The West Virginia Lawyer
February 1997 Issue
| President's Page | TechTalk |
| Dean's Column | Letters to the Editor |
| YLS Section | Feature Articles |
| Tinder Box | CLE Calendar |
| Miscellaneous |
President's Page
IT'S NOT TOO LATE TO MAKE RESOLUTIONS
Although the subject of this column would certainly have been more appropriate in last month's
Lawyer, as my friends and family will confirm, at times I have been known to be a wee bit late. No
one knows this better than my good friend, Lisa Stam, the Editor of the Lawyer, who is constantly
hampered by the tardiness of my articles. This month is no exception, and as I put pen to paper for
February's column, the New Year begins.
I suspect that most of us begin the new year with resolutions and if you are like me, each year there
are several boiler-plate resolutions such as losing the holiday tonnage, exercising more regularly,
being more efficient, etc., and in addition to those resolutions, are others more suited to the
particular circumstances of time.
Recently, while perusing some of the material sent to me as Bar President, which seems to arrive
daily by the armload from the American Bar Association, I ran across the following list of New
Year's Resolutions offered by Tom Grella, an ABA Young Lawyers Division Director and former
Chair of the YLD Ethics and Professionalism Commission. The list of resolutions seemed
appropriate, not just for young lawyers, but for all of us, and I thought it would be worthwhile to
share them, albeit somewhat into the new year.
I HEREBY RESOLVE TO:
• Return clients' and attorneys' phone calls as soon as is practically possible
• Keep clients regularly informed of the status of their cases
• Incorporate as much computer technology into my practice as my budget allows
• Create itemized, detailed, and accurate client billings to ensure specificity and ease of reference
• Provide pro bono legal services to a person or persons of limited means or to public service or
charitable groups that provide legal services to indigents
• Review or implement a comprehensive conflict-of-interest referencing system, or both, and
properly use that system each time a new case is opened
• Review the docketing system used for cases and modify that system, if necessary, to meet all
deadlines in a timely manner; continue regular review of the docketing system throughout the year
• Keep comprehensive and detailed notes for the file in each case, including case activity,
correspondence and telephone calls received and returned
• Provide to each client an engagement letter, and at the end of the representation, include a file
closing memorandum and send an appropriate disengagement or file closing letter
• Maintain a healthy balance between work and personal life, to improve emotional and physical
well-being and to minimize the stress in my law practice
• Demonstrate the utmost civility, decorum and professionalism toward the Court, opposing
Counsel, clients, witnesses, and Court personnel in all cases
This list is by no means all inclusive, but it contains a number of suggestions which, if implemented,
can make any lawyer's practice more productive and less stressful. Perhaps you have already made
some of these resolutions but, if not, choose one or two or resolve to do all of them and any others
that you think are appropriate for your practice. I suspect that there is room for some improvement
in each of our practices, and it is never too late to resolve to make those improvements.
Media Outreach by the College of Law
Provision of service to the people of West Virginia is an integral part of the College of Law mission,
and furnishing information on law and legal issues of significance to the people of West Virginia is
one way in which the College of Law fulfills its mission. Three media outreach projects are currently
available to West Virginia's citizens.
The Law In Your Life. Funded by a strategic planning grant from WVU, this series of twelve
one-hour programs outlines governing legal principles and legal rights in a variety of areas that affect
the lives of West Virginia citizens. Each program focuses upon a particular legal topic, and features
a panel of three West Virginia legal experts who present information and comments on a range of
legal problems.
Topics and panels include: The criminal justice system (Honorable Irene Berger, Rebecca Betts,
Honorable Franklin Cleckley); domestic relations (Honorable Robin Davis, Cheryl McCray, R.
Joseph Zak); children's rights (Barbara Baxter, Virginia Hopkins, Honorable Ronald Wilson);
education and school law (Kay Bayless, Michael Carey, Howard Seufer); labor law and
workplace rights (Allan Karlin, Joseph Price, Robert Steptoe); workers' compensation
(Commissioner Andrew Richardson, Richard Cohen, John McClaugherty); the courts and the
constitution (Honorable Joseph Goodwin, David Hardesty, Honorable Irene Keeley);
landlord-tenant and real property law (John Fisher, J. Thomas Lane, Joyce Ofsa); probate,
intestacy and other life and death choices (Jack Bowman, Chuck DiSalvo, Michele Grinberg);
consumer and bankruptcy law (ellen Cappellanti, Vince Cardi, Andrew Nason); free speech rights
(Honorable Dan O'Hanlon, Gerald Ashdown, Joshua Barrett); personal injury and damages law
(Thomas Flaherty, Carl Selinger, Scott Segal). West Virginia Public Television is broadcasting
these programs weekly on Sunday evening at 6:00 p.m. Each program is available on videotape by
contacting me at the College of Law.
Achieving Justice: A Century of West Virginia University Women in the Law. Today, women
comprise nearly half of the nation's law school enrollment. Yet, the ability of women to enter, and
succeed in, the legal profession in the present is attributable in no small measure to those women of
personal fortitude and pioneering spirit who entered the legal profession in the past, and by doing
so, changed the societal and legal landscape.
The College of Law is proud of its century-long tradition of providing educational opportunities to
women. The history of early WVU College of Law women graduates and the role of women
lawyers in the development of the legal profession is the topic of an hour-long video documentary
funded by a WVU strategic planning grant and produced in conjunction with WVU Radio and
Television Services. Entitled Achieving Justice: A Century of West Virginia University Women in
Law, the video is narrated by public television commentator Beth Voorhees. The documentary
includes first-hand accounts of experiences in law school and at the bar by seven decades of WVU
women law school graduates. It also focuses upon observations by male and female lawyers
concerning the differences women have made in the legal profession and the development of the
law in areas such as domestic relations, children's rights, domestic violence, rape and sexual assault,
equal employment opportunity and sexual harassment. Proceeds from the $15.00 purchase price
will be used to fund scholarships for WVU law students. Contact me if you would like to purchase
a copy.
Legal Lines. Newly-initiated Morgantown cable channel 3, known as "Your Public Governmental
and Educational Acess Channel," provides a forum for Legal Lines, a half-hour program that
features spirited discussion between myself and one or two guests on topics both significant and
controversial. The program airs daily, and has featured issues such as the origin and history of the
ACLU (Nadine Strossen, National ACLU President); regulating media violence under the same
standards as obscenity (Kevin Saunders, Professor of Law, University of Oklahoma); free speech
and the internet (Dr. Viktor Mayer-Shonberger, University of Vienna Law School); alternative
dispute resolution methods (Thomas Patrick, Linda Rice); the stature and professionalism of the
legal profession (Honorable Charles Haden, Rich Ford); partisan election of judges (Jim Peterson,
Dave Romano); and merit-based selection of judges (Karen Lukens, Thomas Flaherty); life and
death decisions (Chuck DiSalvo, Dr. Alvin Moss); representing the criminal defendant (Virginia
Hopkins, Carl Selinger); plea bargaining (Marsha Ashdown, James Zimarowski); and the Task
Force on Gender Fairness in WV's Courts (Honorable Robert Halbritter, Mary Durkin). I tape
two or three new programs each month, and remain interested in unearthing topics relevant and
interesting to West Virginians. I welcome your suggestions, ideas and comments.
