The West
Virginia Lawyer
June 1997 Issue
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| TechTalk | Feature Articles |
| Dean's Column | Tinder Box |
| Letters to the Editor | CLE Calendar |
"Time Flies When You're Having
Fun!"
I find it hard to believe that my year
as State Bar President is just about over. There are so many
personal feelings, experiences and memories that come to mind. It
has been an extremely rewarding experience.
Being the President of the West Virginia
State Bar has meant such things as:
* Working with
outstanding lawyers on programs and services relating to the
administration of justice and the provision of legal services.
* Having the
opportunity to visit all parts of our great State to meet with
Bar members and non-lawyers.
* Continually
realizing the importance that lawyers plan in society as
participants in our system of justice, and in our communities as
contributing citizens.
* Being
constantly impressed with the ongoing commitment of lawyers to
assist their clients with difficult, and sometimes unpleasant
problems in their lives.
As President of the West Virginia
State Bar, it also means a great deal of time away from the daily
practice of law, a fair amount of chicken dinners and lunches at
drive-thru facilities as well as less of that most precious
commodity - time - time with a great wife and two energetic young
sons.
For me, it has also meant a
significant change in the law practice I share with the person
who is my mentor, my inspiration and my friend - who also happens
to be my father. It has been a momentous year of challenge and
change and I have enjoyed most every minute of it.
As with every other State Bar President,
I am delighted that we have been able to attain certain goals. I
am particularly proud of the completion of the Professionalism
Guidelines which were put together by a dedicated and diverse
group of lawyers and laypersons, ably chaired by former Supreme
Court Justice, Thomas Miller. We are very pleased that the State
Supreme Court approved them at the beginning of this year. These
guidelines enable all of us to aspire to work with each other,
the Courts and our clients at the highest levels of civility and
professionalism.
During my year as President, I have tried
to emphasize the needs of our solo practitioners and small firms.
Thanks to the tremendous work of the Young Lawyers Section, the
Practice Handbook has been revised and updated. A mentoring
system has been developed and implemented in all counties by our
Solo Practitioners and Small Firm Committee as well as helpful
articles in our monthly West Virginia Lawyer magazine
discussing areas of office practice, automation in technology,
etc., written by members of the committee. We, as an organized
Bar, must be ever mindful that the majority of State Bar members
are practicing law by themselves or in small firms and continue
to strive to offer valuable services and assistance to these
lawyers as well as to the rest
of the Bar.
There have been other significant areas
where progress has occurred, but where there must be further
action. Of utmost importance is the continuing work for the
support of civil legal services for our low income citizens. We
have expanded our pro bono efforts, fought for ongoing federal
government funding, sought state government funding, kept our
IOLTA program operating effectively and looked at other sources
of assistance. We must keep our commitment and leadership at the
highest levels in order to help the low income men, women and
children of West Virginia who face legal problems. Additionally,
we must make certain that our government leaders recognize, and
respond to the need to satisfactorily fund the necessary legal
services guaranteed by our constitution to persons accused of
crimes.
Another issue that keeps going and going
and going - is the unlawful practice of law, in general, and our pro
hac vice procedures in particular. We must use the available
court decisions to make certain that our citizens are only
represented by appropriately licensed members of the legal
profession.
There are always new challenges to be
faced by the West Virginia State Bar. We continually hear
comments about lawyer advertising and what, if anything, our
organization should do about it. This is a topic which was
debated to a great extent by members of the Bar's Professionalism
Commission and, as an outgrowth of those discussions, I am
pleased to officially announce the formation of a Lawyer
Advertising Commission composed of a diverse group of laypersons
and attorneys which will be working in the months to come to
determine if any action should be undertaken in this regard.
I guarantee you that there will always be
new challenges and problems which the State Bar will face in the
months and years ahead. I know that the Bar Officers and members
of the Board of Governors are ready, willing and able to rise to
meet those challenges for the betterment of our profession, our
citizens, and our State.
For twelve of the past thirteen years, I
have had the honor and privilege of being involved as an
Executive Committee member and officer of the Young Lawyers
Section and as a Board of Governors member and officer of the
State Bar. It has been an experience of a lifetime, offering the
opportunity of both professional and personal growth through
friendships and contacts that will endure well beyond my years of
Bar service.
If I could leave you with just one piece
of advice, I would strongly encourage each of you to become more
involved in your State Bar. It will be most beneficial to you
from a personal, as well as a professional perspective.
Finally, let me just say that being the
President of the West Virginia State Bar is something that I will
always cherish. Working with the fine lawyers in this State and
the West Virginia State Bar has made me a better person and a
better lawyer, and I cannot thank you enough for giving me the
opportunity.
Honors and Awards at the College of Law
A number of WVU College of Law
faculty, staff and alumni have been recognized recently for their
outstanding contributions to the law school and to the
profession, and I take this opportunity to recount the University
and law school honors and awards presented to faculty, staff and
alumni so far this year.
University Awards
WVU Foundation Award for
Outstanding Teaching. The most important aspect of the WVU
College of Law mission is teaching, and John W. Fisher, II,
has excelled as a pedagogue for almost three decades. This year,
John is the recipient of a WVU Foundation Award for Outstanding
Teaching, an honor afforded to only five University professors
each year. John's selection for this honor is a recognition of
the fact that he is an innovative, dedicated, consummate teacher
who has profoundly influenced the students with whom he has come
in contact through his years in legal education.
Employee of the Year Finalists.
Each year, the University selects a small group of staff members
as finalists for the Employee of the Year Award. This year, two
College of Law staff members merit this acclaim. Sherry
Everett, receptionist, a finalist in the clerical employees
category, brightens the law school each day with her ready made
smile, indefatigable charm and professional demeanor. Joyce
Hawkins, information systems specialists, a finalist in the
technical employees category, performs minor miracles each day
through her uncanny ability to diagnose and cure law school
computer problems.
College of Law Awards
Class of 1997 Student
Awards. Each year, the graduating class selects the faculty
and staff members who have most enriched their years at the law
school. The Class of 1997 has chosen Tom Cady, as the
Professor of the Year, the third time Tom has been singled out
for this honor by a graduating class. No staff member lavishes
more care, energy and effort upon students and their well-being,
while in law school and as practicing lawyers, than Ellie
Flowers, Assistant Dean for Career Services, and the Class of
1997 has named Ellie Staff Member of the Year.
ACLPS Awards. The Appalachian
Center for Law and Public Service recognizes a law firm and a
lawyer each year for their contributions to the law school's
public service program. Furbee, Amos, Webb & Critchfield
is the 1997 Pro Bono Firm of the Year. This firm's
attorneys -- including Billy Atkins, newly-appointed Circuit
Judge Russell Clawges, Debra Scudiere, Michael Barill and William
Holmes -- were among the first to volunteer to supervise law
students in public service projects when the Center was
inaugurated in 1994. They have assisted students in drafting
wills and advance directives for senior citizens, have supervised
students performing title searches for Habitat for Humanity, and
have served as mentors to students mediating cases in the
Center's Alternative Dispute Resolution Project.
Michael Aloi, (class of 1983),
of Manchin, Aloi & Carrick, is the 1997 Pro Bono Attorney
of the Year. He has supervised students in domestic violence,
divorce and custody cases for three years, and was instrumental
in helping to launch the Center's Alternative Dispute Resolution
Project this year. One of the original attorneys who volunteered
to act as a mentor to students in the ADR project, Mike also
trained the ADR project's student volunteers in mediation
techniques.
Significant Scholarship Award. The
Significant Scholarship award is presented annually to the
faculty member who has published the most influential scholarly
work during the previous calendar year. This year's recipient is Lisa
A. Kelly, and her article, Race and Place: Geographic and
Transcendent Community in the Post-Shaw Era, 49 Vand. L. Rev.
