what’s your thing? personal branding for the young lawyer

The Official Newsletter of the Young Lawyers Conference of the Virginia State Bar Patrick J. Austin, Esq., Editor Volume 32, Issue 4 • Winter 2017

As a young lawyer in the early stages of your career, it is easy to forget that you, and you alone, are ultimately responsible for the development of your personal brand. While you are busy building your firm’s brand, make sure to carve out some time to build your own. To get you started, here is some guidance.

What is a Personal Brand?

There are many definitions and explanations for what constitutes a personal brand. However, it is best (and most succinctly) summed up as one’s unique promise of value. Your personal brand usually conveys information about your passion, talent, values, purpose, or distinction. This quality or attribute is that thing about you that comes to mind when your colleagues or clients think about you. It is what you intend to convey to people you meet in networking or other professional settings. It is what others perceive to be the essence of who you are as a professional. If every lawyer had a logo, it would be your logo along with the thoughts and feelings that surface when your colleagues and clients look at it.

Why is Your Personal Brand Important?

It is important because your brand represents your value and the perception of your value. If you do not take the time to develop your personal brand, others will do it for you, and that may not serve your professional goals well.

An effective personal brand can reap a number of benefits for a young lawyer. It gives you a degree of legitimacy because people can know about you and what you stand for before they actually meet you. A strong personal brand translates into confidence by others in you and the unique value you bring as a professional. This gives you a competitive edge in a very competitive profession. You can begin to build a reputation for yourself as an expert or thought leader in a particular area of law, on a particular topic, or for a particular skill NOW by crafting an effective personal brand (and strategy). Or you can simply wait until you have practiced for 30 years and hope that you are known for what you want to be known for.

How Do You Build a Brand?

Marketing is all about repetition, consistency, and reinforcement. The development of an effective personal brand requires those same three components. Because of this, the process of building and maintaining a brand is one that is constantly in motion. The first thing you must do is take some time to identify what it is that you want to be known for—a passion, a talent, or a skill; an articulable set of values; a purpose; or an articulable distinction. Next, you should assess where you are now and whether your current professional and personal activities align with that thing. If they do, then you can begin to build.

You can build by taking advantage of all that social and digital media have to offer by making yourself visible in the context of that thing. Write on it. Tweet on it. Post on it. Engage with current thought leaders in a public forum (digital or otherwise) on that thing. Contribute to the YLC blog and Docket Call.

There is also a world of opportunity outside of the digital world. Seek out opportunities from your alma mater to engage with alumni, students, and professors on your area of expertise. Gain exposure by insisting that your signature block appear on that motion. Create opportunities for yourself by getting involved with bar associations. Identify community organizations or trade associations that would benefit from your passion, talent, or purpose and engage with those members. Make connections and cultivate meaningful relationships with those who are experts in your practice area or your desired practice area. Be present and purposeful at networking events and look for openings to discuss your thing. Highlight your successes (even the small ones). Rinse. Wash. Repeat.

We work in a day and age where one’s professional trajectory is as unpredictable as it ever has been. By intentionally developing your brand, you not only build the perception of exceptionalism but you also increase your network and open doors for future professional opportunities.

What’s Your Thing? Personal Branding for the Young LawyerBy Victoria Walker

Victoria Walker is a 2014 graduate of George Mason University School of Law and currently works as an associate at McCree Ndjatou in Washington, D.C.

Q&A with 2016 Legal Aid Lawyer of the Year Simon Sandoval-Moshenberg

Patrick J. Austin

Simon Sandoval-Moshenberg has dedicated his life to promoting social justice and representing those truly in need across the Commonwealth. This is why largely he was the recipient of the 2016 Virginia Legal Aid Award from the Virginia State Bar’s Access to Legal Services Committee.

Sandoval-Moshenberg is the legal director of the Legal Aid Justice Center’s Immigrant Advocacy Center specializing in consumer, housing, and employment litigation in federal and state court. During his tenure at the Legal Aid Justice Center, Sandoval-Moshenberg created the Virginia Special Immigrant Juvenile Project (SIJS) that worked to facilitate access to justice for immigrant children in Virginia. He also developed the

“Five Complexes campaign” for landlord--tenant rights, a cleaner’s campaign in employment law, a “zombie debt campaign” to assist with consumer rights, and a legal-resistance campaign to the “kiddie rocket docket” that advocates against excessively expeditious proceedings against unrepresented

children, according to the Virginia State Bar.

I spoke to Sandoval-Moshenberg about receiving the prestigious Legal Aid Award and his work with the Legal Aid Justice Center.

Q: What drew you to public interest legal work?

A: I grew up in a household deeply committed to the struggle for social and economic justice; you could say that I was a red-diaper baby. My grandparents were Holocaust survivors—you could still see my grandfather’s Auschwitz prisoner number tattooed on his arm—and he taught us that you never turn your back on suffering and oppression. My father was a classic lefty professor who taught Marx and Derrida in his freshman writing seminars, the kind of professor who gives David Horowitz a heart attack, and my mother was the legislative director of a pro-choice women’s organization on Capitol Hill. My parents were founding members of what was then known as the Tenants’ Support Committee in Alexandria, and they would bring me to anti-eviction meetings in church basements starting when I was seven years old. Later, as a college student in New York City, I was involved in a radical activist group called Reclaim the Streets, which was sort of a precursor to the Occupy movement, just 15 years earlier.

Q: As a graduate of Columbia University and Yale Law School, you likely had a bevy of job prospects when graduating. How did you begin your legal career?