Fall, 1997 Speakers. The College of Law is delighted to announce that two superb jurists have
agreed to serve as guest speakers this Fall. The Honorable Abner J. Mikva -- Cngressman, judge
on the Court of Appeals, District of Columbia Circuit, counsel to President Clinton --
will deliver the Charles L. Ihlenfeld lecture on September 24. Justice Sandra Day O'Connor will
deliver the Robert G. Donley lecture on November 19. Both lectures are scheduled for 4:30 p.m.,
and will be held in the Lugar Courtroom. Please join us in welcoming these eminent jurists to West
Virginia.
Suggestions and Comments. This column has benefitted immensely in the past from suggestions
offered by members of the Bar that I discuss particular topics. If there are issues or topics that you
would like addressed, please contact me by mail, phone, fax or e-mail, tfoster@wvu.edu. I look
forward to hearing from you.
TINDER BOX
"Some Stuff"
Regional Meetings - In October, November and December, the State Bar held regional meetings in
nine locations in all parts of the State. This has become an annual activity in the Fall of the year
which enables the leaders of the State Bar to discuss programs and services with the membership
and receive the necessary comments and input as to what the State Bar is doing, should be doing
or should not be doing.
Over 400 lawyers attended these dinner meetings. At each one, a State Bar officer talked about
our organizations activities, especially the Professionalism Guidelines - that were later approved by
the Supreme Court and went into effect on January 1 -- as well as the 50th anniversary Annual
Meeting coming up in May and an update on the availability of free civil legal services for our low
income citizens.
Time was always available so that the members in attendance could ask questions, state their
opinions, and talk about any item that was on their mind. As you would expect, many topics were
mentioned, including the new professional limited liability entity law, the level of state government
funding for criminal indigent defense representation, lawyer disciplinary matters, the selection
process for circuit court judges, the interest on lawyer trust accounts (IOLTA) program, and
numerous other matters.
At each location, the State Bar officer expressed the appreciation for the memberships' positive
action in approving an increase in membership dues which went into effect in July, 1996. A pledge
was made to the lawyers that the State Bar would continue to operate in a most effective and
efficient financial manner with the funds from this first dues increase in eleven years.
There was also a brief presentation made at each meeting on the State Bar's innovative TechNet
system. At each meeting, more State Bar members signed up to participate in this unique law office
automation project.
I know that I speak for the State Bar officers and the members of the Board of Governors who
were in attendance at the regional meetings in saying that they are extremely beneficial. I always
look forward to having the opportunity to see old collegues and meet newer members of the State
Bar. Take some time and attend a regional meeting in your area this coming Fall.
Judicial Advisory Committee - The State Bar's Board of Governors has taken action to contact
Governor Cecil Underwood to encourage him to set up a Judicial Advisory Committee, such as the
one that has been in effect for several years. By Executive Order, the Governor has the ability to
set up such a committee of lawyers and laypersons to provide input and recommendations when
there is a vacancy for a circuit court judge in the State.
During former Governor Caperton's eight years in office, a process was followed whereby any
eligible, interested lawyer could apply for circuit court judge vacancies. A nine-person committee,
appointed by the Governor, then reviewed extensive background information, held interviews and
presented the Governor with a recommendation as to whether they felt the candidate was qualified
or not. It is our understanding that a qualified candidate was always appointed to the circuit court
judge position.
The Committee members were a diverse group with representation from all segments of West
Virginia. The process seemed to work extremely well. It is hoped that Governor Underwood will
utilize a similar type of system.
Hot Areas of the Law - In reading The Young Lawyer, a publication of the American Bar
Association's Young Lawyers Division, I came across some interesting information. From a book
entitled "Jobs for Lawyers: Effective Techniques for Getting Hired in Today's Legal Marketplace"
(1996), by Hilary Jane Mantis and Kathleen Brady, the authors identify the following major hot
legal practice areas - health care, elder law, Intellectual Property, Environmental Law, Alternative
Dispute Resolution, International Law and International Trade Regulation and Labor Law. The
article went on to say that other hot areas, according to recent surveys conducted by Robert
Denney, Inc., are corporate finance, municipal finance, taxation and energy.
E-Mail - I know that some of our members get a little tired of hearing me talk about technology,
automation, computers, etc. It is especially true when they realize that I do not have a great deal of
expertise or understanding. All I really know is that lawyers will not be able to represent their
clients in the best fashion if they don't have some understanding, familiarity and utilization of law
office automation techniques.
Just a couple of facts to prove my point. First, the Naisbitt Letter dated October 24, 1996, states
that there are now 25 million business people and 15 million consumers who have e-mail
addresses. That is twice as many as just one year ago.
Second, the November 20, 1996 issue of USA Today had this astounding fact - more than 94% of
college students have access to the Internet's World Wide Web and 85% have an e-mail address.
These college students will be out practicing law in less than seven years - how do you think they
will expect to communicate with other lawyers, the courts and their clients?!
50th Anniversary - Mark your calendar now for the 50th Anniversary Annual Meeting of the West
Virginia State Bar. It will be held on May 9 and 10, 1997 at the Charleston Civic Center. You can
make your room reservations at any one of several nearby hotels - the Charleston Marriott, The
Elk River Town Center Inn or the Hampton Inn. You won't want to miss this one.
Law Firm Marketing on the Internet
Provided by Arnett & Foster, CPA's
The World Wide Web (the graphical, interactive portion of the Internet) offers an exciting new
marketing arena for law firms of all sizes. By developing and supporting a web site that profiles
your firm, you can gain exposure on a broader scale than ever before possible and tap
opportunities for referrals and new business.
Anecdotal evidence indicates that Internet marketing is especially effective for boutique or niche
firms that specialize in consumer legal services, such as immigration law, consumer law, DUI, victim
representation, and class actions. Intellectual property firms may also benefit from a web site
because of the high tech nature of their practices. Finally, corporate firms seeking to establish or
expand an international presence are finding the Internet an invaluable tool for gaining exposure all
over the globe.
Content is Critical
The first screen a visitor encounters when connecting to your site (the "home page") should include
the following basic information:
* The name of the firm and a brief tag line describing what the firm does
* A summary of other information on your web site
* E-mail and mailing addresses
* Phone and fax numbers
Your home page should also link visitors to other pages containing information such as:
* Firm description and history. A 2-3 paragraph summary of the firm's formation, expansion,
practice areas, and client service philosophy.
* Attorney biographies. Short, conversational summaries of relevant experience (don't try to
replicate every detail in Martindale-Hubbell).
* Case profiles. Bried summaries of a representative variety of legal matters the firm has handled,
including (1) a description (but not the name) of the client, (2) a sumary of the issues in the case,
and (3) how the case was resolved in favor of the client.
