Herring Defends Choice to Fight Gay Marriage Ban to State Bar Gathering

The Virginia State Bar is anything but what one would describe as gay friendly.  To date, its diversity initiatives have acted as if gays do not exist despite the efforts of many to open eyes and minds, Perhaps this will change as Kevin Martingayle takes the reins as State Bar president.  Kevin has a track record of being gay friendly and his sister-in-law is lesbian talk show host Doria Biddle.  Time will tell on this issue.  Meanwhile, at the Virginia State Bar annual meeting in Virginia Beach over the weekend, Attorney General Mark Herring addressed the gathering of attorneys and made the case as to why he was correct to reject his predecessor's anti-gay stance and instead shift to arguing that Virginia's same sex marriage ban is unconstitutional.  The Virginian Pilot reports on Herring's speech which received a standing ovation.  Here are excerpts:

Mark Herring evaluated his role as attorney general and did rigorous legal analysis before his decision not to defend the state’s same-sex marriage ban, he explained at the Virginia State Bar’s annual meeting Saturday.

Herring, a Democrat, announced in January his office would argue that the voter-approved ban was unconstitutional. The backlash was swift and severe.

Protesters marched outside the U.S. District Court in Norfolk in February during hearings on a lawsuit against the state’s 2006 constitutional amendment banning same-sex marriages. A Virginia delegate called for Herring’s impeachment in May.

The atmosphere inside the Sheraton Virginia Beach Oceanfront Hotel was much friendlier Saturday.

Though he took an oath to defend the Virginia Constitution as well as the nation’s, he realized they were not in accord on this issue.

“As we all learned in law school, when the two of those conflict, the U.S. Constitution prevails,” he said.

The state’s chief public lawyer also studied several landmark court cases before his decision, including one involving the Alien and Sedition Act. Thomas Jefferson did not continue to prosecute violators of that law once he was elected because he said it violated freedom of speech. The act was later overturned.

“In Virginia, when you can cite Thomas Jefferson, that always helps,” Herring said, eliciting a laugh from the audience.

Herring noted that while the power to go against the state constitution should be used sparingly, he thought what he did was right.

“I was determined to show that Virginia has moved forward,” he said, referring to times like the civil rights movement when the state was “on the wrong side of history.”

Herring’s speech ended with a standing ovation. He walked out of the room quietly, shaking a few hands along the way.

No doubt Herring's speech would elicit the gnashing of teeth and spittle flecked eruptions from the hate merchants at The Family Foundation which has making life a living hell for LGBT Virginia's a number one priority.  That and demanding special rights for Christofascists.  

One of the proudest things that the husband and I have done was actively supporting Mark Herring's campaign, including hosting an event for him in our home.  This year, I suspect we will doing something similar for Senator Mark Warner.   Elections do matter and individuals can help make a difference.

Gay Friendly Attorney Elected President of the Virginia State Bar

While miracles will not happen over night, for the first time to my knowledge the Virginia State Bar - hardly a bastion of modernity - will soon be headed by a gay friendly attorney.   Virginia Beach attorney Kevin Martingayle was voted the next president-elect of the Virginia State Bar.  The election was the first contested election in 11 years and pitted Martingayle against northern Virginia attorney Raymond Benzinger who was feared to have an advantage given Northern Virginia's larger population base.  Yours truly wrote e-mails and contacted attorneys across the state and encouraged them to support Kevin.  Kevin is not only gay friendly but has a somewhat high profile sister-in-law: Doria Biddle of the Frank DeCaro show who DeCaro describes as the "Kevin Bacon of lesbian Los Angeles."  I am most pleased about Kevin's win.

But back to Kevin Martingayle.  The Virginian Pilot has an article that looks at his election.  Here are highlights:

Virginia Beach attorney Kevin Martingayle has been voted the next president-elect of the Virginia State Bar in the first contested election in 11 years.

Martingayle, who will become the first Bar president from Virginia Beach, defeated Northern Virginia attorney Raymond Benzinger in voting among Bar members. The Bar governs 29,000 licensed attorneys.

A Richmond native, Martingayle received his law degree from the University of Virginia School of Law in 1991. He is a founding partner in the Beach law firm Bischoff Martingayle. Martingayle will serve as president-elect for one year beginning at the Bar's annual meeting in June, and he will then become Bar president the following year

One thing that I hope to work with Kevin on achieving is an expansion of the Virginia State Bar's diversity program.  Currently, the Bar's idea of diversity is including more women, blacks and non-whites.  LGBT attorneys and the lack of legal  protections for LGBT Virginians are invisible at present.

