Award Winners, Paralegal Seminar, Lunch & Learns, and more... |
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VADA Defense Line May 2021
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President's Welcome
Greetings VADA! I tried to come up with a President’s
Welcome that did not mention COVID-19 at all, and …. I just could not quite do
it. It is still part of our lives for
awhile longer. And, 21 declarations of judicial emergency later, it is still
part of our professional lives. But
things are looking up – consistent with CDC guidance, we all are being able to
return to something approximating normal.
Even my 13-year-old son Stuart just got his first vaccine dose.
This
past month we held, virtually, our Spring Meeting. A huge shout out to our Director of Meetings,
and the Chairs and Vice Chairs of all our Sections, who worked together to
provide 17 hours of CLE instruction over a period of three days. Here is looking forward to 2022 when we can
again hold our Spring Meeting at the Boar’s Head in Charlottesville.
Our
Lunch and Learn program is one of those pandemic creations that I feel
confident will live on even after the pandemic is over. This month’s Lunch and Learn was brought to
us by Todd Peppers, PhD, of Roanoke College.
Dr. Peppers spoke to us about his recent book Of Courtiers and Princes and the role law clerks play in our judicial system. Thank you for sharing you time, Dr.
Peppers. In June I will be presenting on
how we work those necessary non-billables hours – firm management, pro bono
activities, marketing, and non-profits – into our practice.
Though
it is still a few months away, I am getting psyched about our Annual Meeting in
Virginia Beach on October 20-22. We are
going to be together in person. We are
going to be on the oceanfront! And Jim Cales and his Annual Meeting Committee
have a great program planned for us. I
hope I will see you there!
Until
next month, Tate C. Love
VADA President, 2020-21 |
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JUNE 23
Balancing the Billable and the Non-Billable
Tate C. Love
TimberlakeSmith
There are a number of activities – bar associations, non-profit boards, firm governance – that are both worthwhile, and can add to your marketability and profitability. Join VADA President Tate Love, who will discuss how you balance your participation in these laudable pursuits, while still meeting your billable goals.
The event is fully virtual, via Zoom, and free to current and potential VADA members. Register here.
JULY 21
Biomechanics
Ying Lu, PhD
JS Held
Vivek Shekhawat, PhD
JS Held
Learn more about the biomechanics involved in injury claims, covering topics and case studies for:
* The Impacts of Forces on the Body & How they Relate to Injury
* Top Challenges with Reconstructing Low-Speed Rear End Collisions
* How Seatbelt Use Can Influence Accident Outcomes
* Key Considerations for Vehicle, Pedestrian & Cyclist Collisions, Workplace injuries, Slip-Trip-Fall injuries
* The Importance of Physical Evidence in Overcoming Conflicting Statements.
The event is fully virtual, via Zoom, and free to current and potential VADA members. Register here.
AUGUST 25
Memory Skills for Lawyers
Paul Mellor
Success Links
Nationally-recognized memory training consultant Paul Mellor will offer a session that will improve the way your mind retains facts. Learn techniques to improve memory and learn how to apply these techniques to your everyday practice. A trained memory can increase your efficiency and productivity in all aspects of law. Mr. Mellor will shred the myth that memory cannot be enhanced and help you lay a foundation for total recall.
Invest in a better memory. You have invested years in becoming an attorney and you invest months preparing a case. Invest one lunch hour to strengthen your mind and achieve these goals:
·Think quickly and clearly without fumbling for notes
· Remember important information about a jury and use it to win cases
· Effectively recall facts and figures from research and interview to argue cases in court The event is fully virtual, via Zoom. Save the date -- registration will open soon.
PAST LUNCH & LEARN
The Learning Continues
Of Courtiers and Princes
A conversation with author Todd Peppers, PhD
Roanoke College
On May 19, Dr. Peppers’ discussed his new book, Of Courtiers and Princes, the fourth he has edited or co-edited on the relationship between judges and their clerks. Drawing on contributions from former law clerks and judicial scholars, including an essay by the late Justice Ruth Bader Ginsburg, Of Courtiers and Princes examines the law clerk’s role in lower federal and state courts. It provides an inside look at the professional and personal bonds that form between lower court judges and their law clerks.