* Current newsletter/client bulletin. Summarize articles or post them individually to alleviate the
lengthy download time and disk space required for large files.
* Links to other legal resources. You can get ideas for these by visiting legal and government web
sites, Internet directories such as Yahoo (http://www/yahoo.com) or Lycos
(http://www/lycos.com), or from electronic newsletters such as legal.online
(http://www.legalonline.com) or The Internet Lawyer (http://www.internetlawyer.com).
* Client testimonials/press clips. These can be effective in enhancing your image or creating further
interest.
In addition to the information described above, a law firm web site should contain timely and
interesting content that will (1) keep visitors coming back and (2) encourage them to call or e-mail
you when they have a legal question or need. Graphics, especially on the home page, should be
kept to a minimum. If the "draw time" is too long, visitors will grow impatient and move on.
Caveat: Web Sites Are Advertisements
Make no mistake about it: The material you post on your web site is considered advertising
according to state rules of professional conduct. Avoid words that are prohibited in your state, such
as "expert," "certified," or "specialized." Other potentially misleading descriptors are "unique,"
"full-service," and "national."
Search Engines: Helping Others Find You
Even the best web page is worthless if prospects can't find it. To ensure they can - register with
various "search engines" - dedicated computers that do nothing but search the Internet continuously
for new web sites, index them, and present them to users who initiate a search for a particular
subject or keyword. To get your home page listed, send e-mail to ech search engine (a list of them
is provided with most web browsing software). Services such as Submit It!
(http://www.submit-it.com) allow you to register your page with most major search engines and
directories by completing an online form.
Tracking Hits
Tracking the "hits" to your site is critical in assessing the effectiveness of your home page.
Therefore, when selecting an Internet service provider (the company whose server will house and
update your web site material) find out what type of reporting is provided regarding "hits" - the
individuals looking at your material. Insist on at least monthly reports summarizing the specific pages
viewed.
What Does it Cost?
"Web authorizing services" are offered by specialized agencies as well as CPA firms,
advertising/p.r. agencies, graphic design studios, and Internet service providers. The initial cost of
designing and building your home page will vary depending on who does it for you and what part of
the country you're in. Some firms have spent as little as $1,000, while others have spent tens of
thousands. For a law firm web site with limited graphics, budget at least $2,000 for some outside
help in the initial design and implementation. Monthly maintenance costs on a web server run from
$50-$200 per month, not including the cost of updating your material.
This article was based on information provided by Nancy Roberts Linder, principal of Nancy
Robert Linder Consulting in LaGrange, Illinois.
Dear Editor:
I read with interest the recent article by Vito Mussomeli, Esq., appearing in the November issue of
The West Virginia Lawyer, entitled, "Mental Hygiene Hearings: The Flower-Child Statutes." The
author was particularly critical of the need for a Probable Cause hearing as required in WV Code
27-5-1 et seq. He prefers that physicians be provided arbitrary power to admit an involuntary
patient on an emergency basis, without a court order. They alone would decide whether or not a
person requires placement in a psychiatric facility once a petition has been filed stating behaviors
suggestive of a mental illness, addiction, or mental retardation. Additionally, the petitioner has
signified that the person has exhibited behaviors that are believed to be a danger to self or others.
As a licensed psychologist who has been called upon to examine respondents, both for the State,
as well as for defense counsel for more than twelve years, I wish to take exception to many of Mr.
Mussomeli's arguments. He contends that the appointed Mental Hygiene Commissioner has no
training in mental illness, retardation, or addiction unless they simply "happened upon it." According
to 27-5-1-a, "metal hygiene commissioners and any magistrates designated by the chief judge . . .
must attend and complete a course provided by the supreme court of appeals which course shall
include . . .instruction on the manifestations of mental illness, mental retardation, and addiction." It is
not the responsibility of the Commissioner to have in-depth knowledge of psychopathology. The
role of the Commissioner is to rule on whether or not sufficient evidence has been presented by the
office of prosecuting attorney and the examining psychologist/physician. The Commissioner then
determines if the respondent meets the legal criteria according to WV Code 27- 5-1 et seq. In
other cases, such as in the instance where competency to stand trial is in question, the decision is
not arbitrarily made, but an examination by a psychologist or psychiatrist is ordered by the Circuit
Judge.
I would agree with the author that there are frequent hearings held for respondents who are
blatantly psychotic and/or a danger to self or others. Most assuredly, legal and medical personnel
would agree that immediate psychiatric attention is needed. Yet, there are those individuals who
carry a psychiatric diagnosis and, in fact, continue to exhibit sufficient symptomatology to have the
diagnosis remain valid. But, these persons are not an immediate danger to themselves or to others.
However, we who have participated in hearings over the years, have witnessed, all too frequently,
family members, neighbors, or others use the patient's known diagnosis to legitimize their removal
from the domicile, when in fact there is no evidence of danger to self or others. It may be just too
tempting for the physician who is a friend of the family to readily accept the endagerment
component. Besides, is there not the effect of a dual relationship for the physician.
Frequently, physicians on unlocked behavioral health units deem patients to be unsuitable for their
treatment units. They must however, petition for a hearing to have the evidence presented. I was
once called upon to examine a patient in just such a case and recommended the patient's best
interest could be met without transferring her to a state psychiatric facility. The patient was pregnant
and it was my contention that the medical hospital where she was a resident, which had a
behavioral unit, could better meet both her medical and psychiatric needs. The Commissioner at the
time agreed.
It is not a distrust of the medical community, but a need to protect the rights of the respondent. The
certification by the appointed psychologist or physician is admitted as evidence, and at least in my
experience, this evidence has been deemed important.
I can only speak for myself but during the past 12 months, I have been called upon to examine over
150 persons for the Mental Hygiene Commissioner in my county. Ninety-eight percent of the
respondents were NOT committed as Mr. Mussomeli would suggest in his experience.
Finally, I would agree with Mr. Mussomeli that the word "forthwith" needs clearly defined. This can
certainly make a difference as to whether a person is held on a detainer for one day or maybe a
weekend?
Ronald D. Pearse, Ed.D.
Licensed Psychologist
Dear Editor:
I wish to respond to Mr. William F. Byrne's "Letter to the Editor" which appeared in the December
1997 issue of the West Virginia Lawyer magazine, rebutting my article on mental hygiene hearings.
RESISTANCE IS FUTILE
by Charles Houdyschell, Jr.
I was complaining and expressing self-doubt about opening an office in Ohio to a friend of mine. I
was complaining about the fact that in one particular court appointed criminal case, for the first time
since opening my practice, it might take about a month from finishing the case to get paid. I was
upset because it usually only takes about two weeks. My complaints were falling on deaf ears. My
friend also maintained a court appointed criminal practice. The only difference was that his was on
the West Virginia side of the river. Any attorney ever having waited, waited, waited, resubmitted,
waited, waited, waited, took out a loan to pay creditors who won't wait any longer, waited,
resubmitted, contemplated going on welfare, waited, waited and waited on the good folks in
Charleston to pay them for a court appointed case, simply will not listen to my whining about
delayed payments for at least another 6 months.