Why Don't the State Bars Enforce Ethics Rules Against Introducing False Evidence?

At yesterday's Equality Virginia legal seminar at the University of Richmond, during the course of the discussion of legitimate medical and mental health research in the context of litigation, the point was brought up about the fraudulent testimony and false research introduced in lawsuits by Christianist attorneys like Matt Staver and his kindred religious zealots at Liberty Council (an institution that I view as an ongoing blight on Virginia). Time and time again, the Christianists introduce evidence and false evidence from bogus "experts" some of which tracks to Paul Cameron. Staver has to know the proffered evidence and deliberately distorted studies are false. Cameron was thrown out of every legitimate association he once belonged to for fraudulent research and one federal judge even opined in a decision that the only fraudulent evidence before him was the testimony of Cameron. Yet Staver and others - including now Charles Cooper in Perry v. Schwarzenegger - continue to introduce the same false evidence. In Virginia, Rule 3.3 of the Code of Professional Responsibility provides in relevant part:
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Rule 3.3 Candor Toward The Tribunal
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(a) A lawyer shall not knowingly:
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. . .(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
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(d) A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
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The comments to the rule describe what constitutes remedial action:

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When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes. . . . Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed.
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Yet the introduction of bogus testimony held out as scientific fact (as opposed to the mere religious belief that it is under the most deferential analysis) goes on and on by Christianist counsel. When are the state bars going to start disciplining those like Staver who are knowingly seeking to work a fraud on the Courts time and time again with false testimony and false evidence? It's past time that the constant deference to religious based lies stop.

LGBT Attorneys Talk of Experiences

The fact that LGBT attorneys exist is slowly coming to be recognized in some quarters, including the American Bar Association which has now created a Commission on Sexual Orientation and Gender Identity. Sadly, in Virginia, the Virginia State Bar acts as if LGBT attorneys do not exist and certainly are not something to be discussed. Similarly, even though the Virginia Canons of Judicial Conduct requires judges to be unbiased based on sexual orientation or else recuse themselves from a case involving LGBT litigants, virtually NOTHING is done to enforce these requirements and LGBT litigants are crucified for their sexual orientation regularly. Indeed, of five gays I know personally currently going through divorces, only one had a judge that did not take the divorcing husband's sexual orientation into consideration and use it as a reason to treat him with extreme harshness.

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The Windy City Times has a story that looks at the experiences of some LGBT attorneys who - like myself- in some instances found themselves unwelcome because of their sexual orientation and their unwillingness to live in the closet. The irony, of course, is that most top law schools have anti-discrimination policies that interviewing law firms must sign whereby they swear that they will not discriminate against hiring and promoting LGBT attorneys. In Virginia, law firms sign these statements and then go right ahead and discriminate - one of the reasons I have told LGBT law students to seek careers outside of Virginia. Here are some story highlights:

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Lawyers talked about their experiences in school and work in "The Gay Bar: LGBT Attorneys in the Profession," a forum held July 31 at the Hotel Intercontinental, 505 N. Michigan, as part of the American Bar Association's annual meeting. The attorneys spoke as the ABA's Commission on Sexual Orientation and Gender Identity, chaired by San Francisco attorney Jeffrey G. Gibson, presided over the event and listened intently to the experiences.

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Orr talked about working with an investment bank in Virginia—a place where he did not feel welcome. "They started off each day with a prayer," he said. When he eventually ended up with the Washington, D.C., office of Baker & McKenzie, he said, " [ the firm ] didn't know what they were getting," as the audience laughed. Orr indicated that he made it quite clear from the start that he was gay. He admitted that the firm has its challenges: "In order to have a breakthrough ... firms need to understand what diversity means."

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Brent Adams, acting secretary of the Illinois Department of Financial and Professional Regulation, talked about attending the New York School University of Law as well as working at the Chicago law firm Katten Muchin Roseman ( then known as Katten Muchin Zavis ). Adams said that he was very out in law school and at work, serving as chair of the Bisexual Gay & Lesbian Law Students Association—commonly referred to as "Big Lisa." He received only one callback when he applied with ( mostly ) Chicago firms—from Katten—although he had no evidence that homophobia was involved in the lack of positive responses. When he was at Katten, a hiring partner asked me where he was from, and Adams responded, "Oklahoma." He laughed and said, "Well you know they only raise two things in Oklahoma." ( For those who don't know, the answer to that saying is "steers and queers." ) Adams informed his own mentor about what happened, and the partner visited him the next day "to see how he was doing."

