Monthly Archives: February 2019

The Legal Needs of the Disabled Are Not Being Met

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By Robert M. Pollock

In the United States, which has a population of about 326 million persons, more than 50 million persons, or about 15.3 percent of the population, are classified as disabled. Unfortunately, this protected class is frequently discriminated against, or just simply ignored. 

For example, while we regularly hear about litigation concerning the disabled, this generally involves a fairly large class of individuals or a law firm that takes a case because of a novel issue. This means that the day to day issues faced by America’s disabled are too often ignored, or just shunted aside. This especially applies to those with mental disabilities who have difficulty navigating life day to day, and more so dealing with the complexities of legal issues – or even knowing how to apply for benefits to which they are entitled.

The cost to our society by this neglect is entirely too large to quantify, but each person that does not get the care which he or she should have or is entitled to by law or should have in order to maintain a minimum standard of living costs us billions of dollars every year. This is because substantial aid must be provided to these persons when they might be gainfully employed and pay taxes, or it takes time away from their caretakers who would otherwise be employed and also pay taxes. 

One only has to do a Google search on the internet to see the number of ads for disability lawyers, which many in this population cannot afford. Many non-ad web sites, including the ABA site, purport to provide information concerning the availability of legal aid to the disabled but almost invariably just provide a link to a local legal aid organization. This is fine, insofar as this goes. However, local legal aid organizations are not set-up to provide much of their services to the disabled but to all comers who have civil legal issues and generally have an income below a minimum established standard. 

This limits the amount of time these local organizations have to deal with or even fully understand disability issues, given the large number of persons who need aid at any one time. This is especially true with regard to those with mental disabilities, being unable to articulate a problem or assist with any necessary action on their behalf. 

Given the number of disabled in the U.S., even if a person is eligible for free legal services (assuming such services are available in their locality), the families of these persons may not be aware that there are services to which they might avail themselves; or they simply choose to go it alone, given that the limited services that may be available, are very often limited. 

Those families that can afford to obtain some minimum level of legal services may choose to do so in a limited fashion, because of the financial strain on the rest of the family. As such, it is incumbent upon the legal profession to offer help in this regard. This can either be by providing individuals legal help on a client by client basis; or by becoming involved with larger issues affecting numbers individuals with disabilities.

Clearly, there is no one size fits all solution to this challenge. In fact, it may take a number of strategies and legislation in order to obtain a reasonable level of necessary legal support for this needy segment of our population. However, given the immediacy of this problem, no time should be lost.


With over 35 years of legal experience, the role that brings Robert Pollock his greatest satisfaction is helping the disabled. 

From Minority Doctoral Students to Faculty: A Model for Success and Consideration By Other Disciplines

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By Bernard J. Milano

KPMG Foundation formed The PhD Project in 1994 to encourage minorities to enter business doctoral programs. The model it developed includes holding an annual conference attended by more than 90 doctoral program partners to which 350-400 prospective doctoral students are invited. For those admitted to a doctoral program, the model, which includes support networks, has produced a 90 percent completion rate and almost all have accepted faculty positions. 

For decades, no one in traditional doctoral business education seemed to believe the “D” in Ph.D. might also stand for diversity. KPMG Foundation formed The PhD Project in 1994 and set out to help change that perception. In 2005, KPMG Foundation spun out The PhD Project as a separate nonprofit but continues to provide the administration and is the principal funder.

In the last 24 years, the number of African-Americans, Hispanic-Americans, and Native Americans with a business Ph.D. has jumped from only 294 nationwide to 1,470; and there are nearly 300 Ph.D. students in The PhD Project pipeline. 

While it is the hiring universities that are entitled to the credit for the increase, I like to think The PhD Project’s successes have contributed. In addition, I believe the model it developed for attracting, recruiting, and supporting minority doctoral students as they become business faculty, in joint effort with the universities, may provide a model readily adaptable by other disciplines.

Finding a successful model is critical. Higher education institutions today find themselves squeezed uncomfortably as they face a growing faculty shortage with boomer-generation professors retiring. The rising cost of training the generation that will replace them heightens the need to identify qualified applicants for the costly, time-consuming Ph.D. program. This is why our model may benefit other disciplines — it has produced a 90 percent completion rate by pre-qualifying prospective students for hiring universities. In addition, it operates a year-round peer-based support network that gives doctoral students useful supplemental resources and knowledge, along with peer support to overcome the challenging moments all doctoral student’s experience. 

