Civil Practice and Procedure

Christopher S. Dadak*

This article addresses changes and notable analyses in approximately a year’s worth of Supreme Court of Virginia opinions, passed legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure. This article is not meant to be all encompassing, but it does endeavor to capture the highlights of changes or analyses regarding Virginia civil procedure. The opinions discussed throughout this article do not all reflect changes in Virginia jurisprudence on civil procedure. Some address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The article first addresses opinions of the supreme court, then new legislation enacted during the 2018 General Assembly Session, and finally approved revisions to the Rules of the Supreme Court of Virginia.

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Corporate and Business Law

Christopher L. McLean*

The past two years have produced a number of pieces of legislation from the Virginia General Assembly that serve to bring the set of Virginia business entity statutes up to date with its peers around the country. Part I highlights changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Nonstock Corporation Act (“VNSCA”). Part II highlights changes to the Virginia Securities Act (“VSA”) and other statutes affecting Virginia business entities. Part III reviews two significant cases that the Supreme Court of Virginia decided over the past two years with respect to Virginia corporate law. Those decisions provided guidance on the concept of a foreign company “transacting business” in Virginia, the ability of a foreign company to maintain a suit in Virginia without properly obtaining a certificate from the Virginia State Corporation Commission (“Commission”) as a registered foreign company, and the survival of the “futility exception” with respect to derivative suits by members of a limited liability company (“LLC”).

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Family Law

Allison Anna Tait*

Once again this year, the Virginia courts and legislature have been occupied with a range of family law matters—from divorce, to custody, to support. Spousal support, in particular, has been much discussed in legislative chambers, as well as in courtrooms, and significant legislative changes will redesign how divorcing couples draft settlement agreements in the coming years. In other areas, there has been less activity and fewer results. Both the House of Delegates and the Senate of Virginia failed to move out of committee bills that would repeal “the statutory prohibitions on same-sex marriages and civil unions or other arrangements between persons of the same sex purporting to bestow the privileges and obligations of marriage.” Similarly stuck in committee was a bill to repeal the crime of adultery, and one to make “parenting and marriage terminology gender-neutral in the relevant law regarding adoption.”

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Professional Responsibility

James McCauley*

This article briefly describes some recent amendments to the Virginia Rules of Professional Conduct adopted by the Supreme Court of Virginia in 2016 and 2017. The changes affect the lawyer’s duty to protect confidential client information in this digital age, lawyer advertising and solicitation, and candor with a tribunal. The article also discusses two legal ethics opinions adopted by the court addressing a lawyer’s obligations when faced with another lawyer suffering from an impairment.

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Wills, Trusts, and Estates

J. William Grat, Jr.* & Katherine E. Ramsey**

The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities’ eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations’ administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors’ stock holdings, the disposition of unused tax credits at the taxpayer’s death, and fiduciary qualification without surety. The Supreme Court of Virginia handed down eight recent decisions addressing the presumption of undue influence, requirements for estoppel and preclusion, the signature requirement for a proper codicil, trust governing law and interpretation, the fiduciary duties of agents, the jurisdiction of Commissioners of Accounts, and appraisal requirements for state tax credits.

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Closed Meetings Under FOIA Turn Fifty: The Old, the New, and What to Do

Tyler C. Southall*

The Commonwealth of Virginia boasts the location of the first permanent English settlement in the nation and takes pride in its long history of meetings of representative bodies. Since 1968, the Virginia Freedom of Information Act (“FOIA”) has ensured the public access to those meetings in order to provide that “[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.” Although FOIA allows meetings to be closed to the public for various topics of discussion,3 one might expect to find that given Virginia’s long history and the law’s expectations of openness, Virginians would have long ago reached agreement on the law and practice surrounding open and closed meetings. However, since the beginning of 2016, legislators have pushed stricter penalties for violating FOIA, an elite public university found itself in a firestorm over a closed meeting, the Supreme Court of Virginia weighed in on a closed meeting case, and the Virginia Freedom of Information Act Advisory Council (“FOIA Council”) issued opinions reminding government entities of the nuances of the law. In a political environment that has become increasingly contentious, elected and appointed officials have reason to fear for the legal, ethical, and political implications of their actions every time they enter a closed meeting.

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Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth

Nadine Marsh-Carter*, Bruin S. Richardson, III**, Laura Ash-Brackley*** & Cassie Baudeán Cunningham****

In 2017, 446 youths left the foster care system in Virginia without a permanent family. The most recent data shows that nationwide, approximately 20,500 youths leave the foster care system without a permanent family each year. Out of fifty states, Virginia is ranked forty-ninth for the rate at which youth exit the foster care system without permanency. In 2016, Virginia had 19% of foster youth age out of foster care as compared to 8% nationally.

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