"Ignore the clickbait headline and actually read this," my friend Bonnie Algera writes. How right she is.
Gov. vetoes guns for battered women, religious freedom, fun knives for kids; Zero Tolerance reform dies in conference committee
Here's how family law bills passed by both houses of Virginia's General Assembly stand on March 27. The governor's vetoes and changes will be dealt with when the Assembly reconvenes on April 5.
Governor Vetoed or Requests Changes:
- Clergy & religious institutions needn't celebrate marriages they disapprove of. -- House version -- VETOED -- veto sustained.
- Ensure that clergy and religious institutions aren't required to celebrate marriages they disapprove of. [Senate version -- VETOED -- veto sustained.]
- Firearms training for abuse victims -- VETOED -- veto sustained.
- Anyone protected by a protective order may carry a concealed weapon without a permit for 45 days. --VETOED -- veto sustained.
- Giving minor a dirk, switchblade or bowie knife OK between family members or for sporting event or activity. -- VETOED -- veto sustained.
- Let courts make alimony payors maintain life insurance for payees -- ENACTED WITH GOVERNOR'S CHANGES
- Study whether to let unpaid lawyers withdraw without needing court's permission - ENACTED WITH GOVERNOR'S CHANGES
- Foster parents must secure all firearms in the home -- GOVERNOR RECOMMENDS SUBSTITUTE TEXT -- SENATE REJECTS SUBTITUTE
Died in or after Conference Committee:
- Crack down on "zero tolerance" suspensions; allow suspension only for certain dangerous offenses listed in statute --
- Let exes bring post-divorce litigation back to the divorce court even if it had "remanded" jurisdiction to juvenile court.
Signed by Governor, Becoming Law Effective July 1:
- Increase fees to record paper deed if there's an electronic filing system.
- Let all government employees working overseas keep their Virginia residency and ability to get a Virginia divorce; not just servicemembers and foreign service officers.
- Tenancy by Entireties: Severing requires deed signed by both parties. A huge change in how deeds are signed in divorces, invalidating one-signature "Quitclaim" deeds signed before a divorce is final.
- Let child support be paid to a special needs trust or ABLE account.
- Make more of minimum wage-earners' earnings garnishment-proof (but apparently only a technical correction to make one statute and court forms match another statute).
- Have estates pay child support arrears before paying local taxes, other debts, other claims
- Change the word "visitation" to "parenting time", but only as a discretionary option
- Adoption assistance for special needs kids: standards changed in several ways
- Putative Father Registry renamed "Birth Father Registry", notice and registration rules changed
- Child meeting with judge in custody case: Changes rules on parents or lawyers being present, transcribing the conversation, transcript availability to parents or lawyers.
- Have all custody orders sent to the children's schools.
- Female circumcision/genital mutilation of minors: 20 years to life for doing it or for parent allowing it; fine up to $100,000; victim can sue.
- CPS/DSS activities involving servicemembers' children must be reported to military Family Advocacy representatives (House version)
- CPS/DSS activities involving servicemembers' children must be reported to military Family Advocacy representatives (Senate)
- CPS must investigate all abuse/neglect reports/complaints about a child one year old or less.
- Home studies must conform to a standard "template"
- Make it easier for social services to remove children from home without first trying to remedy conditions
- Medicaid applicants must be told how a "living will" can help them and how to make one
- Malpractice suits for estate planning: No liability to non-clients without a contract intentionally creating it; clarify statutes of limitations and when they start running
- Adult exploitation: Broader and more detailed definitions for social services laws
- Suspected adult exploitation cases must be immediately reported to local police and in some cases, state police
- Reduce probate fees
- Give fiduciaries (including executors, guardians, or power-of-attorney holders) control over "digital property" -- such as files, domains, bitcoin -- but not necessarily personal communications/social media unless the owner has specified that in the document giving the fiduciary authority. Replaces the 2015 Privacy Expectation Afterlife and Choices Act with the Uniform Fiduciary Access to Digital Assets Act. [House]
- Uniform Fiduciary Access to Digital Assets Act (Senate version)
- Uniform Trust Decanting Act, on moving assets from one trust into a second trust.
- Substitute judges may sit in the same courts where they regularly practice
- Clarify that a surviving spouse can claim an elective share and a homestead allowance. [House]
- Have estates pay child support arrears before paying local taxes, other debts, other claims
- Subpoenaing medical records: Many big changes incl. specifying format to produce them in, cap copying charges, 30 days to respond, fee award presumptions, etc.
- Demurrers: If sustained, amended pleading must incorporate or refer to earlier pleading
(And husband-beater.) I'm a divorce lawyer, so I should know. Masked Berkeley rioter Neil Lawrence makes the all-too-familiar argument that violence is OK when people don't shut up and obey even after you ask nicely:
"But when you consider everything that activists already tried — when mass call-ins, faculty and student objections, letter-writing campaigns, numerous op-eds (including mine), union grievances and peaceful demonstrations don’t work, when the nonviolent tactics have been exhausted — what is left? Of all the objections and cancellation requests presented to the administration, local government and local police, the only one that was listened to was the sound of shattering glass."
State Bar's changes to interstate disbarment/suspension rules, and professionalism course mandate, made official
The Virginia Supreme Court has approved rule changes passed by the Virginia State Bar Council to allow more flexibility and discretion in applying the rules that (1) require new lawyers to take a professionalism course and (2) duplicate other states' and courts' punishments for ethics violations. Both revised rules take effect March 1.
<<According to the Tribune, Sacks “has long had a reputation for delivering strongly worded rebukes from the bench.” He was reassigned for four months to domestic relations court in 2004 for what the Tribune describes as his “profanity-punctuated lecture” during a sentencing hearing.>>
This NY Times Magazine article is about much more than
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
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.
The ABA reports that mandatory pro bono reporting policies, in states that had recently enacted them, were followed by sharp decreases in four states, and a slight increase in one state, from 2009 to 2013. In the states that had already had the policies for several years, one state saw a slight increase and the other showed no change. Here's a summary. Much more info on policies and statistics is at the ABA's page, Pro Bono Reporting: State Reporting Policies.
|State||Year imposed||2009 Participation||2013 Participation|
* Mississippi stopped reporting percentages in 2012, but I computed the number by looking at the numbers on hours worked and hours per lawyer, and comparing with those numbers from the last year a percentage was reported.
(2009's total hours divided by hours per lawyer =8745=44%, so total lawyers = 19875
2012-13 total hours divided by hours per lawyer =8031, which is 40.4% of 19875.)
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 email@example.com. 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.