The West
Virginia Lawyer
August 1997 Issue
| President's Page | YLS Section |
| TechTalk | Feature Articles |
| Dean's Column | Tinder Box |
| Letters to the Editor | CLE Calendar |
As I compose my inaugural President's
Page, I first must admit that I have never been a voracious
reader of this feature in past issues of the West Virginia
Lawyer. I've read the articles as I tried to prepare for my year
as President, but before I became an officer of the Bar it was
rare for me to get by the first paragraph and rarer still for me
to read a President's column from beginning to end. What I have
discovered as I try to write my first President's Page is that
there is one thing harder than reading these things, it's writing
them. I was duly warned by past bar presidents that the hardest
part of this position is writing the monthly columns for the bar
magazine. They advised me to start working on my articles early
but, as usual, I had good intentions but ultimately failed to
take their advice. I did take the time to create an outline on my
computer to jot down ideas for the President's Page as they came
to me over the past year. It has a few items that were entered
from time to time but, for the most part, it's empty.
Not surprising to those of you who know
me, I intend to write a lot this year about law office
technology, especially ways in which lawyers can use computers to
assist with their daily law practices, to make their professional
lives more organized thus easing the pressures of the practice to
some extent. I first started using a computer to assist with my
law practice in 1984. Since that time I have progressed to the
point where I can not practice law without my computer at my
side. In addition to using it at the office, at home and on the
road, I now take it to court and use it to help persuade jurors
at trial of the correctness of my client's position. My computer
is as valuable to my practice as my secretary and legal
assistant. After years of preaching in the wilderness about the
benefits of computers to the practice of law, it seems that the
profession has finally adopted computers to the extent that the
majority of attorneys now personally use a computer in one way or
another in their daily practices. A recent survey conducted by
the American Bar Association revealed that over seventy percent
(70 %) of practicing attorneys have computers on their desks. The
age of the computer is clearly here and its time for all of us to
integrate this technology in our law practices the same way we
have adopted telephones, fax machines and copiers.
The West Virginia State Bar has been on
the cutting edge, or bleeding edge if you prefer, of this move to
utilize computers in the practice of law for the past decade. Our
bar was the first and only bar organization in the country to
build and maintain a computerized legal reference system for its
members with its TechNet system. What started as a dream of
certain forward thinking Bar leaders ten years ago became a
reality with the introduction of TechNet at the Bar's annual
meeting in Huntington in 1992.
In addition to the enormous effort it
took to conceptualize and create TechNet in the first place, it
takes a lot of effort and a significant amount of scarce Bar
resources every year to maintain and develop the TechNet System.
This year, for example, Bar officers are committed to putting all
West Virginia Supreme Court of Appeals cases on the system back
to 1970. Hopefully, in the not too distant future, the entire
body of West Virginia case law, from June 20, 1863 to the
present, will be available on TechNet, something that is not
available in electronic form anywhere else.
The TechNet system has brought a great
deal of positive recognition to West Virginia and its State Bar.
In 1995, for example, TechNet was demonstrated to bar leaders
from around the country at the National Conference of Bar
Presidents' annual meeting in Chicago. It was featured again on
the program of the Southern Conference of Bar Presidents' annual
meeting in Asheville, North Carolina. Comments from bar leaders
around the country were uniformly positive. Most were amazed that
a state
the size of West Virginia had developed such an innovative
system. No other state has made the effort to duplicate what we
have done. Yet, in spite of TechNet's apparent success, less than
twenty percent (20 %) of State Bar members subscribe to the
system. Last year, for the first time, the system lost more
subscribers than it gained. If we are to continue to expand and
improve this important service of the Bar this trend must be
reversed and more members of the Bar must subscribe to and use
TechNet in their daily practices.
What most Bar members don't realize is
that the TechNet system is entirely self sufficient. It brings in
more money than it costs to operate. Not one cent of your Bar
dues goes directly to the support of the system. Subscription
fees fully support the day-to-day operation of the system as well
as the enhancements to the system which have taken place since
its introduction. The system in some ways is in competition with
online commercial offerings such as Lexis and Westlaw as well as
the emerging library of legal resource materials available on CD
Rom. Therefore, it must improve its available offerings every
year or it is in danger of losing its subscribers
As your President, the first thing that I
ask of each of you is to subscribe to TechNet. It only costs an
initial sign up fee of $125., plus a monthly fee of $25 for
unlimited usage. That is a great deal but I have an even
better one for you. For my first official act as Bar President I
wish to offer TechNet to you for an initial sign up fee of only
$25, a savings of $100! The only hitch is that you must sign up
by October 30, 1997. If another attorney in your firm is
already a subscriber, the monthly usage fee is only five dollars.
If you don't currently use a computer, get one, subscribe to
TechNet, and learn to use it. If you already have a computer and
just haven't signed up for TechNet, do so now. There will never
be a better time for you to start using TechNet and you will be
investing in its future and your own future. If, for some reason,
you were a subscriber to the system and dropped your
subscription, join again. Yes, I know the system has some
limitations and may not be all that it can be, but it is just in
its infancy. Become a member of the TechNet committee and help
shape its future. If you just stand on the sidelines and
criticize the system rather than supporting and participating in
its development, it will never reach its potential. Worse yet, it
may wither and die. TechNet is the Bar's child. Let's support it,
encourage its growth and development and be justifiably proud of
it when it ultimately reaches its potential.
If you bear with me and read these
articles I hope that you will write and give me some feedback.
Better yet, send an e-mail message to offuttd on TechNet or
dcoffutt@earthlink.net on the Internet. Otherwise I'll end up
thinking that the other forty seven hundred members of the West
Virginia State Bar are like me and never read the President's
Page and all this effort will have been in vain.