A: My first job out of law school

was with Victor Glasberg and Associates, a tiny plaintiffs-side civil rights law firm in Alexandria, Virginia. Vic Glasberg is truly one of the lions of the civil rights bar in Virginia. He’s had a long and storied career and is well known to the claims adjusters at the Virginia Division of Risk Management. At the age of 70, he is still at it to this day. My job was structured a lot like a traditional apprenticeship. Vic taught me everything I know about being a Virginia lawyer. He had cases ready for me to be lead counsel on day one, from police brutality and rapes by jail guards to employment discrimination and unpaid overtime. I was taking depositions and arguing motions in federal court the same month I was sworn in. I worked for him for two and a half years and got more litigation experience than most big-firm associates do in five years.

Most of the lawyers who practice public-interest law in Virginia do so with private firms. By my definition, anyone who makes it their business to represent individuals in suing corporations or government entities, and anyone who defends immigrants against deportation, is a public-interest lawyer. Very few of them are as lucky as I am to be able to work for a nonprofit.

Q: What brought you back to Virginia from Connecticut?

A: I liked New Haven, Connecticut. I built up a real community there and I planned to stay after law school. But I was in D.C. for my 2L summer, working for a union-side labor-law firm, when I met my now-wife, Paola. She still had another two years left on

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• Docket Call • Winter 2017

her masters’ degree at George Mason, so I abandoned my plans to take the Connecticut bar and signed up for Virginia instead. It was the best decision I’ve made in my life.

Q: Did you always intend to work in the public sector?

A: Yes. I went to law school thinking I was going to be an immigration lawyer. For a brief period in my career I worked for a private immigration firm in DC specializing in deportation defense. But I realized that I really enjoy federal litigation and you don’t get the full experience in immigration court. Especially discovery: Vic Glasberg taught me that when you do it right, it’s a lot like a chess game. I’m not very good at chess, but I think I am pretty good at discovery. And of course there is next to no discovery available in immigration court, which is one of the many problems with the whole system.

Q: Did your experience in El Salvador influence your career path?

A: Yes, in that it gave me a sense of where my clients are coming from. Of course, the situation in 2001-‘03 was very different: with the gang warfare that’s going on, El Salvador is now a hundred times more dangerous. But the situation of desperate, grinding poverty alleviated solely by cash remittances sent from family members working what are considered low-wage jobs in the United States was pretty much the same back then as it is now. If nothing else, it taught me never to judge someone for choosing to come to the United States illegally.

Q: You’ve been involved in a number of issue-oriented campaigns including a community campaign to help win passage of the first living-wage ordinance in your hometown of Alexandria, Virginia. What inspired you to get involved

in community organizing?

A: Again, my parents are the ones who showed me by example that community organizing is the only way to bring lasting change. Although I ultimately became a lawyer by profession and not a community organizer, I fully understand that getting a law license actually served to limit, not expand, the social-change toolbox that I have at my personal disposal. Fortunately, I now have the privilege to direct a program that has an equal number of community organizers as lawyers.

When I do community presentations in the immigrant community, people often come in with the attitude of, “You’re a lawyer, solve my problem, fix my life.” I try to explain to them that while lawyers can sometimes manage to prevent people’s lives from getting worse, only you yourself can actually make your own life better, and only by organizing your community can you actually make the whole situation better.

Q: What are the most challenging aspects of building and working on a community campaign?

A: Virginia is a funny state in that power is extremely concentrated in the legislature, and the legislature has both rules and a culture that make it very easy to kill a bill. Not only are localities extremely circumscribed in what they can do, even the governor is far less powerful than in other surrounding states. Then you have a judicial system where most civil cases that affect poor people go forward in the general district courts, which of course don’t leave a written opinion, and then never get appealed to circuit court, much less to the Virginia Supreme Court. The final straw is that we have no state-law class actions. So if you want to effect a policy change, it’s not enough to get the governor on your side; it’s not

enough to get the Fairfax County Board of Supervisors on your side; and it’s not enough to win a court case. You pretty much have to get the legislature on board.

Q: What inspired you to create the Virginia Special Immigrant Juvenile Project?

A: Back in summer 2014, at the same time we were reading media reports and seeing pictures of children piled like sardines and wrapped in aluminum blankets in Border Patrol holding cells, I was getting an increasing number of mothers from Falls Church and Annandale coming to our office or to our mobile outreach sites, telling us that their children had just crossed the border and were in deportation proceedings with a pending court date and no lawyer. LAJC generally didn’t handle cases of this nature, but I had a background in immigration, so I decided to pick up a few cases, mostly just to see if anything could be done.

That’s usually my response to nearly any problem: “Let’s pick up a couple of cases to see if anything can be done.” I don’t come up with ideas by sitting in a room and thinking real hard; I like to jump in on cases and see what results I can get and then afterwards reflect on what worked and what didn’t work.

What I discovered was that the immigration court was effectively being operated as a “rocket docket” to try to deport these kids as quickly as possible. The immigration court in Arlington was doing six or eight dockets a week, with fifty kids on each docket, and when I would go to court, maybe three or four other kids had a lawyer, and the rest were pro se. So I had to un-learn one of the cardinal rules that Vic Glasberg taught me, which was “never pick up a case in the courthouse hallway.” I started picking up more and more cases, but about

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half of the cases I was seeing in the hallway were from people outside of Northern Virginia, from Tidewater to Roanoke to Harrisonburg to Chesterfield County. There are some great nonprofits that provide immigration legal services in Northern Virginia, but elsewhere in the Commonwealth, there are a lot fewer resources. So I started to come up with a plan for a way to serve people in cities and counties outside of where LAJC has offices.