227-308 (1996) examines Shaw v. Reno, the Court's 1993
landmark decision affecting racially gerrymandered voting
districts, and its recent progeny. Lisa's article was selected by
the Association of American Law Schools for that Association's
1996 Scholarly Prize.
Staff Achievement Award. It is the
efforts of staff members that keep the law school functioning.
The Staff Achievement Award recognizes outstanding
contributions of staff members, and Nancy Young, Law
Library Administrative Assistant, is the recipient of this award.
Nancy is an exemplary employee. On a daily basis, she not only
fulfills her assigned responsibilities with extraordinary skill
and good cheer, but she also willingly assumes duties outside the
parameters of her job description in order to benefit -- and make
life easier for -- students and members of the faculty and staff.
Honorable mention for this Staff Achievement of the Year Award is
afforded to Rick Michael, Copy Center operation, and Lori
Mobley, supervisor and legal secretary.
Faculty Service Awards. So many
faculty members perform invaluable service that singling out only
a few persons for recognition is exceedingly difficult. Service
award recipients this year are: Grace Wigal, for service
to the College of Law through her development and implementation
of a highly successful academic support program and her
directorship of an outstanding appellate advocacy program; Tom
Patrick, for service to the legal profession through his
prodigious efforts in mediation and alternative dispute
resolution programs across State; and Bob Bastress, for
public and community service for his work on numerous State Bar
committees, on the statewide and national Board of Directors of
the American Civil Liberties Union, and as a pro bono
lawyer in numerous civil rights cases.
Justitia Officium Awards. The Justitia
Officium award is the highest award the College of Law can
bestow upon an individual, the equivalent of an honorary degree.
Members of the College of Law faculty selected two exceptional
jurists as recipients of this honor, which will be presented at
the law school hooding ceremony on May 10. The College of Law is
proud to confer this honor upon Honorable Arthur M. Recht,
Class of 1962, and Honorable Elizabeth V. Hallanan, Class
of 1951.
These members of the College of Law
community have earned this well-deserved recognition and our
congratulations.
"Civility, Civility, Civility"
Although I must be the
chronological oldest lawyer to sit in this chair, when I sit down
to write articles to young lawyers that will provide the wisdom
of my years, I draw a blank. Knowing that everyone will skip this
page to jump to the Tinder Box to learn the real news on the
forefront, I wanted to being my year with useful information that
everyone, not only young lawyers, would want to take a minute to
review, and then go on . . . yet retain just enough that they
would want to revisit the next issue, before going on to the
Tinder Box.
Over the last few years, our legal
community has been in an uproar discussing many different issues
that all seem to revert to one issue, that of civility toward
each other and the arena wherein we practice. I like how we
attach the word "civility" to this issue. If one would
ask the general public if they were civil to those people with
whom they work, heaven knows what the response would be. However,
if one would ask the general public if they were courteous,
polite and considerate at their job, I bet the answer would be a
resounding "YES." The general public would say
"YES" because our mothers or fathers or other loved
ones have taught us better. Just because we become Lawyers does
not mean that we should forget those lessons of our youth and
apply the common sense which God hath given.
Back in 1988, the Young Lawyers
Division of the ABA submitted to the House of Delegates "THE
LAWYERS' PLEDGE OF PROFESSIONALISM." This PLEDGE, if used on
a daily basis, will provide a remedy to this huge issue of
civility, or the lack thereof, in our profession. Make a copy and
place it on your desk for future reference and make the plunge by
taking the following Pledge:
1. I will remember that the practice of
law is first and foremost a profession, and I will subordinate
business concerns to professionalism concerns.
2. I will encourage respect for the law
and our legal system through my words and actions.
3. I will remember my responsibilities to
serve as an officer of the court and protector of individual
rights.
4. I will contribute time and resources to
public service, public education, charitable and pro bono
activities in my community.
5. I will work with the other participants
in the legal system, including judges, opposing counsel and those
whose practices are different from mine, to make our legal system
more accessible and responsive.
6. I will resolve matters expeditiously
and without necessary expense.
7. I will resolve disputes through
negotiation whenever possible.
8. I will keep my clients well informed
and involved in making the decisions that affect them.
9. I will continue to expand my knowledge
of the law.
10. I will achieve and maintain
proficiency in my practice.
11. I will be courteous to those with whom
I come into contact during the course of my work.
12. I will honor the spirit and intent, as
well as the requirements, of the applicable rules or code of
professional conduct for my jurisdiction, and I will encourage
others to do the same.
To the person who practices these
pledges, the general public, your coworkers, your staff, the
court, your clients and your opposing counsel shall view you as
not only being civil, but as being a competent, respected
professional with whom it is a pleasure to work.
Now for the real reason to return to
this column next month and in the following months thereafter, my
pledge is this:
I PROMISE NOT TO MENTION THE WORK
"CIVILITY" AGAIN.
"Where Do Old Executive Directors
Go?"
During this month of May, 1997, the
West Virginia State Bar is celebrating 50 years of existence.
Within the past fifty years, this organization has pursued its
mission of improving the administration of justice and providing
legal services to our citizens during their time of need.
Back in 1947, a group of leading lawyers
in the state, who were members of the West Virginia Bar
Association, recommended to the State Supreme Court that a
mandatory unified organization for attorneys be set up. After
appropriate review and consideration, the Supreme Court approved
the implementation of that mandatory group - The West Virginia
State Bar.
As with any new organization consisting
of volunteers, it was immediately determined that there was a
need for ongoing staff assistance. The State Bar turned to a well
known and well respected lawyer in West Virginia - Oshel Parsons
to be the first of only five executive directors who have served
during this fifty year period.
As told by James Casto, in his 50 year
history of the West Virginia State Bar - that will be distributed
next month to every State Bar member - Oshel Parsons become the
glue that held together the West Virginia State Bar. During his
twenty-four years as Executive Director, he helped to mold the
organization into an entity that was well-known and
well-respected. In many ways, Oshel Parsons was the West Virginia
State Bar.
During this time, he also served as the
Parliamentarian for the West Virginia House of Delegates. With
these two important areas of responsibility, he had tremendous
impact on West Virginia's laws, legal system and judiciary.
Since I did not graduate from the West
Virginia University College of Law until 1972, shortly after
Oshel Parsons retired as the State Bar Executive Director, I only
knew him in his role as Parliamentarian. I remember that he sat
in the front of the House of Delegates chamber like a potentate
and dispensed his wisdom on parliamentarian matters as well as
any other matter - legislative or otherwise. I have been told
many stories about Oshel Parson's tenure as State Bar Executive
Director -- if only 10% of them are true, then he was truly a
leader, a visionary and a Renaissance type man.
To be a successor to such a
well-respected person who was in a position for twenty-four
years, you need a very confident and qualified individual. When
Oshel Parsons retired, the State Bar turned to Forest
"Jack" Bowman to be the new Executive Director. For
approximately four years, during an important time in the State
Bar's life, Jack served admirably in this position. As several
important national and state events occurred (Watergate at the
national level, the Judicial Reorganization Amendment at the
state level and legal services for the poor at both the state and
national levels), Jack helped to maneuver the State Bar into
making appropriate and responsible decisions on behalf of our
lawyers and citizens.
In fact, when the West Virginia Judicial
Reorganization Amendment went into effect and the Supreme Court
was searching for its first administrative Director, Jack's
skills and qualifications made him the logical choice. So, he
left the State Bar -- in a very good position -- to set up the
new and expanded administrative functions of the Supreme Court in
the new unified court system.
Of course, most State Bar members know
Jack as an outstanding professor for the past fifteen years or
so, at the WVU College of Law or from the impressive continuing
legal education seminars
that he gives throughout West Virginia -- and actually,
throughout the country.