"Parting Words of Anticipation,
Wistfulness and Gratitude"
This farewell Dean's Column has
been exceedingly difficult to write. My enthusiastic anticipation
of future challenges and opportunities at DePaul is mingled with
wistful sadness at the prospect of leaving West Virginia. The WVU
College of Law has been an outstanding legal education
institution for many years; much has transpired at the College of
Law during the previous four years, and some progress has been
accomplished in augmenting resources, enhancing relations with
alumni, and recognizing the achievements of College of Law
faculty, staff, students and alumni. I have come to love this
breathtakingly beautiful state, and to cherish deeply the many
persons who have become close, supportive, steadfast friends. The
decision to resign my position as Dean of the WVU College of Law
after only four years, and to accept the position of Dean and
Professor of Law at DePaul University College of Law was
tremendously difficult, and I would like to delineate the basis
for this decision to return to Chicago.
First, DePaul, as a larger, more complex
law school, presents many new challenges, learning experiences,
occasions to further develop leadership abilities and
opportunities to be of service to the legal profession and the
larger community. DePaul has almost 1,200 student -- 750
full-time day students, 340 part-time evening students, and
approximately 100 LL.M. students studying for advanced degrees in
Tax or Health Law. The full-time faculty of 51, including 21
women, boasts many nationally and internationally-recognized
teachers and scholars. The law school, drawing from the immense
Chicago bar, employs scores of adjuncts in skills-related
courses, such as Trial and Appellate Advocacy, Alternative
Dispute Resolution and Clinic; and in specializations such as
Tax, Patent Law, Antitrust and Intellectual Property.
DePaul houses three
internationally-acclaimed centers/institutes, each of which is
overseen by the dean. The Health Law Institute was the first
established in the nation. The Center for Church-State Relations
performs novel and ground-breaking research on many topical,
often controversial issues, and hosts an annual conference. The
Institute for International Human Rights has been deeply involved
in significant projects around the globe, including the following
locations: Bosnia, where the Institute served as one of the
initial investigators of war crimes in that region, and currently
hold the official designation of approved non-governmental
organization; Nicaragua, Guatemala and a number of South American
countries, where Institute personnel conducted training sessions
(most in Spanish) for members of the judiciary; Mexico and
Central America generally, where projects involving immigration,
asylum, economic development and a number of other topical issues
are underway.
DePaul students are heterogenous in
background; approximately half of the student body comes from
outside the Chicago area. The students publish four law journals;
in addition to the DePaul Law Review, the law school
publishes the Business Law Review, the Health Law
Journal, and the Entertainment Law Journal.
Finally, the University, named for
St. Vincent DePaul, a 16th century French priest who ministered
to the poor of Paris, has embraced a special mission of community
service and outreach to the urban poor of Chicago, social justice
objectives that accord deeply with my own personal and
professional values.
But the second -- and perhaps more
significant reason for moving to DePaul is that it is located in
my hometown, Chicago. Because my father was in the Navy, my
parents were living in Norfolk, Virginia when I was born. But
both my parents are Chicago natives, and we returned to Chicago
before I reached the age of one year. I attended primary,
secondary and law school in Chicago, and spent 25
of my first 29 years there. My mother, brother, nieces and
sister-in-law, as well as -- literally -- scores of aunts, uncles
and cousins -- live in the Chicago area. It has been my good
fortune to remain close friends with dozens of persons with whom
I grew up and with whom I attended school at various levels.
I left Chicago in 1977 at age 29 to
assume a law faculty position in Oklahoma. At that time, the
enchantment of novel places and spirited adventures intrigued me.
I grew to admire the stark landscape of red earth, the diverse
culture enhanced and enriched by Western and Native American
heritage, and the neighborly, irrepressible, generous, strong
people of Oklahoma. During the 16 years I spent as an Oklahoma
law faculty member, and later Associate Dean, I also served a
one-year term as a visiting professor at three law schools --
Ohio State, Florida and Denver -- and relished the opportunity to
live in new places and befriend interesting new persons. I prefer
to believe that my sense of adventure and zest for the innovative
is undimmed, yet it is a fact that the end of this year, I will
achieve the milestone of 50. After two decades of being away, I
want to be home, to revel in the exhilarating turmoil that
characterizes urban life, to immerse myself in immeasurably rich
and varied cultural activities and events, to glory in the marvel
of sunrise over Lake Michigan. Most of all, I want to be with my
family and the oldest of my friends, to be a more intimate part
of their daily lives.
The decision to leave West Virginia was
agony, and the process of transition, of bidding good-by to so
many marvelous friends in the glorious Mountain State, has been
sad. The four years of my deanship at the WVU College of Law have
been the happiest of my life, both personally and professionally.
Certainly there have been failures on my
part during the past four years. Certainly, there is more that I
could have -- should have -- accomplished. But if there have been
successes during the past four years, I cannot claim them.
Rather, these successes are attributable to the College of Law
faculty, staff and alumni.
I have been the grateful beneficiary of
an abundance of support, advice and guidance, and have been
exceedingly blessed by the friendship of so many extraordinary
West Virginians. I have treasured the assistance, counsel and
friendship of many loyal, committed alumni and friends throughout
the years of my deanship, and I will remember always this
friendship and the great generosity of spirit of so many West
Virginians. Upon my assumption of the WVU College of Law
deanship, one of my goals was to attempt to leave the law school
a little better than it was when I arrived. However, I now
understand that his objective has not been, nor will be attained.
The simple reality is that my association with the WVU College of
Law -- its faculty, staff and students, and with the members of
the West Virginia Bar and friends and supporters of the law
school -- has made me so much a better person than I was when I
arrived that any contributions I have made to the College of Law
pale in comparison.