Two and a half years later, the situation is much better: now when I go to court, usually about half of the kids have lawyers, between the nonprofits and the private bar. But that still means that half of them are going pro se, fighting for their lives a highly trained government prosecutor, under a federal statute whose complexity rivals that of the tax code.

Q: What is the most challenging aspect of your work at the Legal Aid Justice Center?

A: The hardest part of my job is saying no. We get ten times the number of calls and walk-ins than we could possibly ever represent. And in most of those cases, if we say no, there is absolutely nowhere else for them to go. We have a whole bunch of practice areas—wage theft, consumer protection and consumer debt defense, landlord-tenant, access to education, immigration, civil rights—and we have to make an impact in each one of those areas. Our lawyers could spend all day taking cases in just one of those practice areas and

still not have capacity to take all of the cases that come in.

Q: Is there a particular area of law where low- and middle-income Virginians are most in need?

A: Consumer debt defense, especially zombie debt. Every time a Virginia family tries to climb out of poverty, a zombie-debt collector is right there trying to drag them back down with punishing garnishments. In debt-collection cases, so few defendants are represented by counsel that you can win most of your cases by simply putting the plaintiff to its burden of proof and making the proper evidentiary objections at trial. Some of the junk-debt buyers rarely even bother taking the case to trial where the defendant is represented by counsel. We have an excellent success rate in defending these cases, but we are just seeing the tip of the iceberg, and the vast majority of the cases just result in default judgments for the debt collectors.

Q: If you were empowered to implement one change to the legal system to benefit low-income Virginians, what would you change?

A: The Virginia Minimum Wage Act, Code of Va. Sec. 40.1-28.8 et seq., is an embarrassment. First of all, our minimum wage is far below a living wage, especially in Northern Virginia, and the local cities and counties are powerless to raise it. There is no state overtime law whatsoever. The state minimum-wage law excludes from its coverage most of the jobs that were

historically held by people of color such as farmworkers and domestic workers. And the remedies available to employees are basically back wages and prejudgment interest of eight percent, barely more than what they could have obtained under a breach of contract cause of action. This provides essentially no disincentive to the employer to commit wage theft.

Q: What advice would you give to young Virginia lawyers who recently graduated and/or are looking to find their footing in the legal profession?

A: Figure out what you want to do, and start taking the right steps to get there. By focusing too much on keeping your options open, you fail to move forward. At my law school orientation, Dean Harold Koh said, “[I]f there is an epitaph for your generation, it will certainly be: ‘They died with their options open.’” For me, if your résumé doesn’t show that you share a commitment to the mission of our organization, you’re not going to get an interview, no matter how eloquent your cover letter. Remember that people’s attitudes towards your employer will generally rub off on you, so try to go to work for someone who is well respected or at least not considered a lousy hack.

Patrick J. Austin is a 2013 graduate of George Mason University School of Law and currently works as an attorney-advisor for the U.S. Department of Justice in the Office of Information Policy in Washington, D.C.

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Get social:


During a Spring 2015 Minority Pre-Law Conference, sponsored by the Virginia State Bar’s Young Lawyers Conference (YLC), participating students expressed interest in continuing a dialogue with young lawyers as they pursued gradu-ation, studied for the LSAT, and applied to law school. In response, the YLC initiated the Young Lawyers Mentorship Network (“YMN”), an initiative with the support of the Section on Education to bring together Virginia undergraduates with young lawyers from around the Commonwealth for mentorship oppor-tunities. Using technology as a catalyst to communicate, students can have their questions and concerns regard-ing law school addressed throughout the semester without time, location, or logistical limitations. Mentors and mentees expound a diverse spectrum with regards to race, gender, ethnicity, religion, or sexual orientation.

The YMN allows students to express an interest in being paired with a mentor at a YLC event or via e-mail and mentors to express a willingness to assist a young student. Routinely, the YMN unites around 40 mentor−mentee pairs per semester. The YMN strives

to increase participation among diverse populations in the legal field by recognizing the importance of having lawyers who are representative of diverse Virginia communities with varying opinions and viewpoints and adopting approaches to see this into fruition. In May 2015, the American Bar Association (ABA) awarded the YMN with third place at the ABA Next Steps Diversity Challenge, which occurred at the ABA’s annual meeting in Tampa, Florida. The award represented the culmination of strategic visioning and a nuanced use of technology to mentor and enhance the diversity pipeline into the legal profession.

The YMN continues to expand on avail-able programs and assistance to future young lawyers. For the first time, the YMN will hold online group chats and seminars for mentees, taught by sub-ject matter experts to address univer-sal questions surrounding the LSAT, law school admissions, and the ever-chang-ing practice of law. The seminars are intended to provide a dialogue with, and among, mentees to address the most pertinent issues facing future young lawyers. Additionally, the YMN

is planning an in-person networking reception to further enhance mentor−mentee networking relationships and increase interaction and camaraderie among future members of the bar.

Because the YMN continues to grow, it needs your assistance. The program is constantly in need of young lawyer mentors. Mentors will serve for at least one semester and are required to have a minimum of three telephone or e-mail interactions with their mentee. This is an excellent way to make a positive and long-term impact on the life of a future young lawyer with a fairly minimal time commitment.

