Va. legislature: More bills affecting families get through committee, more killed, more introduced

Here's how bills stand after House and Senate Committees met on Jan. 18, in this order: (1) Approved by committee (2) Approved by subcommittee (3) Awaiting any committee or subcommittee action (4) Killed.

Approved by Committee:

Approved by Subcommittee:

No action yet by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):


Va. legislature's committees weed out 9 family law & probate bills, approve 16, more to come

Here's how things stand after House and Senate Committees met on Jan. 18, in this order:

  1. Approved by committee.
  2. Approved by subcommittee.
  3. Not yet acted on by any committee or subcommittee. 
  4. Killed. by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely.

Approved and Reported by Committee:

Approved and Reported by Subcommittee:

Not yet acted on by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed:


Pro Bono rule light on substance, heavy on compliance, penalties, lengthy definitions

What's going on in Virginia's pro-bono-reporting controversy was illuminated for me by a recent interview with law professor Richard Epstein, known for many things but first for his monumental works on Strict Liability and Eminent Domain.

"... We're now entering into a compliance culture, where if you do something wrong, the sanctions are always draconian. So you (A) have to have somebody to fix it so you don't get punished. And (B) you have to have all your ducks in order so that if something goes wrong you have all sorts of defenses ... So the compliance culture essentially requires industry concentration ... If you double the size of a firm, you don't double the size of your compliance costs. And so one of the things that Obamacare has done is that it has led to a wave of hospital and industry mergers in an effort to minimize compliance costs thereby creating higher levels of market concentration, which leads to monopoly power."

    Maybe that's why Virginia Lawyers Weekly reports that of the public comments the state bar received on mandatory pro bono reporting, the favorable majority overwhelmingly came from lawyers at big firms and legal aid agencies. I don't mean that this is big-firm lawyers' motive, but it's why the load of compliance isn't an issue for them, and is a big issue for small-firm and solo lawyers. Also, the rule lets firms concentrate their pro bono time in a few lawyers, so they can undertake big, time-consuming cases for the poor. That's a very worthy adaptation to the rule, IF there should even be a rule in the first place. And I suspect many bigger firms already keep track of all their lawyers' pro bono and extracurricular time, so they can put the results in press releases.

The proposed change only requires lawyers to fill in a number in a "How many hours" blank once a year when renewing their membership and paying their dues to the mandatory Virginia State Bar, which licenses and regulates lawyers. There's a lot more that advocates for the poor's legal needs might want to know to make the information more useful -- what kinds of law do you practice? Which of the many kinds of work listed in the Definitions section do you do? Do you do the pro bono through other institutions or just through your law firm? What needs do you think are out there? Any other ways you could work to meet them? What gets in the way of doing that? 

So the Bar only asks lawyers this one short, innocent question, about your free-will offering of humanitarian good works, where the only wrong answer is no answer. (Or an answer that's not a number of hours.) But it makes lawyers awfully apprehensive when it shows up asking that little question but loaded for bear, bristling with hooks, nets, expulsion devices, license-grabbers, long lists and cross-references. Not in a survey like the ones the Supreme Court and Bar already send out, but as part of membership renewal, in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ? If lawyers wonder exactly what hours they should include in the number, they need to look up the lists of definitions and alternative means of compliance (which the proposed change will lengthen) in Professional Responsibility Rule 6.1 and, especially in its Commentary. To find out the rules and penalties for not reporting or late reporting, they must look at Bar Organization Rule "19. Procedure for the Administrative Suspension of a Member."  And it does it, not in a survey like the ones the Supreme Court already sends out, but as part of membership renewal and in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ?

Just another cumulative annoyance in the process of what Virginia's great writer Florence King called being "nibbled to death by a bureaucratic duck". 

Quotation is from Page 2 of 

Richard Epstein: Why Obamacare Is Collapsing and He's Not Voting for Trump, Hillary, *or* Johnson

Q&A with the great libertarian law professor on cigarettes, global warming, foreign policy, and much, much more.


If presidential perjurers don't get charged, will anyone be afraid to lie in court?

In the Clinton impeachment we decided that perjury isn't an impeachable offense, at least when it's basically about a president's private life and not the essential parts of his job, treason, murder, rape, subverting democratic elections, corruption ... .

But what about plain old criminal prosecutions? if presidents and candidates don't get prosecuted for obvious perjury either, then that tells everyone else to disregard that lying when testifying it's illegal and dangerous. And it gives lawyers and judges another reason not to believe what anyone says. Testifying to a court -- whether on the witness stand, in a deposition, or a written, notarized affidavit -- is under oath and "under penalty of perjury."