I thank you, deeply and genuinely, for
the privilege of living and working among you, and for your
continuing, unflagging support of me and of the College of Law.
The friendship, support and assistance of West Virginia's
extraordinary people are among the many reasons that I leave West
Virginia with everlasting gratitude and abiding affection. A
large part of my heart will remain always among these splendid,
stunning mountains, among the proud, strong, loyal, committed,
resilient, considerate, spirited Mountaineers.
Please call me at DePaul whenever your
path leads to Chicago. Au revoir. Auf wiedersehen. Adios.
Shalom.
"Through the Eyes of a Child"
As lawyers, we are in the
public eye and are always viewed with great scrutiny as to our
abilities and our honesty. I do not necessarily agree that this
analysis is correct, but common sense and experience tell us
lawyers do not have the best reputation with the public,
generally speaking. Just look at Jim Carey's latest move,
"Liar Liar." The plot of this movie revolves around a
father, who practices law and lives his life through the power of
artful and creative lies. His son's only birthday wish is for his
father to tell the truth for just 24 hours. As only in the
movies, the child's wish comes true at the same time the Father
is given the case of his lifetime, the one case that could make
him "partner." When movie magic takes over and the
lawyer must tell the truth, a little more than comedy comes
across the screen.
I first experienced how my children
viewed my role as a lawyer when my son, Cody, was approximately 3
½ years old and playing in the local park with other children.
At that time, I was primarily practicing criminal defense law.
The conversation overheard went as follows:
Child: My dad got thrown in jail last
night.
Cody: Let's go get my mommy, she can get
anyone out of jail.
Child: But my mommy said he did something
real bad and we wouldn't see him for a long time.
Cody: That doesn't matter to my mommy.
That conversation has replayed in my
mind hundreds of times over the last 10 years. I was happy that
my son was proud of me but the context of his words made me sad.
Through my actions, I had led my son to believe all violators of
the law should be set free and that a good lawyer was the answer
to all woes. I began educating my son at that time on the role of
a good defense lawyer and that respect for the law and law
enforcement was a must in our society.
Later, I became an assistant prosecutor.
When Cody was 8 years old, we were watching a news program on
television. The program revolved around a lawyer who sued huge
corporations for bogus reasons and made an extremely good living
in the process. I was studying case files for the next day and
not paying particularly close attention. At the end of the
program, my son looked up at me and said, "I don't care if
you don't make a lot of money. I just glad you are a prosecutor
and not a real lawyer."
I took this statement as a compliment
knowing what my son had just viewed. However, Cody later attended
criminal trials so that he could see exactly what a prosecutor's
duties were and indeed, that they too, are "real
lawyers."
I believed my son had a better idea of
what it meant to be a lawyer and respected the general principles
behind the legal profession up until last week when Cody (now 12)
and I were at the mall. He was wanting to purchase his 3rd
compact disc of the week for which I refused to pay. His reply to
me: "When are you going to go out and sue people like a real
lawyer and take their money so we can get whatever we want?"
The learning process has started over once more . . .
Respect for our profession begins at home. As a mother, I learn from my children on a daily basis. Some lessons I could most certainly do without. However, if you are a parent, and happen to also be a lawyer, watch how your children react to your profession. Their actions, just like yours, speak
louder than words.
Oh, by the way, in "Liar,
Liar", the Lawyer wins the case by telling the truth . . .
amazing world we live in, isn't it?
. . Cheers . .
Wood County Bar President, Elizabeth
Pyles, along with the help of West Virginia Legal Services Plan
Coordinator, Tal Rhinehart, has set Parkersburg on fire by
sparking new interest in an old subject, attorneys providing pro
bono representation. During the past year, Elizabeth has
encouraged local lawyers of the bar to provide time for the Legal
Aid office and recently the local bar has accepted her challenge
and initiated new rules for the mandatory participation of all
members. If anyone is interested in this program, please do not
hesitate to contact Elizabeth or Tal.
LEGAL ETHICS IS ON THE MOVE!
As our cover picture none too subtly
indicates, the Office of Disciplinary Counsel and the Lawyer
Disciplinary Board have moved their offices again. Why the sign?
"We established a separate office from the State Bar in
September of 1994, and we were on the cover of The West
Virginia Lawyer back then," explained Sherri Goodman,
Chief Lawyer Disciplinary Counsel. "Yet, lawyers were still
sending mail and faxes for us to the State Bar Center almost
three years later. Some lawyers even routed their correspondence
to the State Capitol, and the State Bar moved from there in 1989.
We decided to try something more visual to get the message
across."
The office has relocated to the 17th
floor of the Huntington Bank Building, 900 Lee Street East,
Charleston, WV 25301. All telephone numbers are the same with the
exception of the fax line: (304) 558-4015. The main line is (304)
558-7999. Pictured on the cover are Ms. Goodman, Lawyer
Disciplinary Counsel Steven Johnston Knopp and Amie L. Johnson
and their assistants, Maura A. Lewis, Jackie D. Shultz and Bryce
L. May.
Are two moves in three years the
result of an uncontrollable peripatetic impulse? Not at all. In
1994, the Supreme Court decided that the administrative offices
of the Lawyer Disciplinary Board and the Judicial Investigation
Commission should share space and expenses, along with the
Juvenile Justice Committee. After the Legislature decided to
abolish Juvenile Justice, effective July 1, 1997, and the Court
planned to move its administrative offices to the first floor of
the Capitol's East Wing, the Court determined that it was no
longer cost effective to rent space outside the Capitol. The
Judicial Investigation Commission will be moving back to the
Capitol when first floor renovations are complete. This left the
Lawyer Disciplinary Board and Office of Disciplinary Counsel in a
space too large for their needs and the State Bar Center too
small for them to return to the fold.