If you have questions about the YMN or would like to get involved as a mentor, please contact us via e-mail at: [email protected]. A more detailed description of the YMN program can be found in the latest YMN Newsletter: https://goo.gl/mnchfj

Brian T. Wesley is a 2008 graduate of Howard University School of Law and cur-rently works as an associate at Reynolds | Wesley, P.C. in Richmond, Virginia.

YLC Mentorship Network Brings Opportunities to Aid Virginia’s Future Young Lawyers

By Brian T. Wesley, Esq.

As power shifts in Washington, D.C., people are speculating on what the new Trump administration will bring to the field of estate planning. Will the “death tax” be eliminated? Will it be replaced with a large capital-gains exemption? Unfortunately, nobody knows. This is nothing new to attorneys specializing in estate planning. Not long ago, the federal exemption for estate taxes was as low as $1 million dollars. Now, married couples have a nearly $11-million-dollar exemption before estate taxes are triggered. Different tax laws may change the way estate plans are set up, but should not affect the true purpose of estate planning.

Tax planning for most people should be a small part of the overall planning process, not the focus. First, look at the clients and their families. What are their true wishes and goals? Ask your clients if they were looking down at their loved ones after they passed, what would they want to see? Then, the focus should be on the loved ones. What protections do clients want in place for their loved ones? How can they preserve and expand their wealth? How can they pass on their legacy? There are differ-ent methods to helping preserve your legacy. For example, creating a set of recordings to pass on to your love ones with life lessons and important messag-es to family members.

Keep in mind, estate planning is essen-tially a gift to the client’s loved ones. It should make their lives easier upon a disability or death. So while keeping up with the new changes will be important, estate planners should rest assured knowing there is still much work to be done.

Jesci Norrington is a 2013 graduate of George Mason University School of Law and currently works as an associate at InSight Law, an estate planning firm in Ashburn, Virginia.

New Administration Should be Nothing New to Estate PlanningBy Jesci Norrington


Virginia State Bar

The Virginia State Bar Young Lawyers Conference Cordially Invites You to the

Annual Bench-Bar Dinner in Celebration of Women and Minorities in the Legal Profession

Keynote Speaker

The Honorable Roger L. Gregory Chief Judge of the United States Court of Appeals for the Fourth Circuit

Honoring Newly Appointed and Elevated Judges

Hon. Mary B. Malveaux Court of Appeals of Virginia

Hon. Anita D. Filson Rockbridge Circuit Court

Hon. Ricardo Rigual Spotsylvania Circuit Court

Hon. Petula C. Metzler Prince William General District Court

Hon. Laura F. Robinson Dickenson Combined Court

Hon. Rupen R. Shah Staunton General District Court

Hon. Susan J. Stoney Fairfax General District Court

Hon. Mary E. Langer Richmond Juvenile and Domestic

Relations Court

Hon. Nora J. Miller Mecklenburg Juvenile and Domestic

Relations Court

Hon. Robin L. Robb

Arlington Juvenile and Domestic Relations Court

Wednesday, March 8, 2017

Welcome Reception at 6:00pm Dinner at 7:00pm

Jepson Alumni Center

101 College Road Richmond, Virginia 23229

Tickets are $40 per person (tables of 8 may be reserved for $300)

RSVP by March 1, 2017


Virginia State Bar

Annual Bench-Bar Dinner in Celebration of Women and Minorities in the Legal Profession

March 8, 2017 Jepson Alumni Center, University of Richmond

Registrations and payment must be received by Wednesday, March 1, 2017.

Online registration now available:

https://vsbevent.virginiainteractive.org/

To Purchase an Individual Ticket(s) ~ $40 each

*Name:______________________________________________________

Firm/Employer:_______________________________________________

Bar ID# _______________________________________________________

E-mail Address: _________________________________________________

*Name(s) of Guest(s) and Firm/Employer of Guest(s):_______________________

To Purchase a Table of 8 ~ $300 per table

*Host’s Name:___________________________________________________

Sponsoring Firm/Organization: ______________________________________

Bar ID# _______________________________________________________

E-mail Address: _________________________________________________

*Names of Guests (7): _____________________________________________

_____________________________________________________________

____________________________________________________________

*Please list all names as you would like the names to appear on name badges. Make checks in the amount of $40 per individual ($300 per table of 8) payable to the

Virginia State Bar and mail to Catherine D. Huband, VSB, 1111 E. Main Street, Suite 700, Richmond, VA 23219

For more information please contact Nerissa Rouzer or Anna Birkenheier at

[email protected] or [email protected]

Online registration now available:https://vsbevent.virginiainteractive.org/

For more information please contact Nerissa Rouzer or Anna Birkenheier at [email protected] or [email protected]


Although the above quote is meant to be funny, the Freedom of Information Act, more commonly known as FOIA, is a vital part of our democratic republic. The federal act is codified at 5 U.S.C. §552. Virginia has a version for state-level agencies, which can be found in Title 2.2, Chapter 37 (§§ 2.2-3700 through 2.2-3714) of the Code of Virginia, 1950, as amended.

These laws create a more open and transparent government by making records publically available. But what a lot of lawyers fail to realize is that it can also be an invaluable discovery tool.

At the federal level, FOIA requires that offices, departments, and agencies (1) release all information requested under the law, unless the information falls into an exemption category, and (2) post certain information online, even without a request. The Virginia law requires that, “Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.” Va. Code Ann. § 2.2-3704(A).

Practically, this means that any time you are dealing with a federal or state agency you can request information that might prove useful for your client. The information could be minutes of meetings, internal policies and procedures, or guidance on the agency’s rulemaking. Criminal defense attorneys could request police-department policies and training manuals. Civil litigators may need to obtain city-council-meeting minutes or records from relevant boards and commissions.