But if you ask him, Jack will tell you
two things about his early experience with the West Virginia
State Bar. First, he says that Oshel Parsons was of immense help
to him when he became Executive Director and, second, that being
State Bar Executive Director was one of the most enjoyable
experiences of his life.
To take Jack's place when he became
Supreme Court Administrative Director, the State Bar was
fortunate to get Duke Nordlinger Stern. Maybe, Duke was hired
because he and Jack's birthdays are within a day or two of each
other during the month of April. (Jack is definitely several
years older than Duke!) Most certainly, the decision to hire Duke
was because of the abilities and capabilities which he brought to
the job.
During more than four years in the
position, Duke was heavily involved in keeping the State Bar
moving forward. His many accomplishments include significant
improvements and emphasis in legal ethics and the initial
impressive efforts that would lead to the excellent State Bar
center facility, almost ten years later.
After leaving the State Bar, Duke became
a recognized expert in our country on professional insurance
liability, risk management and office practice. He has been used
as a consultant by numerous bar associations and law offices in
all parts of our nation.
When Duke left his position as Executive
Director, it provided an opportunity for a West Virginian to come
home. Mark Smith, who grew up in Huntington, was working at the
American Bar Association in Chicago, when the Executive
Director's position became available. It was an easy decision for
the State Bar to hire Mark in 1980.
For almost the next nine years, Mark used
his leadership traits to achieve even more goals and objectives.
During his tenure, several ground breaking events occurred,
including minority representation on the State Bar's Board of
Governors, the implementation of the mandatory continuing legal
education program, the initiation of the Attorneys Liability
Protection Society (ALPS) when State Bar members could not get
liability insurance coverage at reasonable rates or at all, and
the dramatic increase in the number and diversity of lawyers in
West Virginia.
However, Mark will tell you that he
always wanted to spend time in teaching and research. So, it was
natural that he would accept a position at the Southwestern Legal
Foundation in Texas, when the opportunity was made available to
him.
Therefore, on January 16, 1989, I was
given the honor of being selected as the newest Executive
Director of the West Virginia State Bar. It has been my pleasure
to work with the members of the legal profession, the members of
our judiciary system and the members of the general public in
that capacity since that date.
Staff members of non-profit
organizations, like executive directors, bring valuable
experience and expertise to the members of the group which they
serve. It is challenging work to deal with the problems, programs
and people involved in a statewide organization that deals with
legal matters. The West Virginia State
Bar was truly blessed to have four outstanding individuals serve
as its executive directors from 1947-1989 -- Oshel Parsons, Jack
Bowman, Duke Stern and Mark Smith. You can be assured that I am
giving my best efforts every day in this fiftieth year of the
State Bar's existence, to meet the high standards that these
individuals set.
Incidently, I am sure that our three
living executive directors would be overjoyed to hear from their
friends and colleagues in the State Bar. Regretfully, Oshel
Parsons passed away on February 14, 1978. The addresses of our
other illustrious former executive directors are:
Professor Forest Jack Bowman
WVU College of Law
P O Box 6130
Morgantown, WV 26506
(304) 793-7081
Duke Nordlinger Stern, Esq.
385 Bayview Drive, N.E.
St. Petersburg, FL 33704
(813) 894-4000
Mark Smith, J.D.
Southwestern Legal Foundation
P O Box 30707
Richardson, TX 75083
(214) 699-9501
Our heartfelt thanks to these
individuals for a job well done!
LETTERS TO
THE EDITOR
Dear Tom:
I want to thank you and the members of
the West Virginia State Bar for helping to sponsor the Americans
with Disabilities Act training conference held in South
Charleston on November 19, 1996. This conference was organized by
the Americans With Disabilities Act (ADA) Committee of the West
Virginia Supreme Court and the West Virginia State Bar, and
sponsored in part by the Appalachian Center for Independent
Living, the West Virginia Judicial Association, the County
Commissioners' Association of West Virginia and the Legal Aid
Society of Charleston, West Virginia. The training program was a
part of the on-going effort of this committee to bring the courts
and court programs into compliance with the ADA.
The one-day training program entitled
"Common Sense Compliance with the ADA" brought together
more than forty county ADA coordinators, interested county
commissioners and interested county administrators for training
and interchange of information about what the ADA requires and
how various counties in West Virginia are tackling the task of
implementing the ADA. Presenters included Bruce Perrone,
Litigation Director, Legal Aid Society of Charleston, West
Virginia; Ron Yost, Senior Counselor/Advocacy Coordinator,
Mountain State Center for Independent Living (since deceased);
Barb Judy, Project Manager, Job Accommodation Network; John
Pyles, Monongalia County Commissioner; Hubert Anderson, Jr.,
Executive Director, West Virginia Commission for the Deaf and
Hard of Hearing; Mary K. Buchmelter, Deputy Attorney General for
Civil Rights; Perry Pauley, ADA Coordinator, West Virginia
Supreme Court of Appeals and myself. The response was
overwhelmingly favorable. Attendees said they wanted more
information about the ADA and they wanted more training. In
addition, many of the attendees made specific commitments to
improve access to the courts in their counties.
As an important by-product of the
training, county commissioners in 53 counties have named county
ADA coordinators. These county coordinators are the contact
persons within each county for ADA issues. The committee is
planning a follow-up training for all county ADA coordinators in
August of 1997.
The Supreme Court's ADA committee is
providing the leadership in this on-going effort not only because
of the ADA, but also because the state constitution requires it.
The provisions of Article 3, Section 17 of the West Virginia
Constitution provides that "The courts of this State shall
be open, and every person, for an injury done to him, in his
person, property, or reputation, shall have remedy by due course
of law; and justice shall be administered without sale, denial or
delay." If an individual is unable to enter a courtroom
because the courtroom cannot accommodate a wheelchair, if an
attorney who is deaf cannot represent his or her client in court,
or if a person is unable to enter the room where complaints are
filed or acquire necessary information regarding procedures
because of a disability, the courts are not really open to
everybody. It is fundamental to our system of law that at least
in the courts, people have equal access. By implementing the ADA
in all the courts of the state, this fundamental aspect of our
legal system will be enhanced.
Your continuing participation with the
ADA Committee and the continued support of the State Bar are both
essential to this effort and very much appreciated.
Sincerely,
Charles
M. Lobban, Chairman
Senior
Status Judge
LAW FIRM WEBSITE RECEIVES AWARD
The Editor's Choice Award has been
given to the Internet website of Kay, Casto, Chaney, Love &
Wise, a Charleston-based law firm which also has offices in
Morgantown and Abigdon, Virginia. LookSmart, a web directory at
< www.looksmart.com>, is a subsidiary of The
Reader's Digest whose editorial standards have been the hallmark
of the company for over 75 years. The Editor's Choice Award is a
symbol of excellence and is LookSmart's highest honor in
recognition of Kay, Casto, Chaney, Love & Wise's useful and
high quality website.
The Legal Updates section contained
within the firm's website was specifically commended for its
review of legal developments affecting health care, employment,
and education in West Virginia.
The award-winning website is located at
< www.kaycasto.com>.
Editor's Note: If your law office
has a website on the Internet and you would like to be linked
from the State Bar's home page to yours, please call Cheryl Petty
at (304) 558-0828. She will be happy to accommodate you.
HAVE A LAUGH
ON US
WHAT'S IN A NAME (SPELLING)?
By James P. Martin, Esq.
