The West Virginia Lawyer

July 1997 Issue

    PRESIDENT'S PAGE

    Ladies and gentlemen, it is a distinct honor for me to become the fifty first President of the West Virginia State Bar. I have always been proud to be a lawyer and I pledge to give my best efforts to the Bar so that it can continue over the next fifty years to help lawyers resolve their client's legal difficulties and assist West Virginia's citizens in understanding and supporting the rule of law in our society.
    This will be an important year for me and the West Virginia State Bar. As you know the Bar is celebrating its 50th year of operation. You have before you the most recent issue of the West Virginia Lawyer Magazine which is devoted to the history of the State Bar. I urge you to read the excellent account of our organization which was written by James Casto of the Huntington Herald Dispatch. It gives us perspective and insight as to what has occurred in our profession in the past half century.
    In the 1930's, leaders of the voluntary West Virginia Bar Association determined that there was a need for a mandatory unified organization for lawyers in our state. A campaign was started to establish an integrated bar. As you review the bar history, you will note that the political process has not changed much in the succeeding years. After nearly a decade of discussion and debate, legislation was introduced in 1939 to establish the West Virginia State Bar. It failed. The legislation was introduced again in 1941. It failed. The legislation was finally passed the third time it was introduced in 1943. Governor Matthew Neely promptly vetoed the legislation. The legislation was introduced again and passed in 1945. This time Governor Clarence Meadows signed the new legislation into law. The legislation required that the Bar would not become operational until the Supreme Court drafted its constitution and bylaws and submitted them to all attorneys in the state for review. Finally, in May of 1947, fifty years ago this month and after nearly two decades o    Recently I had an opportunity to look through a 1947 issue of Life Magazine - which only cost 15 cents at that time! The articles were interesting, but I was particularly intrigued by the advertising. There was one ad for Viceroy cigarettes which stated - "Dentists advise - the nicotine and tars trapped by the Viceroy filter can never stain your teeth."

    American Airlines was proudly boasting of "over 14,000 transatlantic flights."

    Zenith radios and phonographs were priced from $26.95"

    The newest Perry Mason book, entitled "The Case of the Fan Dancer's Horse" was on sale for $1.89.

    There were advertisements for liquor, men's hair tonic and programs on the radio.
    In the news in 1947, a young pilot from Hamlin, West Virginia, Chuck Yeager, broke the sound barrier for the first time and Jackie Robinson broke the color barrier in professional sports.

    In 1947, television was introduced into American homes, but no one had yet heard of computers, modems or fax machines. How times have changed!

    The law has also changed in those fifty years. In 1947 segregated schools were still the norm. The Supreme Court of the United States would not decide Brown vs. Board of Education for another seven years. No criminal suspect had ever been given a Miranda warning and it was a crime to perform an abortion. The Nuremberg trials were establishing new precedents in international law and the United Nations was in its infancy.
    The practice of law and the activities of the Bar have also become much more complex in the past fifty years. The Bar's membership in its first year totalled 1430. We now have over 4700 members. The Bar had $7,145 in its initial treasury. It now has an annual budget of over one million dollars.
    In 1947 most West Virginia lawyers were solo practitioners with general practices. Few attorneys practiced in large firms or limited their practices to a particular area of the law. There were no West Virginia Rules of Evidence, West Virginia Rules of Civil Procedure or Rules of Criminal Procedure. OSHA, MSHA and ERISA were not yet part of our legal vocabulary. Civil rights, environmental law and disability law were not yet fields of specialty for lawyers. There were very few women in the profession.
    Pleadings were prepared on typewriters. Copies were made with carbon paper or on a mimeograph machine. Legal secretaries took dictation in shorthand at the attorney's desk. There were no copiers, no dictation equipment, no computers and no fax machines. Lawyers had to actually open a book to do legal research. There was no Lexis, Westlaw or Technet. Not a single lawyer or referring to a physical place, not something in cyberspace now called e-mail.
    In 1951 the State Bar undertook its primary mission of exercising some control over the conduct of its members by forming the Committee on Legal Ethics. In 1960, Bar leaders reported that in its first nine years of existence the Committee had investigated 145 cases and brought eight disciplinary actions in the courts. Six attorneys had been disciplined and one disbarred. Today, the Bar employees three full time disciplinary counsel who, with the help of their support staff, process nearly 500 complaints against lawyers a year.
    The State Bar's Constitution sets out as its purposes:
"To protect the interests of the public;

To advance the administration of justice and the science of jurisprudence;

To improve relations between the public and the bench and the bar;

To uphold and elevate the standards of honor, integrity, competency and courtesy in the legal profession, and

To encourage cordial relations among its members."

    As we go through this upcoming year, the State Bar's Executive Director, its Board of Governors and officers will continue to strive to meet these lofty goals.
    As your President, I plan to emphasize some areas that are of particular importance to me and I believe to the Bar in general. First of all, we must stay on the leading edge of law office technology. If today's lawyer and tomorrow's lawyer is going to provide competent advice and assistance to his or her clients in a cost effective manner, he or she must use available automation techniques. It is not difficult. Any attorney, no matter how technically illiterate can easily

master the skills necessary to use a computer in a competent fashion.
    I believe that technology is vitally important for sole practitioners and small firms. It enables these lawyers to compete on a level field with lawyers in larger firms, corporations and government entities. The State Bar will expand its efforts to help technically challenged attorneys to become more computer literate and to help them automate their practices.
    As other state bars struggle to start their own Internet sites and emulate in some fashion what our bar has been doing since the early part of this decade, we will continue to enhance and improve the Bar's Technet system to keep West Virginia a leader in the nation in this important area.
    I also plan to work with Tom and his staff at the Bar Center during this year to improve and upgrade the State Bar's computer system to enable the Bar to serve its membership effectively and efficiently into the next century and to also be a moy Bar members as they undertake to automate their own offices.
    But I don't want to be remembered as a Bar President whose only interest was machines. One of the State Bar's less publicized and understood programs relates to law related education. This endeavor allows lawyers to help educate our young people about their rights and responsibilities under the law and to understand our system of justice. We work with classroom teachers, have lawyers discuss legal topics with students and coordinate youth justice summits and mock trials. The Bar needs to concentrate additional time and resources in this area. Our children are our future. We must be involved in teaching them about our system of justice today if they are to be good citizens tomorrow.
    A somewhat more controversial topic relates to the issue of mandatory malpractice insurance and/or some type of fidelity bond for lawyer's trust accounts. The State Bar has a client protection fund which is very beneficial as a last resort when a client deserves some type of financial reimbursement as a result of an attorney's misfeasance or malfeasance. We should be pleased that our Bar voluntarily implemented such an excellent endeavor way back in 1963. However, the fund is limited in its resources and cannot fully reimburse every client who has been harmed by an attorney's mistake or neglect.
    Should the State Bar mandate some type of fidelity bond or malpractice insurance coverage for all attorneys? During my tenure as President the Bar will thoroughly review this entire subject and determine if any changes should be made.
    The Bar will also take its first comprehensive look at the emerging area of lawyer specialization and certification. A special committee has been formed to study all of the ramifications of this important subject and to make recommendations to your Board of Governors as to the appropriate course for the Bar to follow in coming years with regard to lawyer specialization anships with the West Virginia Supreme Court of Appeals and the West Virginia College of Law.
    We will work with the College of Law as it goes through the difficult search process to replace Teree Foster who has been so popular and successful during her tenure as Dean.
    The Bar will also work closely with Chief Justice Workman and the other Justices to recommend and bring about changes in our judicial system to enable it to meet the demands of the next century.
    I also plan to continue the State Bar's Professionalism Commission. Although the Commission proposed Standards of Professionalism which were adopted by the Supreme Court in January of this year, I do not think that the Bar has accomplished all it can in this important