Newsweek has published clear proof that Donald Trump either: (a) lied in a deposition in a case against an ex-employee, about a failed attempt to bribe Florida Gov. Jeb Bush, or (b) lied about it to Bush's face in the second debate. Or both. (Even if bribe is the wrong word, that doesn't affect the specific question that the lie and contradiction were about: Whether Trump was trying to get Bush to reverse his opposition to casino gambling when he hired the Defendant to get Florida to allow him to build a casino and hosted a fundraising event for Bush.)

The lawsuit was in Broward County, Florida. Perjury in a deposition is a third-degree felony under Florida law, and can mean up to five years in prison. I haven't yet found out whether Trump was in Florida or another state when he gave his deposition testimony, and whether that would keep Florida from prosecuting him. But the head prosecutor in Broward County, and/or the county where Trump testified, needs to decide whether to pursue a perjury investigation and prosecution, preferably before the election. 

DONALD TRUMP EITHER LIED TO THE REPUBLICANS OR BROKE THE LAW (EXCLUSIVE)


Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases

"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s dis­ability checks.

“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.

"Kaine said, 'I learned a lot from Di­ane.' including the responsibility of law practice and that what a lawyer does really mat­ters.

“'And I also learned a critical lesson that served me well through­out my career— whatever the is­sue seems to be at first, look deeper. The marriage law­suit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.

From "The Education of Tim Kaine", by  in Virginia Lawyers' Weekly, May 27, 2016, p. 3.  Also available on Sen. Kaine's web site.

The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:

At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weak­nesses but have to embrace and own them as a natural part of being hu­man. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”

Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mys­teries, can make you strong.”

He closed his remarks with a prom­ise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a per­son. And they will change you too,” he said.

 


A vote for mandatory reporting of pro bono is a vote for mandatory pro bono, sooner, likelier, inevitable-er

Recently the Virginia State Bar's governing Council learned of a proposal for mandatory pro bono reporting, and I posted the text and practical details of the proposal on this blog. (UPDATE: The Bar will decide on Oct. 7, and has asked for comments by August 31, 2016. They should be sent to publiccomment@vsb.org. If you can't make that deadline send them anyway.)

Yesterday I took a break from the proposal's technical intricacies to write about what state pro bono rules and other pro bono efforts mean in the big picture, in "Throw the poor a bono? The real problem is that pro bono is no solution."

Now, back to the proposal at hand, but this time, the human side of it, not the technicalities.

The Virginia proponents argue that the change would not in any way lead to mandatory pro bono, and that there is no reason to be concerned about a “slippery slope”. They point out that the handful of states that have mandatory reporting have not later moved to mandatory pro bono.

They even point out that mandatory reporting may prevent a future imposition of mandatory pro bono, by (1) encouraging more voluntary pro bono work, and (2) putting together and publicizing the amount of pro bono work that is being done.

Well, that's like saying you can be 400 pounds and be as healthy as a horse. And you can choose not to get married and be more stable, committed, lifelong partners and parents than people who do. Possible? Certainly. Likely? Never. Unless you are a horse.

Most of us know how these things usually go, in Virginia and in the rest of the developed world. We know all about how to boil a frog, and when'n'how to gradually lubricate a slippery slope. For example, we all know respected, mainstream people who routinely will say that there’s no reason anyone in modern society should have any kind of gun, or how we’re the only democracy that doesn’t provide universal free health care, free two-month vacations, etc. But then when a policy that would move in that direction goes to the legislature, all that talk goes quiet, and all you hear is about how limited this particular measure is, and how dare anyone suggest that it would ever lead to more radical changes later on, of course we would never do that. In Virginia, we punctuate each step in this process by chuckling, “Virginia’s so conservative … they’d never try to slippery that slope here ….”. Then just a few years after it passes, all you hear is that that reform hasn’t made enough of a difference, and is somehow failing to achieve its real goal of making us perfectly healthy and gun-free, so we need to go back and strengthen it.  

Would this happen with Mandatory Pro Bono? If you only looked at what’s being enacted right now, it doesn’t look extremely likely, but then again they have it in at least one huge state now compared to no states six years ago. The only bars requiring it are New York State, where it was imposed by the Chief Judge over the objections of the state bar association, and several federal district courts. California’s state bar trustees approved a similar rule in 2014, subject to approval by the Supreme Court and the legislature. New York and California did this through the vehicle of bar admissions, as part of on-the-job training. The federal courts, from what I’ve seen, seem to do it through panels of lawyers who already try civil cases there frequently.