The PhD Project recruits minorities from the business professions and current students into doctoral programs in all business disciplines. Annually, a committee of academics and The PhD Project staff review applications to attend an annual informational conference on the doctoral process and select some 350-400 prospective students to attend. Eligible applicants are African-American, Hispanic-American, or Native American U.S. citizens or permanent residents who either possess an undergraduate degree or are in their last year of college.

The conference includes a recruitment event with representatives from more than 90 university doctoral programs (there are 130 universities that offer a Ph.D. in business). Prospective doctoral students meet face-to-face with university representatives from across the U.S. It is the only known event in higher education where doctoral programs gather in one place to proactively recruit and compete for talented minority prospective Ph.D. students. 

From our experience, the conference establishes an important starting point in a road that will lead, five or six years later, to the applicant reaching the job market as a new Ph.D. graduate, and then participating in the faculty hiring we have seen taking place at historic rates since 1994. Each year, approximately 15 percent of event attendees are admitted to a doctoral program usually over the following one to five years, and with tuition and fees waived.

At the conference, university representatives can interact with a large pool of motivated, qualified, and talented minority professionals and students — individuals primed to become tomorrow’s professors. I believe this exposure has helped shift the mindset of university business programs to one where they not only desire but compete for minority doctoral students. As our students progress through their doctoral studies, their universities further observe them benefiting from the enrichment and preparation they receive through our five Doctoral Student Associations, in accounting, finance and economics, information systems, management and marketing.

“You have 350 to 400 aspiring Ph.D.s in one place,” notes recruiter and assistant professor Melvin Smith of Case Western Reserve University, which currently has six doctoral students from The PhD Project and has graduated many more. “People can search online for you, and you could search for them, but it takes months. At The PhD Project [conference] it happens in a day, and you put a face to the name. It means so much more than a piece of paper.”

“The PhD Project has transformed the landscape on the development of minority faculty, and it has done so against considerable odds and initial skepticism,” says Ralph Katerberg, associate professor and former business doctoral program head at the University of Cincinnati. “Many schools have people on their faculties who would not have been there if it were not for The PhD Project.” 

Schools often use the conference as a platform to inform students about their programs and attributes. Arizona State uses it to spread word about its concentrations and current faculty research. Texas A&M uses the conference to educate students about lifestyle issues. “Prospective students have interest in our program, but they don’t have a lot of information about living in College Station, Texas, so we told them about it at the conference,” explains Chris Porter, former associate professor at Texas A&M, now at Indiana University.

Ninety-seven percent of those who earn a Ph.D. and are involved in The PhD Project go into faculty positions. The program produced 43 new faculty in 2017 and 23 in 2018 as of this writing. We have nearly 300 doctoral students in the pipeline. 

The PhD Project has shattered forever the myth that there are not enough minorities interested in earning a business doctorate. “You can no longer say, ‘I can’t find one,’” observes North Carolina Central University professor, Alisha Malloy.

The PhD Project’s approach may show a way for other academic disciplines to meet their growing faculty hiring crisis. While our model is focused on business and minorities, there is no reason why any discipline cannot adopt a version of it to partner with the appropriate professional organizations in their field to market an academic career in that discipline, and to pre-qualify, prepare, and provide support for the doctoral students — tomorrow’s professors — that they attract. 

For additional information about the program, visit our website or contact Lisa King


Bernard J. Milano is the president of the KPMG Foundation and The PhD Project.

Diversity, Lawyer Well-Being and Impairment

James McCauley, Esq.

The goal of improving diversity in our legal profession calls for inclusion of our colleagues that suffer from impairment and well-being issues. In 2017, the National Task Force on Lawyer Well-Being cited two studies that reveal lawyers are two to three times more likely than the general population to suffer from anxiety, substance abuse, and suicide. Two members of our bar, Chief Justice Donald Lemons and Assistant Bar Counsel Katie Uston served on that task force and co-authored that report. The report is a call for action to all stakeholders in our legal community to organize, educate, and reach out to our colleagues that suffer from impairment for the benefit of the impaired lawyer as well as client and public protection.

