Monthly Archives: January 2020

Annual Meeting Immigration Panel

Annual Meeting Immigration Panel: Complementary or Contradictory to the Rule of Law?

Panelists at the Annual Meeting program. George Fishman, Esq., Lisa Johnson-Firth, Esq., Dean Emerson Douglas, and Jacob Tingeman, Esq.  (Dee Norman, Virginia State Bar)

By: Chris Fortier

Immigration remains a hot topic for discussion. While this topic holds much interest with the public, lawyers are focused on Immigration Law for different reasons.  Between the changing policy with the Department of Justice, increasing workloads for judges, and the quick hearings that immigrants in the system face, the topic always provides content for a quick hour of CLE.  The Annual Meeting panel consisted of Lisa Johnson-Firth, Esq. (Immigrants First, PLLC, Manassas), George Fishman, Esq. (Department of Homeland Security, House Immigration Committee Counsel), Jacob Tingeman, Esq. (Solo Practitioner). Dean Emerson Douglas of William & Mary Law moderated the program.  Dean Douglas emphasized that lawyers need to play a critical role in the immigration debate, as they have the ability to see both sides and to be objective.

Mr. Fishman provided a history of immigration law from the 1990s through today. He cited Congressional studies in 1981 and 2016 where the illegal immigrant population grew from 4-6 million to 11 million, respectively. He noted that Deferred Action for Child Applicants (DACA) was based on inherent executive power of prosecutorial discretion.  DACA was initially meant to assist children brought to US under age 16 before 2012.  He reminded attendees that Article I Section 8 gives Congress the power to determine immigration policy and that Article II Section 3 provides the President the ability to execute these laws.  He urged limits on immigration and recommended actions such as setting a fair process to challenge the government’s immigration determinations.

Ms. Johnson-Firth noted the principles in the United Nations Secretary General Report on the Defined Rule of Law (S/2004/616), alluding to international human rights norms and four key principles: 1) law applies to everybody 2) law is not secret or arbitrary, 3) law is just, 4) law is fair (double check this).   Ms. Johnson-Firth argued that that United States did not adhere to rule of law, propping up military dictatorships in Guatemala and El Salvador.

Ms. Johnson-Firth also pointed out the challenges that our Immigration courts and parties in front of that court face. For example, she noted that there were no ex post facto, no Miranda warnings, long waits for hearing, no right to speedy trial, no discovery process (surprise impeachment using evidence they do not give you), and administrative warrants for parties in front of the court. Ms. Johnson-Firth also stated that Immigration judges adjudicate 700 cases per year and are employees of the Department of Justice without judicial independence.

Mr. Tingen reviewed case law affecting immigration.  He urged creation of a district court to adjudicate these asylum claims, as opposed to DOJ Immigration judges.  He noted Pereria v. Sessions, which held that a summons to appear needs to have a date, time, and place of appearance.  He reviewed the Matters of MS, LABR, and AB, which redefined widely accepted social groups in asylum analysis and took gangs out of the analysis of social structure in an immigrant’s country of origin.

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Chris Fortier serves on the Board of 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 are his and his alone and do not reflect those of SSA or the Federal Government.

Annual Meeting Photo Album

Enjoy some of the sights of the VSB Annual Meeting’s Diversity Conference activities in June 2019.

HuYoung Perez

Michael HuYoung, recipient of the Dunnaville Award and Immediate Past Chair Luis Perez greet VSB Annual Meeting attendees to the new Welcome Reception.

HuYoung Family

Michael HuYoung and his family, accepting the Dunnaville Award

Diversity Conference

Michael HuYoung, receipient of Dunnaville Award, poses with the Diversity Conference Board of Governors.

Mentor-Mentee w:Justice Mims

The mentors, mentees, and Justice Mims at the Opening Reception at the VSB Annual Meeting.

Chair’s Column

From the Diversity Conference Chair

By Chidi James, Esq.

Dear Virginia State Bar Diversity Conference Members and Friends,

        I am honored to serve as the Chair of the Virginia State Bar Diversity Conference for fiscal year 2019-2020.   I joined the diversity conference when Judge Manny Capsalis was president of the Virginia State Bar in 2009.   At that time, there were many voices strongly opposed to the creation of the conference.  Many questioned whether the Virginia State Bar had any business promoting/addressing diversity issues, because they believed diversity to be a political issue.