But the CONCEPT of mandatory pro bono – the widespread if not majority belief that it’s one of the main possible solutions – has been well-known for decades and is not going away. For a lot of people, mandating or prohibiting something is the first and easiest thing to think of when they are first told about a problem. Just a few weeks ago, Justice Sotomayor called for mandatory pro bono, and it might not be a coincidence that she did so in a speech to the American Law Institute, which is always looking for new projects, in response to a question from the Institute’s Director. 

Even if the idea is only for the State Bar to measure and report how much pro bono work is being done, that begs -- i.e., it decides without actually asking and considering -- the question of whether it's the job of the mandatory, regulatory state bar to monitor, measure, and publicize the amount of pro bono work being done. If that's part of its job, what reason would there be for that, other than its also being responsible for making sure pro bono work gets done and everyone's legal needs and wants are met?

Also, bear in mind what happened in New York: The Virginia State Bar’s elected leaders may not want mandatory pro bono, but all too often they are not the deciders – the Virginia Supreme Court is. If and when the Supreme Court is thinking about mandating pro bono, these proposed reporting and enforcement rules will make it easy for them.

Finally, we’re at a point where our nation’s politics, Virginia’s politics, and the beliefs of the generations and cohorts that enter and lead our professions, have moved left for several years now, but the law and the makeup of the bench have lagged behind that. For decades we’ve had a U.S. Supreme Court that took individual rights seriously even when they seemed to be in conflict with other progressive goals. So liberal and professional groups have recognized that there are certain things that constitutional law might not let you do, and that they should focus their efforts elsewhere for the time being. But now we’re hanging fire between the judicial regime that died with Justice Scalia, and the one that will take shape when he is replaced.

So let’s not be comforted by saying mandatory will never happen, or only happens in outlying states like New York and California. I believe that if you oppose mandatory pro bono, or if you oppose lightly deciding to add to the burdens, deadlines and penalties that we place on our members, who vary greatly in earnings, time commitments, clerical support, expertise, and opportunity to do pro bono, then you should not support mandatory reporting of voluntary work.


Make lawyers report pro bono hours, contributions? Va. Bar seeks comments, decides Oct. 7.

The Virginia State Bar doesn't require lawyers to do pro bono work, but its governing Council votes Oct. 7 on changing the membership rules to mandate annual reporting of pro bono hours, subject to the same enforcement system -- fines for reporting late, eventual automatic suspension for not reporting -- that we impose for failing to pay dues or certify that we have malpractice insurance. 

The bar has asked for comments by August 31, 2016. They should be sent to publiccomment@vsb.org. If you can't send them by the deadline, send them anyway. Most Council members who spoke about it at the last meeting, and everyone who spoke up at our last Arlington bar meeting, were against it -- but experience shows that that doesn't translate into actual votes when the leadership cares deeply about a new expansion of the Bar's mission.

The existing rules say lawyers "should" spend 2% of their time on pro bono work, and they make clear that that does not mean they must; it's "aspirational". Like about 40 other states, Virginia does not require tracking or reporting of pro bono work.

 The proposed rules have extensive definitions of what work, for what clients or causes, is and is not pro bono – with the same level of detail as they would have if they were part of a mandatory pro bono rule. They even require the license renewal form to have a check-box for “I am exempt from providing pro bono legal services” as a judge, government lawyer, or officially non-practicing bar member.

Since the pro bono reporting, insurance reporting, etc. are part of annual membership renewal, which is not sent in until it's all finished, the small penalties for doing the various parts of it late add up, basically doubling your dues (which are generally $250).  The VSB budget shows that lawyers currently pay $470,000 in late fees and penalties and $9, 943,625 in current dues. Rough math translates this to 1,880 lawyers paying the penalties, out of the bar's 49,801 members (of whom almost all pay dues; 31,464 are fully active members). It's actually more than 1,880 lawyers, since some who have lower dues, for various reasons, must be among those paying late and thus contributing to the $470,000.  With the new rule, the lawyers paying the new penalty would be the lawyers who are already paying late penalties, surely the solo or barely-practicing lawyers with the least resources. The rule change looks like it would add another $50, as existing Para. 19 on penalties requires “a delinquency fee of $50, for each Rule violated.” It will slightly increase late renewals by adding one more step in the form, and one more reason for delay, mostly by people who’ll think they might have reconstruct their exact number of hours.