To further aggravate my friend, the subject of Mr. Roger's article in last months West Virginia
Lawyer came up. Both my friend and I agreed the article was simply a sales pitch for the continued
assimilation of counties into public defender collective. My friend being in an unassimilated county
viewed the article as a renewed assault on his practice. Having served a couple years in one such
office, I could not gather much from the article because of the glossy rose color blinding my eyes.
To sum up the opposing sides in this conflict, it is the survival of the tattered remnants lower ranks
of the bar versus an expanding (State when they want immunity and risk management coverage,
Private when their employees want state benefits) bureaucracy seeking to assimilate all counties into
its collective. When my friend asked me his odds in the next PDS assault on his county I had to tell
him the truth. "Resistance is futile."
When the Public Defender Collective assimilated Cabell County I was working in a county about a
hundred miles to the north. Apparently the assimilation began by someone starting a controversy
about how much the court appointed attorneys were getting paid. Some attorneys were singled out
by the press for the sums of money they were receiving in a given year. There were similar press
articles run when workers compensation legislation was pending. Any time you print a story about a
lawyer receiving one dollar there seems to be a huge public outcry. What was missing from these
articles was items such as how long some of these people (thought I might use that word
interchangeably with lawyer) had to wait to get paid. Another point missing was what they did to
earn their fee. I guess it really wasn't important. About the same time, support from the courts was
won, a board empaneled, by-laws written, and an old house half the size needed was rented.
Knowing resistance to be futile, especially if I was ever to return home, I applied for a position and
got what I wished for. Having concern about sheer numbers of possible cases, I received assurance
there would be mechanisms in place to make sure we would not be "over loaded" with cases.
Wanting to relocate, I let the subjective term pass as sufficient assurance.
When I arrived at the new collective there were 10 lawyers total. Two of them were to serve in an
adjoining county. Out of these 10 only myself and one other attorney, to my knowledge, had ever
tried a felony case to a jury. Three of the "attorneys" did not even have law licenses. We promptly
began assembling particle board desks in our little roach motel, two to a room. As we worked, a
couple attorneys, who I would have expected better of, were going about gleefully boasting about
how our office was going to financially hurt members of our local bar, and how we (a tax payer
supported organization) might even run a number of these attorneys out of practice. I later
discovered that this more malicious form of back-biting appeared to be more prevalent in Cabell
County than the prior county I worked in, to the credit of the members of the bar in my prior
county. I have always saw this as a contributing factor to the assimilation of Cabell County.
After putting our desks together we headed off to court. We each got our ration of hundreds of
cases (about 400 each per year). Much of what could have happened, and in some instances even
should have happened, didn't. We got in a few licks on the other side and god knows they got
there's in on us. Were we accomplishing our mission? What was our mission?
If our mission was to some how improve the quality of legal representation then I will not be bold
enough to say we did it. I don't know the make up of the pre-assimilation Cabell County bar
however, in my old county I would have joyfully preferred prosecuting any case against members
of this Public Defender collective, including myself among them, versus any of the attorneys I had
tried cases against in my old county. But neither I, nor do I think anyone else, for one minute
believes that this was our mission. As if any one needs to ask, our mission simply put was to save a
buck. Just like all good corporations of the 90's the criminal defense bar is being downsized. You
take the work that used to be done by dozens of people cram it onto the laps of people your
paying less than any one of the prior dozens, and if they come back the next day for more of the
same you call that productivity. That's the end result of PDS assimilation. That's why articles are
written saying that the average per case cost is $197.28. Think about it, $197.28, that's what's to
stand between the clientele of these PDS collectives and jail, or even years or decades of prison.
They say the average hourly cost is $39.52 that means the average time spent on each case is 4.99
hours, which does not translate out to hardly enough time to put the person's name down on guilty
plea papers. But hey, maybe next year we can cram a few more cases onto the laps of the
attorneys in the collectives or assimilate another county and get it down to $175.00, then THAT
would be a good year.
In the time that I was in this office no effort was made to inform the courts that there were to many
cases for the attorneys to handle. Indeed it was inferred, if not expressed, that we were just belly
aching. The thought in the office was that our collective had to post good numbers to the
mother-ship in Charleston so we could get things like mid-year budget increases like the one we
got last year where we added additional staff, and at the same time Charleston purportedly ran out
of money and quit paying the court appointed attorneys. To add further insult, most of the attorneys
in the office were made attend administrative license revocation hearings before the DMV in DUI
cases; something Charleston would never pay a court appointed attorney for.
The corporation is totally set up to feed information to Charleston solely to support figures such as
the $197.28 per case figure that was in last months article. The time keeping program in our office
kept case numbers and hours spent on a case. It did not keep such things as a description of the
work performed. To the best of my recollection I don't even think it kept a record of the end result
of any case. Hence the time keeping program was of no use to the attorneys and was exclusively a
bureaucratic numbers crunching program.
Even fans of the $197.28 rate may want to ask a few more questions. In Cabell County a felony
file from a magistrate court matter would be closed and a new file started on indictment. Thus two
file numbers are made for the same matter. Although I am not certain about Cabell County, and the
400 per year I said above was almost 400 faces, I understand that some of the public defender
corporations assign a file number to every charge a client is charged with. Thus if one person has
25 worthless check charges then that office claims to have handled 25 cases, which will lower the
per case figure. By contrast the tar and feathers are still on the rail from the last court appointed
lawyer who tried to submit a voucher like that.
So has assimilation actually saved any money? Well last months article which dwelled on a per case
costs of $197.28 makes me think not. The only possible way to tell is to see a county by county
breakdown pre and post assimilation of the total moneys spent both by the collective and paid to
court appointed lawyers. PDS keeps running out of money but they keep assimilating. Has
anybody got a check sent any faster? Although I don't think it truly matters to the powers that be,
what is the average disposition of a public defender client and how was that disposition arrived at in
comparison to court appointed counsel and retained counsel?
Also if cost savings is truly the goal, as I believe it to be, is assimilation alone really the way to go?
Under the present court appointed system any one facing jail time, whether or not any one has
spent a day in jail for that offense in the last 100 years, will get a court appointed lawyer or Public
Defender if they fill out an affidavit saying there income falls within a certain level. In some counties
the magistrates will require the form be filled out before appointing an attorney, which saves an
hourly rate of a court appointed attorney and scarce time of public defenders. In Cabell County the
magistrates won't even do this, and virtually everyone arraigned gets referred to the collective.
Upon a referral to the office, a file is stared thus one more number to divide the budget by is added,
and the per case cost drops whether or not representation of the person is made. Its also a
needless task for a public defender to have to explain to local business owners that you can't
represent them for their failure to file quarterly returns on their lucrative business even though a
magistrate sent them to you. There are, however, cases that fall within the guidelines that really
should not be getting legal counsel at tax payer expense.
