Category Archives: Features

LGBTQ+ CLIENTS IN TODAY’S LEGAL CASES

                                                         by Julie Currin, Esq.

        To begin to learn more about this diverse community, I did several immersion exercises.  I took a few days to binge-watch all the current episodes on the NETFLIX series “Queer Eye”.  In this series, five fabulous gay and/or transgender men help a nominated “hero” take a step forward in self-esteem, fashion, grooming, and furnishings.  Recently, they worked in Japan which added a new cultural dimension to the prior stories based in Philadelphia, PA,  a couple of Georgia cities, and a few more places in the Southeast United States.  I also read a Gender memoir by Jacob Tobias called “Sissy” about growing up gender non-conforming and nonbinary.  I attended a web-based continuing legal education program for LGBTQ+ Visibility Week on Seminal LGBTQ+ legal cases in the U.S. and U.K. and I did online research for tools used by clinicians with this population.  

        My study was designed around several same-sex marriages that were just now beginning the process of divorce in Virginia.  I wanted to find out the historical background of our clients to include family makeup, religiousness, coming out narrative, activism, trauma assessment (PTSD), basic alcohol screening and where indicated, suicide risk.  Then I wanted to answer two questions for use by the law firm where I am employed.  First, did the client feel accepted and treated with respect?  And second, how did the client feel the legal system was working for them as these are some of the first same-sex marriages interfacing with Virginia’s divorce laws.  

        Same-sex marriage became legal in Virginia on October 6, 2014, in the U.S. Supreme Court’s refusal to hear an appeal in the Fourth Circuit Court of Appeals case of Bostic v. Schaefer.  Yet it wasn’t until February 2019 that the Virginia General Assembly passed a bill to explicitly and legally include surrogacy contracts for same-sex couples.  In these intervening years, no changes were made to divorce law in the Commonwealth that might specifically address specific LGBTQ+ case differences.  So how is the old law working for same-sex couples in divorce?

        D, a 25-year-old white male who identifies as homosexual was born in Georgia.  He described his childhood as “traditional” although his parents were unmarried.  He attended church in his early years but did not feel his family held any strong religious beliefs.  He spent developmental years 6-12 in a group home along with 2 maternal brothers and one sister due to his mother’s mental health issues.  It was only after many narrative questions, when an open-ended catchall inquiry was made, that molestation by a maternal uncle at age 4-5 and by a teenage boy at age 6 was disclosed as “maybe impacting his sexuality.”  D is in the Navy and did not self-identify as gay until approximately 16.  He hid this since he attended a “ghetto” school which he defined as a lot of fights, nearby gunshots, and violence.  He first came out at 19 and first told his father at the age of 20.  He waited longer because his Dad had made unaccepting comments about a lesbian step-sibling and he felt he would be kicked out of the house.  He told his father when he was leaving for boot camp and so was out of the house.  His father was upset and took months to get over it.  His mother was more accepting, as were a younger half-brother and a maternal aunt.  He does not feel that his Navy career has been impacted by this life choice.  He presented as very easy-going, described himself as a “clean freak” who generally laughs off or lets slide offensive gay slurs or jokes.  He did not scale for alcohol abuse, briefly overusing at home between 20 to 22, nor for PTSD or suicide risk.  He does not engage in activism.

         The AUDIT-C or Alcohol Use Disorders Identification Test-Concise was utilized for all participants.  I also used the PCL-C or PTSD Checklist – Civilian Version and standard questions about suicidal ideation, any prior attempts, and current thought patterns.

        The main reason D feels his marriage did not last had to do with his mate not making the effort to be included in D’s extended family and feeling financially taken advantage of.   He did not feel in any way judged by the staff at our law firm nor did he feel that the legal system was working any differently for him than a straight couple.

        Having been the attorney working with D, these were not surprising results.  However, the late in the interview disclosure of youthful sexual exploitation made me aware of how important open-ended catchall questions can be in a narrative approach.

        My next participant was E, a 32-year-old Black Navy man born in Kingston, Jamaica.   E told me that childhood abuse was normalized in Jamaica during his early years.  He described being beat with paddles and belts.  He felt his father beat him more because he liked boys and tried to “beat it out of him” including hitting him with tree limbs, throwing stones at him, and punching him in the stomach.  He recognized his sexuality early at age 5 or 6, had his first experiences about 11 or 12, and at the age of 14 came out and was rejected by both parents initially.   One sister was accepting.  He feels he had to hide his inner self and be hypermasculine which caused great psychic stress culminating in two suicide attempts in his early twenties. Even now, E experiences psychosomatic reactions.  He said it is not easy being gay and Black, that it is stressful.  He struggles with self-acceptance and feeling worthy of God’s love as a result of his family upbringing and religious indoctrination. These are still impactful.  He does not abuse alcohol.  He feels African-Americans are less tolerant of homosexuality and that the church is hypocritical.  Because he is in the military, he continues to have to restrain his normal reactions to gay-bashing and feels that overt instances of public discrimination have increased under the current President.  He has symptoms of PTSD.  He uses exercise as a coping mechanism.