The entire proposal is below, and I think it's the only place with each functional part of the proposal including the existing rules it meshes with. But you may also want to look at:

Below are the four parts of the proposal:

  • the new proposed reporting requirement,
  • the existing wording on penalties and suspension which would now apply to failures to report pro bono
  • proposed additions to definition of pro bono
  • existing aspirational rule and its existing definition of pro bono

NEW BAR MEMBERSHIP RULE:

Proposed Changes to Paragraph 18 of Part 6, Section IV of the Rules of the Supreme Court of Virginia:
After the existing language about malpractice insurance coverage, the rest of the rule would consist of this, all new, language:
 
... b) Pro Bono Publico Legal Service Reporting Requirement.

In order to make available information about lawyers' pro bono publico legal service, each active member of the Virginia State Bar shall provide the following annual certification:

  1. Pro Bono Hours. I have personally provided approximately ____ hours of pro bono publico legal services during the previous 12 months beginning July 1 of the preceding year and ending June 30 of the current year.
  1. Financial Contribution. I have personally contributed $_______ to support programs that provide the direct delivery of legal services to meet the needs described in Rule 6.1 (a) of the Virginia Rules of Professional Conduct, as an alternative method for fulfilling my responsibility to render pro bono legal services.
  1. Exempt Persons. I am exempt from providing pro bono legal services because (i) I am currently serving as a member of the judiciary; or (ii) I am a government lawyer prohibited by statute, rule, regulation or agency policy from providing legal service outside of my employment; or (iii) I maintain retired, disabled or associate status with the Virginia State Bar. ____ (Check here.)

Pro bono legal services as described in Rule 6.1(a) of the Virginia Rules of Professional Conduct performed in other states by a member of the Virginia State Bar are reportable in Virginia as pro bono hours.

(c) Penalties for Failure to Comply. Failure to comply with this Rule shall subject the active member to the penalties set forth in Paragraph 19 herein.

"PARAGRAPH 19", REFERENCED ABOVE AS THE PENALTY FOR NON-COMPLIANCE, WOULD NOT BE CHANGED. IT READS:

19. Procedure for the Administrative Suspension of a Member—

Whenever it appears that a member of the Virginia State Bar has failed to comply with any of the Rules of Court relating to such person's membership in the bar, the Secretary-Treasurer shall mail a notice to the member advising of the member's noncompliance and demanding (1) compliance within sixty (60) days of the date of such notice and (2) payment of a delinquency fee of $50, for each Rule violated, provided, however, that the delinquency fee for an attorney who does not comply with the timely completion requirements of Paragraphs 13.2 and 17 (C) of these rules shall be $100, and the delinquency fee for an attorney who does not comply with the certification requirements of Paragraphs 13.2 and 17 (D) of these rules shall be $100, and shall increase by $100 on February 1 for noncompliance with the certification requirements. The notice shall be mailed to the member at his last address on file at the Virginia State Bar.

In the event the member fails to comply with the directive of the Secretary-Treasurer within the time allowed, the Secretary-Treasurer will then mail a notice to the member by certified mail to advise (1) that the attorney's membership in the bar has been suspended and (2) that the attorney may no longer practice law in the Commonwealth of Virginia or in any way hold himself or herself out as a member of the Virginia State Bar. Thereafter the attorney's membership in the Virginia State Bar may be reinstated only upon showing to the Secretary-Treasurer (1) that the attorney has complied with all the Court's rules relating to his or her membership in the bar and (2) upon payment of a reinstatement fee of $150 for each Rule violated, provided, however, that the reinstatement fee for an attorney who was suspended for noncompliance with Paragraphs 13.2 and 17 of these rules shall be $250, and shall increase by $50 for each subsequent such suspension, not to exceed a maximum of $500.

Whenever the Secretary-Treasurer notifies a member that his or her membership in the bar has been administratively suspended, the Secretary-Treasurer shall also (1) advise the Chief Judges of the circuit and district in which the attorney has his or her office, as well as the clerks of those courts and the Clerk of the Supreme Court, of such suspension and (2) publish notice of the suspension in the next issue of the Virginia Lawyer Register.

An administrative suspension shall not relieve the delinquent member of his or her annual responsibility to attend continuing legal education programs or to pay his or her dues to the Virginia State Bar.