If you missed Dr. Peppers' Lunch & Learn, you can watch a recording of the presentation here. |
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If you missed Dr. Peppers' Lunch & Learn, you can watch a recording of the presentation here. |
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July 28
via Zoom
This must-attend event is back this year! Designed specifically for paralegals of all levels working in civil defense firms, this webinar will help hone their skills as a valuable member of your legal team. Instructors include attorneys and senior paralegals from several Virginia defense firms. Your paralegals are invited to register here.
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VADA AWARD FOR EXCELLENCE IN CIVIL LITIGATION
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The Board of Directors of the VADA is honored to announce John M. Claytor of Harman Claytor Corrigan & Wellman as this year’s recipient of the VADA’s Award for Excellence in Civil Litigation.
A graduate of the University of Virginia and the University of Richmond School of Law, John has distinguished himself over his more than 40 years in practice as one of the premier insurance coverage attorneys in Virginia, if not the United States. Among his many professional accomplishments, John has been both a Virginia Super Lawyer and listed among the Best Lawyers in America every year since 2007. He is generous with his time, courteous to a fault, and deeply respected both inside and outside the courtroom. John’s temperament, high ethical standards, and sense of fairness in dealing with others are beyond reproach. Countless young attorneys have benefitted from his wisdom and his example. John has been an active and dedicated member of VADA. He has served on our Finance Committee, as a frequent writer and speaker, and as President of our Association in 1993-94. The Board of Directors can think of no one more fitting than John for this Award. In the words of the VADA member who nominated him for it, John, quite simply, is “the epitome of what every VADA lawyer should strive to be.”
We will present this Award to John on October 21 during our Annual Meeting in Virginia Beach. Please join us in congratulating John! |
VADA DIVERSITY SCHOLARSHIP
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The Board of Directors of the VADA is proud to announce Alexis Romero as the recipient of the VADA’s 2021 Diversity Scholarship! A cum laude graduate of the University of North Texas, Alexis is in his second year at the Antonin Scalia Law School at George Mason University. There, in addition to his many other accomplishments, he serves as Articles Editor of the George Mason Law Review. This summer, Alexis will be clerking with VADA member firm Bancroft McGavin Horvath & Judkins, P.C., in Fairfax. Congratulations, Alexis!
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VADA/VTLA CIVILITY & PROFESSIONALISM AWARD
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The Board of Directors of the VADA is pleased to announce William B. Kilduff of Emroch & Kilduff, LLP, as the recipient of the 2021 VADA-VTLA Civility and Professionalism Award! Now in its sixth year, this Award, which is given each year by the VADA to a member of the Virginia Trial Lawyers Association and by the VTLA to a member of the VADA, honors an attorney who exhibits the highest degree of civility and professionalism in the practice of law and, through his or her interaction with others, promotes the highest levels of competence, integrity, and ethical conduct in the legal profession.
A graduate of Randolph-Macon College and the University of Richmond School of Law, Bill has been practicing law since 1977. He is a member of the Virginia Trial Lawyers Association, the American Association for Justice, and the American Board of Trial Advocates. Among his many accomplishments, he has been named a Virginia Super Lawyer every year since 2006. He was listed in Best Lawyers from 2010-2017.
We will present Bill with this Award during our Annual Meeting in Virginia Beach on October 21.
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VADA member and Past President Terrence Graves was honored by the VTLA when they awarded him their VTLA-VADA Civility and Professionalism Award at the VTLA’s 2021 Annual Convention earlier this year.
Congratulations, Bill and Terrence! |
VIRGINIA LAWYERS HALL OF FAME |
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VADA is proud to announce the election of Walter H. Peake, III, and M. Pierce Rucker, posthumously, to the 2021 Class of Virginia Lawyers Weekly’s Virginia Lawyers Hall of Fame! Walt and Pierce were exceptional attorneys, who enriched our Association with their dedication and the example they set. Walt, Pierce, and this year’s other honorees were celebrated at a virtual reception May 18. Each honoree is profiled in a special Virginia Lawyers Weekly supplement. Congratulations, Walt and Pierce! |
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We are pleased to announce that Todd Anderson of Herbert & Satterwhite, PC has joined us as Membership Vice Chair. Todd brings a wealth of VADA and professional experience to share with both our potential and new members. Also, another round of renewal reminders was mailed out earlier in May. Remember your membership could lapse if you don’t renew, and we don’t want to lose you! If you have questions about your membership status, please contact Executive Director Sherma Mather at smather@vada.org, Membership Chair Sam Bernier at sbernier@faplawfirm.com, or Membership Vice Chair Todd Anderson at tanderson@herbertsatterwhite.com.