        E is married to a Muslim born in Senegal who has not come out yet to his family.  He feels two masculine gay men have a harder time making a relationship work like his marriage.  Although they began a divorce, E and his spouse are pausing in that process to try to work things out.  He felt accepted and not judged coming to our law firm for help.  He does not perceive at this stage of litigation that the legal system has treated his case any differently.  He would like me to interview his spouse.

        S is a 47-year-old white Bisexual female born in California.   She is highly educated and very verbal.   She describes herself as a “nerd jock.”  She has a degree in Psychology and teaches middle school health science/gym.  S has had significant relationships with men but leans more toward women.  She too has a military background.  She felt the need to hide her sexual identity when stationed overseas and when teaching in rural Virginia.  She feels accepted at the school where she teaches now.  She did not have a strong religious upbringing.  She did not screen in for alcohol abuse.  She does have symptoms of PTSD, including memory problems when highly stressed, anxiety and depression.  

        S married cross-culturally, an Asian woman with medical issues and raging tantrums.  After 9 years together and despite couples counseling and in-home separation, the parties are in an acrimonious divorce at this time.  There are accusations of adultery and domestic violence.  S feels the Courts treated her request for a protective order differently than in male/female cases.  Although she felt accepted at our firm, she feels her case is not progressing in the same way traditional couples divorcing would.  She feels the length of time it’s taking is traumatic and wonders if her attorney is making the same efforts, filing the same paperwork, pushing as hard in her case as in straight divorces.  She is interested in reading the final study paper.

        I had hoped to include one more female participant in this first grouping but was not able to schedule the interview before the deadline for this paper.  Nor do I include the first interview I reported because it was not as in-depth and did not have the benefit of the tools used in these three cases. Nor was I as immersed in LGBTQ+ issues at the time that I met with the first person.  

        As the first foray into these issues suggests, there is much we can learn about treating our LGBTQ+ clients with understanding and respect.  The truth is that we are “counselors” of law and when we identify issues that impact our client’s directly and potentially their cases, we have a duty to advise.  This could go so far as to take the form of a referral for professional counseling assistance but at minimum, we should be including additional questions in our intake documents and interviews to be better stewards of equal justice for all.

Julie Currin, Esq., is an attorney in Virginia Beach.

Exercise: The Cure For Stressed Out Lawyers

By Connie Morrissey Ruiz

        “Exercise and application produce order in our affairs, health of body, cheerfulness of mind, and these make us precious to our friends …” Thomas Jefferson.

These words were true when said by Mr. Jefferson but resonated from times past with the words of Hippocrates who said:

        “If we could give every individual the right amount of nourishment and exercise, not too little and not too much, we would have found the safest way to health.”

As active attorneys today scramble to operate in the new Covid-19 environment, the ordinary pressures of too much to do in too little time are aggravated by isolation in the pressure cooker of quarantine/lockdown rules.  Existing health issues, physical and mental, can become inflamed unless addressed by an effective response.

Exercise can contribute to a preventive strategy in personal health planning.  It also serves to maintain good physical and mental health as part of health maintenance planning.  Equally important, it has already been established that exercise can play a major role in various treatment regimens for existing diseases and injuries.

According to Dr. Robert Sallis, a family and sports medicine physician at Kaiser Permanente:

        “Regular exercise may be the most powerful medicine we have – more powerful in most cases than any pill or procedure.  We literally have thousands of years of data, going back to Hippocrates, that exercise has a powerful therapeutic effect.”

In February, the 2018 Physical Activity Guidelines Advisory Committee submitted its Scientific Report to the US Secretary of Health and Human Services. The report summarized the scientific evidence on physical activity and health and was used to develop the second edition of the Physical Activity Guidelines for Americans.

Treatment of Type 2 Diabetes provides one example.  For years it was common for doctors to prescribe Metaformin; considered the standard treatment.  Metaformin lowers blood sugar levels by improving the way the body handles insulin which is a benefit for both those with Type 2 Diabetes as well as those who are pre-diabetic.   This drug is listed on the World Health Organization as an essential medicine deemed effective and safe.  However, doctors were amazed at the results of the Diabetes Prevention Program after a lifestyle of exercise and diet outperformed the drug Metaformin in a head-to-head comparison over 15 years, preventing people at high risk for diabetes from developing the disease.   Additional information on exercise treatment benefits can be found in the article Exercise Is the Answer for All That Ails You by Markham Heid.[1]

The impact on mental health cannot be overstated.  Studies have consistently shown that exercise can also enhance memory, improve attention, alleviate depression and equally important, can ward off neurodegenerative disorders like Alzheimer’s and Parkinson’s disease.  