ADDITIONS TO DEFINITION OF PRO BONO:

ADD TO COMMENTARY OF RULE 6.1 IN RULES OF PROFESSIONAL CONDUCT: 

[6]Pro bono publico legal services include but are not limited to the following:
a)Legal representation of disadvantaged people;
b)The provision of legal advice to an individual or non-profit organization that primarily addresses the human service needs of the disadvantaged;
c)Administrative rule making for the disadvantaged;
d)The provision of free training or mentoring to those who represent the disadvantaged;
e)Serving on bar association committees assisting the disadvantaged;
f)Serving on legal committees or boards that address the provision of pro bono legal services to the disadvantaged;
g)Serving on the boards of legal services or similar pro bono organizations;
h) Leading or coordinating Law Day activities;
i) Serving as an instructor for a continuing legal education program on issues of substantive law or
advocacy for pro bono and legal services lawyers;
j)Serving as a mediator or arbitrator in a matter involving a litigant who is unable to pay for such services;
k) Engaging in legislative advocacy to improve the law, the legal system or the profession in its delivery of legal services for the indigent.
Pro bono public legal services also do not include services rendered to improve the law, legal system or the legal profession unless they are primarily intended to assist disadvantaged persons, including not only persons whose incomes are below the federal poverty guidelines but also those person s frequently referred to as the “working poor.”

EXISTING VOLUNTARY PRO BONO RULE AND DEFINITIONS:

(Note: The overall definitions section for the Model Rules says that "should" means an aspiration, not a requirement.)

6.1  Voluntary Pro Bono Publico Service

  • (a) A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.
  • (b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.
  • (c) Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.

Comment

[1] Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral.

[2] Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer. Private attorneys participating in legal aid referral programs are typical examples of “poverty law.” Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as “poverty law,” provided the free or nominal fee nature of any such legal work is established in advance.

[3] Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of “civil rights law,” provided the free or nominal fee nature of any such legal work is established in advance.

[4] Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of “public interest law.”

[5] Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of “volunteer activities designed to increase the availability of pro bono legal services.”

[6] Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify.

Collective Fulfillment of Pro Bono Publico Service

[7] Although every lawyer has an individual responsibility to provide pro bono publico services, some legal matters require the application of considerably greater effort and resources than a lawyer, acting alone, could reasonably provide on a pro bono basis. In fulfilling their obligation under this Rule, a group of two or more lawyers may pool their resources to ensure that individuals in need of such assistance, who would otherwise be unable to afford to compensate counsel, receive needed legal services. The designation of one or more lawyers to work on pro bono publico matters may be attributed to other lawyers within the firm or group who support the representation.

[8] ABA Model Rule Comment not adopted.

Financial Support in Lieu of Direct Pro Bono Publico Services

[9] The provision of free or nominally priced legal services to those unable to pay continues to be the obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need Not only do these needs far exceed the capacity of the collective bar, the nature of legal practice for many lawyers places constraints on their ability to render pro bono publico legal services. For example, some lawyers (e.g., some government lawyers) are prohibited by the terms of their employment from engaging in any outside practice. Other lawyers lack the experience and access to resources necessary to provide competent legal assistance.

[10] To provide legal services beyond those available through the pro bono efforts of individual lawyers, the legal profession and government have established additional programs to provide such services. Lawyers who are unable to fulfill their pro bono publico obligation through direct, legal representation should support programs that provide legal services for the purposes described in (a) through financial contributions in proportion to their professional income.


Bills would let unregulated gov't non-lawyers file serious court cases against parents, without a lawyer's signature

A bill now in Virginia's  Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.

Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved.  The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing. 

Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996). 

The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.

The bill adds to Code § 16.1-260 on Juvenile Court filings:

"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"

[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]

It adds to § 54.1-3900, on who can practice law:

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.

And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."

The proposal is in two bills which appear identical: House Bill 589 and SB 417SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan,  and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.

HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.

Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:

Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts. 

If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417

If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:

§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.

The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.


The best way to divide Christmas between divorced / separated parents is ...

The author of "What’s the best Christmas contact arrangement for children?"is a wise man, that's for sure. His slogan is, “Mediation is the fence at the top of the cliff, not the ambulance at the bottom.” I share his recommendation for mediation, or using your parenting coordinator if you have one, or even picking one or more neutral-ish friends to consult together to help resolve such issues. I used to know a judge who got in trouble for flipping a coin to decide the issue the parents put before her -- who got which half of Christmas vacation which year -- but I think what she did was precisely appropriate to the nature of the dispute, and made the point that the question should never have been in court at all. Here's how to do better:

What’s the best Christmas contact arrangement for children?