"Don't wait to be subpoenaed for
not answering an ethics complaints to check out our new
office," Ms. Goodman urged. "We'll give you a tour,
strong coffee and informal ethics advice." What a deal.
DID YOU KNOW?
The Lawyer Disciplinary Board is of
the opinion that a lawyer may not use a corporation that provides
a medical expert as a witness when the corporation enters into a
contingent fee with the lawyer or the client. This violates the
language of Rule 1.8(k) of the Rules of Professional Conduct,
which states that: "A lawyer shall not pay, offer to pay, or
acquiesce in the payment of compensation to a witness or to
anyone referring a lawyer to a witness, contingent upon the
content of the witness's testimony or the outcome of the
case."
DID YOU KNOW?
Rule 4.2 of the Rules of Professional
Conduct which prohibits a lawyer from speaking to someone
represented by counsel on a particular matter does not prohibit
an attorney from meeting with a potential client interested in
changing lawyers. This is similar to a patient seeking a second
opinion on a medical matter. This interpretation of Rule 4.2 is
consistent with the goals of the Rules of Professional Conduct to
facilitate clients employing the lawyer of their choice.
1994-96
ANNUAL REPORT TO THE
WEST VIRGINIA SUPREME COURT OF APPEALS
From the West Virginia Mandatory
Continuing Legal Education Commission
by Hope L. Gresham, MCLE Coordinator
Pursuant to MCLE Rule 3.7, the
following is submitted for the Court's information:
The West Virginia Mandatory Continuing
Legal Education Commission (the "Commission") met one
time during the 1994-96 reporting period -- October 20, 1995.
Other matters which needed Commission attention were handled by
telephone conference call or through the mail. The Commission
continues to review requests for presumptive accreditation from
continuing legal education sponsors as well as requests for
exemptions by active members of the Bar.
Members serving on the Commission
during this two-year reporting period were: Chairperson, Robert
L. Bays, Attorney at Law, Parkersburg; Gregory W. Bailey,
Attorney at Law, Charleston; Patricia A. Keller, Attorney at Law,
Huntington; Ellen Maxwell-Hoffman, Attorney at Law, Charleston;
Jerry J. Cameron, Attorney at Law, Bluefield; Arch W. Riley, Jr.,
Attorney at Law, Wheeling; Gary A. Sacco, Attorney at Law,
Wheeling; Yolanda D. Haley, Paralegal, Charleston; James S.
Pritchard, Elementary School Teacher, Clarksburg; Melissa L.
Flowers, Attorney at Law, Shepherdstown; and Edward P. Tiffey,
Attorney at Law, Charleston.
Course approval requests continue to be
reviewed by the MCLE Coordinator with any questionable seminar
being handled by a three-member Committee. This procedure has
improved the ability to process requests for approval in a more
timely fashion and is more cost effective. We received over 1100
requests for course accreditation during the 1994-96 reporting
period.
In February of 1995 after reviewing the
course approval rates of other states, we moderately increased
the course approval application fee for sponsors. This fee
offsets the costs due to the extensive amount of time and effort
involved in processing the applications as well as the printing
and postage required. The presumptively accredited providers
could pay a yearly fee of $150, or $25 per seminar held in West
Virginia. All other sponsors were required to pay a $25
processing fee for each application for course approval. From
July 1994, through June of 1995, we received a total of $7670 in
course approval processing fees. From July 1995 through June
1996, we received $7070 in course approval processing fees.
The Committee for Review of Publication
and Teaching Credit has three members. Most requests for teaching
credit are handled by the MCLE Coordinator based upon the
procedures as established by the Committee. Publication requests
and special teaching requests continue to be reviewed by the
Committee. This Committee received over 500 requests for
publication and teaching credit for the 1994-96 reporting period.
Over 4600 attorneys are active within The
West Virginia State Bar and, therefore, are subject to comply
with the mandatory continuing legal education requirements. In
September, 1995, and March, 1996, the Commission provided a
transcript to each active attorney reflecting the continuing
legal education records entered for the 1994-96 reporting period.
This transcript enables each active attorney to verify his or her
continuing legal education records with the records maintained in
our office. Included with the transcript is a notification of the
required number of credits along with the reporting period
deadline. In addition, we respond to thousands of inquiries
received over the telephone and through the mail, particularly at
the end of a reporting period, regarding the number of credits on
file in our office.
On January 21, 1997, the Commission
provided the Court with a list of those attorneys who had not
complied with the MCLE requirement for the 1994-96 reporting
period. The Commission petitioned the Court to suspend the
licenses of these attorneys until such time as they had complied
with the requirement. A total of forty-six names was contained on
that list. Subsequent to the original filing of the Petition to
Suspend on January 21, twenty-five attorneys had complied with
the mandatory continuing legal education requirements and,
therefore, were removed from the Petition to Suspend prior to the
suspension date of May 14, 1997, as established by the West
Virginia Supreme Court of Appeals. Therefore, a total of 21
attorneys were suspended for mandatory continuing legal education
noncompliance for the 1994-96 reporting period on May 14, 1997.
Effective July 1, 1990, a delinquency fee
schedule was imposed for the late filing of Form C (Certification
of Completion of Approved Continuing Legal Education Activity),
Form D (Application for Publication Credit) and Form E
(Application for Teaching Credit). A total of $17820 has been
collected from the 557 delinquent forms received for the 1994-96
reporting period.