Although discovery is, by its very nature, a laborious and time-consuming part of litigation, FOIA generally requires only a quick analysis and a simple written request and can potentially result in large amounts of information, which can save you time and the client some attorney’s fees.

The typical FOIA analysis is as follows:1. Is the information in the custody of a

government agency? This is the threshold question, as FOIA does not apply to any private businesses, entities, or individuals.

2. If yes, is the information already available? Federal agencies, as previously mentioned, are required by FOIA to proactively disclose certain types of information online, including information that is frequently requested under the Act. For state agencies and boards, although not required to by

the law, many agencies, boards, and commissions provide information on their websites.

3. If not, is the information exempt from disclosure? The federal law currently contains nine categories of exemptions: (a) national-defense or foreign-policy matters; (b) internal rules or practices of agency as related to personnel matters; (c) specifically exempt under another statute; (d) trade secrets, commercial, and financial information obtained from a person (think IRS records); (e) inter- or intra-agency memoranda or letters, other than those which would be available in litigation with the agency; (f) personnel and medical files of government employees; (g) law-enforcement records that would affect ongoing investigations, hinder the fair and impartial trial of a matter, unnecessarily invade privacy, reveal the identity of a confidential informant, lead to a circumvention of the law, or would endanger an individual’s safety; (h) information related to the regulation of financial institutions; and (i) information and data concerning wells, including geological information and maps.

At the state level, Virginia exempts the following agencies and groups from FOIA disclosures: (a) the Virginia Parole Board, except for general information, (b) petit and grand juries, (c) family-assessment and planning teams, (d) the Virginia State Crime Commission, and (e) certain records of the circuit and general district courts.

4. If not, then go ahead and file a FOIA request. Most, if not all, federal and state agencies have an office or an individual who handles all FOIA requests. Some simple investigating online should provide guidance on where to direct the request. Both the federal and state laws require all such requests to be sufficiently specific and detailed to allow the agency to easily identify the requested information. Also, there are provisions that allow the agency to charge fees for any copies made or postage used to provide the information. A good way around those fees is to request the information be provided electronically.

Once the agency receives the request, agency personnel will review it and provide any requested information that is not within one of the exemptions listed above. If the request contains a mixture of exempt and non-exempt information, the agency will

Discovering FOIA: Using the Freedom of Information Act in Discovery

By Benjamin Titter

“It’s called the Freedom of Information Act, Kate. The hippies finally got something right.”

White Goodman (Ben Stiller), Dodgeball: A True Underdog Story

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At a basic level, hate crimes or bias-motivated crimes are crimes committed against an person because of that person’s perceived or actual race, national origin, ethnicity, religion, or sexual orientation. Currently, 45 states have some form of hate-crime laws. Those laws can be categorized into three broad groups: (1) laws that protect an institutional target such as a mosque or synagogue; (2) laws that protect individuals based on their membership in a specific group or protected class; and (3) laws that add punishment when the crime has been prosecuted under general criminal law. State hate-crime statutes serve as penalty-enhancer statutes, meaning these statutes increase the penalty for an offense if the victim is targeted based on protected personal characteristics.

Studies have indicated that criminal acts motivated by hatred are more violent and more likely to result in serious injury to the victim. Studies have also shown that most hate crimes are carried out by perpetrators who do not know their victims except for the perceived targeted quality the victim possesses. In November 2016, the FBI released a report detailing an alarming rise in hate crimes nationwide. The FBI cataloged nearly six thousand hate crimes in 2015, which was a rise of about six percent over 2014, including crimes like assault, bombings, threats, and property destruction against minorities, women, religious organizations, and other targeted groups.

Given the growing prevalence of hate crimes, it likely that some, perhaps many, young attorneys will be approached with questions concerning hate crimes and will encounter the desire of community members to pursue legal action where they feel victimized.

Unfortunately, prosecuting hate crimes is a challenge for law enforcement and prosecutors. Victims are often fearful of stepping forward, or they lack confidence in police establishments within their communities to vigorously pursue the offenders. Many victims of hate crimes fail to report incidents because they are reluctant to acknowledge their sexual orientation, immigration status, or other qualifying information to law enforcement, for fear of community backlash or police data collection. In addition to the difficulties victims face in taking the first step of reporting the incident, investigators then have to dig deeper than the average criminal act to obtain the evidence necessary to prosecute the crime. Since establishing motive and intent are key elements of proving hate crimes, investigators must work diligently to locate evidence relevant to the defendant’s state of mind before and during the crime.

The first significant all-inclusive federal hate-crimes legislation was signed into law by President Barack Obama in 2009. The Shepard Byrd Hate Crimes Prevention Act (“Shepard Byrd Act”) increased penalties for violent hate crimes, broadened and simplified federal jurisdiction, and recognized certain violent acts directed at individuals based on their actual or perceived sexual orientation. The

Shepard Byrd Act provided investigators and prosecutors with a federal mechanism for dealing with hate crimes.

Despite legislative improvements for dealing with hate crimes, proving a hate crime case to a jury remains a highly delicate and difficult task. The reason is that a prosecutor must prove beyond a reasonable doubt that at the time of the commission of the crime, the defendant’s motive was hate. The prosecutor must then go one step further and prove beyond a reasonable doubt that the defendant sought the victim or targeted group because of the perceived or actual characteristic at issue. This step proves especially difficult since most (if not all) defendants will not readily admit to their biases against their victims. Even in cases where the defendant has a track record indicative of some form of racial or religious bias, prosecutors must still prove that in this case the defendant acted criminally due to his or her hatred.