The same endorphins that are released with exercise to make one feel good also stimulate the growth of new brain cells and help prevent age-related decline.  As explained in the article This Is What Exercise Does to Your Brain by Dana G Smith[2]:

        “Scientists are starting to discover how exercise increases levels of important hormones and neurochemicals that help forge new connections between brain cells, and may even lead to the birth of neurons in an area of the brain called the hippocampus, the organ’s mood and memory hub.”

If Exercise were Classified as a Drug, It Would Be Called A Miracle Drug

Exercise is the ultimate “work smarter not harder” to be healthier for day-to-day wellness essential to our daily performance in our jobs and careers.  It can strengthen immune systems to combat Covid-19 as well as the yearly flu and cold season and to prevent and/or treat diseases that we all long to prevent in our aging years like cancer, diabetes, and Alzheimer’s. Here are some stark statistics in 2020 from Research America:

  • More than 78 million adults (or 35.7%) and more than 12.5 million children (or 16.9%) in the U.S. are classified as obese.
  • By increasing the risk for cardiovascular diseases, Type 2 diabetes, and most cancers, obesity contributes to 1 in 10 deaths, making it the second leading cause of preventable death in the U.S.
  • Obese individuals with diabetes or high blood pressure have a 26% greater risk of death than healthy-weight individuals.

Not enough attention is paid to the fact that the widespread adoption of effective exercise programs by Americans, combined with a proper diet plan, could result in a major reduction in health care costs associated with funding levels in Medicare and Medicaid, not to mention the private insurance market.  Americans have become too accustomed to taking pills as the first answer to nearly all health exigencies and doctors have been incentivized by pharmaceutical manufacturers to push their drugs.  Exercise, the miracle drug, is the elephant in the room.

How to Get Started: Begin With An Honest Assessment.

Are any of the following self-descriptive:

  • lethargy
  • irritability
  • depression
  • health issues
  • increasing dependency on pharmaceuticals and/or alcohol
  • strained personal and/or professional relations?

The answers should be honest as the information need not be shared with others.  The assessment should indicate the extent exercise can be a solution to any of these.

How quickly can an effective exercise program be incorporated into your lifestyle?  The short answer is immediately.  Any exercise is better than none.  Even desk-bound, standing up and walking around regularly, doing push-ups even against the wall can provide a start.  If gyms survive the Covid-19 shutdowns, there may remain multiple options available with qualified fitness professionals to guide the development of tailored exercise programs.  Multiple self-administered and group-led exercise programs also can be found online.

If a busy professional is unable to dedicate the World Health Organization  recommendation of 2.5 hours a week for exercise as a preventive health strategy (far short of the 2 hours each day adopted by Mr. Jefferson in his regimen), there are emerging alternatives available to achieve real results in record time.  One such method utilizes electronic muscle stimulation (EMS).  

EMS initially started gaining recognition as a means of enhancing sports training starting in the 1960’s when the Soviet sports scientists were using it with elite athletes and claiming force gains up to 40%.  The first EMS approach was with self-adhesive pads used both for rehabilitation as well as for strength performance in athletes.  However, since 2007, EMS has transitioned to Whole-Body EMS so when combined with an exercise routine lead by a certified Personal Trainer specialized in working with the technology, a 20-minute workout can elicit enough muscle contractions to be comparable to a traditional 90-minute workout.  Since then, the whole-body EMS approach spread thereafter to fitness clubs in Europe and has been made available to the public in multiple countries, now including the United States.

EMS represents the new wave of efficient exercise opportunities for Americans to ward off multiple medical/mental health issues and to promote overall well-being. One US provider of EMS technology is Personal20, owned and operated by this author, located in Herndon, Virginia, for time-limited professionals, with an additional location being planned.  There are a few other providers of the EMS technology and the industry is expected to grow.

Specifically, the development of the evidence-based P20 Method provides a whole-body workout with little pressure on joints.  By sending electric impulses to the muscles through the motor nerves, while doing simple exercises, they stimulate even weakened muscle connections.  Both slow and fast-twitch muscles are activated from the start so that a more intense, although low impact, level of training is received. On the Personal20.com website, there are multiple Google reviews from professionals, touting its effectiveness, including a review by the Chief Legal and Compliance Officer at Tata Communications.

More recently, EMS has been successfully introduced in clinical settings to help patients requiring physical therapy and chiropractic services. Promising results are emerging for those suffering from back pain, hypermobility issues, injury rehabilitation, and even pre-surgery strength development, especially for joint replacement/surgery.  

Summary

Attorneys are not excluded from the physical and mental health afflictions impacting all Americans.  Moreover, the pressures of stress and time limitations increase the chances of serious illness.  Knowledge about reasons and opportunities for change comes first.  Then taking the first/next step follows.  Addiction to the miracle drug of exercise is one addiction everyone can get behind.  The potential for improved health is unlimited and the potential for lowered healthcare costs is enormous.  Today is not too late to start.