Editor's Note: The petition
reprinted below was submitted after its author, West Virginia
Legal Services Plan Director Jim Martin, sent several letters to
his friend Sherri Goodman, the Chief Disciplinary Counsel,
inadvertently misspelling her last name in the address. She
agreed to a meeting only on the condition that Mr. Martin reform
his ways. The petition was the result -- but is not the end of
the story. When Mr. Martin arrived, Ms. Goodman had not yet
received his Petition. He explained, apologized deeply, and felt
the crises was over. When the Petition did arrive, it spelled her
last name correctly, BUT on the envelope, her first name had been
misspelled. Sherri subsequently filed a petition to have his
license to practice annulled by the Supreme Court of Appeals for
conduct prejudicial to the administration of Ms. Goodman's
"ego", arguing there should not be the opportunity of a
mitigation hearing "[S]ince he'll just misspell Ms.
Goodman's name again." We can report that a Response,
including Affirmation Defenses and a Plea Abatement, has been
filed. Since this is obviously now before the Court, further
comment in this magazine would be inappropriate. You may contact
the principals for copies of the pleadings.
BEFORE THE LAWYER DISCIPLINARY BOARD OF THE
WEST VIRGINIA
STATE BAR
In Re: Petition for Reinstatement to Good Graces of the
Chief Disciplinary Counsel
From: James P. Martin, heretofore a generally competent, if
not always accurate speller, now presenting himself as a most
humble and truly penitent recidivist bad speller and proof
reader, who by this petition acknowledges his former occupation
as a part-time editor for a law and education textbook publishing
company, was probably beyond his true level of competence.
PETITION AND ARGUMENT
The Petitioner appears before the
Chief Counsel and the entire Disciplinary Board, if necessary, in
his own person, and by his friends, acquaintances, henchmen,
conspirators (co, indicated and unindicted) and miscellaneous
fellow travelers who support this petition, or who owe
significant enough obligations that their names may be freely
invoked without permission, and pleads as follows, concerning the
charge of misspelling the name of Chief Counsel:
1. There was no error, such a thing not
being possible in the era of spell chaeckers, computers, and
magic electronic devices;
2. If there was an error, which is still
denied as impossible, someone else did it;
3. As in all such cases, the error, if any
exists, must have been caused through some genetic defect of the
attorney's secretary;
4. Obviously there is a conspiracy against
legal services to make a poor appearance and discredit all work
done in the truly noble cause of the pursuit of justice, truth
and righteousness . . .";
5. Contacts with the Federal Bureau of
Investigation recently have caused such an uproar at the WVLSP
offices that errors are inevitable, Acts of God, and must be
disregarded;
6. No one here has ever slept in the
Lincoln Bedroom;
7. We have asked for the return of any
illegal donations are are eagerly awaiting a response from the
DNC;
8. Clearly (a word whose use is licensed
only to lawyers with very strong cases), any misspelling here is
the work of the LAPD and specifically Detectives Van Nater,
Fuhrman and Judge Ito, all acting in concert;
9. F. Lee Bailey and Greta Van S. Have
graciously volunteered their services, pro bono publico,
to defend the WVLSP and its Director in this matter, including
conducting appropriate polygraph examinations on national
television, to prove the total lack of any mens rea, if not any
mens at all;
10. With no admission of any bad conduct,
a malignant or abandoned heart or malice in any form, the
hereinabovebeforesaid mentioned attorney, being a true and
honorable member of the Bar of the Great State of West Virginia,
parent holder of the Golden Horseshoe, parent of two National
Merit Scholars who can after all spell properly, and who acts as
a mentor to another lawyer who probably can spell, is willing to
enter the Betty Ford 12 step program for spelling challenged
individuals of the attorney persuasion.
11. There is probably some sort of
conflict of interest in this case;
12. And finally, the Petitioner notes that
as a kindergarten student, being disadvantaged by his inclination
to adopt the sinister or left-handed approach to life, the
universe and everything, he suffered such a severe dyslexia
problem that he wrote, until severely and repeatedly corrected by
various teachers of the lay and nun tendency, his name as
"ymmiJ nitraM" clearly a mirror image distortion which
has severely and markedly impeded his progress through life from
those days forward.
WHEREFORE, in truth, honor and good
conscience, and with great faith in the fair outcome of this
Petition, the Petitioner, no longer known as miJ, but rather as
Jim, seeks readmission to the good graces, friendship and
acquaintanship of the generous, kind, loyal, brave, trustworthy
and ever vigilant Bar Counsel, and further the Petitioner sayeth
not, as he has reached the end of his store of useful but
overwrought descriptions and will ever plead, in all respect and
etc., etc.
James P. Martin, Esq. (At least for the moment . . . .)
West Virginia Legal Services Plan
EXERCISE CAUTION WHEN HIRING EMPLOYEES
AWAY FROM ANOTHER LAW OFFICE
By Robert D. Reis, ALPS Risk Manager
I have recently come across some cases
that suggest exercising restraint and being cautious when hiring
experienced personnel could well avoid your disqualification from
a desirable case or worst. Perhaps the best discussion of the
problem and prophylactic measures is found in In re Complex
Asbestos Litigation, 283 Cal. Rptr. 732. In a 1991 case of first
impression, the First Appellate District Court of Appeals upheld
the disqualification of a firm involved in numerous asbestos
cases for specific reasons and continued with dicta which appear
to have set the standard.
In Asbestos Litigation a paralegal
employed by a large defense firm found himself about to lose his
job. His firm gave him notice and he began his search for
employment. One initially successful overture was made to another
firm involved in many of the same cases representing the
plaintiffs. The paralegal accessed the database of his firm
before he left and learned the particulars of a number of cases
being handled by the firm he joined. Among other details he saw
evaluations of the cases made by the defense consortium.
The paralegal switched to the new firm
some months later with the understanding that he would not be
involved in asbestos cases. In a few months, the paralegal began
filling in for others in supporting the asbestos cases until it
became a regular part of his job. The defense learned of this
involvement and questioned the plaintiff's firm's potential for a
conflict of interest. A response was sent and no further word was
heard for months. On the eve of trial, the defense moved for
disqualification, which motion was granted and appealed.
The court specifically addressed the
steps that plaintiffs' firm could have taken and did not to
assure that there would be no prejudicial use of confidential
information on the part of the paralegal, thus avoiding a
conflict of interest. These are the recommended steps when hiring
support staff members whose prior work may present a conflict.
Pre-employment interviews should focus
on the types of cases and clients the paralegal or secretary
dealt with at her/his prior employment. Questions ought to
include the extent of information generally accessed and
procedures followed. Avoidance of questions that identify any of
the clients at another firm is advisable at this stage.
Sufficient information can still be obtained to identify any
potential conflict concerns.
On the first day of employment, it is
paramount that the new employee be instructed to avoid discussion
that could be construed as breach of confidence of a client at
the prior firm. Included in this discussion should be instruction
on how to handle any situation that presents a possible ethical
concern for the employee.
The decision suggests that a memo
should be sent to all other employees instructing them to avoid
the new hire when dealing with a case or cases. In an age of
computer records and information available in a variety of media,
we need to suggest a few more steps. In constructing a wall to be
viewed as an effective screening means, consider a number of
these information sources. Specifically we add the following:
* Make sure the computer records are password protected and thus not accessible to the
screened employee.
* Assure that
any memo sent includes everyone in the office, especially the
receptionist and mail handlers. An inadvertent and incorrectly
delivered piece of mail may create a problem and a misdirected
phone call surely will. Be sure the affected employee understands
the memo, its need and the consequences if not followed. Give
him/her a copy and ask that they sign another copy to be placed
in their personnel file.
* Physically
remove the affected file(s) and note the drawer in which they are
kept as to who has access. Those we don't suggest questioning the
trust of any employee, a locking cabinet may be necessary if the
files can not be physically removed from the area where the
screened employee works.
* Finally,
document all of the steps taken. It is this documentation that
will offer proof to rebut the presumption that the new employee
shared confidences from the prior law firm. In defending a motion
to disqualify, you will likely be called on to rebut this
recognized presumption.