The task of the prosecutor in proving a hate crime case is so high that in the early to mid 1990s, several scholars were calling for amendments to state statutes to relieve the prosecution of the burden of proving the accused’s motive. One proposal posed by these legal scholars was that that the state hate-crime statute should shift the burden of proof on the issue of motive to the defendant through the use of an affirmative defense of no racial motivation when the accused is white and the victim a minority. Even when prosecutors attempt to prove motive through circumstantial evidence, the rules of evidence and the defendant’s constitutional rights may limit what circumstantial evidence comes in, thus further limiting the prosecutor.

The real consequence of creating such a high burden for prosecutors in proving hate crimes is that it may serve as a deterrent for prosecutors to charge individuals with hate crimes. Given the difficult task ahead of them, it follows logically that prosecutors would rather charge people who commit crimes evidencing racial or other bias under standard criminal statutes rather than hate-crime statutes. Until state hate-crime statutes provide prosecutors with the ability to effectively prove crimes perpetrated because of the defendant’s bias or hatred against the victim, despite increasing hate-crime reporting, prosecutors will continue to face uphill battles in proving their cases.

Shirin Afsous is a 2015 graduate of Suffolk University School of Law and currently clerks for the Superior Court of the District of Columbia.

The Difficulties of Proving Hate Crimes By Shirin Afsous


Recently, I spoke to the latest cohort of newly minted Virginia lawyers for the Admissions and Orientation

ceremony, where nearly a thousand new attorneys and their friends and family gathered in Richmond to check the last box on the “to be a lawyer” checklist they started years earlier. Time and experience seemingly having taken more insight from me than it imparted, I struggled to remember what advice I heard at my own A&O eight years ago and what counsel would be useful for this group in front of me.

While my memory of my own A&O was foggy, there were distinct moments that stood out in the years that followed, so I addressed those—moments after the initial elation of slogging through and then finishing law school and the bar exam faded when suddenly the path ahead was much more nebulous and less defined

than the structured goals of higher education.

After law school, I took the risky path of hanging a shingle, in a small town to boot, so I had a particularly acute reality check. Without a safety net, or even a security blanket, there were moments early in my career that I felt particularly isolated and vulnerable. I faced nightmare clients I should never have taken, cases that were over my head or spiraled out of control, judges who condescended to me even though I was better prepared than my more “experienced” counterpart across the aisle (it happens), and appellate denied writs (it happens a lot).

Even if you are not practicing solo, there are plenty of triggers for miniature existential crises in a modern legal career. Increasingly, our chosen profession is becoming indistinct, with some traditional aspects of law practice that once gave it stability, predictability, and direction becoming fuzzy and elusive. The trajectory is not always upward, the momentum is not always forward, and the path forward is rarely charted for you.

For me, that is where the YLC became important. It gave me the means to connect with my peers and create a strong professional network where I found support without a senior partner or a firm mentor. It refocused my attention to meaningful, outward-facing initiatives like resources for cancer survivors; mental-health-law training; emergency legal help for disaster victims; and pro bono, justice, and community initiatives that reminded me why I went to law school in the first place. It gave me

perspective, definition, and cohesion. Every year, we continue to add volunteer opportunities for young lawyers, professional-development programming, and leadership opportunities.

I encouraged our newest attorneys, and I encourage you, to dive in and actively participate in the YLC, join one of our existing programs, or pitch us a new one. In the last few years, young lawyers have helped us develop a foreign-language-referral database, immigration-law training, a diversity-mentorship network, and scores of other programs that were important to them and are now helping other young lawyers and the community at large. It’s easy to get involved. Fill out our volunteer-interest form, contact your district representative, or show up at one of our programs and meet our program chairs and other volunteers. I haven’t regretted my participation for a minute, and neither will you.

Dean E. Lhospital

President, VSB YLC President 2016-2017

President’s Message

ØDiscovering FOIA, continued from page 7

redact anything exempt and disclose the rest.

Both the federal and state FOIA laws contain an appeal procedure. If a request was improperly denied, or information was improperly redacted, the remedy is to file, in the local U.S. district court for federal matters or the Virginia circuit court for state agencies, an action to enjoin the agency from withholding disclosure.

The Freedom of Information Acts, at both the federal and Virginia levels, are vital to maintaining integrity in our governments. And if more lawyers consider

the applications to their caseload, these statutes could also become vital to ensuring our clients are fully and professionally represented. Whoever is responsible for it, whether it was the hippies or not, FOIA definitely gets something right.

Benjamin Titter is an associate with the Dillon Law Group, PLC. He can be reached at [email protected].


To all the new attorneys out there who are reading this, you are about to read one of the most important practice points for attorneys. That practice point is to remember that no matter how complex a case is, do not forget the basic principles of the law.

It is often easy in a civil case, and especially a criminal case, to forget to check things like venue, jurisdiction, and statute of limitations. These are check boxes to be quickly confirmed before moving into the complex facts of the case. Yet these basic, first-year principles can potentially have a huge impact for your client. I hope you find the set of facts in this computer-crime case interesting and begin thinking about how our traditional systems within the law apply to the 21st century.

Facts of the Case Enter Mr. Andrew Auernheimer, general cyber-criminal with a negative reputation. Mr. Auernheimer was prosecuted for conspiracy to violate the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, and identity fraud under 18 U.S.C. § 1028(a)(7).