About the Author

Ms. Ruiz is a co-founder of Personal20 EMS Studios and the Vivafit Women’s Boutique Fitness Franchise.  She is qualified as an EMS Specialist, Health and Fitness professional with several present and past certifications including:  EMS Certification by E-Fit, XBody, and Miha Bodytec; also American Sport & Fitness Personal Training, Michael King Pilates (formerly Pilates Institute),  AFAA and ACSM Group Fitness, Les Mills Body Pump, RPM, and Body Combat.  Ms. Ruiz has been invited to speak at national and international fitness conferences such as those sponsored by the International Health, Racquet & Sports Club Association (IHRSA), the ForumClub International Congress & FIBO Global Fitness.

For questions and additional information, she may be contacted through the website Personal20.com, or directly at constance@personal20.com.


Equal Justice and Legal Services for the Poor: An Elusive Goal

by: Alexander Hewes[1]

        “Equal justice under law is not merely a caption on the facade of the Supreme Court         building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” 

– Lewis Powell, Jr., U.S. Supreme Court Justice

The National History:

        Organized civil legal aid for impoverished citizens in America can be traced to the end and immediate aftermath of the Civil War. The Freedmen’s Bureau, first known as the Bureau of Refugees, Freedmen and Abandoned Lands, was established by an act of Congress on March 3, 1865, two months before Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomattox Court House.  It was intended to help millions of former black slaves and poor whites in the South in the aftermath of the Civil War. The Freedmen’s Bureau established schools and offered legal assistance, while also providing food, housing and medical aid.

        The first legal aid society, a private charitable program, was established by lawyers in New York City in 1876 as the Legal Aid Society of New York. Its initial purpose was to defend the rights of German immigrants who could not afford to hire a lawyer. In 1890, a large donation from the Rockefeller Family allowed the organization to expand the reach of its services to include individuals from every background.

        In the following decades, the legal aid movement spread in the urban centers of the United States and, by 1965, virtually every major city had some kind of program. At that time, there were nearly 300 organizations employing over 400 full-time lawyers. Yet, there was no national program. Many legal aid programs were private corporations. Others were sponsored by bar associations, relying heavily on the donated time of lawyers. Some were part of governmental units, usually municipalities. Some were part of other social agencies.

        The federal Legal Services Program began in the Office of Economic Opportunity in 1965, as part of President Lyndon Johnson’s War on Poverty. The OEO created a structure that was based on the civil legal aid model and on demonstration projects that had been operating in New Haven, New York, Boston and Washington, D.C., funded by the Ford Foundation in the early 1960s.  Yet the development and progress of Federal legal assistance programs for the poor has been uneven with differing levels of resistance unrelated to the underlying need to provide services.

        They shared some common characteristics.  First, the resources were impossibly inadequate.   With limited resources and a high number of eligible clients, legal aid generally gave perfunctory service to a high volume of clients.  Going to court was rare.  Appeals were even more rare.  Legal aid had little effect on those it was intended to serve and the client population as a whole.

        As it developed, the federal Legal Services Program took cues from the pioneering work of the NAACP and its legacy of fighting legal battles to win social justice for African Americans that began in 1909.  The architects of the federal legal services program realized that the law could be used as an instrument for orderly and constructive social change as a supplement to what was being achieved by lawyers for the civil rights and civil liberties movements.  

        Clint Bamberger, the first director of the Legal Services Program, told the annual meeting of the National Legal Aid and Defender Association in 1965 that “Lawyers must be activists to leave a contribution to society. The law is more than a control; it is an instrument for social change. The role of [the] OEO program is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty.”

        A year later, Bamberger told the National Conference of Bar Presidents: “We cannot be content with the creation of systems of rendering free legal assistance to all the people who need but cannot afford a lawyer’s advice. This program must contribute to the success of the War on Poverty. Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty. Lawyers must uncover the legal causes of poverty, remodel the system which generates the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression, and despair to opportunity, hope and ambition.”

        Although many legal aid clients received public assistance prior to the mid-1960’s, no effort had been made to challenge questionable policies adopted by agencies providing such assistance – i.e., no “welfare law” had been developed. Similarly, what became known “housing law,” “consumer law,” “health law,” and the like did not exist.

Virginia’s History

        Virginia’s history of providing legal services to the poor followed an organizational path parallel to national history.  Before 1964, the majority of the legal needs of the poor were addressed by volunteer lawyers or private charitable organizations without state or national coordination.

        As early as 1906, the then-named Associated Charities of Richmond (became the Family Service Society and then Family Lifeline) had a legal department whose mission was to enforce the laws for the protection of women and children.[2]  Local bar associations also maintained legal aid programs, but these were all-volunteer and only provided a fraction of what was needed to address the legal needs of the indigent.  