LEGAL
RESEARCH: YOUR LEGAL ASSISTANT'S ROLE
By Cheryl J. Given, CLA
and Lisa S. Severino, CLA
Do legal assistants perform legal
research for the attorneys that employ them? You bet we do! We
also charge the client for it.
You have been reading a series of
articles about substantive legal assistant duties as defined by
the case of Taylor v. Chubb, 874 P.2d 806 (Okla. 1994). This case
should be of great interest to you and your legal assistant. For
the first time, a court has distinguished clerical duties from
legal assistant duties chargeable to a client. Legal research is
one of the fourteen duties set forth in the Oklahoma Supreme
Court decision that a legal assistant may bill for performing.
If you encourage your legal assistant to
perform legal research, you must have a great deal of confidence
in your legal assistant's skills. Your legal assistant may have
taken a formal course in legal research or been taught in-house.
It is important when you assign a research project to your legal
assistant that you communicate clearly the issues involved and be
available to answer questions if clarification is needed. Getting
your legal assistant involved in a case from the beginning allows
your legal assistant to become familiar with the facts and issues
particular to the case. This will make the research project go
more smoothly and will be a cost benefit to your client.
You may be wondering how it is possible
to supervise and monitor your legal assistant's work on a
research project. Since you are ultimately responsible for your
legal assistant's work, you may feel a little uncomfortable,
particularly when you are unable to tell from a completed project
exactly what authorities have or have not been checked. Using a
checklist may alleviate this concern. A checklist is a tangible
document you can review. The checklist should outline every
authority the legal assistant has used in performing the project.
The checklist should contain, at a minimum, statutes, court
rules, digests, encyclopedias, treatises, annotations and
reporters. Along with the research memorandum and checklist, your
legal assistant should provide you with copies of the authorities
cited and the Shepard's citations. With this information, you
should be able to tell at a glance if a research project is
complete. With the advent of CD-Rom
technology and on-line services, it is now easier then ever for
your legal assistant to perform legal research. Virtually every
reporter can be purchased on CD-Rom or accessed through an
on-line service such as WESTLAW right from your legal assistant's
office. Your legal assistant can obtain valuable experience using
the reporters on CD-Rom in forming queries and natural language
searches. While on-line services may be expensive, it is cheaper
for your client if your legal assistant does the work rather than
you. Research attorneys at WESTLAW are also available to assist
your legal assistant in formulating queries off-line before
actually logging into WESTLAW.
Remember, your legal assistant's role is
to assist you in providing efficient legal services to your
client. You owe it to your client to utilize your legal
assistant's research skills.
About the Authors: Cheryl J. Given, CLA, attended Glenville State College, has a certificate in legal assisting from the University of Charleston and became a certified legal assistant by examination in September, 1990. She has been employed as a legal assistant since 1985 and has been employed at the law firm of Busch & Talbott, L.C. since August, 1992.
Lisa S. Severino has a Bachelor of
Science degree in Business Administration with a minor in writing
from Alderson-Broaddus College and became a certified legal
assistant by examination in May, 1994. She has been employed as a
legal assistant since 1989 and has been employed at the law firm
of Busch & Talbott, L.C. since October, 1991.
Lisa is the past region director for the
Clarksburg region of LAWV and Cheryl is the past NALA/CLA Liaison
for LAWV and the current Clarksburg region director.
IS THE DISTRICT OF COLUMBIA TWICE AS FREE AS
WEST VIRGINIA?
By H. John Rogers, Esq.
Montani Semper Liberi (except
between 10:00 p.m. and 10:00 a.m.)
West
Virginia State Motto, as amended
The narrator in Voices of Glory, one
of Davis Grubb's better but less-recognized novels, says that
when the local people speak of "the law" they are not
talking about attorneys, or courts, or Blackstone. No, as in
"the law's lookin' for me" or "I'll call the
law," they are referring to a deputy sheriff.
The town of "Glory" is, of
course, a thinly-disguised Moundsville, and I thought of Grubb's
phrase as I was sitting in the sheriff's office one winter night
a little over two years ago around 10:30 p.m. waiting to be
transported to the Northern Regional Jail.
The chain of events that lead me to this
juncture are not, in and of themselves, that unusual or
interesting. After following me for several miles, a deputy
pulled me over in northern Marshall County. After talking
briefly, he examined my license, etc., and then told me to get
out of the car. I asked why and his response was, shall I say,
non-responsive. He told me again and I demurred.
I told him that I had the flu and that
cold air aggravates an underlying asthmatic condition. When he
pressed the issues, I said, "Am I under arrest? If I am,
I'll get out. If I'm not, I'm staying right here."
Reinforcements arrived a little later and
I was arrested for obstructing an officer. With my hands cuffed
behind my back, I was stowed in the rear of a deputy's car for
what seemed like a long time, and then was taken to the sheriff's
office.
None of this surprised me. I had read
George Orwell's seminal essay "To Kill an Elephant" two
decades earlier. The system has to protect itself, that's all,
even when it's wrong. A half-dozen police officers showed up and
official action had to be taken. This was just my night as the
elephant.
It seemed to take the deputy a long time
to fill out the papers at the Sheriff's department, so after a
while I asked him when I could post bond.
"You can't," the deputy said.
"It's too late."
"Let me call a magistrate," I
said.
The deputy handed me a list of numbers.
After I dialed the first one (I deal with the Marshall County
magistrates on a regular basis), I realized that the list was of
their office numbers.
Back when I started practicing law, we
had justices of the peace, usually grumpy old men or grimly
efficient women, who did this as a part time job. That system had
its faults, but it had two advantages: 1) It didn't cost the
taxpayers any money (the justices subsisted on the fees they
collected from litigants), and 2) They were "on call"
around the clock. (They may not have liked it, but if they
expected to make any money, they had to arraign people, set bail,
etc., usually in some part of their residence.)