area.
    Finally, I plan to continue the efforts of past Presidents Ford, Flaherty and countless other Bar leaders and Bar members to improve the system for the selection of judges in our state.
    This 50th year of service to the legal profession and to West Virginia will be an important one for our State Bar. As your President, I ask each of you to join with me in trying to fulfill the lofty goals and purposes set out in the Constitution of the West Virginia State Bar fifty years ago. They are as valid today as they were then. Together, and only together, can we uphold and elevate the standards of our profession, advance the administration of justice and protect the interests of the public. To paraphrase Theodore Roosevelt's quote which graced the masthead of the State Bar's Newsletter for over two decades "all men and women owe some of their time to the upbuilding of the profession to which they belong."

DEAN'S COLUMN
Whither the College of Law . . . And Legal Education?

    I graduated from Loyola University of Chicago College of Law in 1976. In that interim of not quite a generation, legal education has undergone monumental change. Then, all classes were conducted unrelentingly through the Socratic method. Most courses were evaluated by means of a written examination at the end of the semester, although a few - Conflict of Laws and International Law come to mind - required submission of papers. The use of problems in class as a means of gaining mastery over substantive material was unknown. I took no seminars, and remember none being offered. Professional Responsibility was a one-hour course taught (badly!) By two young lawyers who worked for the Attorney Registration and Disciplinary Committee. I wrote the usual memoranda and trial briefs in Legal Writing, and wrote an appellate brief and made an oral argument in Appellate Advocacy, but aside from a three-hour Trial Practice course -- which I did not take -- no other skills training courses existed. There was no clinic, and although I and many of my classmates worked for attorneys "downtown," few of us had any experience with "real" clients prior to graduation.
    In law schools today, fewer professors are rigidly Socratic in their approach to classroom pedagogy. Many use problems, team projects, in-class role-playing and oral arguments as alternative methods for stimulating discussion and prodding student learning. At WVU, all students are required to take a seminar course as a graduation prerequisite. Not only is Professional Responsibility a two-hour required course, but all students are required by the Board of Bar Examiners to successfully complete the MPRE (Multistate Professional Responsibility Examination) prior to graduation. Skills courses are more varied, and include a focus on non-litigation skills such as counseling and interviewing, negotiation and mediation. The clinical law program and the Appalachian Center for Law and Public Service provide students with opportunities to work with and on behalf of clients under close supervision of law faculty or attorneys.
    What changes will be wrought in legal education during the next two decades? Premised upon current trends, the following shifts appear likely.
    Students will be fewer, older and more interested in the J.D. as a graduate degree that provides access to a realm of employment opportunties, rather than as a credential useful solely in entering the practice of law. The College of Law will admit fewer students to full-time J.D. study. Nationwide, applications to law schools have decreased more than 40% over the past six years; demographics have combined with approaching market saturation to signal a diminution in the need for lawyers. Already, the College of Law has trimmed the size of the class entering law school in the Fall 1997 semester from 145 to 135. While the percentage of "traditional" students, those who enter law school immediately upon graduation from college, is subsiding, the numbers of non- traditional students is expanding. The average age of the entering law student has increased to slightly over 26 years. This trend will not only persist, but will become more pronounced as more people in mid-career seek legal education as an additional credential to assist in development of a career other than practicing law. In short, more students will seek the J.D. degree not as entre into the practice of law, but as a graduate degree that hones analytical, reasoning, communicative and leadership skills.
    How will law students be trained in the year 2117? The needs of the practice of law for more precisely trained entering lawyers might result in smaller skills-oriented classes in many areas related to practice; concomitantly, because skills training is labor intensive, and law school resources are

not likely to increase substantially, first-year and regular classroom courses might be larger. Currently, legal assistants are performing more and more tasks that were once within the purview of young lawyers. This shifting line that demarcates lawyers' work from legal assistants' work will affect curricular offerings, and the skills in which law students are trained.
    Broader curricular offerings will be available in areas that either do not exist or are of small import today. Two decades ago, courses delving into Environmental Law, Bioethics, Health Care Regulation or issues or issues concerning gender and race were rare to non-existent; what areas of study will surge to the forefront in th next two decades? My speculations:

.    Legal aspects of computers, intellectual property, and privacy issues will surely burgeon as areas of law school study.
.    As litigation grows more costly and less efficient as a means of resolving disputes, more emphasis will be placed on the myriad components of alternative dispute resolution, and strategies that formulate planning approaches to transactions will become even more significant.
.    Health care and environmental issues will maintain a prominent place in the curriculum.
.    The ever-contracting globe will require emphasis on international envirnmental issues and on international business transactions.
.    As government cedes its primacy as a force for social welfare and volunteer efforts by institutions and individuals becomes more significant, the law schools will manifest a greater commitment to clinical services and to public service programs that directly benefit the poor and needy.

    The enormous impact of technology upon law school pedagogy is already a fact. The availability of legal data bases through network connections bring the entirety of the law library to the desks of faculty members and students. Already, the law library is planning to inaugurate a system of electronic reserve, meaning that reserve materials such as articles, texts and cases can be accessed on the web; thus, a library user can peruse materials on reserve any time, from any location, without the necessity of physically coming to the law library or finding that others have checked out reserve materials.
    Legal publishers are now selling electronic versions of casebooks. Faculty members are creating home pages and posting class materials on the web. E-mail communication between faculty and students, and among students concerning course material -- "chat rooms" -- will become more commonplace. Technology will also influence the content of classroom teaching; the learning of basic material can be accomplished through use of computer exercises, with class time reserved for complex applications. Only in imagination can one surmise where we go next.
    Some courses should be available by distance education, two-way, entirely interactive video teleconferencing. This summer, the College of Law will offer, on an experimental basis, a course taught simultaneously by Professor Tom Patrick, in both Morgantown and Charleston. The course, Alternative Dispute Resolution, will be taught three evenings a week, so that students, lawyers and members of the community can avail themselves of this opportunity after work. The College of Law will be developing Institutes to present in areas of special interest to lawyers across the state. Another likelihood is formation of intense multi-day courses to assist lawyers and laypersons in remaining abreast of developments in changing legal areas.
    The only certainty is that the next two decades will bring change to the practice and to the method of educating law students. Most significant is that change be managed, and that law school and members of the bar continue to cooperate in addressing the changing needs of practice and the concomitantly changing needs of legal education.