Inevitability, most college students will meet the income guidelines. Have you ever had to move for
a continuance in a court appointed case because your indigent client was going on a cruise with
mommy and daddy over Christmas break? Do staff attorneys in public defender offices need to
expend time defending administrative driver's license DUI revocation proceedings? Should a staff
attorney or a sister corporation bring a Declaratory Judgment Proceeding to get a court ruling on
this practice? Should there be a right to a court appointed attorney in a speeding case or any traffic
case? Should we perhaps look at a constitutional amendment making the right to court appointed
counsel apply only in the same circumstances as is required on the federal level? Should we then
restructure misdemeanor penalties to take most of the batteries, first offense DUI's and the like out
of this range. If the goal is to save money then get the court appointed attorneys and public
defenders out of the small misdemeanor cases. Take the jail time out where it is not used and
re-think whether the state has the resources to give every defendant an attorney to defend them in
every little magistrate court case. In juvenile proceedings there is no reason why the child should be
getting a state paid attorney when the parents are able to pay. While that may be the present state
of the law I would venture a guess that is not what is occurring in all counties, particularly when
there is a public defender office present. In Cabell County mental hygiene cases, a legitimate target
for assimilation, has not been assimilated by the collective. Instead a select few attorneys, how one
becomes one is still a mystery, bill the state at prevailing rates. Assimilation of this alone might get
Mr. Roger's number down to $196.5245678.
Does the bottom of Ohio hold all the answers? No. But there are some practical observations that
would have a net savings in West Virginia. In Cabell County, as was also the case in my old
county, most magistrates won't take a guilty plea at the initial arraignment from those seeking to
avoid further court appearances. The reason is largely two fold, and depending on the county the
primary reason is interchangeable. First no prosecutor is present on arraignment dockets and some
counties don't even have a formal arraignment docket, thus the magistrate is under pressure that if
they don't give the sentence that the prosecutor wants then someone will cry foul. Also nobody
want's to fill out the two page plea form and supporting commitment papers during arraignment.
The solution is to dump that on the court appointed attorney or public defender. By rather stark
contrast, with my limited experience with one county in Ohio, the prosecutor appears at
arraignments; if a person pleads guilty the court (being a court of record) makes an inquiry as to the
voluntariness, then usually accepts the plea and imposes sentence in the misdemeanor cases which
are the vast majority of cases in both states. From my experience many cases, that in West Virginia
would be handed to appointed counsel or public defenders, are dealt with in this manner and no
attorney is appointed.
With some attempt to shed a degree of fairness onto Public Defender Corporations I must say they
are not all bad. They are composed many hard working attorneys who like most all of us work
their job because they haven't found a better one. There's no shame in that either in this day and
age, no matter what some lofty idealist may say. There is also a benefit in being an attorney in a
public defender collective. That benefit is that the assimilation process provides a degree of
momentum and security in your work. Although I would like to think all circuits are objective and
try to appoint cases evenly to those members of the bar accepting the court appointments (a.k.a.
public assistance for lawyers) I do not believe it the case. I can think of nothing worse that being a
sole practitioner in a fledgling office attempting to zealously defend a client before a court that will
quietly quit appointing cases to you if you make the judge miss several holes of golf and don't brow
beat your clients into pleading guilty. At least in a Public Defender Corporation you know you've
got about 4.99 hours.
TRAVERSING CANDYLAND:
HOW TO STAY OUT OF THE MOLASSES SWAMP
by
Sherri D. Goodman, Chief Lawyer Disciplinary Counsel
On my more whimsical days, I liken the ethical practice of law to playing the board game of
Candyland.® For those of you who admit to having played, you will recall that your goal is to reach
the Candy Castle. You may have some pleasant adventures along the way in the Ice Cream Sea or
the Peppermint Forest. Above all, you do not want to get stuck in the Molasses Swamp as
harmless as it may initially seem.
In my almost eight years of handling ethics complaints and disciplinary hearings, I have come to
identify certain molasses swamps which lawyers seem to find themselves in with regularity despite
the court cases, magazine articles and CLE presentations given. They are listed below.
1. Preparing the answer for unrepresented parties in an irreconcilable differences divorce. Since
1977, the Lawyer Disciplinary Board has warned lawyers that preparing an answer for an
unrepresented party is tantamount to dual representation. See L.E.I. 77-07. The Supreme Court
reiterated the point in Walden v. Hoke, 429 S.E.2d 504 (W. Va. 1993) and recently held that
violation of this prohibition is an ethics violation under Rule 1.7(a) of the Rules of Professional
Conduct. Lawyer Disciplinary Board v. Frame, No. 23029 (11/1896). The answer is a document
which is to be signed only by the opposing party. Do not provide a form answer for the opposing
party to complete. Direct them to the Circuit Clerk's Office. You may prepare a property
settlement agreement. Include language that the opposing party is unrepresented and has been given
the opportunity to consult with counsel.
2. Not following through on letters of protection. It may sound like a strange concept to some, but
an attorney's word is supposed to mean something. If you represent to a medical provider that you
will pay his or her fees from any settlement or award, that amount becomes property in which a
third party has an interest under Rule 1.15 of the Rules of Professional Conduct. See Scyoc v.
Holmes, 450 S.E.2d 784 (W. Va. 1994) (lawyer who promised to pay rent owed by client to his
landlord from a personal injury settlement is liable to landlord for failure to follow through). You
may wish to place some qualifying language in the letter of protection, such as "will pay reasonable
fees" or "if there is sufficient recovery to pay all medical providers". If your client has a reasonable
objection to your paying the medical provider when it comes time to pay, keep the disputed portion
in escrow. If necessary, file an interpleader action.
3. Offending the client in a sexual context. Most lawyers know by now that the Supreme Court has
prohibited all sexual contact between a lawyer and client unless the sexual relationship predated the
attorney-client relationship. See Rule 8.4(g) of the Rules of Professional Conduct. However, this
Office has received complaints that lawyers are now telling their clients that they find the client
attractive and would like to have a sexual relationship after the representation is over. The more
common complaints received by the Office of Disciplinary concern conduct or remarks attorneys
make of a sexual nature which offend the client. These include comments like "A good-looking
woman like you should have no trouble getting picked up at a bar," questions about the client's
sexual conduct which have no relevancy to the divorce proceeding, putting your arm around your
client or complimenting a woman on her looks, dress, etc. You may think you are trying to help
your client develop self-confidence. But you have no idea how your actions are being received by
your client. Female clients with a history of abuse may not immediately react in a visible way to
conduct they find offensive or threatening. They need your legal skills and your respect-- nothing
more.
4. Working without a written contract. Working without a written contract is like working without a
net. You may not need one until there is a problem, and then it is too late. Some lawyers rationalize
that it reduces a relationship built on trust to a mere business transaction. A legal representation
agreement should inform clients what they are hiring the lawyers to do, how the lawyer should be
paid and when the representation will end. An agreement helps the client to understand the
professional relationship and protects the lawyer if there is a later disagreement.