        What I came to realize after the debate is that diversity is not a political issue.   Or at least, it is no more of a political issue than Professionalism, Civility, and the Rule of Law.   The Virginia State Bar’s mission statement is to do the following:

        (1) to protect the public, 

        (2) to regulate the legal profession of Virginia,

        (3) advance access to legal services, and

        (4) to assist in improving the legal profession and the judicial system.

        If we, as a Bar, are to fully advance any of these goals, we must gain an understanding of the importance of diversity.  

        Webster’s dictionary defines diversity as “the condition of having or being composed of differing elements…especially: the inclusion of different types of people in a group or organization.”   https://www.merriam-webster.com/dictionary/diversity.   By definition, we have diversity in our society, because our country and this Commonwealth is composed of people of different genders, ethnicities, sexual orientations, religions, and values.   That fact is inescapable.  One of our goals as a diversity conference should be to encourage others not only to recognize that people are different but encourage each of us to get to know people who are different from us.  I don’t mean just spending 10 minutes talking at a judicial reception or bar meeting, I mean getting to know each other to the point where we are having lunch, career mentoring, and swapping stories about families and shared experiences.   Once we get to that point, I am confident that we will see that we have more in common than not.  

        There is one HUGE problem.  It can be uncomfortable spending time with people who are not like us.  (Remember “Stranger Danger”).   What if they have different political beliefs?   What if they have different religious beliefs?   What if I offend them unknowingly?    Unfortunately, being in an uncomfortable situation is unavoidable if we are going to break down barriers between people.    

        Here is where the prongs (1)(3) and (4) of the VSB mission come into play.   (1) and (3) Protecting the Public and Advancing Access to Justice: Public confidence in our civil and criminal justice system is undermined if the average person who interacts with the legal system does see the bar and bench reflect their communities.  If they do not perceive fairness in the legal system, they will be much less likely to use it and will have poorer outcomes when dragged reluctantly into it.  (4) Improving the Legal Profession and Judicial System:  In our Professionalism Course we are taught that a lawyer must learn to disagree without being disagreeable.  The mandatory professionalism course is a one-time requirement.  Embracing diversity and diversity programs helps us build on those principles of civility discussed in the Professionalism course.   We don’t have to agree on everything, and that’s okay.  We do have to treat each other with dignity and respect.   If we can learn to treat each other with dignity and respect, regardless of our outward differences, the Legal Profession and our Judicial System will be that much closer to living up to the lofty self-evident  truth that “all men (and women) are created equal,” and should be treated as such by our profession and our courts.  

        So, once again, I am very happy to serve as the chair of the diversity conference, and I look forward to building on our success, like the law day program, the annual forum on diversity, law student mentee program, the hill/tucker pre-law institute and others.   If you have not been involved thus far, there is no time like the present.   Please register for the diversity conference at https://www.vsb.org/site/conferences/diversity/membership_form , and we look forward to seeing you soon.

                                                        Very truly yours,

                                                        Chidi I. James

                                                        Chair

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Attorney Chidi I. James is an AV rated attorney and a partner with the law firm of Blankingship & Keith, P.C. in Fairfax Virginia. His practice consists mostly of serious personal injury cases including wrongful death, products liability, and inadequate security cases.  He serves as the Chair of the Diversity Conference for the 2019-2020 bar year.

Editor’s Corner

                       

                            By: August Bequai, Esq.

                        “To be poor and independent

                              is an impossibility.”

                                              -William Cobbett

While Virginia’s three northern suburbs are the wealthiest in the United States, thousands of its citizenry remain homeless, poor, and destitute. While more than 900,000 Virginians suffer from some form of disability, assistance programs for them; including for those who reside in the state’s three wealthiest suburbs, are, at best, cosmetic.

A 2017 study by the National Center for State Courts (“NCSC”) found that Virginia’s poor and disabled enjoy little or no legal representation in its courts. The NCSC study concluded that a lack of legal representation and poverty, appear to go hand in hand.

The NCSC study also found that the poor and disabled, lacked adequate legal representation in 99 percent of the state’s General District Court cases, and 62 percent of its Circuit Court cases. For a state which prides itself on helping the needy and disabled, the NCSC study speaks ill of its efforts to provide legal services to this segment of our society.