YLS COLUMN

West Virginia Practice Handbook

    Last year, the Young Lawyers Section sponsored the updating of the West Virginia Practice Handbook. This handbook is designed to give new attorneys practice tips and basic forms not usually found in a course but necessary to the everyday practice of law. The Handbook also provides the seasoned lawyer a quick refresher on rudimentary issues sometimes forgotten or a quick overview of new areas of the law not yet mastered.
    The update was successful due to the wonderful cooperation and talent of our lawyers within the community. Although I organized the gathering of the updates, the real champions in this process were the writers of the sections that went into the Handbook. These lawyers drew upon their areas of expertise and shared their knowledge with our committee which we have now passed onto the Bar.
    On behalf of the Young Lawyers Section, I would applaud the following individuals for their contributions to the West Virginia Practice Handbook:

Chapter 1: Administration of Decedent's Estates - William Scharf
Chapter 2: Administrative Law - S.G. Yurko
Chapter 3: West Virginia Appellate Procedure - Joanna Tabit
Chapter 4: Bankruptcy - James W. Martin, Jr.
Chapter 5: Board of Education Law - Robert O'Brien
Chapter 6: Child Support Enforcement Division - By: John T. Yeary - Updated By: R. Jeffrey Johnson
Chapter 7: Civil Litigation - Tim Miley and Jeffrey A. Taylor
Chapter 8: Coal - J. Thomas Lane
Chapter 9: Collections - Carl J. Dascoli, Jr.
Chapter 10: Corporation Law - Louis Southworth, II, Michael A. Albert, Anthony J. Ferrise and William D. Esbenshade
Chapter 11: Practical Guide to Defending Criminal Cases in WV - Steve Warner
Chapter 12: Driving Under the Influence - Written by W.B. Richardson, Jr. - Updated by Christopher S. Moorehead
Chapter 13: Eminent Domain - John O. Kizer
Chapter 14: Environmental Law - Anthony P. Tokarz and Betsy Ennis Dulin
Chapter 15: Extraordinary Remedies - Carl J. Dascoli, Jr.
Chapter 16: Practice Before a Family Law Master - Ronald E. Anderson
Chapter 17: Federal Criminal Practice and Procedure - Leon T. Copeland
Chapter 18: Federal Tax Consideration in Choice of Business Entity - Charles O. Lorensen
Chapter 19: Legal Ethics in West Virginia - Sherri D. Goodman
Chapter 20: Magistrate Court Practice - Chapter 21: Mental Hygiene Practice - Suzanne Quinn - Revised by Kelley      J. Haught
Chapter 22: Municipal Law - Paul T. Boos - Revised by Floyd M. Sayre, III
Chapter 23: Oil and Gas - J. Thomas Lane
Chapter 24: Partnership Law and Taxation - Mark Ferguson
Chapter 25: Pro Bono Work and Forms
Chapter 26: West Virginia Public Defender Services
Chapter 27: Public Employment - Jeffrey G. Blaydes
Chapter 28: Public Service Commission - Thomas N. Trent
Chapter 29: Real Estate Transactions - H.H. Roberts and S.C. Taylor
Chapter 30: Social Security Disability Claims - Montie VanNostrand
Chapter 31: State Tax Procedure and Administration - Priscilla H. Gay
Chapter 32: Summary Proceedings and Structured Settlements: A Guide to Forms - Barbara Doolittle Morgan

Chapter 33: TechNet System
Chapter 34: Wills - Milton Herndon and John F. Hussell, Iv
Chapter 35: Workers Compensation - Henry Haslebacher, Tim Leach and C. Scott Masel

     Tom Tinder and the staff at the West Virginia State Bar deserve a round of applause for their contribution of time and effort to this project. Tom took care of printing and distribution. I would also commend the Board of Governors for their support, enthusiam, and money which helped this project be completed.
    If you do not have a copy, please contact Tom at the State Bar. He will be happy to take your money, a mere $245, and send you the West Virginia Practice Handbook, a two volume set. No questions asked.

TINDER BOX

"Some Stuff"

    Here is some stuff that may be of interest to you.

    State Bar Directory    - In April, every active and inactive member of our organization received their own copy of the State Bar Directory, free of charge. It had been four years since the last Directory had been provided to you.

    We have received uniformly positive comments about this handy publication. Many State Bar members have expressed how much they rely upon the Directory for the names, addresses, phone and fax numbers of other members, the federal and state judiciary, the WVU Law School and much more. We've already had numerous purchases of additional directories by law offices to be used by legal assistants/paralegals, secretaries and other office personnel. The cost of additional copies is $25 and can be ordered by sending prepayment to Lisa Stamm at the State Bar Office.
    In addition, we have also been notified about some mistakes which were made in members' information. Of particular concern was the ommission of several out-of-state inactive members. We regret these errors which occurred in the transfer of the material from our office to the printer. We will make certain that it does not occur again.
    We did receive input from a few state Bar members with suggestions and recommendations on ways to improve the Directory. In that vein, we will be adding some other sources of data as well as making changes in the format so that it can be readily ascertained in which section a person is located.
    In that regard, we are pleased to inform you that the State Bar Directory will be provided to you on an annual basis. Each January, a new directory will be sent to every active and inactive State Bar member. Thus, it becomes even more important for members to inform the State Bar of all address as well as phone and fax number changes. Watch for your personal issue of the Directory in January, 1998.

     State Bar History - The May issue of the West Virginia Lawyer magazine was actually a 50 Year History of our organization. I hope that it was an enjoyable read for you.
    To commemorate the 50th Anniversary of the State Bar, it was felt that an overview of the Bar's work and activities would be interesting and beneficial. We were pleased to be able to have James Casto, Editorial Editor for the Huntington Herald Dispatch to write the material and Ann Crosure of AC Design in Charleston to do the necessary graphic design work - they did an excellent job.
    In reviewing the History and other documents during the past 50 years, it was intriguing to notice the significant amount of change which has occurred in the State Bar and the legal profession as well as the aspect that some things have not changed at all.
    As an example, for the past 50 years, there has been an ongoing concern relating to the image of lawyers among the general public. Apparently, there will always be a group of persons who don't like lawyers and are not happy with them.
    For many of you, I hope that the history provided you with an opportunity to remember and

re-live the events and the personalities within the State Bar which have placed the organization in a leadership position in West Virginia.
    If you are interested in purchasing additional copies of the State Bar History, the cost is $15. All you need to do is mail prepayment to Lisa Stamm at the State Bar Center, 2006 Kanawha Blvd., E., Charleston, WV 25311.

