bankruptcy court has not merely confirmed the debtor’s bankruptcy plan but has also taken the ultimate step of granting the debtor relief (i.e., discharge or repayment)”).

6 Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir. 2013); Robertson v. Flowers Baking Co. of Lynchburg, 2012 WL 830097 (W.D. Va. 2012).



7 Kocher v. Campbell, 712 S.E.2d 477, 480 (Va. 2011).

8 Id. at 481.9 See In re Wilmoth, 412 B.R. 791 (Bankr. E.D.

Va. 2009).10 The Virginia exemption rights relevant to

causes of action include Va. Code Ann. § 34-28.1 (personal injury and wrongful death actions); Va. Code Ann. § 34-4 ($5,000 per “householder” ($10,000 if 65 or older) plus $500 per dependent); and Va. Code Ann. § 34-4.1 (another $10,000 for disabled veterans).

11 In re Webb, 210 B.R. 266 (Bankr. E.D. Va. 1997) (containing a detailed discussion of Virginia’s unique personal injury exemption statute); In Re Williamson, 337 B.R. 846 (Bankr. E.D. Va. 2005) (court allowed amendment of schedules to disclose and exempt prepetition personal injury proceeds and the mobile home and van purchased with such proceeds); In re Walley, 525 B.R. 320 (Bankr. E.D. Va. 2015) (allowing amendment and exemption of postpetition assets); and In

re Barnett, Case No. 11-36220-KRH (Bankr. E.D. Va. Feb. 18, 2015) (overruling the Chapter 13 trustee’s objection to the debtor’s claim of exemption in a post-petition cause of action for personal injury).

12 See In re Hagel, 184 B.R. 793 (9th Cir BAP 1995) (Social Security Disability payment are included in determining disposable income, even though exempt); In re Koch, 109 F.3d. 1285 (8th Cir. 1997) (debtor required to pay exempt worker’s compensation benefits because 11 U.S.C. § 1325(b)(2) defines “disposable income” to mean income not needed for debtor’s support and the ability to claim an exemption is an independent issue from whether debtors have the ability to repay their debts); In re Freeman, 86 F.3d 478 (6th Cir. 1996) (“[T]he ‘projected disposable income’ language of section 1325(b) does not expressly or implicitly qualify income by reference to its exempt status under state law” and finding that tax refunds must be paid over as disposable income, even though exempt.).

Angela M. Scolforo has worked for ten years as the staff attorney to Herbert L. Beskin, Chapter 13 Trustee for the Western District of Virginia. Speaking on seminar panels in Virginia and nationally, she enjoys learning from and interacting with her peers. Before becoming a Staff Attorney, she represented debtors in consumer bankruptcy cases and a myriad of other clients. She is the chair of the Bankruptcy Section of the Virginia State Bar, on which she has served since 2009.

Mark C. Leffler is a shareholder with the Boleman Law Firm PC. He is president of the NACTT Academy for Consumer Bankruptcy Education and writes a recurring column for the academy on post-confirmation issues in Chapter 13. He is a frequent speaker on bank-ruptcy for the National Association of Chapter 13 Trustees and Virginia CLE, and he is a member of the board of governors for the VSB Bankruptcy Section.

Emily Connor Fort is an attorney with the Boleman Law Firm PC.

Bar Leaders InstituteLewis Ginter Botanical Garden, Richmond

March 28, 20168:30 a.m.–4:30 p.m.

Keynote Speaker: Jeannie P. Dahnk, Past President – Virginia State Bar

Resources for Bar AssociationsSandra Chinn-Gilstrap, At-large Member – Conference of Local Bar Associations, MODERATORAmy Esp, Educational Services Coordinator – ALPS CorporationKarl A. Doss, Director of Access to Legal ServicesDr. Michael Schaefer, Assistant Commissioner of Forensic Services – Virginia Department of Behavioral Health & Developmental ServicesRaymond M. White, Executive Director – VACLE

What Young Lawyers Want in a Bar AssociationJack W. Burtch, Chair – Conference of Local Bar Associations, MODERATORFaith A. Alejandro – Sands Anderson PCStacy E. Lee – VSB/YLC Circuit Representative for the 13th CircuitKristopher R. McClellan – Lawson and Silek, P.L.C. Maana K. Parcham, Assistant Public Defender – Danville Public Defender’s OfficeNerissa N. Rouzer – Co-chair of the VSB/YLC Bench-Bar Dinner Committee

Preparing for Your Bar YearEugene M. Elliott Jr., Past President – Roanoke Bar Association, MODERATORAlan McGraw, President – Tazewell County Bar AssociationPetula A. Metzler, Past President – Prince William County Bar AssociationGilberto Sanchez, Vice President – Hispanic Bar Association of the Commonwealth of VirginiaGeorge W. Shanks, Past President – Virginia State Bar & Page County Bar AssociationEdward L. Weiner, President – Virginia State Bar & Past President, Fairfax Bar Association

Ethics for the Bar Leader (One hour live CLE/Ethics)Bernard J. DiMuro – DiMuroGinsberg, PCJames E. Leffler, Executive Director – Virginia Lawyers Helping Lawyers James McCauley, Ethics Counsel – Virginia State BarThomas E. Spahn – McGuireWoods LLP

Engaging Judges in Your Bar AssociationCharles M. Lollar, At-large Member – Conference of Local Bar Associations, MODERATORThe Honorable Robert J. Humphreys – Court of Appeals of VirginiaThe Honorable Marilynn C. Goss – Richmond J&DR District CourtThe Honorable David W. Lannetti – Norfolk Circuit CourtThe Honorable Jacqueline Ward Talevi – Roanoke General District Court

ALPS CLE (One hour live CLE/Ethics)ALPS will present a one-hour CLE as an example of programming they can bring to the local bar.

Lunch will be included. There is no fee to attend this event.

For more information, please visit: www.vsb.org/site/conferences/clba or contact Paulette Davidson at [email protected].


Aside from generating emotional

trauma, divorce has an immediate

financial impact on the parties that

sometimes leads to bankruptcy. When

that happens, no doubt the nonfiling

spouse’s divorce lawyer will hear from

his or her client about the new devel-

opment before he or she even has a

chance to examine the notice of bank-

ruptcy filing served through the mail.

Determining how the bankruptcy

filing will impact a carefully negotiat-

ed property settlement agreement or

the terms of a divorce order between

the former spouses will typically

depend on whether any of the under-

lying obligations of the parties satisfy

the requirements of a “Domestic

Support Obligation” under the

Bankruptcy Code.

What is a Domestic Support Obligation?The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) introduced a new definition to the Bankruptcy Code under § 101(4A): the Domestic Support Obligation or DSO. A DSO is defined as a debt that accrues before, on, or after the

date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is —

(A) owed to or recoverable by — (i) a spouse, former spouse, or child of

the debtor or such child’s parent, legal guardian, or responsible relative; or (ii) a governmental unit;

(B) in the nature of alimony, mainte-nance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated;

Demystifying Domestic Support Obligations in Bankruptcyby David Cox


DEMYSTIFYING DOMESTIC SUPPORT OBLIGATIONS IN BANKRUPTCY

(C) established or subject to establish-ment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of —

(i) a separation agreement, divorce de-cree, or property settlement agreement; (ii) an order of a court of record; or (iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and

(D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt.1

The statutory definition breaks down into the four main parts identified above in sections A through D, and each must be satisfied for a claim or obligation to be a DSO.2 With the exception of section C, the definition of a DSO is written very broadly to encompass most obligations that would typically arise from a domestic proceeding. Section C’s requirement, however, that the debt be “in the nature of alimony, maintenance, or sup-port,” often proves to be the deciding factor in determining whether an obligation is, in fact, a DSO or, instead, simply an obligation arising from property division or settlement. As this article will explore, this distinction is critical to understanding the consequences of a subsequent bankruptcy on the rights of the parties.

Impact of a Chapter 7 BankruptcyThe BAPCPA amendments eliminated a Chapter 7 debtor’s ability to discharge obligations to a former spouse arising from a divorce decree, separation agreement, or eq-uitable distribution award. All DSOs are non-dischargeable under § 523(a)(5). In addition, any other divorce related claims, including obligations arising from property division or settlement, owed “to a spouse, former spouse, or child of the debtor that are not covered by § 523(a)(5),” are deemed nondischargeable under § 523(a)(15) if they were “incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record….”3

Between the two subsections, (a)(5) and (a)(15) of § 523, most all divorce obligations, regardless of whether they are in the nature of alimony, maintenance, or support, are except-ed from a Chapter 7 discharge. Further, after BAPCPA, both the (a)(5)4 and the (a)(15)5 debts generally pass through the bankruptcy unaffected without the need for the creditor to timely file a complaint to determine the dischargeability of the debts or otherwise participate in the bankruptcy proceeding in any meaningful way.

Impact of a Chapter 13 BankruptcyAnalyzing the impact of a Chapter 13 bank-ruptcy on divorce related obligations is far more complicated. Specifically, the determi-nation of whether a debt is, in fact, a DSO, as opposed to an obligation arising from a property division or settlement, becomes crit-ical to determining the rights of the parties. From the creditor’s perspective, the holder of a DSO claim has special protections under the code. In the hands of an attentive former spouse, these provisions offer powerful tools for ensuring a claim is satisfied and include the following.• Priority and Full Payment of DSO. If an ob-

ligation is deemed a DSO, then it is consid-ered a priority claim under § 507(a)(1)(A) and entitled to full under the debtor’s Chap-ter 13 plan pursuant to § 1322(a)(2) unless the claimant agrees to different treatment.

• Oversight of Ongoing DSO Payments. The debtor has added incentive to remain current in any post-petition DSO payments because under § 1325(a)(8), the debtor’s plan may not be confirmed if he or she is in default.

• Cause for Dismissal if DSO Defaults. During the case, the nonfiling spouse may seek the dismissal or conversion of the debtor’s

In the hands of an attentive former spouse, these provisions

offer powerful tools for ensuring a claim is satisfied and

include the following.



Chapter 13 if the debtor fails to pay any postpetition DSO as it comes due.

• Potential Discharge Denial for Failure to Sat-isfy DSO. The Chapter 13 discharge will not be granted until the DSO amounts due both before and after the bankruptcy filing have been paid in full pursuant to § 1328(a).