A 2017 study by the Legal Services Corporation (“LSC”) confirmed the same. According to the LSC study, more than 50 percent of the poor and disabled in the country are in dire need of basic legal assistance. The existing nationwide legal aid programs do not suffice to meet those needs. According to the LSC study, legal assistance for the poor and disabled in wealthy Virginia, fares no better.

To help address the dire need for legal services for the poor and disabled in Virginia, the  Virginia Supreme Court’s Access to Justice Commission launched several initiatives to address the justice gap; largely by encouraging Virginia attorneys to commit more time to pro bono work. The Commission’s efforts have also prompted the local courts and bar associations to promote pro bono efforts throughout the state.

While these efforts are commendable, yet they fall short of addressing the many legal needs of Virginia’s poor and disabled in Virginia. While Virginia’s legal profession, well into the 1980s, was viewed as an economic bastion of the community; the overwhelming majority of its young lawyers today are saddled with significant student debts. Compounded by a highly competitive and shrinking legal market. Many in the public who can afford legal services, are turning, in large numbers, to the Internet and non-lawyer professionals for their legal needs.

One young lawyer recently lamented: “How can I do pro bono work, when I gross less than $10,000 annually and I am saddled with an $85,000 student debt?” The son of a friend who was severely disabled in one of America’s foreign wars, said it best: “I gave my country all I had, and now I have to beg George Soros for legal help.”

It is now time for Virginia’s legal edifice to seriously consider a state funded Legal Aid program; comparable to the state’s Medicaid program. The existing legal model to help Virginia’s poor and disabled falls short of the existing need.  Handouts from a dozen billionaires; who fund legal programs that conform to their political whims, is not the proper vehicle for one of the wealthiest states in the country to provide for the basic legal needs of its less fortunate citizenry. A state Legal Aid program would also tap the talents of thousands of young Virginia lawyers, who now face economic difficulties.

A state with the three most affluent counties in America, needs to seriously consider funding legal services for its poor and disabled from its treasury. Pro bono efforts, while commendable, will no more address the legal needs of Virginia’s poor and disabled, than private charity alone can address their medical needs. It is time that we seriously consider a state funded Legal Aid program.

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Gus Bequai, Esq., is the Editor in Chief of Invictus. You may reach him at attyabeq@aol.com.

All opinions expressed here are those of the author and not the Diversity Conference or the Virginia State Bar.

Write for Invictus

Add to the Diversity Conference – Write for Invictus!

Photo by Elisa Xyz under a CC0 Public License.

Do you want to contribute to the Diversity Conference?  Are you interested in expanding the bar’s understanding of diversity and assisting them make more inclusive and welcoming practices for their colleagues and clients?  Consider writing for Invictus, the Diversity Conference’s newsletter.

We are accepting article ideas and have a simple avenue for submission.  Our online form is easy to fill out, and asks the questions to help guide you through the drafting, editing, and publication phases.

Our Plans for 2019-2020

The editors are planning two additional issues for the 2019-2020 bar year.  In our first issue, we covered the Forum for Diversity and Inclusion, providing you with the panels that invoked much constructive discussion.  Our second issue covered Diversity Conference activities as well as profiling a Brave Little Virginian.

We will use our third issue to profile how legal tech is expanding access to justice for underserved populations. The issue will also provide some tips and tricks to use tech to your advantage in law practice.

Our final issue of 2019-2020 will focus on well-being. There has been significant activity in this field over the past couple of years. We will profile leaders who have been taking on innovative approaches and provide practical tips to ease stress and improve your health.

We will continue to cover Diversity Conference events and participation at Virginia State Bar events. We hope that you enjoy reading about the Conference’s activities and even may want to assist us with covering the events.

As we continue through the year, we will still take articles that fall outside of these issue themes.  Once you submit your idea, we will work with you to ensure the best place for your submission.

Want to Write?

We welcome your contributions, via article, photo essay, or video.  Submit your ideas to this form. We then provide an easy to follow guideline that quickly outlines our expectations.  Our guidelines include contact information for the Editorial Board. When you are ready to submit, you click on the submit link in the guidelines.  Your article is instantly uploaded and the Editorial Board instantly knows about your submission.

The whole process was designed to provide you more control of the writing process.  You are able to design everything about your article from the headline and byline to the finishing touches including photos, videos, and callout quotes to emphasize your point. The Editorial Board wants to be transparent with authors and this method provides the best way to accomplish such transparency.

Are you interested in working with us?  Submit your ideas here.  We look forward to working with you!