The oft-quoted statement “am I my brother’s keeper” is a theme expressed in two Legal Ethics Opinions, LEOs 1886 and 1887, that discuss a lawyer’s ethical duties to reach out to an impaired lawyer before they do harm to themselves, their clients or the public. More recently, the Supreme Court of Virginia appointed a Committee on Lawyer Well-Being chaired by Justice Mims. That committee’s report, A Profession at Risk, was issued in September 2018.

I encourage all bar members to review this report. One of the most significant recommendations is to improve the funding of our starving lawyer’s assistance program we know as Lawyers Helping Lawyers (LHL), a non-profit organization that provides free assessments, clinical evaluations, counseling, and support group services to lawyers suffering from substance abuse, anxiety, depression, and age-related cognitive degeneration. LHL’s services are available for lawyers, judges, law students, and professional law firm support staff. LHL operates a 24/7 help line and can assist law firms or families concerned about an impaired lawyer and help approach that lawyer to seek help and enter a recovery program. The recommendation is to increase LHL’s annual funding from $275, 000 to $750,000, as LHL operates with only one full time clinician, Jim Lefler, and a part-time Executive Director, Tim Carroll. This is precious little manpower and resources to address the well-being crisis in Virginia when 20 percent of the 34,000+ lawyers actively licensed by the Virginia State Bar could benefit from the services provided by LHL. Fortunately, LHL has a network of volunteer lawyers throughout state, but more mental health professionals are desperately needed for LHL to successfully carry out its mission and strategic plan.

Why is our legal profession so afflicted? Some of the driving factors are: sedentary nature of our work, long hours, unusual hours, poor diet and exercise, sleep deprivation, managing and dealing with the problems of others, the adversarial nature of our work, client demands, vicarious trauma or post-traumatic stress disorders, oppressive caseloads, lack of civility by other lawyers, burnout, competition, education debt, and lack of diversity in the profession. The result is that lawyers feel isolated, lonely, anxious, and depressed. We must reduce or eliminate the stigma of law students and lawyers admitting they have a problem and seeking professional attention. We are changing our MCLE regulations to allow lawyers to sign up and get MCLE credit for courses on a wide range of topics that focus on lawyer well-being to provide education on stress management, mentoring, relaxation methods, suicide awareness and prevention, work/life balance, recognizing cognitive impairment, the warning signs of substance abuse or mental health disorders, including suicidal thinking, how, why, and where to seek help at the first signs of difficulty, the relationship between substance abuse, depression, anxiety, and suicide, how to approach a colleague who may be experiencing problems with mental health, depression, or substance abuse, how to thrive in practice and manage stress without reliance on alcohol or drugs, self-assessment or assessment of others of mental health or substance abuse risk, and lawyer assistance programs.

Effective October 31, 2018, a new comment has been added to Rule 1.1 which says that “Maintaining the mental, emotional, and physical ability necessary for the representation of a client is an important aspect of maintaining competence to practice law.” This change will help pave the way to further continuing legal education on what it means to maintain our well-being and how we can balance those concerns with the realities of practice.

To effectively self-regulate our profession, we must be more sensitive and mindful of the needs of our colleagues who are at risk. The first step, of course, is education to improve awareness of the importance of well-being in the practice and to encourage help-seeking behaviors and candid dialogue about suicide, substance abuse, and mental health disorders.


Jim McCauley is ethics counsel at the Virginia State Bar.

The Editor’s Corner

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By August Bequai

“Howe rapidly the iron age succeeds the age of brass!”

   William Erskine, Epigram

Today, we are in the midst of a profound social, economic and political transformation of our society, wrought on us, in large part, by the IT Revolution, and with no end in sight. Privacy is threatened at every turn; the chasm between the economic elite and the masses has grown astronomically, confidence in our political institutions has dramatically waned, and hucksters use social media to play our citizenry off against each other.

These are dangerous times for our society, and confidence by the public in our legal system is, more than ever, of paramount importance. It is the firewall that safeguards our freedoms. Writing at the time of the Industrial Revolution, W.S. Gilbert (in Iolanthe’s “Lord Chancellor’s Song”) said it best: “The law is the true embodiment / Of everything that’s excellent.” The same can be said of our 21st century society.

The Virginia State Bar’s (VSB) primary purpose is to ensure that the state’s legal community serves the interests of the Virginia’s citizenry, no matter what segment of its socio-economic or political spectrum they come from. It is not the VSB’s task to safeguard the economic needs of lawyers or their law schools. The Diversity Conference (DC), as a vehicle of the VSB, also seeks to best serve the needs of the citizenry of Virginia.