The above creditor protections depend on a determination that the claim to be enforced is, in fact, a DSO. Consequently, the most important work that can be done on behalf of a nonfiling spouse is often to ensure that the obligations owed to that spouse are treated as a DSO. Such a task, however, can be challenging because it is not always obvious what is and what is not a DSO from the lan-guage of a property settlement agreement or court order.

Determining Whether an Obligation is a DSOThe majority of the requirements for defining a DSO, that is, subsections A, C and D of § 101(4A), turn on objective criteria, such as the identity of the payee, the type of instru-ment establishing the obligation, and whether the obligation has been assigned. The more difficult determination is often whether the obligation meets the requirements of subsec-tion B — that it be “in the nature of alimony, maintenance, or support.” The intent of the parties controls, but divining that intent in hindsight and from prior orders or agreements is not always easy. In the Fourth Circuit, courts look at the mutual or shared intent of the parties to create a support obligation.6 When construing property settlement agreements, courts are encouraged to determine whether the parties intended the obligation as alimony, mainte-nance, or support at the time of the execution of the agreement. If the intent of the parties

was that the obligation was merely a division of property, then the obligation is not a DSO.7

Unofficial Test of Intent in Fourth Circuit for DSOCourts in the Fourth Circuit have developed an “unofficial” test for the intent inquiry, which provides for the court to look at the following factors.8

• Language of Agreement. Courts consider the actual language and substance of the agreement, being mindful of the context in which the obligation arises under the agreement.9 The labels used by the parties or the state court should not control, and the court will look beyond the label to examine whether the debt actually is in the nature of alimony, maintenance, or support. Courts also will consider factors such as whether the payment is to be made in a lump sum, more akin to property division, or over a period of time in order to provide support. Also, in interpreting whether the language of the agreement favors a property division or a DSO, courts will look at factors such as any agreed tax treatment for the obligation, whether the parties waived support, and how the agreement is organized. For example, does the obligation arise from provisions under the section of the agreement address-ing support or property division?10

• Financial Situation. Courts may consider is the parties’ financial situation at the time of the agreement. Relevant factors include the prior work experience, employment history, physical health, potential earning power, and business opportunities.11 In examining the support versus property division question, courts will likely also weigh the probable needs of the parties in the future, the stabil-ity of the parties’ income at the time of the agreement, and whether one spouse has cus-tody of minor children from the marriage.

• Function of Obligation. The function served by the obligation at the time of the agree-ment (i.e. daily necessities) and the role the obligation was intended to perform at the time the parties entered into the agreement will typically be considered by the court.12 In determining whether the obligation allocates debt or divides property, courts will consider whether the obligation provides for daily necessities like food and shelter and wheth-er it was intended to balance a disparity in incomes.

It is not always obvious what is and what is not a DSO

from the language of a property settlement agreement or

court order.

33www.vsb.org


• Evidence of Overbearing. The determinative issue for this part of the test is whether there is any evidence of overbearing at the time of the agreement that should cause the court to question the intent of a spouse. As with any analysis of overbearing by one party over another, relevant factors include the relative bargaining positions of the parties, wheth-er both parties had legal representation, any grossly unbalanced provisions in the agreement, the statements and admissions of the parties, any misrepresentations of the parties, and the age, health, intelligence, and experience of the spouses.13

Of course, the use of these factors does not preclude consideration of other factors, and the court may look beyond the four corners of a divorce decree or the agreement of the parties to determine the nature of the payments constituting the debts sought to be discharged.14

ConclusionUltimately, the determination of whether a debt is a DSO is a fact specific analysis, with the circumstances of each individual case carefully viewed through the prism of the statutory language and case law tests. The answer in some cases will be obvious and in others will be elusive. In all cases, advising a client requires a holistic view of the entire case in order to weigh and balance carefully all factors and considerations. In the end, determining with certainty that a particular provision of an agreement or order is in the nature of alimony, maintenance or support is not always easy, and lawyers tasked with such duty may find themselves struggling to reach a definitive decision and instead embracing the late Justice Stewart’s oft quoted conclusion that they will “know it when [they] see it.”15

Endnotes:1 11 U.S.C. § 101(4A).2 In re Forgette, 379 B.R. 623 (Bankr. W.D. Va.

2007).3 11 U.S.C. § 523(a)(15).4 The § 523(a)(5) debts refer to all DSO.5 The § 523(a)(15) debts refer to property divi-

sion or settlement debts.6 In re Ludwig, 502 B.R. 466, 468 (Bankr. W.D.

Va. 2013) (citing Tilley v. Jessee, 789 F.2d 1077, 1078 (4th Cir. 1986).

7 Ludwig at 469. 8 In re Krueger, 457 B.R. 465 (Bankr. D.S.C.,

Sept. 19, 2011) (citing Tilley at 1077-1078).

9 In re Austin, 271 B.R. 97 (Bankr. E.D.Va., 2001).

10 Ludwig at 469.11 Austin at 105-109.12 Id.13 Id.14 In re Johnson, 397 B.R. 289, 296-97 (Bankr.

M.D.N.C. 2008).15 Jacobellis v. Ohio, 378 U.S.184, 197 (1964)

(Stewart, J., concurring).

David Cox practices bankruptcy law through-out the Western District of Virginia. His prac-tice focuses exclusively on the representation of debtors in bankruptcy and related proceed-ings. Prior to entering private practice, David served as a judicial law clerk for the late Hon. William E. Anderson. He is the coeditor of Bankruptcy Practice in Virginia and a frequent lecturer at CLE programs related to bankrupt-cy. In June, 2011, David became a permanent member of the Fourth Circuit Judicial Confer-ence, and in March, 2013, he was inducted as a fellow of the American College of Bankruptcy in Washington, DC.

BANKRUPTCY LAW SECTION | Vol. 64 | February 2016 | VIRGINIA LAWYER


Access to Legal Services

Justice Lewis F. Powell Jr. once com-mented that “Equal justice under the law…is one of the ends for which our entire legal system exists…it is funda-mental that justice should be the same, in substance and availability, without regard to economic status.”

In this light, two local bar associa-tions recently recognized the achieve-ments of two of Virginia’s top pro bono attorneys. The Fairfax Bar Association awarded Susan Stoney, the deputy direc-tor of Legal Services of Northern Virginia, with the James Keith Public Service Award. The Metropolitan Richmond Women’s Bar Association bestowed the 2015 Women of Achievement Award on Tara L. Casey, the director of the Carrico Center for Pro Bono Service at the University of Richmond School of Law.

Both attorneys represent the highest order of pro bono service, having devot-ed the majority of their careers to helping low-income Virginians access and navi-gate the legal services they need, but too often cannot afford. Casey, who began her legal career as an Assistant United States Attorney for the Eastern District of Virginia, has established twelve different pro bono programs at the University of Richmond School of Law and has helped hundreds of law students devote thousands of hours of legal service to the community. Casey also volunteers for a number of Richmond organizations in-cluding the Legal Aid Justice Center and the Central Virginia Legal Aid Society.

Stoney became interested in public service while at William & Mary Law School. There, she interned at Peninsula Legal Aid as part of a law school clinic run by professor and clinic direc-tor, John Levy. She later clerked for now-retired Judge James W. Benton, Jr.

on the Virginia Court of Appeals, who also encouraged her to give back to the community. “It is tremendously reward-ing to be able to give a voice to people who otherwise would have little access to justice,” Stoney said.

“I have worked with hundreds of lawyers providing pro bono services to Legal Aid clients. Over and over, these lawyers report that they find as much or more fulfillment in their pro bono cases as they get from their regular law prac-tice,” Stoney said.

Casey was an Assistant United States Attorney for the Eastern District of Virginia and 8 1/2 months pregnant with her first child when she decided to interview for the position as the director of the Carrico Center at the University of Richmond School of Law. She was offered the position while still in the hospital after delivering her daughter, and has gone on to also serve as the faculty director of the law school’s Bridge to Practice Fellowship Program, which has helped more than thirty-five law students begin public service careers upon graduation.

“If you are a young attorney, pro bono service gives you direct client expe-rience and innumerable other skills such as document drafting, courtroom experi-ence, and networking opportunities with other attorneys,” Casey said. “Pro bono work also allows young attorneys

to develop relationships with the bench because of the recognition of the judges who realize that these young attorneys are donating their skills to the service of others. I have seen the bench be so appreciative of our volunteers who take the time to assist on pro bono cases.”

The Carrico Center recently matched Sands Anderson Firm Counsel Jeffrey H. Geiger with University of Richmond School of Law third-year student Zachary L. MacDonald on a pro bono appeal involving due process rights in a probation revocation hearing in front of the Virginia Court of Appeals, which they won on December 1, 2015. According to Geiger, “Pro bono allows me to be involved in my community and gives me the opportunity to work directly with law students. It gives the law students the chance to gain valuable courtroom experience at a time when it is more and more difficult for young lawyers to do so because of the expense of trial.”

According to MacDonald, who sucessfully presented the oral argument during the proceedings, “Jeff knew that I was new to the law, but he trusted me to get the work done. He struck a great balance in that he let me do as much as I could while still mentoring me. Jeff taught me how to convey the human aspect of the case to the court — some-thing not easy to learn in law school.”

The Benefits Outweigh the Sacrifice:Two of Virginia’s Top Pro Bono Attorneys Discuss Attorney Serviceby Deirdre Norman

Stoney Casey Geiger MacDonald


Access to Legal Services

Geiger, whose practice focuses on civil litigation involving eminent domain and legal malpractice and ethics, says of pro bono, “As my firm’s General Coun-sel, I understand that attorneys need and want to be professionally competent and diligent in whatever they are doing. I will never put a pro bono case at the bottom of my things to do. Everyone deserves the highest caliber of legal services and, unfortunately, there exists a real unmet need for these services.”

Both Stoney and Casey mentioned that the pro bono efforts that they over-see involve the partnerships and assis-tance of law firms and corporations that donate office space for meetings as well as the time of their employees. According to Stoney, Hunton & Williams, Freddie Mac, AOL, Capital One, and Hilton are just a few of the many firms and compa-nies who have donated the use of their space, employee time, and food and beverages to the clients of Legal Services of Northern Virginia. “Volunteer lawyers and law firms are the backbone of any

successful pro bono program. These groups do so much to make our clients feel welcome, and to remove the barriers that keep them from getting the legal services they need,” she said.

Casey pointed out that all of the pro bono work she shepherds at the law school is done in partnership with either a professional association, a non-profit, or private attorneys, including the law firms who comprise Firms in Service and companies such as Capital One and Dominion. “These large law firms may be competitors in the corporate world,” said Casey, “but they are allies in pro bono. There is plenty of pro bono work to go around.” In recent months, McGuire-Woods has begun spearheading efforts to bring the highly successful Firms in Service model to Northern Virginia.