5. Advancing or loaning money to a client in anticipation of a settlement or award. Rule 1.8(e)
prohibits a lawyer from providing financial assistance to a client. This includes "advancing" funds
which the lawyer knows will be paid after a settlement has been reached or an award letter has
been issued. You may think that you are being helpful, but clients will begin to expect this as a right,
not a favor. When their settlement comes through and the advanced money is deducted, clients
perceive you got more of their money than they did.
6. Taking on a hopeless case and then not acting diligently. Lawyers are fond of saying "No good
deed goes unpunished" in these situations. My response is that you are not doing these clients any
favors under these circumstances: Lawyers take personal injury cases and do nothing: They do not
respond to discovery requests; they look half-heartedly for an expert witness; they do not respond
to motions to dismiss; and they allow the case to be dismissed without informing the client.
Alternatively, the lawyers send the clients a letter shortly before the statute of limitations is to run to
let them know they will not be filing the case.
7. Failing to follow through on responsibilities as a guardian ad litem. The Supreme Court has
expressed its concern that lawyers are carrying out their duties as a guardian ad litem in a cavalier
manner. Please review the following cases if you are appointed:
In re Lindsey C., 473 S.E.2d 110 (1995) re appointment of guardians in abuse and neglect cases;
discusses dual functions as counsel and guardian;
Buckler v. Buckler 466 S.E.2d 556 (W. Va. 1995) re adults in domestic cases;
In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995)
In re Jeffrey R. L., 190 W. Va. 24, 435 S.E.2d 162 (1993) sets standards; guardian must
ascertain best interests of child despite child's desire;
In re Scottie D, 185 W. Va. 191, 406 S.E.2d 214 (1991) re infant children
8. Refusing to respond to requests from clients for refunds. A client who discharges a lawyer is
entitled to an accounting of the fee to determine if there should be a partial refund. Often, lawyers
simply do not respond to the request for a refund at all. Others write back that the fee is not
refundable. If you did not clearly spell out that a fee is nonrefundable (describing the fee as
"minimum" is not sufficiently clear) or if the retention of the entire fee would result in an
unreasonable fee, then the client will probably be entitled to a refund. Please review the factors
listed in Rule 1.5(a) of the Rules of Professional Conduct to determine if a refund should be made.
9. Failing to respond to an ethics complaint because you are angry or upset about it. Lawyers who
have been subpoenaed to appear at this Office often tell us that they were so mad upon receiving a
complaint they considered baseless that they could not respond. There is no rule that if a lawyer
does not respond to a complaint, there is a conclusive presumption that the complaint is meritless.
An ethics complaint will not simply disappear. Rule 2.5 directs this Office to notify a lawyer in
writing of an ethics complaint and requires the lawyer to respond. If you are upset or angry, wait
several days before drafting a response, or draft the meanest, nastiest, sarcastic and vindictive
response and hold it for several days to redraft. Many lawyers have told me they followed this
suggestion successfully. Others apparently forget the part about holding the response.
10. Do not represent your relatives. I frequently tell my parents in Cleveland that their legal issues
are state law questions, and, regrettably, I am not licensed in Ohio. Other lawyers, unprotected by
such jurisdictional buffers, find themselves in all kinds of ethical quagmires when they represent their
relatives. They do things they would never dream of doing on behalf of any other client, because
they lack objectivity in these situations and they have difficultly saying "no" to a relative.
Order Beyond the Court
by Lisa A. Stamm
While Ancil Ramey, former long time Clerk for the West Virginia Supreme Court of Appeals, will
no longer be disseminating Supreme Court Opinions, he optimistically looks forward to having a
few handed down in his favor as he begins his appellate practice with Steptoe & Johnson, on of
West Virginia's largest law firms.
Over the past ten years, Ancil Ramey and the West Virginia Supreme Court of Appeals became
synonymous with one another. As Clerk of the Court, he served as an administrative officer under
the Chief Justice and was responsible for administering all legal functions of the Court, which
included the scheduling of hearings, document processing, order preparation, and the dissemination
of those orders to all parties involved in a case as well as to judges, circuit clerks and the various
publishers of the Court's opinions.
In addition, his job description included a great deal of training, such as judicial education
conferences and attorney legal education seminars. He was also the Court's "spokesperson" and
dealt with the majority of media inquiries while keeping the it abreast of various Supreme Court
activities. He worked closely with entities such as the State Bar, the College of Law and the Board
of Law Examiners. His role as Clerk was a diverse one and his legacy was that which will continue
to bond so many there now and in the future - a love for the law and an optimistic, yet realistic view
of its ever changing nature.
Much progress and little ado was made during Ancil Ramey's tenure as Supreme Court Clerk. His
quiet, mild mannered demeanor was, no doubt a calming influence on a Court that would be served
up many changes before his service was complete. He played an instrumental role in moving the
Court forward into the technological arena and spoke of that progress.
"When I first came to the Court," he said, "there were few computers and very few terminals; and
most of those were either free-standing personal computers or word processors." Ramey led the
charge to network everyone together so that information could be shared and exchanged. The staff
began to use word processing short-cuts in order to produce the ever increasing number of Orders
that the Court was handing down. The information on cases, that was kept primarily in one location
prior to his arrival, was networked, so that it could be easily accessed from someone's desk, rather
than having to walk to the Clerk's office to obtain it.
In part, these changes allowed for an ease into an even greater change that was to occur; an
explosion in the number of cases being brought before the Court. Although the West Virginia
Supreme Court of Appeals is the smallest appellate court in the country; between 1986 and 1996,
the volume of cases that were filed increased by over 300%, with approximately 3,300 cases filed
in 1996 alone. To put this in perspective you must compare West Virginia's Court to the only nine
other states that do not have intermediate appellate courts. The state that comes closest to our
Court's annual caseload, has about 1,100 cases on its docket.
According to Ramey, "The volume of work now before our Supreme Court is tremendous and to
that, you must add the fact that the complexity of cases has increased as well. When I first became
Clerk of the Court back in 1986, you didn't see as many cases involving multiple parties, multiple
attorneys; but today, that's fairly typical."
He believes advances in medical science, technology and in the way that corporations do business
have also contributed to the increase in the complexity of a case. Yet, the complex cases are not
the prevalent ones. About 40% of all cases heard in 1996 were workers compensation cases, and
according to Ramey, that statistic has dramatically increased over the past ten years.
"When I first came to the Court, workers compensation cases represented only about 10% of the
caseload, now they are as high as 50% in some years."
Ramey attributes this increase to a number of factors. The first being the easy access that claimants
had to a Court more willing to hear their workers comp appeals in the late 70's and early 80's. This
led to a snowball effect for appeals. Secondly, an increased volume of workers compensation
claims overall - and thirdly, the workers compensation division's attempt to clear a huge backlog of
cases, which invariably led to the increased number of appeals brought before the Supreme Court.
Second in line in caseload on the rise would be civil appeals.
"That category represents anywhere from 25 to 30% of the Court's caseload and has dramatically
risen as well," Ramey stated.