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Nirav Patel
Franklin Prokopic Erika Prouty
Baker Hostetler
Daniel Salmon
Vandeventer Black
Peter Schurig
Setliff Law
Danielle Takacs
Franklin Prokopic Davis Walsh
McGuire Woods
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If you’re ever in the
Norfolk Courthouse and hear “The Truth” by Beanie Sigel, you’re likely to find
nearby this month’s VADA Spotlighted Member. Outside of court, you’re
likely to find him, Yuengling in hand, taking in a game. For this and a
whole lot more on this month's spotlighted member, click here. |
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NEW VIRGINIA SUPREME COURT RULES EFFECTIVE July 5, 2021 Learn more here.
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When the Attorney-Client Privilege Isn’t Privileged Nicole L. Antolic There are few legal privileges as well known or as fundamental as the attorney-client privilege, but this longstanding privilege is not absolute. There are times when communications between counsel and client are not protected and it is important to understand the circumstances that can erode this privilege.
Before discussing the circumstances in which the attorney-client privilege may be waived, it is important to understand that for the privilege to attach (and thereafter be waived) an attorney-client relationship must first be established. This seems elementary, but not all conversations with an attorney engage the parties in an attorney-client relationship. For instance, having a conversation at a party with an attorney friend about your most recent legal issue more than likely does not establish an attorney-client relationship, and there would be no privilege to those communications.
The test for application of the attorney-client privilege is set forth in the widely cited case, United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950), and states that the privilege applies:
[O]nly if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Essentially, the privilege is “limited to communications made in the course of seeking legal advice from a professional legal adviser in his capacity as such.” Id. at 358. An attorney has a legal and ethical obligation not to disclose any information related to the representation of a client unless the client has given informed consent or there has been some sort of waiver. It is an important distinction to note that the privilege attaches to the subject of the communication and not the fact of the employment of the attorney. Therefore, an attorney may be compelled to testify regarding the fact of her employment, the fact that she advised her client as to certain matters, or that she performed services for her client, but not about the subject of the communication.
It is also important to know who in the attorney-client relationship is the holder of the privilege to better understand how this confidentiality may be waived. In the attorney-client relationship, it is the client who is the holder of the privilege. This means that the attorney may not disclose any confidential communications without the client’s consent, except in specific situations as discussed below.
So, how and when can the attorney-client privilege be waived? Firstly, and perhaps obviously, there can be an express disclosure of confidential communications. Any voluntary disclosure of privileged or protected information typically waives the attorney-client privilege. This means that any voluntary disclosure by the client to a third party also waives the privilege not only as to the specific communication disclosed, but also as to all other communications relating to the same subject matter. Additionally, the presence of a third party to the conversation between an attorney and her client can waive this privilege. So, if the client has a meeting with his attorney and brings along a friend to join the meeting, the conversation would then not be considered privileged. The same applies with an email communication between attorney and client that includes a third party. An inadvertent disclosure may also waive the attorney-client privilege.
While it is the client who is the holder of the privilege, under Virginia Rules of Professional Conduct R.1.6, there are times when a lawyer must disclose otherwise privileged communications. If it is the client’s intention to commit a crime that is reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another, these communications must be disclosed. An attorney may disclose confidential communications as needed to obtain ethical advice, to comply with an order of the court, to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client, if it is clear that the client has established a fraud upon a third party related to the subject matter of the representation, as reasonably necessary to protect the client’s interests in the event of the representing lawyer’s death, disability, incapacity, or incompetence, or to assist an outside agency necessary for statistical bookkeeping, data processing, printing, or other office management purposes.
There are many nuances to the attorney-client privilege, and additional complications that arise when the client is a corporation. It is important to remember that not all communications with an attorney are protected and there are situations where even privileged communications may be disclosed. |
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VADA’S Mission
The mission of the Virginia Association of Defense Attorneys is to assist Virginia attorneys in the professional and ethical representation of their clients in civil litigation through education, communication and fellowship. |
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Virginia Association of Defense Attorneys
1915 Huguenot Road, Ste. 301
Richmond, VA 23235
804-649-1002 | www.vada.org Executive Director: Sherma Mather
Director of Meetings: Amy Gilbody
Journal of Civil Litigation Managing Editor: Molly Terry |
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