Stoney and Casey both said that whereas young lawyers can gain client experience and courtroom experience from pro bono work, senior lawyers also benefit from networking and the mentoring skills they hone. “I have seen

attorneys who never litigate preserve a tenancy in a housing case in court, and prevailing there is as meaningful to that attorney as it is important to the client,” Stoney said. “These lawyers donate their valuable time for the benefit of clients who simply cannot navigate the system on their own. For these clients, pro bono help is essential to a fair outcome.”

Casey said, “Many of the perceived barriers to pro bono service are actually myths. Whether it’s a protective order or an uncontested divorce, people benefit from an attorney — even one who is working outside of their specialty. For most pro bono lawyers, the benefits outweigh the sacrifice.”

The October issue of Virginia Lawyer will be devoted to the topic of Access to Legal Services. If you are interested in learning more about opportunities to be of service in your community please contact Karl Doss, director of the VSB Access to Legal Services Committee, at [email protected].

Access to Justice HeroAre you providing service to someone who can’t afford legal representation, is your law firm, or another attorney you know? We’d like to tellthe members of the Virginia State Bar about it. We’d also like to hear about work lawyers have done on special pro bono projects, or anyaccess to justice program or issue that needs assistance. The VSB is continuing its focus on access to justice by regularly raising awareness ofoutstanding service by pro bono, legal aid, and indigent defense lawyers.

So send us your story — 400 words or less — about access to justice, along with a photo. We’ll pick the best and feature it in VirginiaLawyer. E-mail your stories to us at [email protected].

By the way, the Access to Justice/Pro Bono pages of the VSB website at http://www.vsb.org/site/pro_bono have begun featuring aVolunteer Lawyer Spotlight. Please send a brief “blurb” (3 to 5 sentences and a photo) about an outstanding contribution by a volunteerlawyer or law student. The Special Committee on Access to Justice will update the spotlight each month. Please send your “blurbs” [email protected].

34

Virginia Laws Ch. 691 (H.B. 1512). Pass-throughclaims have been allowed against VDOT by sub-contractors since the 1991 amendments. See, e.g.,Asphalt Roads & Materials Co., Inc. v. Com., Dept.of Transp., 257 Va. 452, 512 S.E.2d 804 (1999);Driggs Corp. v. Com. of Va., 1996 WL 1065551 (Va.Cir. Ct. 1996).

16 See VA. CODE §§ 2.2-4300 et seq. In 2000, theGeneral Assembly sought to commission a studyto consider whether the Virginia PublicProcurement Act (“VPPA”) should be amended to“allow contractors to submit claims to publicowners on behalf of subcontractors and supplierswho incurred costs and expenses on public pro-jects due to acts or omissions of the publicowner,” as with VDOT contracts. H.J. Res. 229,2000 Gen. Assem., Reg. Sess. (Va. 2000) availableat http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+HJ229+pdf (last visited on October 6, 2015).Unfortunately, the resolution ultimately failed,and the study was never performed. See History ofH.J. Res. 229, 2000 available at http://lis.virginia.gov/cgi-bin/legp604.exe?ses=001&typ=bil&val=hj229.

17 30 Va. Cir. 515 (Fairfax 1990).18 17 Va. App. 166 (1993).

THE ELUSIVE PERMISSIBILITY OF PASS-THROUGH CLAIMS IN VIRGINIA

www.vsb.orgVIRGINIA LAWYER | December 2015 | Vol. 64 | CONSTRUCTION LAW AND PUBLIC CONTRACTS SECTION

Melisa A. Roy is an associate with Williams Mullen in itsnationally-recognized Construction Litigation practice inTysons Corner. She focuses her practice on constructionlaw and represents clients in all phases of a constructionproject. She has extensive experience with preparing andnegotiating construction contracts and preparing and liti-gating complex construction claims on federal, state andprivate projects, in addition to advising on various typesof issues that arise from the pre-bid stage through disputeresolution.

Dec VL 2015_vl1215 12/7/15 2:37 PM Page 34

mailto:[email protected]

http://www.vsb.org/site/pro_bono

WHAT YOU DON’T KNOW CAN HURT YOU.

The only thing changing faster than the law is technology … and staying technologically competent not only benefits your practice, it is a key part of the Rules of the Supreme Court of Virginia.

Please plan to spend April 25th with a panel of national ABA tech speakers and Virginia Supreme Court Justice Cleo E. Powell at the 2016 TECHSHOW.

Make sure your legal practice and your clients are benefitting from the newest concepts in tech.

We will cover topics including:Ethics

DiscoveryMarketing

Cyber SecurityAnd a multitude of the newest tech ideas affecting the practice of law

Included in your $100 registration cost:Free WiFi

Continental breakfastLunch

Coffee breaksSeven hours of CLE credit

Networking with attorneys and IT professionals from around Virginia and the USA

For more information, please visit: www.vsb.org/site/events or contact Paulette Davidson at [email protected].

Many 2014 attendees described this event as the best CLE they had ever attended.

Virginia State Bar TECH SHOW – Richmond Convention Center – April 25, 2016

We hope to see you there!

Agenda Please indicate your choice for each session.8:00–8:30 Registration/Continental breakfast8:30 Welcome—VSB TECHSHOW Chair Sharon

Nelson, VSB President Ed Weiner and Justice of the Supreme Court of Virginia Cleo E. Powell

8:45–9:45 First Sessions5 Ethics: What Does Being Competent Mean in the Digital

Era? (Sharon Nelson-President, Sensei Enterprises, Fairfax, VA/Reid Trautz—American Immigration Lawyers Assn, Washington, DC)

5 Technology for Trial Lawyers (Tom Mighell—Contoural, Inc., Dallas, TX/Brett Burney—Burney Consultants, Chagrin Falls, OH)

9:55–10:55 Second Sessions5 Microsoft 365, Matter Center and Windows 10:

The Three Hottest Microsoft Topics for Lawyers (Ben Schorr-CEO, Roland, Schorr and Tower, Flagsta�, AZ)

5 The Ethical Sand Traps of E-Discovery (Tom Mighell/Brett Burney)

11:05–12:05 Third Sessions5 What Are the “Reasonable” Cybersecurity Steps You Must

Take to Ethically Protect Your Confidential Data (Sharon Nelson/John Simek—Vice President, Sensei Enterprises, Fairfax, VA)

5 Essential PDF skills for Lawyers (Britt Lorish-A�nity Consulting Group, Roanoke, VA/Debbie Foster-A�nity Consulting Group, Tampa, FL)

12:05–12:45 Lunch12:45–1:45 Fourth Sessions5 Using Tech to Do More Legal Work in Less Time (Reid

Trautz/Natalie Kelly—Director of Law Practice Mgmt at State Bar of Georgia)

5 How to Store Your Law Firm Data in the Cloud Ethically (Brett Burney/Jim Calloway—Director of Mgmt Asst Program at Oklahoma Bar Assn, Oklahoma City, OK)

1:55–2:55 Fifth Sessions5 The Microsoft Word Power Hour for Lawyers (Ben

Schorr/Debbie Foster)5 How Law Firms are Successfully Reinventing Themselves

Through Technology (Jim Calloway)3:05–4:05 Sixth Sessions5 The Ethical Perils of Marketing Online (Natalie Kelly/Reid

Trautz)5 Budget-friendly Technology for Solo/Small Firm Lawyers

(John Simek/Britt Lorish)4:15–5:15 Plenary—60 Tech Tips in 60 Minutes

(Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell)

Register now!Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026

Name

Address

City State Zip Code

Phone

E-mail address*

*Confirmations and materials will be sent via e-mail.Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made.

7 CLE hours (pending)

The Virginia State BarTECHSHOW April 25, 2016 | Richmond Convention Center403 North Third Street Richmond, VA 23219


PEOPLE < Noteworthy

It’s not as though A. Benjamin Spencer doesn’t already have plenty to do. He is the Earle K. Shawe Professor of Law at the University of Virginia School of Law, the author of two widely used books on civil procedure, an active member of the VSB Council and former chair of the Education Section, and the father of eight children ranging in age from 12 to newborn. And as of October 30, Ben Spencer has added the role of Judge Advocate General lawyer in the US Army Reserve to his lengthy list of accomplishments. At the age of 41, Spencer required an age waiver to even be considered for the military role and he was likely the oldest member of his six-week basic training course at Ft. Benning, Georgia, which started January 10. Spencer has not been one for lin-gering. After graduating from Harvard Law in 2001, he worked as an associate at Shearman & Sterling, as a law clerk to Judge Judith W. Rogers of the US Court of Appeals for the DC Circuit, was an associate professor of law at the University of Richmond School of Law, and then was tapped to be a professor and the director of the Frances Lewis Law Center at Washington and Lee University School of Law. He finally landed at U.Va. in 2014. Many lawyers would have consid-ered their new role at the law school enough of a challenge, but not Spencer. The JAG Legal Center and School is adjacent to U.Va and all JAG officers come to Charlottesville for their initial 3½ month course. It’s often said that if you want to get something done, find a busy person, and Spencer is clearly the kind of person who looks up and sees an opportunity to get involved. “They were right outside my office window,” Spencer said during a recent phone interview before going off to basic train-ing. There was also another professor at

U.VA, Thomas Nachbar, who is a mem-ber of the JAG Corps who inspired him. “Being there, and seeing the JAG School, and Tom, and talking to my father, and looking for some other way to serve… it looked like a good way to contribute.” Spencer’s father, Federal Judge James R. Spencer of the United States District Court for the Eastern District of Virginia, was clearly another inspiration: the senior Spencer served sixteen years in the Army JAG Corps. Spencer said that qualifying for the JAG Corps was far more physically chal-lenging than he imagined. First, he had to lose weight to get under the required limit, and then he had to pass the Army physical fitness test. Among his initial assignments as a JAG lawyer was completing the Volunteer Income Tax Assistance train-ing program. Spencer’s unit, the 174th Legal Operations Detachment, which is headquartered in Miami, provides legal services to Army entities in Florida and Puerto Rico. The lawyers work on such things as drafting wills for soldiers, land-lord-tenant disputes, powers of attor-

ney, and free tax services. He said the lawyers worked with Internal Revenue Service employees who met with them at MacDill Air Force Base in Tampa for four days of training on how to prepare tax returns for soldiers, veterans, and retirees. After basic training, Spencer will attend JAG School back in Charlottesville beginning February 21. Luckily, he will be able to live at home, which should take some of the stress off of him and his family. After completing his training, Spencer will be a regular Army Reservist, working one weekend a month and two weeks a year with his team in St. Petersburg, Florida. He will be assigned to Central Command support, working in areas such as fiscal law, compensation for civilians killed in strikes, and legal reviews of misconduct reports, which are below the level of court martial. Spencer said he’s looking forward to his new military duties. “Being a profes-sor is great, but it’s not practice.” Being an Army lawyer “is a way to practice, but to do it in a way that serves.”