     State Bar Annual Meeting - The 50th Anniversary Annual Meeting of the West Virginia State Bar was a tremendous success when it was held in Charleston in May. The continuing legal education seminar were well received and well attended. In fact, there was such an overflow crowd in attendance for some of the sessions that it was standing room only. We were unprepared for the numerous members who did not register in advance and just showed up to attend the seminars. We were also strapped for sufficient space at the Charleston Civic Center facility.
    Chief Justice Workman's State of the Judiciary remarks were the highlight of the Bench/Bar luncheon. She talked very specifically about the current status of our state court system and action which will be undertaken to review the operation of our family law master system and the circuit courts with a review being done of the possibility of a family law court and an intermediate court of appeals.
    The Pro Bono Referral Project auction/luncheon was an enjoyable experience, as always. Thousands of dollars worth of prizes and gifts were auctioned to the highest bidder. The only way that you could bid was to have given a commitment of hours to the important pro bono program which provides free civil legal services for our low income citizens.
    On one evening, State Bar members and their spouses or guests kicked back and had a fun time at the 50th Anniversary Gala dance. The outstanding band, the Esquires, with their lead saxaphonist Larry Kopleman, provided the music and the crowd provided the dancing energy. A great time was had by all.
    The final event at the Annual Meeting, the Annual Banquet, provided an opportunity for remarks by bar leaders, the swearing in ceremony of new officers by Chief Justice Workman and the presentation of 50 year service certificates, the Kaufman award and certificates of merit. The perfect way to end the evening and to cap a truly outstanding 50th Anniversary Annual Meeting was with the legal music of Bob Noone, the "Perry Mason of Parody." Bob received a standing ovation in recognition of his musical talents.

     By-Law Amendments - During the Annual Business Meeting which was held during the 50th Anniversary Annual Meeting in May, the State Bar members approved changes in the organization's By-Laws. These alterations will enable the State Bar to operate even more effective and efficiently as we get ready to enter the 21st century. The focus of the State Bar will continue to be the administration of justice, the provision of legal services to our citizens and the availability of needed programs and services for the members of the State's legal profession.

LETTERS TO THE EDITOR

Lawyer Advertising

    As a "non-lawyer" interested in civil justice issues and as a supporter of Citizens Against Lawsuit Abuse (CALA), I would like to comment on recent statements printed in the West Virginia Lawyer concerning lawyer advertising and the public perceptions of attorneys.
     A September 1996 article on professionalism by State Bar President, Richard Ford, Jr., stated, "The organized bar has an obligation, not just to its members, but also to the public, to address issues of public dissatisfaction and professionalism." Public concern about the legal profession no doubt grows in part from what the public sees most, lawyer advertising. In your March 1997 issue, Professor Carl Selinger says that "surveys suggest that some advertising has had a negative effect on the public's respect for the legal profession." Professor Selinger cites a 1994 Gallup survey finding that "87 percent of lawyers polled believed that advertising has a negative effect on the image of the profession."
    Surveys by Ryan-McGinn-Samples Research have shown that seven out of ten registered voters in West Virginia are concerned that they or someone in their family will be a victim of a frivolous lawsuit. Considering the volume of personal injury advertising we all see in the media, it is no wonder the public is concerned.
    Professor Selinger raises the issue of "dramatizations." I've personally seen lawyer ads that seem to be nothing more than mini-docudramas where everyone, except the lawyer, is portrayed as intentionally causing harm; ads that encourage citizens to sue over every possible risk in life including dog bites or inconvenience. Supporters of CALA have commented to me that they feel such advertising is "one step over the line."
    CALA believes that most attorneys are reasonable and ethical professionals and that a few opportunists are doing great disservice to attorney reputations. We feel that most attorneys would want to consider with their client all alternatives prior to filing a lawsuit, even though some advertising seems to suggest the opposite. Probably like most attorneys, CALA also believes that the civil justice system should be one of fairness not greed; that citizens should be encouraged to serve on juries; that citizens should take personal responsibility for their actions and not try to find someone to blame for an injury caused through fault of their own; that mediation and arbitration should be encouraged where appropriate; and that citizens should become educated on the workings of the civil justice system and should voice their questions and concerns.
    I applaud Professor Selinger for his article and his statement that the legal profession is not helpless in efforts to correct the problems associated with advertising and that it's up to lawyers to do something about the problem. I hope Professor Selinger is incorrect in his assessment that "we in West Virginia won't do much of anything" about the problem of lawyer advertising, even though other states have. One recent positive development in our state was the Lawyer Disciplinary Board's April 25, 1996 opinion on contingency fee advertising. Members of the West Virginia Bar can do more to curb lawsuit abuse.

    The supporters of CALA support an open and frank discussion of these types of issues and are optimistic that the system can improve. Persons interested in more information from our group can write to us at P.O. Box 127, Charleston, WV 25321.

                             Sincerely,                                              Cheryl Carlson
                            Executive Director
                            Citizens Against Lawsuit Abuse
                            

Lawyer Discipline Statistics for 1996
From the Office of Lawyer Disciplinary Counsel

Lawyers disciplined by the Supreme Court in 1996:

Sole Practictioners:                9
Two Lawyer Firm:                2
Four or more lawyers:            2

Length of practice of lawyers:

Between 5 and 10 years:            1
Between 10 and 15 years:            2
Between 15 and 20 years:            4
Over 20 years:                6

Types of ethical violations committed:

Lack of diligence:                36%
Dishonest behavor:                29%
Conflict of interest:                21%
Contempt of court:                14%

Breakdown of disciplinary complaints
filed in 1996: (one complaint may have
more than one violation alleged)

Failure to communicate:            288
Lack of diligence:                181
Failure to abide by client's objectives    139
Competence                    128
Conflicts of interest                 89
Fees:                         62
Dishonesty or crimes:             62
Failure to return file/retainer:             54
Fairness to opposing counsel:         41
Trust account violations:             32
Prejudice to adminstration of justice:     32
Failure to respect third person's rights:     31
Truthfulness in statements:             22
Lack of candor to tribunal:             19
Frivolous litigation:                 17
Delaying litigation:                 17

Confidentiality:                 14
Prosecutor misconduct:             13
Limiting objectives of representation:     12
Misleading unrepresented party:         11
Counseling client to commit crimes:         10

Types of cases giving rise to complaints:

Criminal                    24.3%
Domestic relations:                18.6%
Miscellaneous:                16.1%
Personal injury:                 8.7%
Real estate:                     8.4%
Estate:                         4.2%
Employment:                     3.9%
Abuse and neglect:                 3.4%
Compensation (SS, WC):             3.2%
Prosecutors:                     2.6%
Business:                     2.5%
Office procedures:                 1.3%
Reinstatements:                 1.2%
Bankruptcy:                     1.0%
Impairment (of attorney)             .4%
Conviction (of attorney)             .2%
    

RETURNING PHONE CALLS: USE A BULLETIN BOARD
by David H. Webb, Esq.