In 1974, the voters passed the judicial
reorganization amendment, which established the present
magistrate court system. The first magistrates took office in
1977, and, after having spent some $40 or $50 million over the
intervening years, we now have a system where, according to Ted
Philyaw, administrative director for the Supreme Court of
Appeals, a person charged with a simple misdemeanor can expect to
spend some 14 hours in jail waiting to be released on personal
recognizance or a nominal bond.
How did this monstrosity come about?
Well, it makes perfect sense if you
deconstruct it from the inside: The magistrates are normal people
who like a full night's rest; the regional jails can sometimes
(as they did in my case) pick up $80 for an overnight (which is
the basic Marriott rate), and police officers can, in cases they
deem appropriate, administer summary punishment. (Yale Kamisar of
the University of Michigan Law School says that the de facto
ground for arrest in most misdemeanor cases is "contempt of
cop.")
The magistrate in my case was actually
willing to set bail, but the regional jail was unwilling to
transport me. (My one telephone call went to my wife who called
him.) This, I am advised, is not an infrequent occurrence since
the regional jails have an erratic and varied delivery system.
When I arrived at court the next morning, manacled and shackled,
I tried to liven things up a bit by flashing the peace sign and
reciting the last line of Martin Luther King's famous 1963
speech. ("Free at least, free at last. Thank God Almighty
I'm free at last.")
Shortly afterwards, I set out on a letter
writing crusade. This system was a travesty, I wrote. If, for
example, I had been arrested by a municipal police officer, I
could have posted bail with the desk sergeant. I would conclude
the letters with the suggestion that the state motto be changed
to: "Mountani Semper Liberi (except between 10:00 p.m. and
9:00 a.m.")
To say that my plea fell on deaf ears
would be an understatement. The Chief Justice politely referred
my letter to the court administrator. Over the ensuing months,
the court adminstrator, Ted Philyaw and I had pleasant
correspondence, his position being that he didn't see that there
was much of a problem. Of course, flack-catchers never do.
I replied that if he would go and lay out
for 12 hours in one of the regional jails, I would quit writing
letters. I didn't hear from his again for several months.
Philyaw's one cogent argument was to the
effect that federal law did not require prompt arraignment, so
why should West Virginia? This argument overlooks the difference
between general and special law enforcement agencies. In the
District of Columbia, the one federal analogy that might apply,
bail can be posted 24 hours a day, seven days a week. Since our
system precludes West Virginians from posting bail roughly 12
hours a day, it's obvious that residents of this federal colony
are basically twice as "liberi" as we are.
Also, there is the fairly anomalous
situation that if a person is charged with a municipal offense
(these ordinances roughly parallel the state criminal code for
misdemeanors), then in most towns in West Virginia, e.g.,
Wheeling, Moundsville, New Martinsville, the defendant can post
bail at the police station.
I broached this in a later letter to Ted
Philyaw but he rejected the suggestion out of hand. "We
don't want a standard bail," he wrote, "we want to
treat each case individually."
"Individually!", I replied.
"You lock everybody up and that's individual treatment? You
remind me of our old Superintendent of Schools. I wrote him a
letter once on behalf of a church that wanted to put some
anti-abortion books in the school library to counter the
'pro-choice' materials that were there. He responded by removing
all literature on abortion from the shelves!"
But at least Philyaw would
"dialogue", answer letters, attempt to provide
rationale.
A year or so ago, I learned that Judge
Frank Jolliffe of Lewisburg (and a former federal prosecutor) was
chairing a committee that was looking at Administrative Rule 1
for the magistrate
courts. I sent him a packet of material (and am still waiting
for acknowledgment).
Later, I obtained a list of the members
of the committee: There was a solid majority of personnel from
the regional jails, administrators and magistrates. The lone
public defender stood out like a sore thumb. The goats were
definitely guarding the cabbage patch. A few months later I
received a letter from Philyaw (Judge Jolliffe's signature
machine, I suppose, was broken down) saying that the committee
had declined to take any action.
The concept "In for a dime, in for a
dollar" has been one of my weaknesses, so as soon as I could
get it together I filed suit against Philyaw, Jolliffe; John Does
No. 1-3 and Jane Does No's 1 and 2, (I didn't want to personally
insult any of the three men and two women on the State Supreme
Court); three magistrates and three police officers.
The right side of my brain told me that
the half-life of this law suit was about that proverbial snowball
in Gehenna, but at least, in West Virginia, I could look Messrs.
et Mesdames Doe in the eye and ask them to square Rule 1 with,
e.g., Art. III, §17 of the West Virginia Constitution which
says, "[J]ustice shall be administered without sale, denial
or delay."
"A 14 hour wait to be released on
personal recognizance is 'delay' in my book", I would
thunder to the Court, as five heads nodded in agreement.
Wrong again.
The named defendants, all of whom draw a
state paycheck, removed my complaints about Rule 1 to federal
court! I actually broke out laughing when I read their removal
petition. Here were state officials declining to be tried in
their own courts.
"It's like Senator Helms from North
Carolina demanding to be tried by the United Nations," I
told Gridley, my investigator.
"Aye Sir," Gridley replied.
(He's retired from navel intelligence.) "The boys, the
laddies are afeered that if they stayed in state court, they'd
end up doin' 12 hours in a regional jail somewheres."
Gridley has a handle on these things.
About the Author: Mr. Rogers is a graduate of
WVU College of Law and was admitted to practice in 1966. He is a
sole practitioner in New Martinsville.