Ben Spencer Adds Army Reservist to Expansive Resuméby Gordon Hickey

A. Benjamin Spencer (right) is sworn in by fellow University of Virginia Professor Thomas Nachbar.


Noteworthy > PEOPLE

Alexander Joseph ConnAnnandale

July 1982 – January 2016

Charles Owen CornelisonFort Myers, Florida

September 1945 – October 2015

Tamara LaVonne CrouchChantilly

September 1954 – November 2015

Joseph A. DiJulioVirginia Beach

November 1958 – July 2015

Robert Monte GantsAlexandria

August 1937 – November 2015

Peder Andrew GarskeSeverna Park, Maryland

January 1962 – January 2016

The Honorable William C. Johnson Jr.Daytona Beach, Florida

March 1930 – November 2015

Leonard W. LambertRichmond

October 1938 – November 2015

Gordon Pickett Peyton Jr.Alexandria

January 1941 – January 2016

Michael Gregory ShepardMechanicsville

September 1946 – January 2016

The Honorable Joseph F. SpinellaHenrico

February 1925 – January 2016

The Honorable Colon Hall WhitehurstChesapeake

August 1951 – December 2015

Elaine M. WilliamsPort Orange, Florida

February 1954 – October 2015

In Memoriam

Seeking NominationsThe Virginia State Bar Young Lawyers Conference is seeking nominations for the R. Edwin Burnette, Jr., Young Lawyer of the Year Award.

This award honors an outstanding young Virginia lawyer who has demonstrated dedicated service to the YLC, the legal profession and the community.

Previous winners can be seen at http://www.vsb.org/site/conferences/ylc/r-edwin-burnette-jr-young-lawyer-of-the-year-award

The nomination deadline is April 1. Nominations should be sent to:

Maureen E. DankerKelly Byrnes & Danker, PLLC, Suite 275N, 3975 Fair Ridge Drive, Fairfax, VA [email protected]

Got an Ethics Question?The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the blue “E-mail Your Ethics Question” box on the Ethics Questions and Opinions web page at www.vsb.org /site/regulation/ethics/.


Conference of Local Bar Associations

Chesapeake Bar AssociationErin Leigh Evans-Bedois, PresidentLarachelle Fularon Wood, President-electMelissa Jackson Howell, SecretaryRyan Carson Samuel, TreasurerKristen Marie Shannon, Executive Officer The Virginia Bar AssociationJames Patrick Guy II, PresidentDavid Storey Mercer, President-elect Virginia Law FoundationIrving M. Blank, PresidentLucia Anna Trigiani, President-electStephen Donegan Busch, Vice PresidentRuby Yvonne Cockram, SecretaryKaren Ann Gould, Treasurer

Local and Specialty Bar Elections

Upcoming Solo & Small-Firm Practitioner Forums

The Solo & Small-Firm Practitioner Forum focuses on issues that confront attorneys who practice alone or in small firms. Law office management and eth-ics are among several topics covered at these CLEs. These CLEs are free, include lunch, and are available on a first-come, first-served basis. Registration and the agendas will be posted on the CLBA website at http://www.vsb.org/site/conferences/clba-calendar as soon as they are available. Monday, April 11, 2016 Solo & Small-Firm Practitioner Forum – Eastern Shore Community College, Melfa

Monday, May 2, 2016 Solo & Small-Firm Practitioner Forum/Regional Bench-Bar Conference – Fredericksburg Hospitality House & Conference Center, Fredericksburg

Monday, May 16, 2016 Solo & Small-Firm Practitioner Forum – Virginia Tech, Blacksburg

Call for NominationsVSB Conference of Local Bar Associations nominations are due April 29, 2016. Awards will be presented at the CLBA Annual Meeting and Breakfast in June at Virginia Beach. Award of Merit Competition rec-ognizes outstanding projects and pro-grams of Virginia bar associations. Bar Association of the Year Award recognizes a member bar association that has best fulfilled the attributes member associations strive to attain. Local Bar Leader of the Year Awardrecognizes past and presently active leaders in their local bar associations who have continued to offer important service to the bench, bar and public. See more information at www.vsb.org/site/conferences/clba/view /clba-awards.

Bar Leaders InstituteLewis Ginter Botanical Garden, Richmond

March 28, 20168:30 a.m.–4:30 p.m.

• Resources for Bar Associations• What Young Lawyers Want in a Bar Association• Preparing for Your Bar Year• Ethics for the Bar Leader (One hour live CLE/Ethics)• Engaging Judges in Your Bar Association• ALPS CLE (One hour live CLE/Ethics)

Lunch will be included. There is no fee to attend this event.

For more information, please visit: www.vsb.org/site/conferences/clba

or contact Paulette Davidson at [email protected].


Law Libraries

Nearly every form used by the bank-ruptcy courts went through a signifi-cant overhaul in December as part of a seven-year project designed to stream-line the filing process.1 The voluntary petition—old Form B1—has now been split into three separate forms: B101 for individual debtors, B201 for nonin-dividual debtors, and B401 for foreign proceedings. This overhaul altered the format of most additional forms and schedules, including the internal “director’s forms,” all of which are now available on the court’s main form page.2 Because most form numbers changed as well, the courts have provided a conver-sion chart that aligns the old and new form numbers with any title changes.3 Old forms can still be found on the main court website under the “Superseded Bankruptcy Forms” heading.4

The new format allows the forms to better fit the applicant. Revisions were undertaken to make both the forms and instructions “easier for debtors to un-derstand and complete, and are designed to work with scheduled enhancements to the federal courts’ case opening and electronic case management system.”5 For example, questions specific to indi-viduals will no longer appear on nonin-dividual debtor forms and instructions are included in-line with each question instead of appearing at the top of the form. Separate instruction sheets for each form have also been updated; they can be downloaded along with the form and include committee notes on the changes. Although many touted the edits as a way for debtors to file without consulting an attorney, it remains to be seen if the updates will increase the number of pro se filers.6

The American Bankruptcy Institute held a webinar in November on the changes.7 The panel encouraged prac-titioners to read the new forms care-fully. Judge Arthur I. Harris of the US Bankruptcy Court for the Northern

District of Ohio noted that, although Rule 5005 in the Federal Rules of Bankruptcy Procedure directs clerks not to reject filings that do not conform to official forms, practitioners and pro se individuals will still have to correct any errors or omissions as a result of using outdated forms.

Local forms provided by both the Eastern and Western Districts of Virginia should continue to be used when filing in those courts. The local and adminis-trative forms adapted from the national courts have all been updated to reflect the December changes on their respective court websites. Administrative forms specific to each court have only been updated if necessary, so a local may still be valid even if it bears a revision date prior to 2015. For example, the Chapter 13 plan forms from the 2009 revision are still valid, but practitioners should keep an eye on proposed rules changes for 2016.

The only official rule change this past year was a technical change to Rule 1007, but more changes are pending. A collection of proposed amendments to the Federal Rules was sent to the United States Supreme Court for review on October 9th. The amendments are lengthy, but include elimination of the three-day rule for electronic service, changes to international bankruptcy case procedures, and to Chapter 13 notices. Further amendments to specific Bankruptcy Rules, the so-called “Stern Amendments,” are the result of litiga-tion surrounding the bankruptcy courts’ authority in Stern v. Marshall8 and were re-submitted on October 29th.9

Proposed changes to Bankruptcy Rules 1001 and 1006 opened for com-ment on August 15, 2015. The amend-ment to Rule 1006 would “clarify that courts may not refuse to accept petitions or summarily dismiss cases for failure-to make initial installment payments at the time of filing.”10 The comment

period closed February 16, 2016, and is now being considered by the Judicial Conference Advisory Committee on Bankruptcy Rules.

Endnotes1 Public Notice from United States Bankruptcy

Court Eastern District of Virginia, Amendments to the Federal Rules of Procedure and Practice; Bankruptcy Forms, available at https://www.vaeb.uscourts.gov/wordpress/?wpfb_dl=648.

2 Bankruptcy Forms, USCourts.gov, http://www.uscourts.gov/forms/bankruptcy-forms.

3 Modernized Bankruptcy Forms Numbering Conversion Chart, available at http://www .uscourts.gov/file/18167/download.

4 Superseded Bankruptcy Forms, USCourts.gov, http://www.uscourts.gov/forms/super seded-bankruptcy-forms (last visited Jan. 6, 2016).

5 Pending Changes in Bankruptcy Forms, USCourts.gov, http://www.uscourts.gov/rules-policies/pending-rules-amendments/pending-changes-bankruptcy-forms (last visited Jan. 6, 2016).

6 Steve Rhode, New Bankruptcy Forms Make It Easier to File Without an Attorney, Huff. Post (Nov. 24, 2015 05:35 PM), http://www .huffingtonpost.com/steve-rhode/new -bankruptcy-forms-make_b_8639066.html.

7 The webinar may be viewed on ABI’s website, http://www.abi.org/newsroom/videos. See also Diane Davis, New Bankruptcy Forms Roll Out Effective Dec. 1, BNA.com (Nov. 17, 2015), http://www.bna.com/new -bankruptcy-forms-n57982063647/.

8 Stern v. Marshall, 131 S.Ct. 2594 (2011).9 Pending Rules Amendments, USCourts.gov,

http://www.uscourts.gov/rules-policies/ pending-rules-amendments (last visited Jan. 6, 2016).

10 Preliminary Draft of Proposed Amendments to the Federal Rule of Bankruptcy Procedure and the Federal Rules of Evidence, available at http://www.uscourts.gov/file/18375/ download.

Kathleen Klepfer is a reference and re-search services librarian at the University of Richmond School of Law.