    Common courtesy is a major reason for lawyers, as well as everyone else, to return telephone calls. Unfortunately, for busy lawyers, who are out of their offices for extended periods of time, returning calls is frequently a very difficult part of their legal practice. Besides common courtesy, the client is the customer, your fellow attorneys are entitled to professional courtesy, and a sense of urgency pervades many telephone messages. An underlying consideration in returning telephone calls is the ever-present specter of malpractice. In other words, a good "bedside manner," which includes promptly returning telephone calls, will go a long way in keeping your client informed - and happy with your services.
    An article that appeared about ten years ago in TRIAL magazine referred to a survey as to what lawyers thought their clients wanted (to "win" the case) and what the client wanted (to be treated "fairly"). Fair treatment of the client, to a certain extent, means returning his/her telephone calls.
    If you have a chronic problem with a pile of phone messages here are some hints that may help you to minimize phone calls that need to be returned.
    1. Use a bulletin board. Upon returning to his/her office, a lawyer dreads seeing a stack of telephone messages. The first thing a lawyer does is to sort through the messages to make an initial determination as to the urgency or importance of the messages. In this way, the lawyer focuses upon one message at a time, sometimes not getting to a message in the middle or bottom of the stack due to a message that is on or near the top of the stack. This leads to prioritization of returning calls based upon the random order of the pile.
    A better technique might be a bulletin board. I adopted the practice of a bulletin board after being frustrated with stacks of telephone messages. My new technique: At the telephone most used for returning telephone messages, I put a bulletin board (18" x 24") on the wall at that telephone. This way, messages can be posted, not stacked. I use colored stickpins for the messages, with the assorted colors being used for various messages and red stickpins being used for messages that my staff determines as urgent or important. An experienced secretary will know which messages need to be given priority: settlement of a case set for trial which would be a work saver; an irate client; the circuit judge's office; an unexpected family emergency; and so forth.
    My bulletin board is strategically placed where I can see it when I enter the office from the private area, and the bulletin board cannot be seen by anyone except myself and office staff. This way, as soon as I enter the door, I can see whether the bulletin board has a red stickpin on a telephone message, and my attention is immediately drawn to this priority message. We rely upon our secretaries for many things, and this added bit of help from them will frequently save much anguish.
    The second advantage to this technique is that messages are not stacked, but can be reviewed and moved around the board for prioritization. In addition, the effort made to clean the cork board will give a visual manifestation of the returned telephone calls. In

other words, the incentive to keep the board clean means that messages have been promptly returned. Messages do not get buried in the stack, and clients can be kept happier.
    When a client has a sense of urgency and calls more than one time before you have been able to call the client, a red stickpin on that message is helpful to the lawyer. A simple apology by the lawyer as to the perceived delinquency in returning the call will go a long way to soothe a client. Clients are not looking for excuses, but a simple explanation as to why the telephone call has not been returned should be briefly stated. An interim return call by a secretary can also be helpful.
    2. Answer the call yourself. It has become an increasingly common practice for a lawyer to have a direct line to his/her desk, with the phone number noted on office letterhead. This goes a long way in assuring the prospective caller that the lawyer is accessible. Ralph Haines, a venerable attorney who has practiced in the eastern panhandle of West Virginia for over fifty years, makes it a practice to personally answer the telephone at his office, which keeps the work moving in the office as two people are not interrupted. If you want your calls screened, this practice is not for you. However, if you want to make sure that you give immediate service to your client, consider answering your own phone. If you are occupied and cannot answer the phone, then have someone else in the office answer after two rings.
    3. Scheduling telephone conferences. We have all played "telephone tag," which is sometimes humorous, but mostly frustrating. Returning calls to other busy professionals, we play this sort of tag, costing us (and them) valuable time that could be otherwise better spent.
    Make a telephone appointment when your call is unsuccessful, or have your secretary make a telephone appointment when the call originates outside your office. Inquire of the best time to call someone, and schedule an appointment just as you would if you were seeing them in person to alleviate the frustration that telephone tag can bring. This idea has caught on well with professionals, and your clientele and the public will appreciate this technique, also.
    4. Off-hour call returns. While many of us prefer to conduct our business during regular business hours, a sizable number of us work at "off hours." Frequently, such a time is convenient to reach a telephone caller, giving a personalized touch to the call and emphasizing the importance of the caller. In addition, many of our non-professional callers work during the day and can be more easily accessed during the evening or even on weekends. The satisfaction of having reached these clients can be rewarding, but care must be taken not to interfere with the client's personal activities - especially meals and sleep for those who retire early. This technique is probably best reserved for telephone messages that will be brief for the least interruption to the person called.
    Your telephone is an important office asset that has its downside because you are not at the office all the time. Consider these techniques, especially the bulletin board idea, to get a handle on this recurring problem.

THE TOP 14 WAYS YOUR LEGAL
ASSISTANT CAN HELP YOU
by Claire Hudson

    The recent Oklahoma Supreme Court case of Taylor v. Chubb Life Am. Ins. Co., 874 P2d 806 (Arz. 1994), enumerated a list of duties properly performed by legal assistants, while ruling that fees charged by legal assistants are included within the statutory definition of "attorney fees." Attorney fees for work performed by legal assistants can be awarded if the tasks performed would have had to be performed by a licensed attorney at a higher rate. The Taylor v. Chubb case is the first appellate decision to delineate between duties performed by legal assistant and duties performed by clerical staff. These 14 specific job assignments for legal assistants are the 14 best ways your legal assistant can help you.

    The 14 legal assistant job assignments enumerated by the Oklahoma Supreme Court are:

    1.    Interview Clients.
    2.    Draft pleadings and other documents
    3.    Carry on legal research, both conventional and computer-aided.
    4.    Research public records
    5.    Prepare discovery requests and responses
    6.    Schedule depositions and prepare notices and subpoenas
    7.    Summarize depositions and other discovery responses
    8.    Coordinate and manage document production
    9.    Locate and interview witnesses
    10.    Organize pleadings, trial exhibits and other documents.
    11.    Prepare witness and exhibit lists
    12.    Prepare trial notebooks
    13.    Prepare for the attendance of witnesses at trial
    14.    Assist lawyers at trial

    In future articles, the Legal Assistants of West Virginia, Inc. plan to discuss legal assistant job assignments in greater detail. Hopefully, you will discover additional ways to utilize your legal assistant's skills.

About the Author: Ms. Hudson is the Regional Director of the Charleston Region of Legal Assistants of West Virginia. She has ten years experience as a Legal Assistant and is employed by the law firm of Kesner, Kesner & Bramble in Charleston, WV.

LESSONS FROM GRAND FORK
By Robert D. Reis, ALPS Risk Manager

    As we all know, Grand Forks, North Dakota sustained flood as has never been seen before. In fact, it has been at least five hundred years since the Red River of the North crested over fifty feet above flood stage (final height fifty-four feet). Everyone is affected in every facet of life. As of May 9 there was municipal water system, no sanitation system and no electricity in the downtown area. One hundred and ninety lawyers are affected. Several firms had offices in those buildings which burned to the ground. Others who had ground floor space have near total destruction. Amidst the restoration of Grand Forks which will take a long period of time, there are lessons for all of us. No matter where we live there is no total protection from a natural disaster. Following are some items to ponder as we think about the law firms in Grand Forks and watch them recover.