In 2010, Mr. Daniel Spitler discovered a flaw in AT&T’s security related to the release of the new Apple iPad tablet. To make login easier, the AT&T servers would recognize the iPad user’s Integrated Circuit Card Identifier (“ICC-ID”), which was a unique number that identified the user’s SIM card. If the servers recognized the ICC-ID, the servers would automatically redirect the user’s browser to a specific URL which contained the ICC-ID in URL itself.

From this information, the webpage would then populate the e-mail address for the given ICC-ID in the username field. Mr. Spitler then decided to change the value of the ICC-ID by one, and noticed that he found a different e-mail address in the username field. He then wrote a program to iterate through different ICC-IDs.

Mr. Spitler then shared this discovery with Mr. Auernheimer, who helped refine the program and ultimately collected 114,000 e-mail addresses between June 5 and June 8, 2010. Mr. Auernheimer then decided to reach out to the media to report their exploits. The media subsequently alerted AT&T who immediately patched the issue. The story was published by Mr. Ryan Tate of Gawker on June 9, 2010.

At trial, it was shown that individuals were in the following locations: Mr. Spitler – San Francisco, CaliforniaMr. Auernheimer – Fayetteville, ArkansasAT&T Servers – Dallas, Texas and Atlanta, GeorgiaMr. Tate – Unknown, but not disputed that he was not connected to the venue. IssueTake a moment and think about the possible venues to charge Mr. Spitler and Mr. Auernheimer. A grand jury “returned a two-count superseding indictment charging Auernheimer

with conspiracy to violate the CFAA, 18 U.S.C. § 1030(a)(2)(C) and (c)(2)(B)(ii), in violation of 18 U.S.C. § 371 (count one), and fraud in connection with personal information in violation of 18 U.S.C. § 1028(a)(7) (count two, commonly referred to as “identity fraud”).” (U.S. v. Auernheimer, 13-1816). The indictment was returned in Newark, New Jersey.

One immediately must question how this could happen. While several arguments could be made, the most compelling, in my opinion, is that the decision allowed federal prosecutors to enhance the sentencing based upon New Jersey’s strict computer crime statutes. The argument made by the Government was that approximately 4,500 of the 114,000 e-mail addresses belonged to residents in New Jersey.

Section 1030(c)(2)(B) provides a penalty from one year to five years if one of the enhancements are proven. Specifically, it covers when “the offense was committed in furtherance of any criminal or tortious act in violation of the . . . laws of . . . any State.” The relevant New Jersey statute, N.J. Stat. Ann. § 2C:20-31(a), is quite broad and happened to fit the facts of this case well. It specifically called for elements of unauthorized access and disclosure of information.

As a note, we will not discuss here whether this should qualify as unauthorized access. It is certainly questionable when the accessed service is made entirely public.

Resolution Mr. Auernheimer’s attorneys properly moved to dismiss the superseding indictment shortly after it was returned. By doing so, it preserved the winning argument, and short-circuited a more complex analysis. As the court noted, “We in no way imply that venue cannot be waived by the defendant by failing to object to it in a timely fashion. [See United States v. Perez, 280 F.3d 318,328 (3d Cir. 2002).] Because Auernheimer explicitly moved to dismiss the indictment for lack of venue, there is no contention that he waived his venue right here.” Mr. Auernheimer was subsequently released from prison on April 11, 2014.

Conclusion The Auernheimer case is a fascinating example of how even the most basic principles of law matter and can cause the complexity of the facts to melt away. I encourage all of you to consider the simple basic concepts, which underpin your cases, in a new light when computers are involved.

If you would like to read more about this case, I suggest going to the Electronic Frontier Foundation which has PDFs of the case history freely available. Scott A. Nerlino is a 2013 graduate of George Mason University School of Law. He is an attorney and currently a data scientist at Aptima, Inc. working on DARPA’s Plan-X, a foundational cyberwarfare program to develop platforms for the Department of Defense, to plan for, conduct, and assess cyberwarfare. e can be reached at [email protected].

The Cyber Attorney, Back to BasicsScott A. Nerlino


Register online now!Space is limited and first come/first served. Online registration is available at https://vsbevent.virginiainteractive.org/Home/Detail/11. The $100 registration fee will include free Wi-Fi, continental breakfast, lunch, and coffee breaks, as well as CLE credit.

7 CLE hoursincluding 3 Ethics (pending)

The Virginia State BarTECHSHOW April 24, 2017 Greater Richmond Convention Center

Agenda Please indicate your choice for each session.8:00–8:30 Registration/Continental breakfast8:30 Welcome—VSB TECHSHOW Chair Sharon

Nelson, VSB President Ed Weiner and Justice of the Supreme Court of Virginia Cleo E. Powell

8:45–9:45 First Sessions5 Ethics: What Does Being Competent Mean in the Digital

Era? (Sharon Nelson-President, Sensei Enterprises, Fairfax, VA/Reid Trautz—American Immigration Lawyers Assn, Washington, DC)

5 Technology for Trial Lawyers (Tom Mighell—Contoural, Inc., Dallas, TX/Brett Burney—Burney Consultants, Chagrin Falls, OH)

9:55–10:55 Second Sessions5 Microsoft 365, Matter Center and Windows 10:

The Three Hottest Microsoft Topics for Lawyers (Ben Schorr-CEO, Roland, Schorr and Tower, Flagsta�, AZ)