Changes to Bankruptcy Forms and Pending Bankruptcy Rule Changesby Kathleen Klepfer

https://www.vaeb.uscourts.gov/wordpress/?wpfb_dl=648

https://www.vaeb.uscourts.gov/wordpress/?wpfb_dl=648

http://www.uscourts.gov/forms/bankruptcy-forms

http://www.uscourts.gov/forms/bankruptcy-forms

http://www.uscourts.gov/file/18167/download


http://www.uscourts.gov/forms/superseded-bankruptcy-forms

http://www.uscourts.gov/forms/superseded-bankruptcy-forms

http://www.uscourts.gov/rules-policies/pending-rules-amendments/pending-changes-bankruptcy-forms



http://www.huffingtonpost.com/steve-rhode/new-bankruptcy-forms-make_b_8639066.html



http://www.abi.org/newsroom/videos

http://www.bna.com/new-bankruptcy-forms-n57982063647/

http://www.bna.com/new-bankruptcy-forms-n57982063647/

http://www.uscourts.gov/rules-policies/pending-rules-amendments

http://www.uscourts.gov/rules-policies/pending-rules-amendments




Technology and the Practice of Law

Whether your case is civil or criminal, it is more likely than ever that there will be electronic evidence. When I started as an assistant public defender in 2007, the only cases that would always have electronic evidence were murders. Now, we regularly receive video, wireless phone records, and even Internet usage data in discovery. As transactions — and crime — move increasingly online, we will confront even more cases that make demands of us as lawyers to be advocate, counselor, and technology proficient individuals. A large part of technology proficien-cy involves being prepared to effectively present video and other electronic evi-dence to judges and juries in the court-room. This is a challenge that requires a specific set of skills, preparation, and occasionally good fortune. I suggest the following four keys as necessary to your preparations for presenting electronic evidence in a courtroom setting:1. Visit the courtroom where you

will be having the trial. Are there suitable displays already installed in the courtroom? Can the judge, the witness, the other party, and the jury see the evidence at the same time? Is it going to be necessary to bring in equipment, and if so does the courthouse have this equipment on site? Even before approaching the court about the technology you need to use, it is vital to make this visit so you can make an effective request about the use of your technology. This is particularly important in ju-risdictions where parties can actually make requests to have cases heard in particular courtrooms with different capabilities.

2. Contact the court to make sure that the technology resources you plan to use are in working order, that you

have complied with all local court rules, and that there are no issues you have with getting the equipment you may need to bring with you into the courtroom. It is a nightmare to contemplate having the technology ready in the courtroom and all of the data prepared on a tablet or note-book computer only to be told by courthouse security that the device will not be permitted into the build-ing without a specific court order that has not previously been secured.

3. Arrange for a time before your trial to use the equipment with your evidence. There can be any number of issues with evidence, particularly when it is video evidence. Due to my reputation as a technologically conversant attorney, I was recently called into a courtroom in a case I had nothing to do with in order to try to facilitate a Skype communica-tion with a custodian of records the parties agreed could testify remotely. The court spent hours trying and ultimately succeeding in getting the connection to work, but it was a frustration for everyone.

Online evidence is not the only con-cern in this area. Specialized compression and decompression algorithms (codecs) are often necessary when playing video or audio evidence. I have seen on more than one occasion an attorney who insisted evidence worked fine at the office have considerable trouble playing that evidence in the courtroom because a dif-ferent computer system is being used in the courtroom than the one used in the law office. This is almost always because a necessary codec is missing. Another problem that can easily be avoided by arranging for a technology rehearsal in the courtroom involves the physical connection between the

computer system and the display system. There are several display standards and adapters that will connect just about any modern computer or tablet to any display system in use. These adapters often have to be ordered and time allocated for delivery. The day of trial is not the time to discover that a VGA to HDMI adapter will be required.4. Prepare for technology to fail. No

matter what happens, it is the duty of counsel to effectively present the favorable and necessary evidence so all of the important issues can be decided. Always have a plan for what happens if the file will not play, the display will not work, or the computer will not work. In addition to preserving the record in the case, it is necessary to make certain that a failure does not result in a loss of composure. Rely on the backup plan and know the judge or jury under-stands and sympathizes with the situation.

The only way to become com-fortable with presenting technological evidence in court is to practice doing it and to embrace using this evidence every time it will aid your client. What may at first create panic can become an asset to your practice.

M. Lee Smallwood II is deputy public defender for the Public Defender Office in Danville. He enjoys technology, a good motions hearing, and fountain pens.

Electronic Evidence in the Courtroom: Four Keys to Preparationby M. Lee Smallwood II

VIRGINIA LAWYER | February 2016 | Vol. 6442

Risk Management

I’ve been a consumer for years and the older I get the more I’ve come to recognize the impact of first impressions. They really do matter. I can only speak for myself but these days if I am accosted by an aggressive sales person when first entering a store, I often leave and rarely return. If I’m shopping online and a website fails to load properly because it’s outdated or it’s simply hard to navigate, I’m gone. If a grocery store is unclean, I will walk out and shop elsewhere. Heck, everyone knows that you can judge the quality of the food an unfamiliar restau-rant serves by the number and types of vehicles in the parking lot don’t they? First impressions matter and I don’t think I’m alone in believing this. If you agree, I would ask whether you’ve taken steps to set the right impression at your own firm because it’s certainly going to be easier to establish an effective and trusting attorney-client relationship if a potential new client’s first impression is a positive one.

I have walked into more than a firm or two for the first time where I was placed in an unkempt reception area or an absolutely cluttered and dirty confer-ence room featuring broken furniture. Some of these spaces looked more like old storage rooms than the client areas that they were. I have also been kept waiting for thirty to sixty minutes past my appointment time without expla-nation and on several occasions even forgotten about entirely. I have been the recipient of cold greetings by staff and treated by reception as if I was a bother. Such experiences can’t help but result in setting an impression. That’s normal. Now put yourself in my shoes. What might your response to any of the above experiences have been? If your own clients were to have a similar experience, what might their response be? My initial

response was to question the business and even legal acumen of the attorneys who practiced in these firms. Certainly my initial opinions were open to being changed but it was now going to be an uphill climb.

First impressions are made at first contact, whether calling for an appoint-ment, visiting your webpage, or walking through your front door. They are often set before you have a chance to meet with a prospective client, and they’re all about presentation and experience. Is there a welcoming greeting? Is the space tidy and inviting? Is your website user friendly and functional on multiple platforms to include mobile devices? With all this in mind, I offer the following to help get you started in thinking about what you can do to make certain you’re setting the right impression. • Train staff to greet every individ-

ual as soon as possible, certainly within a minute of their entering the office, and remember that even a sales representative who is turned away today may be a prospective client tomorrow. If your reception-ist happens to be helping some-one else, have them give a simple “Hello, I will be with you in a moment” in order to acknowledge the individual’s presence.

• Never allow confidential or person-al conversations to be overheard by others, particularly in the reception area. If conversations from an employee break area, a conference room, or attorney offices can be heard in reception, consider some type of sound proofing. Periodical-ly remind staff and attorneys that confidential or personal matters should never be discussed within earshot of any visitors. In fact, give staff permission to briefly interrupt

a client meeting to perhaps shut a door if voices can be overheard in reception or by visitors elsewhere in the office.

• Do not allow visitors to view com-puter screens. The receptionist’s computer screen will often have confidential information on it and thus should never be visible to anyone coming into the office.

• Occasionally check the waiting area during the day. This is an especially good customer service technique. If anyone sitting there seems bored or frustrated and has been in the reception area less than ten minutes, there’s a problem. The space should be designed to make the wait as pleasant as possible. Remember they don’t like having to wait for you any more than you would like having to wait for them if you were in their office. You might even go sit in your own reception area for ten or fifteen minutes just to see how it feels. For example, does the reading material fit the clientele? While Scientif-ic American is probably a great choice for an intellectual property practice, it won’t win any points from clients in a family law prac-tice. If families use your waiting area, make sure there are materials suitable for children. All magazines and newspapers should be current.

• Keep the reception area clean and orderly because an unkempt reception area is too easily seen as a reflection of the quality of service offered by the firm. Before the at-torney-client relationship has even started, a potential new client may already begin to question wheth-er the attorney has enough time to appropriately deal with their

www.vsb.org

First Impressions Matterby Mark Bassingthwaighte

43www.vsb.org

Risk Management

matter simply because it appears the attorney already doesn’t have enough time to pick up the place.

• In a similar vein, do not minimize the importance of appropriate attire. Staff and attorneys alike need to dress the part whenever meeting potential new clients. This isn’t to suggest that casual Fridays and the like are inappropriate. Just be mindful that people will make initial judgments about someone they’re meeting for the first time based upon overall appearance. I have walked into a law firm where I was given a nod by the receptionist who was dressed down, reading a romance novel, and chewing gum with her feet on the desk. My initial thought was I would never hire anyone in this firm because tolerance for the sloppy appearance suggests a tolerance for sloppy work. The message was they didn’t care.

• Client information and documents must be kept confidential at all times. If client file material needs to be in the reception area in order for the receptionist to do his work, make sure that wandering eyes can never land on those materials. Nev-er leave client file material, mail, or anything else that might identify a client on the counter or privacy wall around the reception desk.

• Try to prevent anyone from having to wait longer than ten minutes. Most people are willing to be rea-sonable and wait a short amount of time for the right lawyer; but don’t expect them to wait as long for their lawyer as they might for their doctor. While medical emergencies do arise, lawyers can rarely claim a legal emergency. If prospective cli-ents are waiting too long, consider altering your scheduling proce-dures. If a delay is unavoidable, have staff inform them of the delay as quickly as possible and discuss

options. Some will wait and others will need to reschedule.

• Be mindful of the difficulties the receptionist faces when assigned phone answering duties. Confi-dentiality can easily be breached in a law office when someone in the reception area overhears a phone conversation or a client name. The receptionist should have a way of notifying attorneys that someone has arrived or that a client is on the phone without being forced to breach client confidentiality. State-ments like, “You’re two o’clock appointment is here” or “you have a call on line one” as opposed to “John Smith is here and he wants to talk with you about getting a di-vorce” should be the norm. Viable alternatives might include the use of privacy glass, e-mail notifica-tions of a waiting call, or moving phone answering responsibilities away from the reception area.

• If your space permits, have visitor areas and work areas separated by a wall or partition. One never knows what impression potential new clients may have when they observe people working. Some may feel they are seeing energetic and busy staff members and take that as a positive sign while others may feel the staff is overworked or unpro-fessional and conclude the oppo-site. A wall with a tasteful picture or two is worth the investment. In fact, some firms place all confer-ence room areas near reception and away from work areas for this very reason.