Planning
    The first and most important lesson from any disaster is the need to plan ahead. Every firm needs to have up-to-date lists of staff and clients with phone numbers and addresses in the hands of the partners and the office administrator. After a disaster, communication becomes very important. Evacuation and the ability to protect property should be considered before any disaster as well. Where can computers be moved and how records can be protected are among the chief planning concerns.

Office Records
    Consider the most important documents in the office and make sure they are duplicated and protected. We ask during risk management visits if the firm's computer system has a recent full-data backup which is kept out of the office. If a firm has a tape or disks that constitute a full backup, reconstruction of many needed records can be done quickly. The backup should include a lsit of all the original vital documents kept in the office, that might not be duplicated elsewhere. Original wills, corporate minute books, corporate seals, ought to be listed with a comment as to the whereabouts of copies if known. Customarily, we suggest that these tapes or disks be kept by the office manager or partner and brought to the office and rotated every day to assure they are reasonably current. Some firms have kept them in the safe deposit box of the local bank. That is not recommended as the hassle of changing the tape in the box is such that it usually means that the tapes or disks are not rotated frequently. The safe deposit area of banks is often located in the basement and is susceptible to flooding. This in fact happened at one bank in Grand Forks. Another bank was located on the ground floor of a building that burned.

Communications
    Contingency planning ought to include some procedure for communication in an emergency. Should a fire or other disaster strike, you will want to be able to communicate with staff and clients in need as soon as possible. Cellular phones and a prearranged calling tree or other procedure are worth considering. In many areas cellular phone providers have a special package deal for attorneys. It is worth investigating this

option well before an catastrophe strikes. Equip those who must be in contact with the office regularly and make sure that all office staff members have a current list of all of the cellular phone numbers. The calling tree should include cellular phone users first and others at the bottom of the list.

Office Space and Equipment
    Temporary quarters and equipment should also be considered. If the computers are affected, know how to repair or replace them quickly. If you practice near the ocean, replacement is probably the best plan. Salt water tends to ruin computer and other delicate equipment quickly. Back-up plans for space need to be considered to the extent possible. In a widespread disaster no plan is likely to be sufficient as a large number of businesses wil have the same need. Though our offices are on a second floor and Missoula has virtually no natural disasters, ALPS has an arrangement with a local computer vendor that would allow us to use a classroom outfitted with a number of computers should the need arise. We also have a number of employees outfitted with laptop computers and modems who could work from their homes.

Loss of Income Concerns
    Protecting the income stream is a more difficult and longer term task. Our risk management concerns mandate that we caution firms in post-disaster modes not to accept new cases until they have a handle on the cases in the office. Re-creating records and securing temporary quarters and systems requires too much time to allow for the necessary time and attention that should be given to new clients without fear that a deadline will be overlooked. In my view the only way to do this is to set aside several months operating expenses in a savings account that exists just for a rainy, windy or smoke-filled day.

Helping Those in Need in Grand Forks
    We have been working closely with The State Bar Association of North Dakota which has mounted a significant effort to help the affected attorneys in the Grand Forks area resume normal operations. You can assist this effort by sending a contribution to The North Dakota Bar Foundation (Flood Relief) at P.O. Box 2136, Bismarck, ND 58502-2138. Next time it may be a flood, hurricane, tornado or other disaster in your town.

PUBLIC INTEREST AUCTION HUGE SUCCESS
by Jennifer Jones

    The West Virginia University College of Law Public Interest Advocates (PIA) raised more than $25,000 for public interest law -- Las Vegas style.
    The 10th Annual PIA spring auction kicked off with a bang on March 20 at the WVU Law Center. PIA is a student organization that raises awareness for public interest jobs. This year's auction theme was Viva Las Vegas.
    More than 250 students, professors, and lawyers crowded into the College of Law's festively decorated vestibule to partake in the action.
    Second year law student Heather Ireland, a licensed auctioneer, served as emcee for the event. Law school professors Grace Wigal, Patrick McGinley, James McGlaughlin, Joyce McConnell and Debra Cohen also served as auctioneers. In addition, Circuit Judges Robert Stone and Russell Clawges conducted raffle ticket drawings.
    Among items auctioned were whitewater rafting trips, massages, bar review courses, a weekend at the Greenbrier and a poker party at Dean Teree Foster's house.
    Auction items are donated from around the state and this year's auction provided more donations than ever before and raised the most money ever. Sales netted $20,627. The first PIA president, Carl Hostler, donated $5,000 to bring the grand total raised by the event to $25,627.
    "The auction not only raises funds for public interest work, but it also helps make the entire legal community aware of the need to support those who work in the public interest area," PIA advisor, Professor Chuck DiSalvo said. "Not everyone can do public interest work, but the auction and other fundraising activities give everyone an opportunity to do public interest work indirectly."
    In addition to the auction, PIA also held a Thanksgiving appeal. In the appeal, letters wer sent to members of the West Virginia State Bar requesting contributions that would help fund public interest work. The appeal raised $15,000.
    "One of the most rewarding aspects of my involvement is seeing this effort supported by all aspects of the bar," DiSalvo said.
    The $40,627 raised by the auction and through the Thanksgiving appeal will fund PIA fellowships. PIA fellows are placed with various public interest legal service groups around the state.
    The funds PIA raises are administered by the West Virginia Fund for Law in the Public Interest (WVFLPI).
    This year's 17 PIA fellows and their organizations are: Suzanne Blume, Robert Smiles and Melinda Wells, Appalachian Research and Defense Fund; Maryclaire Atkins and Heather Foster, Mountain State Justice; Wiley Newbold, NAACP; Josh Fraenkel and Susan Gifford, Legal Aid Society of Charleston; Megan Carpenter, North Central Legal Aid Society; Janie Peyton and Chris Davis, Public Defender Services; Amy Skinner, Melissa Snyder, Heather Hovatter, Heather Ireland and Leckta Poling, West Virginia Legal Services Plan; and Todd Sponseller, West Virginia Highlands Conservancy.
    With this year's class, the PIA will have funded 106 fellows.

About the Author: Jennifer Jones is a 2nd year law student at WVU College of Law.

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.