        Before 1964, the only bar association in Virginia with a formal pro bono program was the Arlington Bar Association which has operated a pro bono referral program since the early 1950s.  The population density in that County generated enough foot traffic to make the program practical but the same demographics obviously did not exist in many parts of the Commonwealth and the rural poor were particularly short-changed on legal services.  This was a likely reason for the shortage of formal pro bono programs before the 1960s.

        Funded by the OEO, at least seven legal services organizations in Virginia were established in the late 1960s and early 1970s.  Yet the organized delivery of legal services to the indigent in Virginia was not a top-down development initiative by the Office of Economic Opportunity or Legal Services Corporation.  The Commonwealth’s first legal aid organization, the Legal Aid Society of Eastern Virginia, was established after the Norfolk Bar Association  applied to the OEO for a grant in 1996 which it used to establish what was then called Tidewater Legal Aid.  A separate example of a ground-up initiative came with the establishment of what is now the Legal Aid Justice Center (LAJC).  The forerunner to this organization was rooted in a pro bono partnership between University of Virginia law students and local attorneys who came together to attempt to meet the unmet legal aids of low income citizens in the area.  They formed Charlottesville-Albemarle Legal Aid, which became a formalized legal aid program in 1967.

        In addition, the time period from 1964 to 1982 also saw the emergence of the first clinical education programs at Virginia law schools.  Although the principal motivating factor behind this development was the students’ need for real-world experience, the clinics had the collateral benefit of providing legal services to indigent clients.  The first such program was the Alderson Legal Assistance Program established in 1968 at Washington and Lee School of Law, which provided legal services to female inmates at the Alderson Federal Correctional Institution (now the Alderson Federal Prison Camp).  The second legal clinic in Virginia was organized by John Levy at William and Mary School of Law in 1976.

        Despite these early initiatives, a 1991 Virginia State Bar and Virginia Bar Association Joint Committee to Study Legal Services in Virginia discovered that 84 percent of the Commonwealth’s poor lacked the benefit of counsel when confronted with a serious legal problem.   Since the mid 1990’s dozens of Virginia law firms have committed resources to the development of programs encouraging and promoting pro bono support, from fully integrated internal projects to fellowships and internships, as well as collaborations with outside groups, bar associations and law schools.

Virginia Current Day.

        Today, there is a plethora of alternative delivery systems for legal services to the poor that are either sponsored, or recognized by the VSB.  The VSB regularly updates its lists of regional and statewide programs that have been approved as official Qualified Legal Services Providers, as well as contact information for their pro bono coordinators. 

        The VSB website also links to the “JusticeServer” which was developed in collaboration with the Greater Richmond Bar Foundation, the Legal Aid Justice Center and Central Virginia Legal Aid Society to leverage the latest technology in providing pro bono legal services to low income clients.  This all-inclusive, state-wide case management and referral system enables private attorneys to accept and work on pro bono cases from their own computers. Each attorney can create a confidential profile, view pro bono opportunities available in their practice area and location, and find the resources to assist with handling the legal matter.

        Also, the VSB provides free webinar pro bono training and the Virginia CLE offers free content for attorneys dedicated to filling the justice gap by providing pro bono representation to their fellow Virginians.  Separately, the VSB maintains a list of Military & Veteran Pro Bono Projects intended to serve veterans.

The Continuing Shortfall

        With this history of accomplishment, it is disheartening to note that when Governor Ralph Northam recognized October 2019 as Pro Bono Month, he reported that more than 80 percent of the civil legal needs of the poor in Virginia go unmet and that one in eight Virginians were then eligible for free legal services from Virginia’s legal aid programs.   It is certain that there is a disparate impact on the rural poor who have even more limited transportation and communication options.  It is clear that much more needs to be done.  Expanded broadband coverage and internet access, coupled with an ethically-guided use of artificial intelligence programs can provide some relief but infrastructure and formal organizations can take things just so far.  Just as Virginia’s history of innovative local leadership has depended on the voluntary efforts of lawyers in each community, so too the still unmet needs of the indigent require more effort from lawyers capable of providing those needed services.

        The VSB’s Rule 6.1 of the Rules of Professional Conduct creates an aspirational goal that Virginia lawyers take professional time – at least 2 percent per year – to do pro bono publico legal services.   With an attorney that generates 1800 billable hours per year, that amounts to a total of 36 hours; hardly a burden.

        While a greater effort is required it is worth pointing out that the needs of the poor should not be used to fuel political agendas of any kind.  If we are going to come close to the standard described by Justice Powell, quoted above, it will require the cooperation of all and a unity of purpose.


[1] Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; with prior service in private practice and on the Staff of the United States Senate Committee on Banking, Housing and Urban Affairs.  He is an author and lecturer on various legal issues and is currently in private practice in Winchester, Virginia, also serving as a member of the Invictus Editorial Board.

[2] Mary Frances Shelburne, A Brief History of the Family Service Society of Richmond, Virginia, WILLIAM & MARY, 1932, ret. 14 Dec. 2017.