• Finally, don’t overlook your Web presence. A poorly designed web-site, a website that doesn’t display properly on a mobile device, or a website that isn’t kept current can send a message about your compe-tency and priorities. After all, who wants their lawyer to be someone who appears to think halfway is

good enough or perhaps got started on something and then neglected to follow through?

As I shared above, all of this is about presentation and experience. If your presentation is poor or the experience of any potential client is bad at first contact, then you’re going to start off on the wrong foot, if they even decide to get started with you at all.

Mark Bassingthwaight, ALPS risk manager, has conducted more than 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technol-ogy. His webinar on Best Practices for Client Selection in the ALPS CLE library is at http://alps.inreachce.com. He can be contacted at: [email protected].

Vol. 64 | February 2016 | VIRGINIA LAWYER


CLE Calendar

February 17Teaming Agreements: Lessons Learned from the CourtroomLive — Charlottesville/Webcast /TelephoneNoon–1 pm

February 18The Basics of Powers of Attorney and Health Care DirectivesTelephoneNoon–1 pm

February 23Tom Spahn on Conflicts of InterestLive — Charlottesville/Webcast/ Telephone1–3 pm

February 24The Basics of Powers of Attorney and Health Care DirectivesTelephoneNoon–1 pm

February 26Ramping Up for the 2016 Elections: What You Need to Know About Politi-cal LawWebcast/Telephone9:30–11 am

March 1Free Speech, Fear, and Facebook: The Evolving Boundary Between the First Amendment and “True Threats” in the 21st CenturyLive — Charlottesville/Webcast/ TelephoneNoon–2 pm

March 2Tom Spahn on Conflicts of InterestWebcast/Telephone10 am–Noon

March 3Business Valuation Basics for Family LawyersLive — Charlottesville/Webcast /Telephone1–3 pm

March 4Teaming Agreements: Lessons Learned from the CourtroomWebcast/Telephone10–11 am

March 4–520th Annual Advanced Real Estate SeminarLive — WilliamsburgFriday: 1–5:25 pm; Saturday: 8 am–12:20 pm

March 8Free Speech, Fear, and Facebook: The Evolving Boundary Between the First Amendment and “True Threats” in the 21st CenturyWebcast/TelephoneNoon–2 pm

March 9Representation of Children as a Guard-ian ad Litem — 2014 Qualifying CourseVideo — Abingdon, Alexandria, Charlottesville, Norfolk, Richmond, Roanoke8:30 am–5:15 pm (Richmond video begins at 9 am)

March 10Representation of Incapacitated Persons as a Guardian ad Litem — 2014 Qualifying CourseVideo — Tysons Corner9 am–4:05 pm

March 10Ethical Responsibilities for Client Files: Facing Piles of Files with SmilesLive — Charlottesville/Webcast/ TelephoneNoon–1:30 pm

Introduction to Virginia’s Sentencing Guidelines Six-hour seminars approved for six CLE credits, March 2, Henrico/Richmond (Henrico Police & Fire Training Center); March TBD, Fairfax (Fairfax Govern-ment Center); March 16, Portsmouth (Department of Social Services); March 31, Wytheville (Wytheville Community College – Grayson Hall). Details at http://www.vcsc.virginia.gov/training.html. The introduction seminar is de-

signed for the attorney or criminal justice professional who is new to Virginia’s sen-tencing guidelines. The seminar will be-gin with general background information and progress to detailed information on scoring each of the guidelines factors to include changes. Register by completing the form and submit to the commission. Space may be limited. Purchase manual separately. $125 fee waived for judges, commonwealth’s attorneys, P&P, public defenders, and staff.

Virginia Lawyer publishes at no charge notices of continuing legal education pro-grams sponsored by nonprofit bar associ-ations and government agencies. The next issue will cover April 16 through July 11. Send information by March 8 to [email protected]. For other CLE opportunities, see Virginia CLE calendar and “Current Virginia Approved Courses” at www.vsb .org/site/members/mcle-courses/ or the websites of commercial providers.

Virginia CLE CalendarVirginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.

http://www.vcsc.virginia.gov/training.html

http://www.vcsc.virginia.gov/training.html



March 16Representation of Incapacitated Persons as a Guardian ad Litem — 2014 Qualifying CourseVideo — Abingdon, Alexandria, Charlottesville, Norfolk, Richmond, Roanoke9 am–4:05 pm

March 17Representation of Children as a Guard-ian ad Litem — 2014 Qualifying CourseVideo — Tysons Corner8:30 am–5:15 pm

March 18Getting to Success: Chapter 13s in the Eastern and Western Districts of the U.S. Bankruptcy CourtLive — Fairfax8:30 am–4:45 pm

March 21Employment Law EthicsLive — Charlottesville/Webcast /TelephoneNoon–2 pm

March 22Ethical Responsibilities for Client Files: Facing Piles of Files with SmilesWebcast/TelephoneNoon–1:30 pm

March 23Business Valuation Basics for Family LawyersWebcast/Telephone1–3 pm

March 24Representation of Children as a Guard-ian ad Litem — 2014 Qualifying CourseVideo — Virginia Beach8:30 am–5:15 pm

March 2946th Annual Criminal Law Seminar 2016Video — Alexandria, Charlottesville, Danville, Norfolk, Richmond, Roanoke8:15 am–4:45 pm (Richmond video begins at 9 am)

March 3046th Annual Criminal Law Seminar 2016Video — Hampton, Winchester8:15 am–4:45 pm

March 30Employment Law EthicsWebcast/Telephone1–3 pm

March 3146th Annual Criminal Law Seminar 2016Video — Lynchburg8:15 am–4:45 pm

April 5NonprofitsLive — FairfaxTBD

April 7CLE and Pittsburgh Penguins vs. Washington Capitals Hockey: Creative Strategies for “Selling” Your CaseLive — Washington, DC2:30–4:45 pm (Hockey game begins at 7 pm)

April 13Best Practices for Workers’ Compensation AttorneysLive — Richmond/Telephone9 am–1:15 pm


CLE Calendar

Virginia State BarHarry L. Carrico

Professionalism Course

March 16, 2016, Alexandria

April 7, 2016, Charlottesville

May 12, 2016, Hampton

July 21, 2016, Roanoke

August 31, 2016, Alexandria

September 22, 2016, Richmond

See the most current dates and registration information at

http://www.vsb.org/site/members/new.

http://www.nlrg.com


Virginia Lawyer Register

DISCIPLINARY PROCEEDINGS

Respondent’s Name Address of Record Action Effective Date

CIRCUIT COURT

Neil Kuchinsky Colonial Heights, VA Public Reprimand November 18, 2015

DISCIPLINARY BOARD

Jean Jerome Dandy Ngando Ekwalla** Woodbridge, VA Revocation October 29, 2015

James Willis Hilldrup Fredericksburg, VA Suspension – 1 month w/Terms November 16, 2015

Tawana Denise Shephard Alexandria, VA Revocation November 20, 2015

James Amery Thurman Virginia Beach, VA Suspension – 5 months at 5:00 p.m. December 11, 2015

Nnika Evangeline White Richmond, VA Suspension – 3 years November 20, 2015

DISTRICT COMMITTEES

John Paul Forest II Fairfax, VA Public Reprimand w/Terms November 10, 2015

Bruce Patrick Ganey Ashland, VA Two (2) Public Reprimand w/Terms January 6, 2016

Blanche Miclat Garber Newport News, VA Public Reprimand November 24, 2015

Intak Lee Fairfax, VA Public Reprimand November 24, 2015

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted

Clifton Carlyle Hicks Norfolk, VA December 4, 2015

Shane Lee Jimison Henrico, VA September 15, 2015

November 30, 2015

Bibi Bahizi Musafiri Falls Church, VA January 4, 2016

Darryl Arthur Parker Richmond, VA January 4, 2016

Tawana Denise Shephard Alexandria, VA January 7, 2016

William L. Stables Jr. Harrisonburg, VA November 24, 2015

Impairment Effective Date

J. Patterson Rogers III Danville, VA December 15, 2015

**Respondent has noted an appeal with the Supreme Court of Virginia.



CIRCUIT COURT

Neil KuchinskyColonial Heights, Virginia11-031-085428On November 18, 2015, the Supreme Court of Virginia affirmed a public reprimand issued to Neil Kuchinsky by the Circuit Court of the City of Colonial Heights. On October 18, 2012, the the Virginia State Bar Third District Committee Section I issued a public repri-mand to Mr. Kuchinsky for violating professional rules that govern conflict of interest and prohibited transactions, fairness to opposing party and counsel, and misconduct. Mr. Kuchinsky appealed to the three-judge circuit court, which affirmed. Mr. Kuchinsky then appealed to the Supreme Court of Virginia, which found that the circuit court erred in finding against Mr. Kuchinsky for violating rule 3.4, fairness to opposing party and counsel, but affirmed vio-lations of rules governing conflict of interest and prohibited trans-actions, and misconduct. The Supreme Court remanded the case back to the circuit court, which again imposed a public reprimand. Mr. Kuchinsky again appealed to the Supreme Court, arguing that the circuit court lacked jurisdiction to impose a sanction. The Supreme Court affirmed the sanction. RPC 1.8(a)(1-3), 8.4(a)www.vsb.org/docs/Kuchinsky-011116.pdf

DISCIPLINARY BOARD

Jean Jerome Dandy Ngando EkwallaWoodbridge, Virginia15-053-101414, 15-053-102415, 15-053-101351, 15-053-099896, 15-053-100656Effective October 29, 2015, the Virginia State Bar Disciplinary Board revoked Jean Jerome Dandy Ngando Ekwalla’s license to practice law for violating professional rules that govern diligence, communication, safekeeping property, declining or terminating representation, fairness to opposing party and counsel, responsibil-ities to opposing party and counsel, responsibilities of partners and supervisory lawyers, responsibilities regarding nonlawyer assistants, bar admission and disciplinary matters, and misconduct. RPC 1.3(a)(b), 1.4(a)(b)(c), 1.15(a)(b)(2)(3)(4)(5)(c)(d), 1.16(d)(e), 8.1(a)(c)(d), 8.4(a)(b)(c)www.vsb.org/docs/Ekwalla-011116.pdf