ONE OF THOSE LITTLE THINGS: HOW TO HANDLE
THE MAIL
by Robert D. Reis, ALPS Risk Manager
Monthly, when I review the claims
statistics, I continue to be baffled by the number of little
things that seem to create big problems for our Claims Department
and especially for our insured attorneys. It is those small
details that make all the difference: assuring that the probate
tax form is complete and sent on time, considering all of the
potential tortfeasors and filing the complaint before the statute
of limitations runs for the defendant in the best position, or
double checking the list of commonly held property before a
settlement conference in a divorce case. Time is always at a
premium and in the best of offices these details can be
overlooked. Nonetheless there are office systems which can help
avoid these problems. In this issue I want to dwell on the
simplest of them, handling the mail.
There are a variety of ways in which a
law office can handle its mail, one of the two lifelines to
clients and the key to efficiency and profitability. Many work.
Others detract from any hope of having a smoothly running and
efficient staff operation. After four years of office visits, I
have developed a model procedure that works if used consistently.
It is critically important for the system to be accepted by all
in the office.
Step One: Mail should be a
priority. When it is received in the office, it should be
centrally opened and date stamped. Envelopes marked for personal
delivery should be taken to the addressee at once. Checks
received should be separated and copied by the mail opener.
Copies should be delivered to the managing partner and the checks
delivered to the accounting clerk or entered by the secretary in
the appropriate account. Why do this? Initial central processing
assures that important mail does not become confused with the
other documents in the office. Additionally, it is far more
efficient and actually takes less time to have the office support
staff handle and sort the mail. Doing so allows them to make
calendar entries and to become aware of forthcoming events and
deadlines. Conversely, having a group of partners take the mail
or stand over the mail openers delays essential office functions
and interrupts crucial information flow. In some offices that I
have visited, the attorney interference with mail handling is so
acute that I have offered to send the office manager a large
wooden ruler reserved for reaching fingers of attorneys not
sufficiently patient to allow the process to go forward smoothly.
Date stamping acts as documentation of the timeliness of your
work. In the event of a criticism of late work, date stamping can
prove those delays were beyond your control. Additionally,
copying the checks assures that any which may be lost can be
identified by matching the copies to the deposit slip and
replacing the missing check.
Step Two: Mail should be reviewed
by the support staff and crucial dates entered on the common
office calendar with notes made regarding work to be done to meet
upcoming deadlines. Those making calendar entries should then
highlight or otherwise indicate on the document which dates have
been entered on the calendar. Only then should mail be given to
the legal assistants (if they are not the openers and calendar
entry persons) and the attorneys. In some cases the secretaries
should have a diary date to follow up and see if there is a
response to a piece of mail, or if the other necessary work is
done.
Why have the support staff calendar
before mail is seen by attorneys? Inmost cases, the staff is more
tuned in to deadlines and which attorneys are concerned with the
substance of the work to be performed. Many of the deadlines that
have been missed were in files that demonstrated brilliant
legal research and writing, arguments that would have swayed
the most obstinate judge. The problem was that for whatever
reason (and often it is mail delay or failure to make a calendar
entry) the attention necessary wasn't present and the pleading
with the brilliant argument didn't arrive at the courthouse on
time.
The bottom line is not to interfere with
good people doing a capable job. Train the staff well and allow
them to make you look good. Resist the urge to interfere. Make
sure you are not sued for some simple little mistake that, had
you followed a good mail procedure, would have been avoided.
"Milestones"
Milestones - Webster's II New
Riverside University Dictionary defines milestone as "A
significant event in one's career or history."
I would like to mention a couple of
milestones to you that certainly fit that definition.
In June, I had the privilege of
attending an important event in Governor Cecil Underwood's
offices in the State Capitol. The Governor was recognizing two
wonderful individuals, who are also outstanding lawyers, for more
than a century of combined service to their clients and to the
State of West Virginia.
Any attorney who has practiced law in
Charleston or the surrounding area in the past half century or
more has undoubtedly heard of the law firm of Bibby and Good.
This two person law firm, consisting of James A. "Bus"
Bibby, Jr. and Albert F. Good, set a standard of excellence and
professionalism to which every attorney should aspire.
Mr. Bibby and Mr. Good grew up in
Charleston. In fact, the story was told that Mr. Good and Mr.
Bibby decided to become lawyers rather early in life and decided
that they would be law partners together. They knew what they
wanted to accomplish, they made the necessary plans and they
accomplished their objectives.
Both of these gentlemen epitomize
everything that is good and right in the legal profession. They
have been ethical and fair in their dealings, effective advocates
for their clients and leading members of their community. They
have realized the importance of assisting other attorneys,
particularly newer attorneys, as was stated so eloquently by
David Ansell, who is in the same office building as Mr. Bibby and
Mr. Good and who organized the ceremony in Governor Underwood's
office.
Mr. Bibby is a recognized expert in
public utilities law, having served on the West Virginia Public
Service Commission. His law practice has become more inactive
recently after he passed his 60th year of continuous legal work.
Nevertheless, he comes into the law office everyday to check up
on matters.
Mr. Good continues his active practice of
law, concentrating his work in the area of real estate and
litigation. During more than five decades of law practice, he has
assisted thousands of men, women and children with his legal
expertise. He is an inspiration to all who know him, even more so
when you realize that he has been blind since his youth.
Dozens of friends, including Charleston
Mayor Kemp Melton, Circuit Court Judges Herman Canady and Tod
Kaufman and former Supreme Court Justice Richard Neely, joined
Governor Underwood for the ceremony honoring Mr. Bibby and Mr.
Good. State Bar President Elect Elliot Hicks presented these two
outstanding gentlemen and lawyers with a resolution, unanimously
passed by the State Bar's Board of Governors, honoring them for
their more than 115 years of combined service to West Virginia
and to the legal profession.