A Brave Little Virginian

By: Patrick & Dolores Heidenthal*

“What though the field be lost?

All is not lost; th’ unconquerable will,”

-Milton. Paradise Lost

We all rejoiced when Henry was born. It was not to be for long. When he was five weeks old, Henry was medevaced to the hospital with a heart infection (cardiomyopathy); it was discovered that he had a chromosome 20 irregularity.  The unofficial diagnosis is Bardet Biedl Syndrome.  

Our dear little boy entered toddlerhood with developmental delays, decreased muscle tone (hypotonia) and vision degeneration beginning in early childhood (Optic Nerve Hypoplasia); our journey into medicines uncharted waters commenced.

Physical therapy built his muscle strength and he began kindergarten using a walker.  Henry now is able to walk with the help of ankle braces and a white cane.  He has also been diagnosed on the Autism Spectrum and has intellectual disabilities.  This assortment of special needs exist simultaneously but independently and it is amazing how Henry traverses each one daily.  

He never complains and his courage serves as an example for the entire family. Even when his life hung in the balance, he made efforts to cheer the rest of us up. Reminding us of Tom Payne’s advice on life from his Kyrelle: “A little pain, a little pleasure…”

Finding help for Henry’s mixture of disabilities has been an arduous task.  Loudoun County and the county schools have been a core help from the beginning.   Henry receives a yearly Independent Education Plan (IEP) which sites measurable goals for his development toward independence.  

However, even with verification of his need to receive special services, such as:  speech/language therapy; occupational therapy; mobility therapy; vision therapy; the services are limited or not always available.  For example, Henry has a Teacher for the Visually Impaired (TVI), but he receives this instruction only one hour a week.  

Henry can read and write braille by hand or with an electronic braille reader, but he still needs assistance while reading and how will he become proficient if only taught one hour a week?  

Therapeutic horseback riding offers physical and mental benefits and was recommended and was at first given, but not consistently.  Now Henry’s parents pay for a weekly lesson.

Music therapy has long been known to promote speech but is not provided by the county or paid by insurance.  “A Place to Be” uses professional music therapists to help Henry navigate and overcome life’s challenges using music.  Henry receives weekly lessons and sings a solo twice a year to a large audience and loves every minute of it.  

Physical Therapy was prescribed by his doctor, but our young man is on a waiting list because at 14 yrs. of age, he must have an adolescent therapist and none are available.  

Henry is in high school now and never misses a day.  He sings on the school bus and is liked by all his drivers, teachers and aids.  He joined the percussion section of the band and is in a before-school “Bud Club” that introduces him to other students.    

Henry has a cooperative gentle disposition and though now blind is listening to everything going on around him, even when you think he is not.  He has a gift for music and language, plus a fantastic memory; ask his German teacher.  He has a sense of humor that shows up unexpectedly.  

Similar to most families who include a special needs member, we have learned to be thankful for the kindness, wisdom, and love given to us by professionals and non-expert help given daily.  

Yet throughout all of his travails, Henry has been steadfast in his courage and optimism. He never complains, and in his courage we have found inspiration. He has proven to be our “Brave Little Virginian.”

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  • Dolores Heidenthal, Hadley School for the Blind, Winnetka, IL (2015) awarded certificate for  “Braille Teaching Methods for Adolescents and Adults.”  She serves children with health, intellectual and developmental disabilities through the VA Dept of Medical Assistance Services (VADMAS.)  For more info about Consumer Directed Services Program, visit http://dmas.virginia.gov.  
  • Patrick J. Heidenthal is a retired CPA and licensed realtor and has a BA degree from Rutgers University and received his MBA from Monmouth University.  Patrick and Dolores have lived in Virginia for 31 years and their most impressive credential is that they have been married 50 years with 5 grandchildren and 1 great grandson.

Changing the Rules: Examining Military Spouse Admission to the Virginia State Bar

Photo by Pixabay on Pexels.com

Written by: Courtney M. Kelly and Nicolle Vasquez Del Favero

Here are the facts: on average, active duty military personnel move once every two to three years, 2.4 times as often as civilian families. Military spouses move across state lines 10 times more frequently than their civilian counterparts.[1] As a result of frequent moves, while 85% of military spouse attorneys hold an active law license, only 37% have a job requiring said license.[2] Military spouse attorneys have a 27% unemployment rate,[3] and suffer from a $33,000 wage gap compared to their civilian counterparts.[4] 

While many states have worked to ease licensing burdens, military spouse attorneys have noticed that the requirements of some state rules are so cumbersome that they are rendered essentially useless. Such is the case with Rule 1A:8, the Military Spouse Provisional Admission Rule, issued by the Supreme Court of Virginia on May 16, 2014.  