James Willis HilldrupFredericksburg, Virginia14-060-099391On November 16, 2015, the Virginia State Bar Disciplinary Board suspended James Willis Hilldrup’s license to practice law for one month with terms for violating professional rules that govern dili-gence, declining or terminating representation, and bar admission and disciplinary matters. This was an agreed disposition of miscon-duct charges. RPC 1.3(a), 1.16(e), 8.1(c)www.vsb.org/docs/Hilldrup-011116.pdf

Tawana Denise ShephardAlexandria, Virginia16-000-103697On November 20, 2015, the Virginia State Bar Disciplinary Board revoked Tawana Denise Shephard’s license to practice law based on her disbarment in Maryland by the Court of Appeals of Maryland. Ms. Shephard’s license was summarily suspended on October 1. Rules Part 6, § IV, ¶ 13-24www.vsb.org/docs/Shephard-011116.pdf

James Amery ThurmanVirginia Beach, Virginia 14-022-099259Effective December 11, 2015, the Virginia State Bar Disciplinary Board suspended James Amery Thurman’s license to practice law for five months for violating professional rules that govern safe-keeping of property. This was an agreed disposition of misconduct charges. RPC 1.15 (2009 edition)(a)(1)(2)(b)(c)(1)(3)(4)(e)(1)(i-v)(f)(2)(4)(i,ii)(5)(i-iii)(6); RPC 1.15 (2012 edition) (a)(1)(3)(ii)(b)(1)(3)(4)(c)(1)(2)(4)(d)(2)(3)(i-iv)(4)www.vsb.org/docs/Thurman-011116.pdf

Nnika Evangeline WhiteRichmond, Virginia14-031-102065On November 20, 2015, the Virginia State Bar Disciplinary Board suspended Nnika Evangeline White’s license to practice law for three years for violating professional rules that govern competence; conflict of interest: general rule; safekeeping property; candor toward the tribunal; truthfulness in statements to others; and misconduct. RPC 1.7(a)(2), 1.15(a)(3)(i,ii)(c)(2)(i,ii), 3.3(a)(1,2), 4.1(b), 8.4(b,c) www.vsb.org/docs/White-011116.pdf

DISCIPLINARY SUMMARIESThe following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the

Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules.

Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s

Office at (804) 775-0539 or [email protected]. VSB docket numbers are provided.



DISCIPLINARY SUMMARIES

DISTRICT COMMITTEES

John Paul Forest IIFairfax, Virginia14-052-097153, 14-052-096717On November 10, 2015, the Virginia State Bar Fifth District Subcommittee issued a public reprimand with terms to John Paul Forest II for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a) http://www.vsb.org/docs/Forest-012816.pdf

Bruce Patrick GaneyAshland, Virginia15-060-101324On January 6, 2016, the Virginia State Bar Sixth District Subcommittee issued a public reprimand with terms to Bruce Patrick Ganey for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a)www.vsb.org/docs/Ganey-101324-012816.pdf

Bruce Patrick GaneyAshland, Virginia15-060-101162On January 6, 2016, the Virginia State Bar Sixth District Subcommittee issued a public reprimand with terms to Bruce Patrick Ganey for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a)(b)(c)www.vsb.org/docs/Ganey-101162-012816.pdf

Blanche Miclat GarberNewport News, Virginia15-010-100970On November 24, 2015, the Virginia State Bar First District Subcommittee issued a public reprimand to Blanche Miclat Garber for violating professional rules that govern meritorious claims and contentions, fairness to opposing party and counsel, and miscon-duct. This was an agreed disposition of misconduct charges. RPC 3.1, 3.4 (d), 8.4 (c)www.vsb.org/docs/Garber-011116.pdf

Intak LeeFairfax, Virginia14-051-0972013On November 24, 2015, the Virginia State Bar Fifth District Section I Subcommittee issued a public reprimand to Intak Lee for violat-ing professional rules that govern competence, conflict of interest: general rule, and safekeeping property. This was an agreed dispo-sition of misconduct charges. RPC 1.1, 1.7(a)(1,2)(b)(1-4), 1.15(a)(1)(b)(3)www.vsb.org/docs/Lee-011116.pdf

NOTICES TO MEMBERS

ETHICS COMMITTEE SEEKS COMMENTSThe Standing Committee on Legal Ethics is seeking public com-ment of proposed amendments to Rules 1.6 and 3.3 clarifying a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial.www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendments_rules_1.6_3.3

SUPREME COURT OF VIRGINIA APPROVES AMENDMENTSEffective February 1, 2016, The Supreme Court of Virginia has adopted amendments to:Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law.Rule 8.3: Reporting Misconduct.www.vsb.org/pro-guidelines/index.php/rule_changes/item/prop_5-5_and_8-3e

Effective March 1, 2016, the Court also approved amendments to:Paragraph 13: Procedure for Disciplining, Suspending, and Disbarring Attorneys.www.vsb.org/docs/2015_12_17_part%206_Sect.%20IV_ Para%2013_11_13_25_13_30.pdfRule 1.1: Competence.www.vsb.org/docs/SCV-rule_1-1_1-6-121815.pdfRule 1.6: Client Confidentiality.www.vsb.org/docs/SCV-rule_1-1_1-6-121815.pdf

CRIMINAL LAW SEMINARThe 46th Annual Criminal Law Seminar, sponsored by the VSB Criminal Law Section and Virginia CLE, will be February 5 in Williamsburg and February 12 in Charlottesville.www.vsb.org/site/sections/criminal/annual-seminar

NOMINATIONS SOUGHT FOR AWARDSThe VSB is seeking nominations for the following awards:• The General Practice Section Tradition of Excellence Award. The

nomination deadline is March 21, 2016.• The Special Committee on Access to Legal Services Oliver White

Hill Law Student Pro Bono Award. The nomination deadline is March 25, 2016.

• The Special Committee on Access to Legal Services Virginia Legal Aid Award. The nomination deadline is March 25, 2016.

• The Young Lawyers Conference R. Edwin Burnette, Jr. Young Lawyer of the Year Award. The nomination deadline is April 1, 2016.

• The Conference of Local Bar Associations Awards of Merit, Local Bar Leader of the Year Award, and Bar Association of the Year Award. The nomination deadline is April 29, 2016.

Please see the VSB Awards and Contests page for a list of all bar sponsored awards and deadlines.www.vsb.org/site/members/awards-and-contests/



NOTICES TO MEMBERS

2016 TECHSHOWRegistration is open for the April 25 VSB TECHSHOW at the Greater Richmond Convention Center. www.vsb.org/site/events/item/vsb_techshow_0416

YLC CELEBRATION OF WOMEN AND MINORITIES IN THE LEGAL PROFESSION BENCH BAR DINNERSave the date for the YLC Celebration of Women and Minorities in the Legal Profession Bench Bar Dinner on March 23 at University of Richmond Jepson Alumni Center.www.vsb.org/site/conferences/ylc/bench-bar-dinner

LICENSE FORFEITURESThe licenses of members of the Virginia State Bar who are forfeited from the practice of law for failure to comply with Section 54.1-3914, Code of Virginia, Title 54.1, Professions and Occupations are listed on the VSB website. We have attempted to contact these members at their last address listed with the Virginia State Bar, however, in some instances, this has not been successful. Any mem-ber knowing the present location and/or practice status of any person on the list should contact the Virginia State Bar as soon as possible. These forfeitures were effective February 1, 2016. Details:www.vsb.org/site/members/license-forfeitures

NOMINATIONS SOUGHT FOR COMMITTEE VACANCIESVolunteers are needed to serve the Virginia State Bar’s boards and committees. The Nominating Committee will refer nominees to the VSB Council for consideration at its June meeting.

Vacancies in 2016 are listed below. All appointments will be for the terms specified, beginning on July 1, 2016, unless otherwise noted.

EXECUTIVE COMMITTEE: 6 vacancies (1 current member is not eligible for reappointment, and 5 current members are eligible for reappointment). Filled from ranks of the council for 1-year terms, by council appointment.

CLIENTS’ PROTECTION FUND BOARD: 7 vacancies (2 current lawyer members from the 2nd and 5th disciplinary districts are not eligible for reelection; 3 current lawyer members from the 1st, 4th and 9th disciplinary districts are eligible for reelection; 1 current lawyer member at-large is not eligible for reelection; and 1 current lay member at-large is not eligible for reelection). May serve 2 con-secutive 3-year terms. Appointment by council.

JUDICIAL CANDIDATE EVALUATION COMMITTEE: 4 lawyer vacancies (of which 2 vacancies are to be filled by a member from the 1st, 3rd, 5th, 7th or 8th judicial circuits; 1 vacancy is to be filled by a member from the 6th, 11th, 12th, 13th or 14th judicial circuits and 1 member at-large vacancy). May serve 1 full 3-year term. Appointment by council.

AMERICAN BAR ASSOCIATION DELEGATES: 1 lawyer vacancy (1 current member is eligible for reappointment). May serve 3 con-secutive 2-year terms. Appointment by council. Term commences September 1, 2016.

Nominations, along with a brief résumé, should be sent by March 11, 2016, to VSB Nominating Committee, c/o Asha Holloman, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 23219-0026.

2016F O R T Y - S I X T H A N N U A L

Criminal Law SeminarRecent Developments in Criminal Law and Procedure

• Ethics Rocks: Ethical Issues in Criminal Law Practice

• Big Brother IS Watching You (sort of): Overview of Recent Changes to Technology & Privacy Laws

• Keeping up with the Joneses: Panel on Constitutional & Fourth Amendment Issues

• Everybody Gets Out of Jail Eventually: Sentencing Advocacy Panel

www.vsb.org/site/sections/criminal

Video Replays in 13 Locations on Four Different Dates: March 29, 30 & 31 and April 26

Approved 6.5 MCLE Credits (including 1.5 ethics credit)

VIRGINIA CLE® AND VIRGINIA STATE BAR



NOTICES TO MEMBERS

NOMINATIONS SOUGHT FOR DISTRICT COMMITTEE VACANCIESThe Standing Committee on Lawyer Discipline calls for

nominations for district committee vacancies to be filled by

Council in June. Note that there are vacancies which may

not become available because some members are eligible for

reappointment.

To review qualifications for eligibility, see Rules of the

Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4

– Establishment of District Committees, specifically 13-4.E

(Qualifications of Members) and 13-4.F (Persons Ineligible for

Appointment).

FIRST DISTRICT COMMITTEE: 3 attorney vacancies (2 current

members are eligible for reappointment). Vacancies are to be

filled by members from the 1st, 3rd, 5th, 7th or 8th judicial

circuits.