A.I. Will Augment Access to Legal Services for the Needy

We all think of this robot as A.I., however, it is so much more.

By: Alexander Hewes, Esq.

        The Virginia State Bar’s (VSB) Diversity Conference Mission Statement includes, “…ensuring that Virginians changing legal needs are met.”  Unfortunately, the legal needs of the majority of Virginia’s citizenry are not being met at all.  Neither will the volunteer efforts of the legal profession and a handful of legal clinics, no matter how well meaning, suffice to meet those needs.

        However, the expanding use of Artificial Intelligence (A.I.) in the legal arena offers opportunities to provide badly needed legal services to the many forgotten Virginians, well within the ethical confines of the VSB.  The spread of the Covid-19 virus has brought the need for expanded broadband coverage into sharper focus and, on a more hopeful note, may enhance the efforts already underway to bring rural Virginians closer to achieving equal access to justice.

The Legal Void

        In 2017, Virginia’s population with access to broadband reportedly remained at 96% and continued to rank within the top ten nationally in average connection speed, average peak connection speed and broadband adoption.  Yet, according to the 2015 FCC rural broadband report, approximately 64% of Virginia’s rural population lacked access to broadband (approximately 714,000 Virginians).  

        This gap in services to the rural population in Virginia is taking place alongside the explosion in data collection and the use of social media with A.I. applications multiplying exponentially. The numbers are mind-boggling. The percentage of adults in the United States who use social media increased from 5% in 2005 to 79% in 2019.

        Over the last two years alone, 90 percent of the data in the world was generated. The advances in the telecom sector, supplemented by the dramatic increases in processing capabilities, along with innovations in the field of software engineering, open new avenues to provide legal services to Virginia’s forgotten citizenry. A.I. is such a vehicle.

A.I.’s Impact on Legal Services

        A.I., generally referred to as cognitive computing, has been employed by the legal profession for some time.  As a few examples denote:

  • Natural-language searching in online legal research;  
  • Voice recognition technology for dictation and in court rooms; and
  • Predictive coding in e-discovery for scanning millions of documents in search of key phrases.

        The future holds promise for expanded applications of A.I. such as “outcome forecasting” (predicting outcomes of administrative and litigation proceedings based on analyses of historical data) and the use of chatbots (automated voice messaging) intended to supplement the attorney-client communications necessary for an effective representation.

         A.I. could also allow for access by clients to administrative and litigation-related filings.  The implications are also significant for extending the reach of legal services geographically, though dependent on the continued expansion of broadband coverage.

Ethical Concerns Related to A.I.

        As a starting point, it is important for attorneys to remain familiar with the relevant Virginia State Bar Rules of Professional Conduct (“Rules”), plus the Comments that follow each, along with certain Legal Ethics Opinions (LEO).  Beyond the Rules, there are additional ethical concerns that should be considered with respect to the use of A.I.

        Rule 1.1 Competence: Requires competent representation of a client based on having and providing the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

        Comment [6] to the Rule: To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology

        LEO 1872, approved by the Virginia Supreme Court on October 2, 2019, cites all of the relevant Rules and LEOs.  Collectively, they offer useful guidance on lawyer/client communications based partly or exclusively on the use of secure Internet portals, emails, or other electronic messaging.  Addressed in the context of utilizing a “virtual office”, the central point stresses the importance of the substantive information transmitted to clients under the circumstances, not the method of communication.  

        In addition to Rule 1.1, this LEO also cites the related and applicable Rules, namely, 1.6(a) and (d), Confidentiality of Information; 5.1(a) and (b), Responsibilities of Partners and Supervisory Lawyers; 5.3(a) and (b), Responsibilities Regarding Nonlawyer Assistants; and 7.1 Communications Concerning a Lawyer’s Services.

        Other relevant LEOs cited, and worth reviewing, are 1600, Aiding Unauthorized Practice of Law – Nonlawyer Personnel – Misconduct:  Level of Direct Supervision of Nonlawyer Personnel Required, 1791, Ethics of Email and Telephone Communications, 1818, Whether the Client’s File May Contain Only Electronic Documents; and 1850, Outsourcing Legal Services.

WHAT A.I. PORTENDS

        The algorithms that form the backbone of A.I. can have built in unintentional biases because of the neutrality of the data and the way it is being analyzed.  For example, using a commercial software application for screening prospective employees, entering certain criteria, could exclude certain minorities and other protected classes.

         Equally important, there are State and Federal privacy laws that come into play, particularly those dealing with patient healthcare and financial records.  Many of these laws provide for both civil and criminal sanctions in the event that they are breached.

        Nevertheless, A.I represents the future as data grows along with processing speeds and broadband coverage expands to rural and other poorly served population centers of Virginia.  The potential to extend the coverage of needed legal services for all Virginians through A.I. is real; with guidance from the VSB, A.I. can accomplish that task well within the ethical confines of the profession.