Rule 1A:8, Section 4, Supervision of Local Counsel, mandates that the military spouse attorney may practice for the duration of their spouse’s military assignment in Virginia or the National Capital Region, so long as he or she is “under the supervision and direction of Local Counsel.”[5] Additionally, Local Counsel personally appear with the provisionally admitted attorney on all matters before the court unless specifically excused from attendance by the trial judge.

Section 4 of Rule 1A:8 is burdensome for a multitude of reasons. The lack of an established professional network in the local legal community due to frequent military moves means it is nearly impossible to find someone willing to take on the burden of supervision. The requirement for supervision may also create ambiguity as to which attorney is serving – the supervisor or the military spouse – and creates the potential for additional financial burdens on the attorney spouse regarding disputes over fee-sharing.  A requirement for supervision also burdens members of the Virginia bar who, by acting as supervising attorneys, subject themselves to discipline on behalf of the supervised lawyer. To require supervision over a military spouse attorney who is already licensed and in good standing in at least one other jurisdiction when supervision is not required for newly licensed Virginia attorneys who have never handled a case, in-house counsel who have voluntarily moved here, or for those seeking reciprocity to practice under Virginia law, seems unduly restrictive and burdensome.

Removing Section 4 from Rule 1A:8 would not lower the standard for character and fitness examination or set different requirements for adherence to the rules of professional conduct. Rather, this change reflects an appropriate balance of the need to maintain the highest professional standards for the bar and the important public policy interest in supporting Virginia’s large population of military families.


[1]  Bradbard, D. Maury, R. & Armstrong, D. (2018).The Force Behind the Force: a Business Case for Leveraging Military Spouse Talent. Syracuse, NY: Institute for Veterans and Military Families, Syracuse University. Retrieved from: https://ivmf.syracuse.edu/wp-content/uploads/2016/12/ForceBehindtheForce.BusinessCaseforLeveragingMilitarySpouseTalentACC_02.21.18.pdf

[2] Military Spouse JD Network, 2014 Member Survey Report of findings (May 2015), available at: http://www.msjdn.org/wp-content/uploads/2012/12/2015-MSJDN-Survey-Report.pdf.

[3] Military Spouse JD Network, 2014 Member Survey Report of findings (May 2015), available at: http://www.msjdn.org/wp-content/uploads/2012/12/2015-MSJDN-Survey-Report.pdf.

[4] Military Officers Association of America & Institute for Veterans and Military Families, Military Spouse Employment Report (February 2014) available at: http://vets.syr.edu/research/research-highlights/milspouse-survey/.

[5]Rule 1A:8. Military Spouse Provision Admission. Va. Sup.Ct. (2014).
kellycweb

Courtney Kelly is the Title IX coordinator and Assistant Director of Equity and Diversity at Old Dominion University. Ms. Kelly graduated from Albany Law School in 2010 and has worked in higher education since 2009. Ms. Kelly is a leading expert in both compliance and building diverse and equitable working and learning communities. Ms. Kelly is licensed in both Tennessee and Virginia. She serves as the region 2 representative for the Rule of Law Project.  Ms. Kelly can be reached at cmkelly@odu.edu.


Nicolle

Nicolle Vasquez Del Favero is an assistant attorney with Military Sealift Command under the Office of General Counsel for the Department of the Navy. Ms. Vasquez is a member of the Military Spouse Juris Doctor Network, serving on its nominating and pro bono committees. In addition, Ms. Vasquez is an active member of the Virginia State Bar, serving as the co-chair of the Wills For Heroes program as well as the Military Law Section liaison to the Young Lawyer’s Conference. Prior to her work with the Department of the Navy, Ms. Vasquez completed a two-year Skadden Fellowship. As a Skadden Fellow, Ms. Vasquez served as a staff attorney at the Domestic Violence Action Center in Hawaii, representing victims of domestic violence affiliated with the military. Ms. Vasquez is a graduate of the University of Florida and Northeastern University School of Law. Ms. Vasquez can be reached at nicolleav@gmail.com.