SECOND DISTRICT COMMITTEE, SECTION I: 4 attorney

vacancies (2 current members are eligible for reappointment).

Vacancies are to be filled by members from the 2nd or 4th judicial

circuits.

SECOND DISTRICT COMMITTEE, SECTION II: 2 attorney

vacancies (both members are eligible for reappointment); 2 non-

attorney vacancies. Vacancies are to be filled by members from the

2nd or 4th judicial circuits.

THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney

vacancies (2 current members are eligible for reappointment).

Vacancies are to be filled by members from the 6th, 11th, 12th,

13th or 14th judicial circuits.

THIRD DISTRICT COMMITTEE, SECTION II: 3 attorney

vacancies (all 3 current members are eligible for reappointment);

1 non-attorney vacancy (current member is eligible for

reappointment). Vacancies are to be filled by members from the

6th, 11th, 12th, 13th or 14th judicial circuits.

THIRD DISTRICT COMMITTEE, SECTION III: 1 attorney

vacancy (current member is eligible for reappointment).

Vacancies are to be filled by members from the 6th, 11th, 12th,


FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorney

vacancies (1 current member is eligible for reappointment);

1 non-attorney vacancy (current member is eligible for

reappointment). Vacancies are to be filled by members from the


FOURTH DISTRICT COMMITTEE, SECTION II: 3 attorney vacancies (1 current member is eligible for reappointment); 1 non-attorney vacancy. Vacancies are to be filled by members from the 17th or 18th judicial circuits.

FIFTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies (both current members are eligible for reappointment); 2 non-attorney vacancies (1 current member is eligible for reappointment). Vacancies are to be filled by members from the 19th or 31st judicial circuits.

FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney vacancies; 1 non-attorney vacancy. Vacancies are to be filled by members from the 19th or 31st judicial circuits.

FIFTH DISTRICT COMMITTEE, SECTION III: 3 attorney vacancies (2 current members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are to be filled by members from the 19th or 31st judicial circuits.

SIXTH DISTRICT COMMITTEE: 2 attorney vacancies; 1 non-attorney vacancy. Vacancies are to be filled by members from the 9th or 15th judicial circuits.

SEVENTH DISTRICT COMMITTEE: 4 attorney vacancies (3 current members are eligible for reappointment). Vacancies are to be filled by members from the 16th, 20th or 26th judicial circuits.

EIGHTH DISTRICT COMMITTEE: 1 attorney vacancy (current member is eligible for reappointment); 1 non-attorney vacancy. Vacancies are to be filled by members from the 23rd or 25th judicial circuits.

NINTH DISTRICT COMMITTEE: 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are to be filled by members from the 10th, 21st, 22nd or 24th judicial circuits.

TENTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies; 1 non-attorney vacancy. Vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits.

TENTH DISTRICT COMMITTEE, SECTION II: 1 attorney vacancy; 1 non-attorney vacancy. Vacancies are to be filled by members from the 27th, 28th, 29th or 30th judicial circuits.

Nominations, along with a brief resume, should be sent by February 28, 2016, toStephanie Blanton, Virginia State Bar,1111 East Main Street, Suite 700, Richmond, VA [email protected]



President-elect Robinson Seeks Members for Virginia State Bar Committees

With Terms Commencing July 1, 2016

As you know, much of the work of the Virginia State Bar is done through its committees, and we need members willing to serve. Appointments will generally be for a three-year term, running from July 1, 2016, to June 30, 2019, with the possibility of another three-year term to follow. The work of the committees is time consuming and in most cases requires committee members to set aside substantial time to fulfill the requirements of the job. To encourage participation — and recognizing the time constraints — members are generally limited to serving on only one committee. The number of available positions is quite limited, but I will attempt to accommodate as many people as possible. The committees are as follows:

To: Members of the Bar From: Michael W. Robinson, President-elect

Standing Committees:* ♦ Budget & Finance ♦ Professionalism ♦ Lawyer Discipline ♦ Unauthorized Practice of Law ♦ Legal Ethics

Special Committees: ♦ Access to Legal Services ♦ Lawyer Referral ♦ Bench-Bar Relations ♦ Personal Insurance for Members ♦ Better Annual Meeting ♦ Resolution of Fee Disputes ♦ Communications ♦ Technology and the Practice of Law ♦ Lawyer Malpractice Insurance

*Lawyer member vacancies on Standing Committees are limited due to requirements for a specific number of Executive Committee and Council members to serve on each committee.

If you would like to be considered for appointment to any of the VSB committees listed, please complete the form below or download the form at http://www.vsb.org/site/about and return it to the Virginia State Bar office by February 26, 2016, by mail or e-mail to Asha B. Holloman:

Virginia State Bar 1111 East Main Street, Suite 700

Richmond, VA 23219-0026 [email protected]

VSB Committee Preference Form (term commencing July 1, 2016) (Please type or print)Attach a separate sheet with additional comments (i.e., qualifications and reason for wanting to serve).

Name: VSB Attorney No.:

Address:

City/State/Zip: Phone No.: Email:

Choice Committee Name Have you ever served on this committee? Length of Service

1st Choice

2nd Choice

3rd Choice

Yes No

Yes No

Check here if you have never served on a VSB committee.

Yes No

To assist us in the committee selection process, please provide the following information:Private PracticePrimary area of practice:

Corporate Counsel

OtherGovernment attorney

Commonwealth City/County Federal

http://www.vsb.org/docs/cmte_form.pdf


Professional Notices

Rodney K. Adams has been tapped by Virginia Commonwealth University to teach Bioethics & Health Law in its Master of Health Administration program. He will continue his full-time prac-tice defending healthcare providers at LeClairRyan. Blankingship & Keith PC has added Justin M. Contratto and Lauren A. Fredericksen as associates. Contratto joins the firm’s Family Law practice. He previously worked for the Legal Aid Society’s Criminal Defense Rights and Juvenile Rights practices in New York City. Fredericksen’s practice focuses on com-mercial litigation with an emphasis on employment law and com-mercial matters.

Harman Claytor Corrigan & Wellman welcomes three new attorneys. George A. Somerville, joins the firm as senior counsel and will con-cenatrate his practice in appellate litiga-tion. Jeffrey P. Miller and Elizabeth O. Papoulakos join the firm as associates and will concentrate their practice in general civil litigation, including motor vehicle, premises, and products liability.

Hirschler Fleischer has combined with the Tysons law firm of Leach Travell PC, adding seven partners in four practice areas: business, litigation, bankruptcy /creditors’ rights, and real estate. With these attorneys, Hirschler Fleischer will have eighty attorneys across three offices in Virginia: Richmond, Fredericksburg and Tysons.

Hirschler Fleischer has promoted three attorneys to partner: Fredericksburg-based Stacie C. Bordick, and Richmond-based Lisa J. Hedrick and Benjamin G. Thompson. Bordick is a member of the firm’s Litigation and ADR practice. Hedrick is a member of the

firm’s Mergers & Acquisitions practice. Thompson is a member of the firm’s Investment Management practice.

Edward H. Klees has joined Hirschler Fleischer’s Investment Management practice as a partner. He joins Hirschler Fleischer from the University of Virginia Investment Management Company, where he served as general counsel. Klees will lead the group’s representation of endowments, foundations, and out-sourced chief investment offices.

Jonathan P. Lienhard is a partner at Walker Jones in Warrenton and Washington, Virginia. He has been with the firm since 2011 and has more than fifteen years of legal experience. His practice areas include civil litigation, commercial litiga-tion, criminal law, and business law. Paul Marcus, professor at William & Mary Law School, was selected as president-elect of the Association of American Law Schools on January 9 during the association’s annual meeting in New York.

Paul H. Melnick, principal, and Julie K. Eppard, associate, of Melnick and Melnick PLC of Falls Church have merged with the law firm of Pesner Kawamoto PLC as of January 1, 2016. The offices will be at 7926 Jones Branch Drive, Suite 930, Tysons Corner, VA 20102 – tel: (703) 506-9440. Melnick and Eppard practice primarily in the areas of trust and estate administration and estate and trust planning. They are both former chairs of The Real Estate Section of the Virginia State Bar.

Steven D. Najarian has joined the Board of Veterans’ Appeals in Washington DC as an attorney advisor.

Morris A. Nunes, announces Routledge has published his 6th book (co-authored with Andrew Pressman, AIA) Designing Profits, a guide to business management for architects, engineers, and other

design professionals, in line with his practice of counseling privately held businesses, professional practices, and non-profits.

Griffin M. O’Hanlon has joined the Norfolk-based personal injury firm of Cooper Hurley Injury Lawyers. Previously, O’Hanlon practiced criminal defense in the Norfolk Public Defender’s Office. His practice will focus on help-ing those injured throughout Hampton Roads. Owen J. Pinkerton is one of seven attor-neys elected partner at Morris, Manning & Martin LLP. His practice area is Corporate/Real Estate Capital Markets in Washington, DC.

Ricardo Pitts-Wiley is the newest member of The Federal Practice Group Worldwide Service’s Employment Law Group. Pitts-Wiley has over a decade of experience in employment law and will provide representation for clients before the Employment Opportunity Commission, Merit System Protection Board, Office of Special Counsel, and the Office of the Inspector General for vari-ous agencies.

Laurie L. Proctor has become a princi-pal with Blankingship & Keith PC. She focuses on civil litigation with an empha-sis on commercial matters, employment law, and trust and estates litigation.

Robert M. Reiner has joined Selzer Gurvitch Rabin Wertheimer Polott & Obecny PC as a partner and member of the member of the Estate Planning/Trust & Estate Administration and Tax practice groups.

Eric N. Schloss has joined the Law Offices of Lee Saltzberg in Towson, Maryland, where he will continue to practice per-

Contratto

Lienhard

O’Hanlon

Reiner

Schloss

Fredericksen

Adams

http://law2.wm.edu/faculty/bios/fulltime/pxmarc.php

http://www.aals.org/

http://www.aals.org/


Professional Notices

sonal injury law in Maryland, Virginia, and Washington, DC.

Pantea F. Stevenson has joined Bean, Kinney & Korman as a shareholder. She focuses her practice on mergers and acquisitions, commercial contracts, col-laborations, business law, and intellectual property transactions.

Matthew Von Schuch has been elected partner at Wharton Aldhizer & Weaver. He joined the firm in 2012 after working in the US Justice Department’s tax division for nearly five years.

Von Schuch

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