THE PRACTICE OF INTERNATIONAL LAW
By Paul C. Cline, Esq.
Many lawyers are seeing an
international dimension added to their practices. This is a
summary of a study of activities of private international lawyers
who represent individuals and businesses in the United States and
in other nations. The information was obtained primarily through
interviews with lawyers in Washington and Richmond who have
international aspects to their practices.
The three roles performed by
international lawyers are outbound, inbound, and multi-nation,
also known as cross-boarder. The outbound format is typically
exemplified in United States clients' extending their commercial
activities into the overseas market. The typical progression is
to begin selling products in other nations, finding distributors
to market the products there, and then seeking a presence in the
foreign nation. In this presence, the American company would
"become a player" in the local community where the
product is sold. Examples of outbound tasks range from less
complicated matters such as visa, immigration, work-card, and
currency exchange, to complex contractual arrangements involving
American or foreign firms and governments. The issues may also
extend to mergers, take-overs, and joint ventures.
The American international corporation
counsel deals most extensively with outbound issues. For
instance, a company may wish to build a plant in an
underdeveloped nation. In searching for someone to build the
plant, the company counsel may learn of a European builder with
prior experience in a nation where the plant is to be built. The
international agreement would involve multiple parties and might
extend into a variety of ancillary matters, such as where the
American company agrees to operate the plant under certain
conditions, after built.
The inbound work of the international
lawyers consists of assisting foreign firms with capital
transactions in the United States. While this is a small part of
the corporate international counsel, it is a major role of the
smallest to the largest of international law firms. The inbound
is performed by American law firms for foreign companies,
governments, and individuals who may or may not be experienced in
functioning in the United States environment. The services
performed by the American law firms are most often domestic in
nature--performed for international clients. The format of the
inbound practice is to spot issues, find answers, and keep up
with regulations and procedures on behalf of the foreign client.
The tasks may range from the very time-consuming drafting of a
complex agreement to seeing that a required fee is paid on time
by the client.
A major category of inbound services
involves acquainting the client with the government, business,
and social climate in the United States. A foreign company may
wish to set up a subsidiary in a legal format that is not
specifically found here. In such a case, the legal work includes
both technical and educational components. Another overseas
client may not be accustomed to lawyers being involved in the
drafting of an agreement; in this matter the American lawyer may
spend time in explaining legal customs here. The American lawyer
may be called upon to educate the foreign corporation desiring to
establish a plant in this country as to environmental, safety,
and labor laws and regulations that apply here. In the providing
of services, the American attorney may be a "lawyer for a
lawyer" -- rendering assistance to a foreign attorney.
The multi-nation or cross-border format
consists of the American law firm's providing legal services for
foreign clients in other nations. For instance, a German firm may
manufacture its product in Brazil, or a Spanish company may wish
to do business in Argentina. The American firm may be called upon
to perform services for a variety of reasons. It may be done
simply as an
extension of its prior work for the client, or the foreign
client may have learned that the American firm had performed
similar services for others.
In performing multi-nation work,
attorneys may find themselves in unusual situations. For
instance, they may have a conference call at 11 p.m. with clients
in one part of the world and a 2 p.m. to accommodate clients
elsewhere. Where the attorney can speak several languages, rapid
switches in language may occur in short order or even in the same
conversation. Similarly, rapid changes in customs and rules in
the various legal systems may also occur in transactions with
multi- national clients.
Domestic and International Practice. Domestic
legal practice relates to the international practice in a variety
of ways. The international case often emerges from domestic
services. For instance, a law firm may presently represent a
domestic client before government agencies; the client may wish
to expand into the overseas market and call upon the lawyers to
handle both the contracts with overseas distributors and also
necessary arrangements with the foreign government. This
expansion in services may lead to further activity, such as the
utilization of international arbitration to settle a controversy
among the various parties.
Qualifications to Practice Private
International Law
From time to time, law firms
and businesses must add to their international law personnel.
International lawyers interviewed have rather consistent
requirements for the persons they hire.
Good lawyering skills. Some law
firms and businesses hire only experienced lawyers. Whether or
not experienced in domestic or international law, the ability to
be a good lawyer is the requirement often mentioned first by
international lawyers who have hiring responsibilities. This
requirement includes good analytical skills and the ability to
practice domestic law successfully.
Education. Specific undergraduate
degrees are typically not mandated when international lawyers are
hired, although business and international relations majors are
often mentioned. The specific degree might be given some weight
when it would "bring something to the practice"; that
is, it would fill a gap among the backgrounds of the lawyers
already practicing.
Some persons responsible for hiring
international lawyers believe that obtaining a good, general law
school background is suitable for practicing international law.
Some hirers even consider international law to be learned best on
the job. Others suggest examples of law school courses that would
be helpful, such as conflicts of interest, public and private
international law, and European communities law.
International perspective. Evidence
of enthusiasm for international "things" is a common
requirement for international lawyers. This evidence may include
the study of languages. The larger international law firm often
seeks someone with a language not represented in the firm.
Smaller law firms and in-house counsel for corporations, however,
often consider capability in a language only as giving an edge
over another prospect who does not have this skill. The reason
for this is that international lawyers may have to deal with
persons from a myriad of nations -- a single language would not
be especially useful. Other lawyers here and abroad may be
employed to meet language needs.
Today's lawyers are often quickly faced
with international issues. While presenting new challenges, these
international issues provide a change of pace in the practice.
Most lawyers interviewed in this study appeared to welcome
overseas work even though these attorneys were required to adapt
to unfamiliar ground.
About the Author: Mr. Cline is a
member of the West Virginia State Bar and Professor Emeritus of
James Madison University, Harrisonburg, Virginia. He is also a
member of the Bar's Alternative Dispute Resolution Committee.
HEARING
The State Bar's
Unlawful Practice Committee will hold a hearing on Thursday, July
17, 1997, at 2:00 p.m. at the State Bar Center, 2006 Kanawha
Blvd., E., in Charleston. The purpose of the hearing is to
receive evidence and testimony regarding a claims procedure
policy of the Allstate Insurance Company. Further information may
be obtained by contacting Tom Tinder at the State Bar Center.
NOTICE
The Legal Service
Corporation (LSC) announces the availability of competitive grant
funds to provide civil legal services to eligible clients during
calendar year 1998. In accordance with LSC's multi-year funding
policy, the solicitation of proposals will only be for specified
service areas. The amount of funds and the date and terms of
their availability are not yet known. Request for Proposals (RFP)
will be available on or about May 21, 1997. A RFP may be obtained
from LSC by calling (202) 336-8900. The Notice of Intent to
Compete is due July 1, 1997. Grant Proposals must be received at
LSC by 5:00 p.m. EDT, July 21, 1997.
BOOK REVIEW CORNER
The Life of the Law by Alfred H. Knight
A Review by Robert W. Martin, Jr.
Assistant Risk Manager for ALPS
Once in a while it is
good for the legal "soul" of lawyers to go back to the
roots of many of the legal principles that we all take for
granted - stare decisis, judicial review, right to counsel, the
privilege against self-incrimination -- to name a few. Alfred
Knight's book will bring you back to those roots, and if you can
overlook his rather obvious and sometimes oppressive political
biases, you will feel professionally invigorated.
Mr. Knight is a
practicing attorney who has also been a teaching fellow at
Harvard. Of course, that could mean anything from giving a
one-hour seminar to empty seats all the way up to having access
to the faculty library and perhaps an office. Nevertheless, Mr.
Knight comes through in his book as a pragmatic intellectual. He
has not researched and uncovered anything new but he has put his
knowledge in a highly readable form complete with memorable
quotations. For example, in his discussion of the Warren era, he
states: ". . . federal courts had their hands on almost
every important phase of American life. Everything desirable was
becoming a right and Americans strove to be members of an injured
class." In discussing the roots of our criminal justice
system, Mr. Knight states: "[E]nglish law had fulfilled the
definitional requirements of a fully mature criminal justice
system: it had acquired the exclusive right to kill, maim, and
lay waste the property of its citizens."