7/11/97        Lorman Business Center, "Tax Aspects of Estate Planning,"
            Charleston, 715/833-3940, 4.50 credits

7/11/97        National Business Institute, Inc., "Advanced Principles of
            Title Insurance in WV," Charleston, 715/835-7909,7.20 credits, including 1.0 ethics

7/16-17/97    The West Virginia State Bar, "Basic Mediation Training,"
            University of Charleston, 304/558-1044

7/17/97        Wheeling Jesuit University, "Criminal Law and the Truth:             Who Are You to Impose Morality on Me," Wheeling,
            304/243-2332, 3.0 credits

7/22/97        Lorman Business Center, "Effective Motion Practice in WV,"
            Charleston, 715/833-3940, 4.50 credits

7/23/97        Lorman Business Center, "WV Law for Design Professionals,"
            Charleston, 715/833-3940, 4.50 credits

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

09/11/97        Professional Education Systems, Inc., "Examining and                 Evaluating Title to Real Property in WV," Charleston,
            715/836-9700, 6.90 credits

09/19/97        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

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

ANTICIPATED EFFECTS OF NEW PROCEDURAL RULES
AND STATUTORY CHANGES IN ABUSE AND NEGLECT CASES
by Judge Daniel L. McCarthy

    The 1996 West Virginia Legislature by its significant amendments and additions to West Virginia Code Chapter 49, Article 6, Section 1, et seq. dealing with procedures in cases of Child Neglect or Abuse, and the West Virginia Supreme Court of Appeals, by its adoption on December 5, 1996, of the Rules of Procedure for Child Abuse and Neglect Proceedings, have reaffirmed our Supreme Court's often stated position that the problems of child abuse and neglect in West Virginia demand priority attention.See footnote 1 1 Clearly, the thrust or guiding principle of the new Rules, as well as the new statutory provisions, is to assure the safety of the child victim and that no child is "safe" unless in a permanent home, whether that be the home of the biological parent(s), an adoptive parent, or a permanent foster home. Further, child maltreatment is considered to be a community problem requiring community solutions, and no single agency, governmental or private, working alone, can assure the safety of child victims.See footnote 2 2 Additionally, it is paramount that the desired state of "permanency and safety" for the child be realized within mandated time limits.See footnote 3 3 To assure this result, following the filing of the petition and until the child is permanently placed, the case will remain on the Court's active docket and will be reviewed at least every ninty days by the Court, together with the multidisciplinary treatment team ("MDT") members, consisting of the CASA representative, the Department, such parties as may remain in the case and their attorneys, other service providers and the child or children themselves, if appropriate.See footnote 4 4
    The abuse and neglect statutes have always contemplated that the problems exhibited by the parent(s) or custodian(s) which resulted in the initiation of an abuse and neglect proceeding, will be addressed, if appropriate, during improvement periods granted to the respondent(s). Revised Code §49-6-12 provides for three kinds of improvement periods: (a) Pre-adjudicatory, which cannot exceed three months and cannot be extended; (b) adjudicatory and (c) dispositional, neither of which sall exceed six months, but each of which may be extended an additional three months if the respondent can show substantial compliance with the terms of the improvement period. Further, it must be shown that an extension of the improvement period will not substantially impair the ability of the Department to permanently place the child, and that the requested extension is otherwise consistent with the best interests of the child.
    All three of the statutorily defined improvement periods have certain elements in common: All requests for an improvement period must be by a written motion. Further, the burden is on the moving respondent to demonstrate, by clear and convincing evidence,See footnote 5 5 that he or she is likely to fully participate in the improvement period (in effect, admit the problem). The Court is then required to place the terms of the improvement period on the record. The Department must file the family case plan prepared with the assistance of the MDT, and detailing the goals, objectives and terms of the improvement period, within thirty days of the entry of the order granting the improvement period. The Court must hold the first judicial review within sixty days thereafter, unless the Court has requested the Department to file a report regarding the respondent's progress in the improvement period, in which case the review must be held within ninty days. In moving for an improvement period, the respondent must show that he orshe has not previously been granted an improvement period in the case, or, since the granting of a previous improvementperiod, respondent has undergone or experienced a substantial change in circumstances, and because of that substantial change, respondent is likely to fully participate in a further improvement period. If it is demonstrated to the Court that the respondent has failed to participate in any service or program mandated in the improvement period, then the improvement period must be termniated upon motion brought by any

party. Lastly, any hearing to be held at the conclusion of an improvement period must be held as promptly as possible, but in no case later than sixty days thereafter.
    Although family reunification is historically the statutorily desired goal in abuse and neglect cases, barring a showing by clear and convincing evidence of the parent(s)' unfitnessSee footnote 6 6 , nevertheless, every Court has had a number of cases wherein the factual situation and the subsequent conduct of the offending parents preclude reunification with one or both of the parents. For example, all too often situations occur where a very young child has been the subject of egregious physical and/or sexual abuse, allegedly by one or both of the parents, neither of whom accepts responsibility therefor, nor is willing to identify the perpetrator.See footnote 7 7 In this type of situation it is crystal clear that the recommended disposition will be that of terminating parental rights, to allow adoption by caring, safety-providing adoptive parents, a permanency plan for the child consistent with the child's best interests.
    However, more often cases fall in a "gray" area where parents recognize at least some of their problems and are willing to accept services in an effort to rectify the circumstances giving rise to the abuse and/or neglect. One of the possible perceived "downsides" which may result from the mandated accelerated time periods now required to be enforced for the disposition of an abuse and neglect caseSee footnote 8 8 is that although the parent or parents may have made some progress in addressing the underlying problem, during a pre- adjudicatory and/or a post-adjudicatory improvement period, nevertheless, the parents are unable to demonstrate that the improvements made have been such that the safety of the child could be assured if the family were reunited. It may clearly appear to the Court thata six month post-disposition improvement period will simply not allow sufficient time, even under a most favorable scenario, to assure that the problems can be sufficiently addressed in order to permit the child to be safely returned to the parent(s).
    Under current law, when the maximum time allowable for improvement periods has expired, that being twenty-one months including all available extentions, then the Court has no further discretion to give the parents more time to improve, but must instead move to assure the child a safe and permanent home elsewhere. Thus, it is likely that Courts will find that utilizing some form of alternate disposition, probably termination, may become more commonplace. Assuming that family reunification in some form is not utilized, then the options become termination, especially with very young children, and ultimate adoption, See footnote 9 9 or some permanent out-of-home placement, such as a court approved and ratified permanent foster care home. While this result may seem drastic on first blush, it serves the ultimate goal of assuring that children are placed in safe and permanent homes within a reasonable period of time rather than spending their most formative years in "legal limbo" -- the devastating fate of all too many children under the previous system.
    Since permanent placement of the child needs to be finalized, in the absence of very compelling circumstances, within 18 months of the entry of the final dispositional order,See footnote 10 10 it appears that the preparation and implementation of the Permanency Plan portion of the Child's Case Plan takes on paramount importance. Rule 28 contemplates that the Child's Case Plan, including the permanency plan portion thereof, will be prepared by the Deparment with input from all members of the multidisciplinary team and circulated to all appropriate parties or their attorneys or agents at least five days before the dispositional hearing.See footnote 11 11 At the dispositional hearing, the Court will consider the Child's Case Plan, including the permanency plan, and after hearing from the appropriate parties, either adopt the Plan or adopt the Plan with appropriate modifications.
    If placement outside the home or termination, is the recommendation, then the Plan should minimally:
    a.    Describe efforts made by the Deparment to prevent the need for placement and why placement is now an appropriate option;