"What's really interesting though," he said, "is the fact that criminal appeals, year after year, despite
the increases everywhere else, have remained constant with our Court." He believes this is
probably due to more plea bargaining between the State and those facing jail time than anything
else. But for whatever reason, criminal cases haven't increased on either a percentage basis or a
real basis in the past ten years, according to Ramey..
He states that domestic cases have actually declined somewhat, and attributes that decline to the
stabilization of the law in domestic relations.
But no matter how you slice the caseload, the Court still has its collective hands full. Is there hope
for an intermediate appeals court in West Virginia? Ramey believes there is.
"Inevitably, West Virginia will have an intermediate appellate court. Within the last ten or fifteen
years, the number of states with caseloads much less demanding that our Court have created
intermediate courts so I see it as eventually being done. There is no constitutional impediment to
doing so but, if there is resistance, it will come from two sources. Number one, people will object
to the increased cost and the second concern will be delay."
Ramey stands ready to address those concerns. As far as the cost concern, he contends that in
many instances you can have a consolidation of functions. For example, the administrative director
of the Supreme Court could take on the administration of the intermediate appellate court as well,
such as the payroll functions, personnel functions and that type of role. He has also seen in several
states where the Clerk's office continues to be the Clerk for both the Supreme Court and the
Intermediate Appellate Court. And if an appellate court were to be located, let's say, in the State
Capital building, that would of course, alleviate most financial worries of housing, he believes..
Then there is the delay factor. According to Ramey, many states have set up a system to have
papers for both courts filed in a central location. Then they screen cases, such as those presenting
questions of constitutionality of a statute, or an important case of first impression regarding a
common law principle, and will actually "grab" those cases out for the Supreme Court to hear
without them having to go through the intermediate court.
Ramey realizes that there are other concerns as well, such as how will these judges or justices be
selected; will they be elected or appointed?
He is concerned as well and sees a lot of problems with the current method of selecting judges;
whether it be supreme court justices or circuit court judges.
"I feel that there is probably more merit to an appointment scheme with some right of the electorate
to either retain or reject an appointee within a few years after appointment. Many jurisdictions
select their judges by an appointment methodology and I favor that and I know a lot of others who
favor that as well. It de-politicizes the process and the other thing it does, rather than having to
spend a lot of one's time campaigning, judges would be able to concentrate on doing their job, and
I think that would be much better," he claims.
Ramey speaks fondly of former Justices Franklin Cleckley, Arthur Recht and Joseph Albright and
wishes them well in their future careers.
"I think that they certainly had a lot to be proud of during their relatively brief tenures on the Court.
Each of them made their own contribution to the Court and will be missed."
"Yet the Court is fortunate to be getting three people who have a lot of experience, two of whom,
Justice Elliot Starcher and Justice Elliott Maynard, have been circuit judges for a very long time and
obviously know the law very well through their functions as circuit judges, and Robin Davis, who
has been engaged in the active practice of law for a number of years - so I'm sure the Court will
continue to improve as it goes along."
Ramey is obviously aware, however, that bringing a new majority onto the Court will be a dramatic
change and that this will have some effect on its operation.
"As with any new job, there is a learning curve and so the new Justices, despite their experience,
will have somewhat of a learning curve in terms of how cases are presented, how they are
processed internally, how they are decided, and how to prepare a quality opinion. All of those
issues will be new for them and there will be a learning curve, as there would be for anyone coming
into a new job."
He also is understanding of the fact that there will be some uncertainty among the bench and the bar
as to what to expect from a new majority.
"Will they change the law in certain areas? Will they overrule precedent in certain areas? These are
questions that will cause the next eighteen months to two years to be a period of uncertainty. But,"
he claims, "that is true anytime you have that many changes in any institution."
Another angle to the uncertainty issue is the personality dilemma. No matter where you go, you will
find that each person brings their own personality to the table and according to Ramey, "until you
put them in a jar and shake them up, you really don't know what you have; whether or not their
personalities will mesh or if the chemistry will be beneficial or explosive."
There have been a number of colorful personalities during Ramey's ten year tenure. He found
Richard Neely to be quite a character and felt that he was really missed after he retired, because of
his brash sense of humor.
"There were those," he said, "who were obviously very thoughtful and scholarly and then there
were those who loved politics, loved talking politics and loved observing both state and national
politics, like Justices McGraw, Neely and Brotherton."
How did having a woman coming on board affect the mixup?
"Well, you know, when there is an all male club, I think the atmosphere tends to be a little different
than it is when you add a female. I think after Justice Workman came, there was probably more
civility among the group. She brought with her a heightened sensitivity of family issues and she made
a terrific contribution to the Court by heightening its awareness and sensitivity regarding those
issues."
Ancil ascertains that any time a woman comes into an area that has been traditionally dominated by
males, there are going to be some positive influences in terms of raising civility and that sort of
thing."
Does that lead one to wonder if a few more women should be added to the bar in order to bring
civility back to the standard of practice it once was? Well, that's obviously another debate.
Actually, Ancil has another remedy in mind. "The Court is now working on the Standards of
Professional Conduct that were proposed by the Professionalism Commission of the State Bar and
I think, especially if the Court retains the enforcement mechanism that was in the draft, that these
Standards could have a positive impact on civility in the practice."
If the Court decides not to include some sort of enforcement mechanism for imposing sanctions on
offending attorneys, Ramey really doesn't see any likelihood that things will improve.
"The lack of civility," he stated, "is motivated by a number things, including financial pressures on
lawyers and law firms as well as a reflection on society's tendency to be more mean spirited and
sharper in one's criticism of one's opponent. Unless the Court takes some rather decisive action to
set forth some principles of conduct that must be observed and unless there's a mechanism of
enforcement, especially by circuit judges who are really the judicial officers on the front line - if
they're not willing to enforce those Standards of Conduct, I think things will only get worse; they
won't get better. And that would be a shame."
As Clerk of the Supreme Court for the past ten years, Ancil Ramey has seen the good and the bad,
the mean of spirit and those that make the profession proud. When queried for advice to give those
who plan on appearing there in the future, he was happy to comply.
"Be prepared! Lawyers must do the research needed to understand the legal issues involved in the
case and be able to communicate those to the Court in a way that is as easy to understand as
possible."
"Be candid! Candor is extremely important in appellate advocacy. If there's something in a case,
either factually or legally that is contrary to your position, I think you have an obligation, as an
officer of the Court, to disclose that. The Court always appreciates candor and is always upset
when it perceives a lack of it."
"Be as clear and cohesive as possible. Because the Court's volume is so great and the complexity
of cases is greater, it is extremely important to be as concise and cohesive as possible when
presenting your case and not waste a lot of time presenting evidence that has little or no merit."
"Do not write a petition that is just a few pages in length, then proceed to attach a 40 or 50 page
document out of a trial court. This shows absolutely no consideration for the Court. The Court
shouldn't have to do the attorney's job and review the record to determine if reversible error
occurred. That's the function of the attorney, to communicate that information, so that the Court can
make a good decision."