It was a memorable event. Two fine
individuals who represent the best of our legal profession.
***
Another milestone will occur
this summer when Tom McQuain completes his 20th year as an
attorney employed by the West Virginia Supreme Court of Appeals.
Except for an eight year term as deputy clerk and senior staff
attorney for the Supreme Court, Tom has been employed as a
personal clerk to Justice Thomas E. McHugh and also a per curiam
law clerk assigned to him.
Tom, who is well known to any lawyer who
has practiced before the Supreme Court in the past twenty years,
is a graduate of the West Virginia University College of Law.
Tom's wife Mary, is also an attorney and they are the proud
parents of a son, Tommy, age 3 years.
Finally, on a personal note, this month I
am joining the West Virginia State Bar in celebrating my own 50th
year anniversary. Time sure does go fast when you're having a
good time. It is amazing to me that it has been twenty-five years
since I graduated from West Virginia University College of Law.
To commemorate this milestone in my life,
I might even update the picture at the top of this page. Maybe.
Maybe not.
PIC
State Bar President Elect Elliot Hicks, Albert F. Good, James
A. Bibby and Governor Cecil H. Underwood.
LOCAL
RULES UNIFORM CITATION NOTICE
UNITED STATES DISTRICT AND BANKRUPTCY COURTS
SOUTHERN DISTRICT OF WEST VIRGINIA
At its March 1996 session, the
Judicial Conference of the United States adopted a Uniform
Numbering System for local rules of court to correspond with the
relevant Federal Rules of Practice and Procedure. Uniform
numbering systems are being adopted to assist the Bar in locating
local rules applicable to a particular subject, to reduce the
chance that visiting counsel will be taken unaware, and to
facilitate incorporation of Local Rules into national and state
indexing and computer services.
The renumbering of the Local Rules for
the Southern District of West Virginia was distributed to all
member of the Bar for commentary until May 5, 1997, under Notice
dated April 11, 1997. No written comments or objections to the
renumbering of the Local Rules or suggestions for citation were
received.
In keeping with the spirit and intent
that all local rules of court conform to the Uniform Numbering
System prescribed by the Judicial Conference, members of the Bar
and any visiting attorneys granted permission by this Court to
practice in this District shall refer to the Uniform Rule Number
as it appears in the renumbered District and Bankruptcy Court
Local Rules Index as the method of citation.
You may obtain a copy of the renumbered
District and Bankruptcy Court Local Rules Index by contacting the
nearest Clerk's Office in the District.
DATED: July 1,
1997 Samuel
L. Kay
Clerk
of Courts
The Following Seminars Have Been Approved for MCLE Credit
in WV. Please Contact the Sponsor For More Information at the
Telephone Number Listed With Each Activity.
8/8/97 The
West Virginia State Bar, "Advanced Mediation Training,"
Days
Inn-Flatwoods, 304/558-1044
8/20/97 National
Business Institute, Inc., "Successful Judgment
Collections
in WV," Charleston, 715/835-7909, 7.20 credits,
including
1.0 ethics
8/21/97 National
Business Institute, Inc., "Land Use Law Update in
WV,"
Charleston, 715/835-7909, 7.20 credits, including
1.0
ethics
8/22/97 Lorman
Business Center, "Strategies in Handling DUI Cases,"
Charleston,
715/833-3940, 4.50 credits
8/27/97 National
Business Institute, Inc., "Nursing Home Malpractice
in
WV," Charleston, 715/835-7909, 7.20 credits, including
1.0
ethics
8/29-30/97 WVCLE, "Ethics
and Law Office Management," Morgantown,
304/293-7255,
WVU v/s Marshall
9/5-6/97 WVCLE,
"Commercial Law," Morgantown, 304/293-7255,
WVU
v/s East Carolina
9/5-6/97 WVCLE,
"Criminal Law," Morgantown, 304/293-7255,
WVU
v/s East Carolina
9/11/97 Professional
Education Systems, Inc., "Examining
and
Evaluating
Title to Real Property in WV," Charleston,
715/836-9700,
6.90 credits
9/16/97 NBI,
"Advanced Workers' Compensation in WV," Charleston,
715/835-7909,
7.20 credits, including 1.0 ethics
9/19/97 Professional
Development Network, "Adoption Law in WV,"
Charleston,
414/798-5242, 6.60 credits, including
1.20
ethics
9/20/97 WVCLE,
"Child Abuse and Neglect," Morgantown, 304/293-7255,
6.0
credits, including 1.0 ethics
9/23/97 NBI,
"Domestic Law in WV," Charleston, 715/835-7909,
7.20
credits, including 1.0 ethics
10/3-4/97 WVCLE,
"Update on the Law," Morgantown, 304/293-7255,
WVU
v/s Rutgers
10/9/97 Professional
Education Systems, Inc., "WV Federal Estate and
Gift
Tax Workshop," Morgantown, 715/836-9700, 8.0 credits
10/10/97 Professional
Education Systems, Inc., "WV Federal Estate and
Gift
Tax Workshop," Charleston, 715/836-9700, 8.0 credits
10/10/97 WVCLE,
"Child Abuse and Neglect ," Charleston,
304/293-7255,
6.0
credits, including 1.0 ethics
10/24-25/97 WVCLE,
"Evidence," Morgantown, 304/293-7255,
WVU
v/s Virginia Tech
11/14-15/97 WVCLE, "Insurance
Law," Morgantown, 304/293-7255,
WVU
v/s Temple
11/14-15/97 WVCLE, "Real
Estate," Morgantown, 304/293-7255,
WVU
v/s Temple