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Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; and an author/lecturer on IT and related legal issues. He is currently in private practice in Winchester, Virginia; and a member of the Invictus Editorial Board.

Automation: A Tool to Access a Greater Population

By: Chris Fortier

According to the ABA Future of the Legal Profession report, 78% of individuals with legal problems do not consult a lawyer.  A scarier statistic, 16% of those do not consult anyone about their issue. Of the reasons these individuals stated as to why they do not consult lawyers, affordability and the client experience were the reasons they did not go to a lawyer.  As a legal profession, we have to improve the client experience.  We have to create affordable options that serve our clients while allowing lawyers to have a living.

One of those tools we can use to improve the client experience is automation. Almost all parts of your workflow can be automated.  According to solo attorney Lauren Lester of Denver, Colorado, the business case for automation means “opening the vault to legal documents (which the internet and alternative legal service providers already do), automating the tasks that we are not valued to do (such as cutting and pasting clauses or paragraphs from other documents), and focusing on what makes us who we are; listening, providing advice, solving problems, and reviewing proposals to make sure they fulfill what our clients want or need.”

However, before you purchase your first piece of automation, draw out (or design) your workflow. Think of the client experience from the first interaction through the end of the representation. Where are decisions made? Where does data move between you and your employees or your client, opposing counsel, or the courts?  What products do you produce in your practice?  Answering these questions can clear up your workflow and show you where you can automate.

While client and case management portfolios such as Clio and RocketMatter can provide many services to simplify managing your law office, there are many free (and pay) products that allow you to move mundane tasks to the cloud or your computer.  Numerous products exist in the marketplace to cover client intake, customer relationship management, document automation, calendaring, time management, billing, messaging, blogging, and website management, amongst others.

When shopping for products, consider your staff’s needs as well as fellow attorneys in your firm. Many products have significant costs, therefore, these investments cannot be taken lightly. Discuss your processes with your staff, looking for their pain points, and see possible improvements in customer service?  Where do you see struggles in achieving your business goals?  These are your starting points for shopping. Many products give you a free seven, ten, fourteen, or thirty-day trial and are meant to orient you to the software.  To get a full feel of how the software can change your processes, you will need to operate with it for a year.

Finally, consider attending a technology conference such as VSB TechShow, full of tech related advice with speakers and attendees are enthusiastic and willing to share their experiences.

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Chris Fortier serves on the Board of Governors of the Diversity Conference, working on Invictus and the Diversity Conference website and social media. In his day job, he is an Attorney-Advisor at the Social Security Administration (SSA). He is a past ABA TECHSHOW and VSB Techshow speaker. The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

Get the Most out of Your Millennial Lawyers

By Victoria Walker, Esq.

VSB Techshow 2020 was to feature a session entitled, “Young Lawyers and Tech: How Everyone Can Learn & Benefit” which will look at how Millennial lawyers are shaping the practice of law. Below are some tips that would have been highlighted in that discussion:

Remember Who Millennials Are

Millennials don’t have the best reputation. They are seen as entitled, selfish, lazy and impatient. While these characterizations may be unfair, it is important to consider how Millennials grew up. Helicopter parenting rose to prominence (or at least earned its moniker) in the early 2000s when the early Millennials, parented by Baby Boomers, started college. Admissions professionals noticed the increasing involvement of parents in every part of the college application, matriculation and graduation processes. Helicopter parents have frequent communication with their children and they maintain a high level of investment and interest in the lives of their children well into adulthood. This upbringing shapes the way Millennials view authoritative figures, including employers.

Now consider the economic landscape Millennial lawyers have had to navigate. Millennials have fewer assets, more debt, and lower income than older generations. Many Millennials weathered the Great Recession better than those who started their careers in the Great Depression because they were able to live with their wealthy (helicopter) parents early in their careers. The way in which Millennial lawyers were raised (more hands-on parenting with frequent two-way feedback) and entered their careers (more debt and lower income) has influenced their workplace expectations. They expect their employers to demonstrate a commitment to their long-term personal and professional success early on, but it takes time for Millennials to commit to their employer’s long-term success.

Your Organization’s Culture Matters

Millennial lawyers are committed to diversity and inclusion (D&I) but these values have broader implications. Young lawyers want to see a change to the “country club” culture that has been a feature of the legal profession for so long. There is an expectation that leaders will walk the talk when it comes to achieving and maintaining D&I, as demonstrated by plans and benchmarks that hold decision makers accountable for meeting organizational D&I goals.

In addition to a commitment to D&I, Millennial lawyers want a workplace that facilitates relationship-building through formal and informal mentorship programs and collaboration. One way to signal to employees that these programs are valuable is by making the time spent bonus-eligible. Do not make your employees choose between billable hours and time with a mentor/mentee. When it comes to collaboration, employers should ensure that opportunities to work closely with partners and other decision makers are made widely and equally available to all employees.