Since Ramey will now be spending much of his time arguing before this very same body rather than
administering it, does he feel that he's giving away any trade secrets? Not at all.
"All I can say is, I'd better follow the rules since I was responsible for drafting most of them and
because we occasionally had to enforce them against attorneys," he laughed good naturedly. "My
briefs had better not exceed fifty pages and they better have the proper margins and the right
typeface."
Ramey is adamant that attorneys must remember first and foremost, that they are officers of the
Court and need to help the Court fulfill its role, above all else. "I certainly will always keep that first
in my mind when presenting cases up there," he said.
Ramey took up his new position with Steptoe & Johnson on November 1, 1996. He filed his first
petition with the Supreme Court approximately six hours into his first day on the job. Nothing like
on the job training! How did he enjoy his starting line-up?
"Well, it felt strange and was rather hectic. I hadn't really gotten used to my computer yet and was
trying to file a petition for injunctive relief and get it filed up there on time. One of our clients, who
operated a group home, was going to have that home close down and wasn't going to be given any
time for transition of staff and that sort of thing so we had to prepare a petition for injunctive relief
and happily, the following Monday, the Court granted it!"
He claimed to be the the source of much good natured kidding after the decision was handed
down, with the lawyers in the office congratulating him while proposing that maybe he should quit
while he was ahead.
"I certainly gave that some thought," he laughed.
It is abundantly apparent that Ancil Ramey greatly enjoyed his time as Clerk of the Supreme Court.
But he felt the need to spread his wings and it's easy to see that he is excited to be thrust into the
middle of a vibrant law practice that will be able to utilize his expertise.
"Being Clerk of the Court was a wonderful opportunity for me and I truly enjoyed serving the
judiciary at the Supreme Court as well as the trial judges, magistrates, family law masters, and the
practicing bar. And now I feel truly blessed to be able to do the work that I'm doing and to work
with such a wonderful group of lawyers and staff here."
While Ancil's quick mind, thoughtful contributions and scholarly application of the law will surely be
missed by the West Virginia Supreme Court of Appeals, his presence will still be there - not only in
thought, but in deed and act, as he files yet another brief - only this time, from the other side of the
Clerk's office.
Editor's Note: At the writing of this article, the Standards of Professional Conduct had not yet been
approved by the Supreme Court. They have now been approved and the sanctions section referred
to by Mr. Ramey was removed from the guidelines. You may read the Standards of Professional
Conduct in its entirety by turning to page 12 of this issue.
CLE CALENDAR
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.
2/7/97 Lorman Business Center, "Personal Injury and Insurance Law," Charleston, 715/833-3940,
7.20 credits
2/14-15/97 WVTLA, "Mid-Winter Seminar," Charleston, 304/344-0692, 14.40 credits, including
1.80 ethics
2/18/97 National Business Institute, Inc., "How To Get Results in Collection of Delinquent Debts in
WV," Charleston, 715/835-7909, 7.20 credits, including 1.0 ethics
2/21-22/97 WVCLE, "Litigation," Canaan Valley-Davis, WV, 304/293-7255
2/28/97 Lorman Business Center, "Risk Management in the Construction Industry," Clarksburg,
715/833-3940, 4.50 credits
3/6/97 Lorman Business Center, "Collection Law in WV," Charleston, 715/833-3940, 4.50
credits
4/11/97 Professional Education Systems, Inc., "Winning the Battle of the Experts," Charleston,
715/836-9700, 7.20 credits, including 0.20 ethics
5/9-10/97 The West Virginia State Bar, "1997 Annual Meeting," Charleston Civic Center,
304/558-2456
6/5-7/97 WVTLA, "Annual Seminar," Charleston, 304/344-0692
NOTICE
DIVERSITY JURISDICTION AMOUNT-IN-CONTROVERSY RAISED
CIVIL ACTION FILING FEE AND ATTORNEY ADMISSION FEE INCREASES
The Federal Courts Improvement Act of 1996 (P.L. 104-317) signed into law on October 19,
1996, provided for the following:
1. Effective December 18, 1996
- The filing fee for a civil action will increase from $120.00 to $150.00.
- The attorney admission fee will increase from $20.00 to $50.00.
2. Effective January 17, 1997
- The amount in controversy in diversity jurisdiction cases will be raised from $50,000 to $75,000.
APPROVED CHANGES TO MCLE REGULATIONS
REGULATION 4(A)(7)
7. The total credit for video, audio, correspondence, telephone seminars, computer-based training,
and in-house instruction shall not exceed half of the mandatory continuing legal education
requirements.
REGULATION 4(A)(17):
17. A telephone course may be approved for continuing legal education credit under the rules and
regulations applicable to any other course or program, plus the following additional requirements:
a. The course, if sponsored by a presumptively-accredited provider, shall be automatically
approved for MCLE credit.
b. Written materials should be provided to participants prior to the activity.
c. The telephone seminar is designed and organized for interaction among a group of attorneys.
d. The telephone seminar is merely a state-of-the-art telecommunication of a live program with the
same qualified speakers who would address a seminar with all live attendees.
e. The telephone seminar provides an opportunity for attendees to have questions answered by the
speakers.
f. No more than half of the total mandatory continuing legal education requirement may be satisfied
by telephone seminar activities. Telephone seminar courses will be reported as audio, video, and
in-house, correspondence and computer-based training activities.
REGULATION 4(A)(20)
20. Computer-based training courses may be approved for continuing legal education credit under
the rules and regulations applicable to any other course or program, plus the following additional
requirements:
a. The courses shall be submitted for approval on a course by course basis rather than an
accredited-provider basis.
b. The computer-based training course must be part of a structured course of study.
c. A written outline or written materials fully describing the course must be presented to the
Mandatory Continuing Legal Education Commission at the time of submission for approval. In
awarding credit for computer-based training courses, the Commission shall consider the extent to
which the lawyer's educational effort in the course is evaluated by the sponsor.
d. The sponsor shall provide the number of credits possible for completion of the course. Credit
reported shall not exceed the maximum number of approved credits as designated by the sponsor.
f. No more than half of the total mandatory continuing legal education requirement may be satisfied
through computer-based training activities. Computer-based training courses will be reported as
audio, video, and in-house, telephone seminars, and correspondence activities.
If you have any questions regarding these changes or need additional continuing legal education
information, please contact Hope Gresham at 304/558-7992.
LIS PARTICIPANTS
Tom Trent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Public Service Commission
Jack Snyder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robinson & McElwee
James Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Robinson & McElwee
Lonnie Simmons . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ditrapano & Jackson
Tim Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Robinson & McElwee
Michael Victorson . . . . . . . . . . . . . . . . . . . . . . . . . . . Robinson & McElwee
West Virginia Bar Foundation Awards
For Outstanding Community Service
Susan - Please get this from the January 1997 issue.
Revised: September 26, 1996
Send Comments to: pettyc@technet.wvbar.org
The West Virginia State Bar
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