Invictus, as a vehicle of the DC, serves the same objectives. It provides a vehicle for the various elements of the community to voice their concerns, by submitting articles that address the needs of those who are unable to do so because of an economic, social, medical, and/or political impediment — without favoring one over the other.

With that in mind, feel free to contact us with any ideas that you may have for an article. The more innovative and challenging the article, the better for our readers. Thank you.


August Bequai, Esq. is an attorney in McLean and the editor in chief of Invictus. You may reach him at

First Annual Forum on Diversity in the Legal Profession Kicks Off a New Tradition

by Chris Fortier

It all started with an idea: to have a signature program that identifies the purpose of the Diversity Conference. Diversity Conference Chair Luis Perez kept selling this idea and on Friday, November 9, 2018, over 100 people witnessed that idea become reality. To open this new program, Virginia State Bar (VSB) President Len Heath and Supreme Court of Virginia Justice Cleo Powell welcomed the attendees with keynote speeches.

Professor Jessica Erickson welcomed attendees on behalf of the host, the University of Richmond School of Law. She noted that successful law school faculty need to have the tough conversations, show analytical skills, communications skills, collaboration, and persistence. She pointed out that these skills also make for successful skills to be a lawyer. She was delighted that the attendees would use these skills to advance the dialogue at the University of Richmond School of Law.

VSB President Len Heath noted that diversity and inclusion are important, stating, “The bench and bar have to reflect the community. If it does not, there is no trust or understanding. It takes work to gain trust.” He noted that the community has seen what happens when its relationship with the law goes wrong.

VSB President Len Heath provides a welcome to the Forum.

President Heath urged attendees to serve. The committees and boards at the Virginia State Bar search for lawyers of all backgrounds to serve. As an example, the MCLE Board is the most diverse board on the VSB. The Nominating Committee looks for diversity at every level: race, age, gender, practice area, geographic area. They nominate two people for every slot and the  Supreme Court of Virginia makes the final selection. The Supreme Court also looks for diverse group of leaders to serve the profession.

Justice Powell then discussed the impact of diversity on the administration of justice. She pointed to the 64 Crayola crayon box that children had years ago. With more colors, people could create with more options. She noted that children naturally include others. However, as we grow up, we often insulate ourselves from inclusiveness.

Justice Powell noted her hope to dialogue together with the goal to regain being wiser and stronger through inclusiveness rather than divisiveness. We will look to law schools, lawyers, and the bench to define why does it matter. There are those who don’t believe it matters but there are others who believe it matters. There is room at the table to have the discussion. She charged the attendees to “please leave room for reason when you dialogue.”

Justice Cleo Powell gives an opening keynote speech at the Forum.

Justice Powell focused her remarks on why diversity matters, noting that she has learned a lot on the Court. “Diversity of thought is valuable essential commodity on a multi-person bench.” She was astounded at the first bench conference with the dialogue between the justices. She then told about an incident where where she and a colleague read a short statute differently. Both views were legitimate and she grew to appreciate the difference of opinion. Two people can read the same words and come to divergent opinions. This has everything to do with diversity.

She noted that she has to consider what if she is wrong. “Would the outcome stand the test of time and stare decisis?” She reminded the attendees of this quote: “When you are all thinking alike, someone is not thinking” by General George S. Patton.

Justice Powell turned to the issue of perception as it can make all that you do for naught. She lauded her colleagues on the bench as men and women of honor who strive to uphold oath. However, the perception of litigants who walk into court is their reality and that shapes how they and those close to them see the court. When something goes wrong, it is human nature to look for the why, No matter how unfair, a human’s perception is their reality. We as a profession have to meet the citizens where they are as the optics of Justice are just as important as the reality. The diversity makes a difference, proving that we are working to make just decisions. By being inclusive, we say to each citizen of Virginia that, in the words of Langston Hughes, “we see you and we hear you, we acknowledge that you too sing America.”


Chris Fortier serves on the Board of the Governors of the Diversity Conference, working on the Invictus newsletter and the Diversity Conference website and social media. In his day job, he works at the Social Security Administration (SSA). The views in this article do not reflect those of SSA or the Federal Government.