The Life of the Law
will also remind you of the surprise both Justices Frankfurter
and Warren were to the public at large and to Supreme Court
watchers in particular. How could a Jewish, liberal lawyer
(Frankfurter) vote to uphold "separate but equal" and a
former California prosecutor (Warren) who had vigorously sent
Japanese-Americans to intern camps be the lynch pin for so many
advancements in civil rights? In case you have not thought about
Plessy v. Ferguson since law school, or even if you have, take
the time to read this book so that you will feel your own sense
of history in the legal profession. Lawyers will not lose their
professionalism and sense of historic place and purpose because
of a few lawyer jokes or pervasive lawyer advertising; they will
lose it because they are too busy to remember the past -- the
roots of today's law. The Life of the Law will bring you some
perspective and purpose and back to these roots.
A postscript. Mr.
Knight could not resist commenting, as an "epilogue,"
on the O.J. Simpson case. His book is trivialized by the
self-admitted add-on which he attributes to the fact that the
O.J. Simpson trial was "grinding to a halt" as he was
completing his book. Mr. Knight should have "just said
NO" and perhaps the best solution is to stop reading the
book on page 257, not page 266.
About the author: Mr.
Martin is a former federal prosecutor, law professor and private
practitioner.
In order to provide training to Bar
members who wish to serve as mediators in the Court Annexed
Mediation System, the State Bar presents:
BASIC MEDIATION TRAINING PROGRAM
DATE: Wednesday, July 16, and Thursday,
July 17, 1997
TIME: 8:00
a.m. until 5:00 p.m.
PLACE: University of
Charleston, Charleston .
FACULTY: Tom Patrick,
former Clerk to the U.S. District Court Chief Judge Robert
Maxwell and
now a Professor
of Alternative Dispute Resolution at the WVU College of Law, and
expert,
experienced trainers who are State Bar members.
NO COST; CLE
AVAILABLE; LUNCH PROVIDED
WEDNESDAY, JULY 16, 1997: (REQUIRED)
BASIC MEDIATION: INTRODUCTION / THEORY/ PRACTICE
This session will meet the minimum
educational training requirements for Bar members who wish to
participate in the State Bar's Mediation Referral Service.
THURSDAY, JULY 17, 1997: (OPTIONAL;
ADDITIONAL TRAINING)
BASIC MEDIATION SKILLS WORKSHOP:
EXTENSIVE ROLE PLAYING, PROBLEM
SOLVING,
AND SKILLS EXERCISES
This session is OPEN TO ALL BAR MEMBERS
WHO HAVE COMPLETED THE BASIC MEDIATION TRAINING ON JULY 16TH OR
IN PREVIOUS YEARS who want to practice and get further experience
with the mediation skills that were introduced in the Basic
Mediation 8 hour program.
EXPERIENCED MEDIATORS, MARK YOUR CALENDARS:
ADVANCED MEDIATOR TRAINING, AUGUST 8,
1997; DAYS INN, FLATWOODS
MEDIATION TRAINING REGISTRATION FORM
I wish to attend:
________ Basic Mediation Training. Wed., July 16, 1997,
University of Charleston, Charleston
________Basic Mediation Skills Workshop.
Thurs., July 17, 1997, University of Charleston, Charleston.
NAME:
ADDRESS:
CITY, STATE, ZIP
PHONE
Please return this form by JULY 7, 1997
to: If
you have questions, please contact:
Kathy
Henning Tom
Tinder, Executive Director
The West Virginia State
Bar (304)
558-7993
2006 Kanawha Blvd.,
East TechNet:
tindert
Charleston, WV 25311
(304) 558-1044
TechNet : henningk
Internet: henningk@technet.wvbar.org
PRO HAC VICE DECISION UPHELD
BY
US FOURTH CIRCUIT COURT OF APPEALS
Editor's Note: In
a unanimous decision written by Judge Blayne Michael, the United
States Fourth Circuit Court of Appeals upheld the decision made
by the United States District Court for the Northern District of
West Virginia, written by Judge William Kidd, that an attorney
who wishes to practice law in West Virginia on a pro hac vice
basis, must be sponsored by a member of the State Bar who
practices law on a daily basis from an office located in West
Virginia. John M. Hedges of Morgantown represented the West
Virginia Supreme Court of Appeals and Robert Steptoe, Jr. and
Lori A. Dawkins, both of Clarksburg, represented the West
Virginia State Bar.
Albert H. PARNELL, Plaintiff-Appellant,
v.
The SUPREME COURT OF APPEALS OF
WEST VIRGINIA; West Virginia State Bar,
Defendants-Appellees.
No. 96-1245.
United States Court of Appeals,
Fourth Circuit.
Argued October 31, 1996.
Decided April 14, 1997.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg,.
William M. Kidd, Senior District Judge. (CA-95-108-1).
ARGUED: Michael Edward Hutchins, HAWKINS &
PARNELL, Atlanta, Georgia, for Appellant. John M. Hedges, BYRNE
& HEDGES, Morgantown, West Virginia, for Appellee Court of
Appeals; Robert Mason Steptoe, Jr., STEPTOE & JOHNSON,
Clarksburg, West Virginia, for Appellee State Bar. ON BRIEF:
Thomas G. Tidwell, HAWKINS & PARNELL, Atlanta, Georgia, for
Appellant. Lori A. Dawkins, STEPTOE & JOHNSON, Clarksburg,
West Virginia, for Appellee State Bar.
Before WILLIAMS, MICHAEL, and MOTZ, Circuit
Judges.
Affirmed by published opinion. Judge Michael
wrote the opinion, in which Judge Williams and Judge Motz joined.
OPINION
MICHAEL, Circuit Judge:
#1 A
lawyer appearing pro hac vice in West Virginia must be sponsored
by a member of that state's bar who practices law on a daily
basis from an office located in West Virginia. Albert H. Parnell,
a Georgia lawyer who is also licensed in West Virginia, appeals
the district court's decision that West Virginia's in-state
office requirement for local counsel does not violate the
Privileges and Immunities Clause of the United States
Constitution. We affirm.
I.
The Supreme Court of
Appeals of West Virginia (West Virginia or State Supreme Court)
promulgates rules governing the practice of law in that state.
See W.Va. Const. art. 8, § 3; W.Va. Code § 51-1-1a. These rules
are embodied in the State Supreme Court's Rules for Admission to
the Practice of Law (Practice Rules). See W.Va. Code Ann.Ct.Rules
(Michie 1997). The West Virginia State Bar, an administrative
agency of the court, see W.Va. Code § 51-1-4a(d), from time to
time makes recommendations to the court for amendments to the
Practice Rules. [FN1].
This case stems from a 1995 amendment to
West Virginia's Practice Rule for visiting lawyers, Rule 8.0,
"Admission Pro Hac Vice." [FN2] Prior to the amendment,
the rule simply required the pro hac vice applicant to "be
associated with an active member in good standing of the state
bar, who shall be a responsible local attorney in the action . .
." This version of the rule raised questions about whether a
member of the West Virginia bar whose office and principal place
of practice was outside West Virginia could serve as a
"responsible local attorney" under Rule 8.0. As a
result, on the motion of the West Virginia State Bar, the State
Supreme Court on March 1, 1995, amended Rule 8.0© to clarify who
qualifies as a "responsible local attorney:" "In
order to be a 'responsible local attorney' the local attorney
must maintain an actual physical office equipped to conduct the
practice of law in the State of West Virginia, which office is
the primary location from which the 'responsible local attorney'
practices law on a daily basis." The State Supreme Court and
the State Bar maintain that the amendment is an appropriate
exercise of the court's authority to regulate the practice of law
by out-of-state lawyers not licensed in West Virginia by
requiring them to associate with local counsel who will be
accessible and meaningfully involved in a given case.