5 The Ethical Sand Traps of E-Discovery (Tom Mighell/Brett Burney)

11:05–12:05 Third Sessions5 What Are the “Reasonable” Cybersecurity Steps You Must

Take to Ethically Protect Your Confidential Data (Sharon Nelson/John Simek—Vice President, Sensei Enterprises, Fairfax, VA)

5 Essential PDF skills for Lawyers (Britt Lorish-A�nity Consulting Group, Roanoke, VA/Debbie Foster-A�nity Consulting Group, Tampa, FL)

12:05–12:45 Lunch12:45–1:45 Fourth Sessions5 Using Tech to Do More Legal Work in Less Time (Reid

Trautz/Natalie Kelly—Director of Law Practice Mgmt at State Bar of Georgia)

5 How to Store Your Law Firm Data in the Cloud Ethically (Brett Burney/Jim Calloway—Director of Mgmt Asst Program at Oklahoma Bar Assn, Oklahoma City, OK)

1:55–2:55 Fifth Sessions5 The Microsoft Word Power Hour for Lawyers (Ben

Schorr/Debbie Foster)5 How Law Firms are Successfully Reinventing Themselves

Through Technology (Jim Calloway)3:05–4:05 Sixth Sessions5 The Ethical Perils of Marketing Online (Natalie Kelly/Reid

Trautz)5 Budget-friendly Technology for Solo/Small Firm Lawyers

(John Simek/Britt Lorish)4:15–5:15 Plenary—60 Tech Tips in 60 Minutes

(Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell)

Register now!Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026

Name

Address

City State Zip Code

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E-mail address*

*Confirmations and materials will be sent via e-mail.Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made.

7 CLE hours (pending)

The Virginia State BarTECHSHOW April 25, 2016 | Richmond Convention Center403 North Third Street Richmond, VA 23219

Agenda8:00–8:30 Registration/Continental breakfast8:30 Welcome—VSB TECHSHOW Chair Sharon

Nelson, VSB President Michael Robinson and Justice of the Supreme Court of Virginia Cleo E. Powell

8:45–9:45 First Sessions• Ethics: Practical Budget-Friendly Cybersecurity at

Warp Speed (Sharon Nelson — President, Sensei Enterprises, Inc., Fairfax, VA /John Simek — Vice President, Sensei Enterprises, Inc., Fairfax, VA)

• Taking Your Law Firm Paperless: A Step by Step Guide (Catherine Sanders Reach — Director of Law Practice Mgmt and Technology, Chicago Bar Association, Chicago, IL)

9:55–10:55 Second Sessions• Building a Virtual Law Practice, Including a Client

Portal (Jim Calloway — Director of Mgmt Asst Program at Oklahoma Bar Assn, Oklahoma City, OK /Nerino Petro — Chief Information Officer, HolmstromKennedy PC, Rockford, IL)

• Time/Billing/Accounting Software: Everything Lawyers Need to Know (Britt Lorish — Affinity Consulting Group, Roanoke, VA)

11:05–12:05 Third Sessions• Essential Law Office Tech — On a Budget

(Britt Lorish/Debbie Foster — Affinity Consulting Group, Tampa, FL)

• Digital Transactions: E-Signatures, E-Contracts and Authentication (Tom Mighell — Contoural, Inc., Dallas, TX/Dave Ries — Clark Hill PLC, Pittsburgh, PA)

12:05–12:45 Lunch12:45–1:45 Fourth Sessions• Avoiding Ethical Missteps in the Digital Era (Reid

Trautz — American Immigration Lawyers Assn, Washington, DC/Nerino Petro)

• A Lawyers Guide to Case Management Systems (Natalie Kelly — Director of Law Practice Mgmt at State Bar of Georgia, Atlanta, GA /Debbie Foster)

1:55–2:55 Fifth Sessions• Encryption is Simple, Easy and Cheap — and May Be

Ethically Required (John Simek /Dave Ries)• Everything Lawyers Need to Know About Backing Up

— In or Out of the Cloud (Catherine Sanders Reach/Jim Calloway)

3:05–4:05 Sixth Sessions• Macs in Law: The Year Behind and the Year Ahead

(Tom Mighell)• Controlling Your Inbox: It CAN be Done (Reid Trautz/

Natalie Kelly)4:15–5:15 Plenary — ALL NEW: 60 Tech Tips in 60 Minutes(Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell)


Young Lawyers Conference Board of Governors

Dean E. LhospitalPresidentCharlottesville434-872-0893dean@cvillelawyers.com

Christopher R. [email protected]

Brian T. [email protected]

Regenea A. Hurte1st District RepresentativeNewport [email protected]

Shemeka C. Hankins2nd District Representative [email protected]

Melissa Y. “Missy” York3rd District [email protected]

Laura O’Brien4th District RepresentativeFairfax703-224-0888 [email protected]

Jennifer A. Fulmer5th District [email protected]

Joshua Parrett6th District [email protected]

Kristopher R. McClellan7th District [email protected]

Lindsey A. Coley8th District [email protected]

Paula A. Bowen9th District RepresentativeMartinsville276-403-5470pbowen@ci.martinsville.va.us

Rachel Wolfe10th District [email protected]

Hon. Helen ChongAt-Large [email protected]

Providence E. NapoleonAt-Large RepresentativeWashington202-683-3854providence.napoleon@allenovery.com

Edwin J. WuAt-Large [email protected]

Melissa AlfanoAt-Large [email protected]

Farnaz F. ThompsonAt-Large [email protected]

Nathan J. OlsonImmediate Past [email protected]

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