Millennials Value Efficiency

Despite their reputation, Millennials are hard workers but they are always looking for ways to make processes more efficient. The adage “That’s the way things have always been done” is not a sufficient explanation for inefficient processes when it comes to young lawyers. Time wasted on inefficiencies could be better spent on pro bono matters, brand management or other professional development.

Similarly, Millennial lawyers regularly seek feedback on the substance of their work because it allows them to work more efficiently. This habit is often viewed as an inability to work independently but feedback allows young lawyers to improve their work before it is complete as opposed to after. Young lawyers do not want to repeat mistakes or make avoidable mistakes and they are less likely to do so if you tell them why something they have done is wrong and set forth clear expectations. By providing your Millennial lawyers with constructive feedback and guidance, you help shore up their commitment to your organization and facilitate them becoming more efficient lawyers.

Finally, technology plays a role in allowing Millennial lawyers to work more efficiently. From virtual private networks to practice management programs, Millennials embrace the possibilities that are inherent with technology. While their predecessors largely focus on the risks inherent to new technologies, young lawyers tend to focus on the many benefits, such as mobility, automation, connectivity (with colleagues and clients), a better client experience, and lower overhead costs. These are all efficiency benefits that accompany the adoption of technology amongst legal service providers. Create space for your young lawyers to offer suggestions on making processes more efficient, including solutions that are technology-based. When organizations embrace technology and its benefits, they signal to Millennial lawyers that they are committed to working efficiently. This is a winning message for today’s young lawyer.

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Victoria Walker, Esq., is Associate Counsel with the Board of Veterans’ Appeals in Washington, DC. She also serves on the Board of Governors of the VSB Young Lawyers Conference.

96 Percent of Deepfake Videos Are Women Engaged in Sexual Acts

by Sharon D. Nelson, Esq. and John W. Simek
© 2020 Sensei Enterprises, Inc.

We’ve spent a lot of time worrying about the possible effect of deepfake videos on the 2020 election.

While that’s a real concern, we were blown away by the stats in a report from Deeptrace Labs. The most startling statistic was that 96% of fake videos across the internet are of women, mostly celebrities, whose images are used in sexual fantasy deepfakes without their consent.

A deepfake is a video edited using an algorithm to replace someone on a video with a different person and make it look authentic. The result is a video portraying the person as doing or saying something they did not do. Deeptrace Labs identified 14,678 deepfake videos across a number of streaming platforms and porn sites, a 100 percent increase over its previous measurement of 7,964 videos in December of 2018.

Sadly, we imagine we’ll see a surge in lawyers representing exploited celebrities whose publicity rights have been violated. Far worse, we are quite sure those women (and non-celebrities too) feel physically violated by these images. Revenge porn (targeting ex-girlfriends/wives) has also been taken to a whole new level with the use of deepfake videos.

The top four websites dedicated to hosting deepfakes received a combined 134 million views on such videos. There is, sadly, no absence of demand for these images.

There are places you go on the internet (I’m not going to give them publicity here) with a lineup of celebrities. Their faces move, smile and blink as you move around them. They are fully nude, waiting for you to decide what you’ll do to them as you peruse a menu of sex positions. Inevitably, because there is so much money to be made, the sex will be of all kinds, including rape.

We briefly watched a snippet from one of the videos. It was creepy and nauseating. To think that a real woman somewhere would have to cope with seeing herself manipulated by a user in this manner is horrific. And of course, those behind the videos will move to using children as well because they can and because there is a market. The full force of the law needs to stop revenge porn, the violation of publicity rights of celebrities, and the non-consensual use of anyone’s face in these videos. Where the laws are currently insufficient, we need new and stronger laws.

Most of the states have revenge porn laws of some kind, sometimes weak laws with minor penalties. The laws tend to assume postings by a vengeful ex-spouse or lover rather than a mass market for products capitalizing on the demand for celebrities in sexual deepfake videos.

Sharing deepfake revenge porn is now a specific crime in Virginia (effective July 1, 2019). We have not seen a study of current revenge porn laws fail to specifically criminalize deepfake revenger porn videos, but it is a good guess that many state laws are now inadequate. The federal government (we know you are shocked) has not been able to agree on a law outlawing revenge porn deepfakes.

How do we combat the spread of $50 apps like DeepNude (thankfully defunct as we write, but there will be others), which could undress women in a single click? DeepNude was trained on more than 10,000 images of nude women and would provide the undressed woman within 30 seconds—and of course the image could be shared to smear reputations (sending it to the woman’s employer or friends and family) or to post online as revenge porn.

Let’s hope our legislatures and the federal government pass laws with teeth to put a stop to this online debasement of women.

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The authors are the President and Vice President of Sensei Enterprises, Inc., a legal technology, cybersecurity and digital forensics firm based in Fairfax, VA. 703-359-0700 (phone) https://senseient.com

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.

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