The 1995 amendment prevents Parnell from
being a "responsible local attorney," even though he is
a member in good standing of the West Virginia State Bar.
Parnell's situation is as follows. He is a member in good
standing of the West Virginia State Bar. He is a resident of
Atlanta, Georgia, where he practices law as a partner at Hawkins
& Parnell (formerly Freeman & Hawkins), a firm of over
forty lawyers. Parnell has been a member of the State Bar of
Georgia since 1969, and he became a member of the West Virginia
State Bar in 1989.
Parnell is widely known for his expertise
in the defense of asbestos personal injury cases. He has
represented defendants in a number of these cases in West
Virginia, with several of them going to trial in both state and
federal court. In 1995 Parnell was representing three defendants
in an asbestos case in the Circuit Court of Monongalia County,
West Virginia, a state trial court. On August 17, 1995,
purporting to be a responsible local attorney, he filed a motion
to have three other lawyers in his firm admitted pro hac vice in
that case. In his motion Parnell said that the three were
"specialists in the area of asbestos litigation." He
later said that his clients wanted the three lawyers "to
assist [him] in pretrial matters and at the trial of the [ ]
case." The state trial judge denied the motion to admit
Parnell's colleagues pro hac vice on the ground that Parnell
"does not meet the requirements to be a 'responsible local
attorney' as defined in Rule 8.0© [of the Practice Rules]"
because he does not have a West Virginia office that is "the
primary location from which he practices law on a daily
basis."
#2 Parnell promptly filed a declaratory judgment action in the United States District Court for the Northern District of West Virginia against the West Virginia Supreme Court and the State Bar. Parnell sought an order declaring the rule unconstitutional, arguing, among other things, that Rule 8.0© is in effect a residency restriction that violates the Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1. After briefing and oral argument on the merits, the district court rejected Parnell's argument and dismissed his
complaint. See Parnell v. Supreme Court of
Appeals of West Virginia, 926 F. Supp. 570 (N.D.W.Va.1996).
Parnell now appeals.
II.
Parnell argues that
sponsoring pro hac vice applications "is a necessary and
fundamental part of practicing law." Brief for Appellant at
6-7. According to Parnell, Practice Rule 8.0(c)-- which requires
him to have a West Virginia office for the daily practice of law
in order to sponsor such applications in the courts of that state
-- is in effect a residency requirement that violates the
Privileges and Immunities Clause.
Article IV, § 2, cl. 1 of the United
States Constitution provides that the "Citizens of each
State shall be entitled to all Privileges and Immunities of
Citizens in the several States." The primary purpose of this
clause "was to help fuse into one Nation a collection of
independent, sovereign States . . .. In line with this underlying
purpose, it was long ago decided that one of the privileges which
the clause guarantees to Citizens of State A is that of doing
business in State B on terms of substantial equality with
Citizens of that State." Toomer v. Witsell, 334 U.S. 385,
395-96, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). Although the clause
uses only the term "Citizens," it is also read in most
cases to cover residency. See Supreme Court of Virginia v.
Friedman, 487 U.S. 59, 64, 108, S.Ct. 2260, 101 L.Ed.2d 56
(1988).
The United States Supreme Court has
developed a two-step analysis for determining whether a
residency-based restriction of an activity offends privileges and
immunities protections. First, "the activity in question
must be 'sufficiently basic to the livelihood of the Nation as to
fall within the purview of the Privileges and Immunities
Clause.'" Id. at 64 (quoting United Bldg. & Constr.
Trades Council v. Mayor and Council of Camden, 465 U.S. 208, 216,
104 S.Ct. 1020, 79 L.Ed.2d 249 (1984)). In other words, a
"fundamental right" must be implicated: the
"out-of-state resident's interest [in the activity
restricted] in another State [must be] sufficiently 'fundamental'
to the promotion of interstate harmony so as to fall within the
purview of the [Clause]." United Bldg. & Constr. Trades
Council, 465 U.S. at 218 (quoting Baldwin v. Montana Fish &
Game Comm'n, 436 U.S.371, 388, 98 S.Ct. 1852, 56 L.Ed.2d 354
(1978)). Second, "if the challenged restriction deprives
nonresidents of a protected privilege," the restriction is
invalidated only if it "is not closely related to the
advancement of a substantial state interest." Friedman, 487
U.S. at 64 (citing Supreme Court of New Hampshire v. Piper, 470
U.S. 274, 284, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985)).
#3 Of
course, the privileges and immunities analysis is only applied if
the restriction is based on residency. We turn first to that
threshold issue.
A.
The West Virginia
Supreme Court and the State Bar argue that the privileges and
immunities analysis has no bearing on this case because Practice
Rule 8.0© does not impose a residency requirement. They
emphasize that the rule does not say a member of the West
Virginia bar must be a state resident to serve as local counsel.
But Parnell maintains that the rule in effect has a residency
requirement because local counsel must have a West Virginia
office from which he practices law on a daily basis. [FN3]
Although Parnell offered no evidence to the district court on the
subject, he makes the sweeping claim in his brief that
"nonresident West Virginia Bar members do not and cannot
practice law on a daily basis from an office in West
Virginia." Brief for Appellant at 9. However, in its opinion
the district court noted that "numerous nonresident West
Virginia bar members can and do practice law on a daily basis
from offices located in West Virginia." Parnell, 926 F.Supp.
at 572. This statement was apparently based on the district
judge's own experience over many years on both the state and
federal bench.
West Virginia is bordered by five states
and its northern and eastern panhandles are narrow. A look at a
regional map reveals that numerous locations in West Virginia are
within commuting distance from places in Virginia, Maryland,
Pennsylvania, Ohio, and Kentucky. We do not know exactly how many
nonresident lawyers commute into West Virginia each day to work,
but we are convinced that West Virginia's
configuration and location prevent Rule 8.0©
from imposing a residency restriction. We therefore agree with
the district court that Rule 8.0© contains "no prohibition
against any nonresident West Virginia bar member practicing law
on a daily basis in West Virginia and thus qualifying as a
responsible local attorney." Id. Moreover, the daily
practice requirement applies to both resident and nonresident bar
members in the same way. A State Bar member who resides in West
Virginia but who practices law on a daily basis in an office
outside the state does not qualify as local counsel under the
rule.
Because Rule 8.0© accords equal
treatment to nonresidents and residents and because nonresidents
can qualify as local counsel under the rule, there is no
residency classification that requires scrutiny under the
Privileges and Immunities Clause.
B.
Even if we assume that
Practice Rule 8.0© amounts to an in-state residency requirement,
the privileges and immunities protections still do not apply to
the activity (sponsoring pro hac vice applicants) regulated by
the rule. We reach this conclusion by examining the first prong
of the privileges and immunities test, which centers on whether a
fundamental right is implicated.
#4 We
recognize, of course, that the United States Supreme Court has
held that the opportunity to practice law is a fundamental right
under the Privileges and Immunities Clause because of its
importance to the national economy and to the vindication of
noncommercial rights. Piper, 470 U.S. at 281-82. This broad
holding, however, does not answer the much narrower question of
whether sponsorship of pro hac vice applicants is a fundamental
component of the right to practice law.
The West Virginia Supreme Court and the
State Bar contend that this narrow question is covered by Leis v.
Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). In Leis
v. Flynt the Supreme Court held that a state court could deny,
without a hearing, a lawyer's motion to appear pro hac vice. Id.