    b.    Describe the efforts made by the Department to bring about reunification and why that option is not in the child's best interest, identifying the problems in the home,
    c.    Identify names of friends or relatives contacted who could provide safe placement for the child,
    d.    Identify what type of home or institutional placement is recommended for the child and why,
    e.    A description of possible parental/sibling visistation, and
    f.    Special needs of the child to be met in placement, as well as any other factor or aspect that may be peculiar to that particular case.See footnote 12 12
    Perhaps the single most important aspect of the revised law and new rules dealing with abuse and neglect cases is to assure the Court's active "hands on" involvement in each case from its initiation until permanent placement is consummated. If any form of improvement period is granted, the Court must regularly conduct an MDT Judicial Review of each case, with the first review to occur within 60 days of the granting of the improvement period, or within 90 days thereof if the Court orders the Department to submit a report as to the respondents' progress in the improvement period.See footnote 13 13 Following disposition, the Court shall conduct a permanent placement review conference with the MDT every 90 days until permanency is achieved and the matter is closed and removed from the Court's docket.See footnote 14 14 In this manner, the Court will remain meaningfully informed concerning the progress toward total implementation of the permanent placement plan and will also be in a position to modify or adjust the plan if unexpected developments should warrant the Court's doing so.See footnote 15 15
    Obviously, a proper implementation of Code 49-6-1, et seq. and the new Rules is going to entail additional time and labor on the part of all agencies and attorneys involved in the case, as well as the Court, but if proper implementation is achieved, then we can be reasonably assured that no abuse and neglect case will ever again "fall through the cracks" and that each child victim will be permanently placed in a safe and secure environment within a reasonable time period subsequent to the initiation of the case.

Footnote: 1 1. See e.g., In Re Carlita B., 185 W.Va. 613, 408 S.E.2d 365, (1991); In Re Jonathan G., Slip Opinion No. 23456 (Nov. 1996).

Footnote: 2 2. See Child Abuse & Neglect: The New Rules & Statutes, CLE Presentation in Summersville, Jan. 24, 1997 - Prepared and presented by Catherine D. Munster, Esq.

Footnote: 3 3.     Rule No. 43, Rules of Procedure for Child Abuse & Neglect Proceedings (Dec. 1996)

Footnote: 4 4.      Rules No. 37, 39 supra

Footnote: 5 5.      W.Va. Code §49-6-12 apparently shifts the burden of proof to the respondent to show, by clear and convincing evidence, the right to any improvement period. This provision may give rise to some interesting procedural and perhaps constitutional questions not addressed in this article.

Footnote: 6 6.      See W.Va. Code §49-6D-2 (Michie 1996); State ex rel, W.Va. Dept. Of Human Services v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

Footnote: 7

7. See e.g., In Re Jonathan Michael D., 194 W.Va. 20, 459 S.E.2d 131 (1995); In Re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993)

Footnote: 8 8.      For an excellent review of the very real and practical problems which courts will face in attempting to apply the new rules and statutory requirements, see "I Respectfully Dissent", by Hon. Ronald E. Wilson, in The West Virginia Lawyer, Vol. 10, No. 4 (November 1996)

Footnote: 9 9.      W.Va. Code §49-6-5(a)(6) (Michie 1996) rules out termination as an option if the child(ren) are over 14 years of age, or otherwise of an age of discretion as determined by the Court, and the child(ren) object to termination.

Footnote: 10 10.      Rule No. 43, supra

Footnote: 11 11.      Rule No. 29, supra

Footnote: 12 12.      Rule No. 28, supra

Footnote: 13 13.      Rule No. 37, supra; W.Va. Code §49-6-12(b)(c) (Michie 1996)

Footnote: 14 14.      Rule No. 39, supra

Footnote: 15 15.      Rule No. 42, supra

NOTICE

     While the West Virginia State Bar and the Publishing Company of North America tried very hard to ensure a minimum of mistakes in the 1997 West Virginia State Bar Directory, there were several unfortunate errors that should be noted.

    They are as follows:

    Charleston members who have a zip code of 25301 were listed with a South Charleston address.

    Several inactive out-of-state members were deleted in translation from our database to the publisher's computer.

    Those were the two major problem areas found. We are also aware of sporadic miscellaneous errors and will do everything we can to ensure that these errors do not occur in the publishing of the 1998 Membership Directory.

    Suggestions for improving the 1998 Directory are welcome. You may send your suggestions to Lisa Stamm, Editor, The West Virginia State Bar, 2006 Kanawha Blvd., E., Charleston, WV 25311.

LAWYER INFORMATION SERVICE
SERVING WEST VIRGINIA

SUSAN - NEED TO FILL IN NEW NAMES

Tom Trent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Public Service Commission
Elizabeth Gilbert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Goodwin & Goodwin
David Fenwick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Goodwin & Goodwin
Jerry McCormick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Calwell & McCormick
Joanna Tabit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Steptoe & Johnson
Lonnie Simmons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DiTrapano & Jackson
Hoyt Glazer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jackson & Kelly
Tom Tinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .West Virginia State Bar
Susan M. Harman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meyer, Darragh, Buckler, Bebenek & Eck
Cynthia A. Majestro . . . . . . . . . . . . . . . . . . . . . . . . . . . Meyer, Darragh, Buckler, Bebenek & Eck
Erin Brewster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Meyer, Darragh, Buckler, Bebenek & Eck
Tiffany M. Bost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Meyer, Darragh, Buckler, Bebenek & Eck
Marcus Spatafore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jackson & Kelly
Chris Callas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jackson & Kelly
Robert Tweel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jackson & Kelly
Ann Haight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kay, Casto, Chaney, Love & Wise
Monika Hussell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jackson & Kelly
Scott H. Kaminski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jackson & Kelly
Jace H. Goins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Steptoe & Johnson

PBRP UPDATE

SUSAN - PLEASE ADD NAMES TO OVERSET LIST

David H. Daugherty, Huntington
Bobby R. Hale, Madison
D. Scott Tyree, Huntington
John D. Wilcox, Parkersburg

ANNUAL MEETING CENTER SPREAD

TO COME     

NEW BOARD MEMBERS

NEW YLS CHAIR

NEW BAR FOUNDATION BOARD MEMBERS

GALA CONTRIBUTORS

ANNUAL MEETING SPONSORS
Acordia
ALPS
Michie
David Shirlaw

EXIBITORS

BAR FOUNDATION AWARD WINNERS

JACK BOWMAN

FRANK MAZZIE

TO COME

Susan - be sure to put in the full page mediation training form that was in the June issue.

Also, the committee sign up sheet on page 5 of the March 1996 issue, needs to go in as well. Changes will need to be made though - where it says 1996-97 year it should read "1997-98". And it should be mailed to Bar office by July 30, 1997.