At 443-44. This is because the interest in appearing pro hac vice
is not a "cognizable property [right] within the terms of
the Fourteenth Amendment." Id. at 443. Thus, whether to
grant a visiting lawyer pro hac vice admission is "wholly [
] discretionary" with the forum state. Id. at 444 n. 5.
Parnell responds that West Virginia's Leis v. Flynt argument --
that pro hac vice admission is a discretionary privilege -- has
nothing to do with his situation. Parnell has not been denied pro
hac vice admission. Instead, he say that he has been denied the
opportunity to sponsor pro hac vice applicants, an opportunity he
says is necessary to the exercise of his right to practice law.
We understand the distinction between
sponsorship and admission, but we do not thing the distinction
saves Parnell's claim. We believe that Leis v. Flynt's holding
that practicing pro hac vice is not a Fourteenth Amendment
property right offers some support for the proposition that
sponsoring pro hac vice applicants is not a fundamental component
of the right to practice law for purposes of the Privileges and
Immunities Clause. In any event, Parnell's own circumstances
confirms for us that sponsorship of pro hac vice applicants is
not a fundamental component of the right to practice law. As a
member of the West Virginia bar Parnell remains quite free to
perform the essential tasks of a litigator in his area of
speciality. When one of his clients is sued in West Virginia, he
can appear as lead counsel or co-counsel, answer a complaint,
make dispositive or procedural motions, take or defend against
discovery, try the case, and participate freely in any appeal. He
can do this even though he is a resident of Georgia, where he is
also a member of the bar and where his forty- person law firm has
its offices. Thus, West Virginia's rule governing who may sponsor
pro hac vice applications has not stripped Parnell of his
fundamental right to practice law. [FN4]
#5 Because
we find that no fundamental right is at stake, we need not decide
whether Rule 8.0© satisfies the "substantial state
interest" prong of the privileges and immunities analysis.
[FN5]
III.
The judgment of the
district court is AFFIRMED.
FN1. "All persons
practicing law" in West Virginia are required to be members
of the State Bar. See W.Va. Code § 51-1-4a(d).
FN2. The Latin phrase
"pro hac vice" means: "For this turn: for this one
particular occasion. For example, an out-of-state lawyer may be
admitted to practice in a local jurisdiction for one case
only." Black's Law Dictionary 1212 (6th ed. 1990). We will
use the Latin phrase because it is widely understood and
convenient shorthand.
FN3. Parnell says that
West Virginia's intent to impose a residency requirement for
local counsel is confirmed by a comment made by the Chief Justice
of the West Virginia Supreme Court at a State Bar meeting shortly
after Rule 8.0© was amended in 1995. The Chief Justice said that
one of the reasons for the amendment was "to level the
playing field." We expect the Chief Justice simply made this
comment in recognition of the fact that a number of other states
expressly condition pro hac vice admission upon association with
an in-state lawyer who resides in or has an office in the forum
state. See, e.g., Ark.Court Rules Governing Admission to the Bar,
Rule 14 (residency requirement); Ga.Bar Rule 1-203 (same); Iowa
Court Rule 113 (same); Kan.Stat.Ann. § 7-104 (same);
Neb.Rev.Stat. § 7-103 (same); Nev.Rule of Court 10-2 (same);
N.C.Gen.Stat. § 84-4.1 (same); S.D.Codified Laws § 16-18-2
(same); Tenn.Court Rules Ann. 19 (same); Wyo.Court Rules Ann. 104
(same); Del.Supreme Court Rule 71 (in-state office requirement);
Mo. Supreme Court Rule 9.03 (same); N.J.Rules of Court, Rule
1:21-2 (same). The Chief Justice also said that purpose of the
amendment was "to ensure the accountability of lawyers
[licensed in other states] who practice in West Virginia."
FN4. None of the Supreme
Court cases cited by Parnell go so far as to suggest that making
pro hac vice motions is a fundamental component of the right to
practice law. These cases include Barnard v. Thorstenn, 489 U.S.
546, 109, S.Ct. 1294, 103 L.Ed.2d 559 (1989) (rule requiring
applicants (I) to live in Virgin Islands for one year prior to
applying for bar admission and (ii) to state their intent to
remain in Virgin Islands violated the Privileges and Immunities
Clause); Friedman, 487 U.S. at 59 (rule requiring Virginia
residency as a condition for reciprocal, examination free,
admission to Virginia bar by lawyer licensed in another state
violated the Privileges and Immunities Clause); Piper, 470 U.S.
at 274 (rule limiting bar admission to state residents violated
Privileges and Immunities Clause). Moreover, all of these cases
recognize the importance of not interfering with the ability of a
state to regulate those who practice law within its borders.
FN5. In his complaint
Parnell alleges that Rule 8.0© places an undue burden on
interstate commerce in violation of the Commerce Clause, U.S.
Const. art. 1, § 8, cl. 3. The district court found that the
Commerce Clause claim was abandoned because it was not briefed or
argued. See Parnell, 926F.Supp. at 571 n.1. Although the issue
has been briefed on appeal to us, we decline to consider it
because it was abandoned when the merits of the case were
litigated in district court. See Bakker v. Grutman, 942 F.2d 236,
242 (4th cir. 1991).
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.
6/4/97 Legg Mason,
"The New Pension Simplification Act,"
Morgantown,
304/232-7333, 8.40 credits
6/5/97 Lorman
Business Center, "Collection Law in WV," Charleston,
715/833-3940,
4.50 credits
6/5-7/97 WVTLA,
"Annual Seminar," Charleston, 304/344-0692
6/10/97 National
Business Institute, Inc., "Insurance Law,"
Charleston,
715/835-7909, 7.20 credits, including 1.0 ethics
6/11/97 Lorman
Business Center, "WV Insurance Law - Bad Faith
Claims,"
Charleston, 715/833-3940, 4.50 credits
6/13-14/97 West
Virginia Bar Association, "Annual Meeting," Charleston,
304/346-5688
6/18/97 Professional
Education Systems, Inc., "WV Evidence
Workshop," Morgantown, 715/836-9700, 7.20 credits, including
1.20 ethics
6/18/97 National
Business Institute, Inc., "Advanced Estate Planning
Techniques
in WV," Charleston, 715/835-7909, 8.0 credits,
including
1.0 ethics
6/18-21/97 WV Society
of CPA's, "Annual Meeting," White Sulphur
Springs, 304/342-5461, 18.0 credits
6/19/97 Professional
Education Systems, Inc., "WV Evidence
Workshop," Charleston, 715/836-9700, 7.20 credits, including
1.20 ethics
6/19-21/97 Defense
Trial Counsel, "1997 Annual Meeting," Charleston,
304/525-1655,
9.60 credits, including 2.0 ethics/office mgt.
6/20/97 WVCLE,
"Child Abuse and Neglect," Martinsburg, 304/293-7255
6/21/97 Wheeling
Jesuit University, "CLE-Securing Insurance Coverage
For
Environmental Liabilities," Wheeling, 304/243-2332,
3.0
credits
6/24/97 National
Business Institute, Inc., "Employee Leave Rights
Under
State and Federal Law," Charleston, 715/835-7909,
7.20
credits, including 1.0 ethics
6/26/97 Lorman
Business Center, "Union Organizing Under the National
Labor
Relations Act," Charleston, 715/833-3940, 5.40 credits
6/26/97 Professional
Seminars, Inc., "New Child Support Guidelines
and
Calculations," Charleston, 304/722-4207, 5.50 credits
6/27/97 Professional
Seminars, Inc., "New Child Support Guidelines
and
Calculations," Flatwoods, 304/722-4207, 5.50 credits
7/11/97 Lorman
Business Center, "Tax Aspects of Estate Planning,"
Charleston,
715/833-3940, 4.50 credits
7/16-17/97 The
West Virginia State Bar, "Basic Mediation Training,"
University
of Charleston, 304/558-1044
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