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"When I came out to the lesbian and gay law students as transgender, I was not met with the welcome atmosphere that I had anticipated," Levasseur continued. "One student asked me invasive and inappropriate questions about my genitals. Another said, 'I just don't get it.' ... I quickly realized that the community that had once been my support no longer included me. I didn't know where to turn."
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A particular low point occurred when "during my first year, as I walked from the parking lot towards the law school building, an SUV sped up towards me as if to hit me," he said. "I jumped out of the way just in time and turned to see three of my classmates, future attorneys, in the car, laughing. At the time, I was not immune to threats on my life based on my gender expression. I just didn't expect it at my law school."

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The above quotes give you a sense of how far the legal profession has to go in actually embracing diversity. States like Virginia - and anti-gay law firms - are losing many talented and innovate people because they continue to put more store in religious based discrimination rather than the Constitution's promise of equality. Sadly, medicine and accounting seem even more bigoted that the legal community.

The Virginia State Bar's Idea of Diversity

Manuel A. Capsalis, the current President of the Virginia State Bar, has made much of the issue of diversity and the need for the membership of the Bar to better reflect the demographics of Virginia. Currently, despite the relatively vast increase in the number of women and black attorneys compared to years past, the Bar continues to be a white male bastion, particularly when one looks at who is in the leadership positions in most major law firms in the state. Worse yet, "diversity" in all of the discussions and columns and letters to the editor in the Virginia Lawyer focus is solely on the number of women lawyers and the number of black lawyers. There is absolutely NO MENTION of LGBT attorneys - or Hispanic or Filipino attorneys - ANYWHERE that I have found.

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I have raised this issue in person and in e-mails to Capsalis and I know someone in a leadership position at Equality Virginia has as well, yet the issue of LGBT attorneys never seems to appear on the radar screen. We remain invisible to the Virginia State Bar. As a consequence, there are no openly gay or lesbian attorneys in any of the larger law firms in all of Hampton Roads - an area with a population of 1.6 million people where I and one other attorney I know are the ONLY locally out attorneys to my knowledge. The irony in this is that ALL of the reputable law schools in Virginia have a nondiscrimination policy that applies to law firms recruiting on their campuses. UVA's policy is typical and reads as follows:

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The University of Virginia School of Law is committed to a policy against discrimination based on race, color, religion, sex, national origin, age, disability, political affiliation, sexual orientation, or status as a military veteran or as a current member of any branch of the military services. By returning employer registration forms and using the facilities or services of the Career Services Office, prospective employers are providing assurance of their commitment to observe the principles of equal opportunity stated above. Complaints that employers using the Career Services Office have failed to comply with this Law School policy will be investigated and, where deemed appropriate, sanctions, such as censure or exclusion, may be imposed. The portion of the Law School policy applicable to sexual orientation will not be applied to military employers.

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Do law firms sign these statements and then simply ignore them? I suspect so and due to the Bar's utter failure to support LGBT attorneys the result is that out gays and lesbians remain invisible within almost all of the state's large law firms. What is the solution? I'm not sure. The good old boy system remains so incredibly entrenched. Even women face daunting hurdles in reaching leadership positions in large firms. My former classmate, Elizabeth B. Lacy, the first woman to serve on the Supreme Court of Virginia, remains concerned about the relative scarcity of women on the bench and at the helm of law firms and has said the following on the situation on women in large law firms:

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“The larger law firms in this country have a tremendous impact in a number of different ways,” she said. For one, they have access to the legislative halls, which gives them influence on the direction of the justice system and legal profession. “Women need to be part of this.” In addition to the perspectives they contribute to issues, the presence of women in leadership and on the bench has a “hugely symbolic aspect,” she said.“How many young black men now think they can be president, when they didn’t think that before?”

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What is also alarming is the attitude of members of the Virginia Bar as expressed in letters to the Virginia Lawyer. Far too many seem to condemn the diversity initiative even as pathetic as it is and would like to see the effort ended. Here is a representative example of such sentiments from an attorney in Fairfax, Virginia:

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I have read with growing concern the columns in Virginia Lawyer of Virginia State Bar President Manuel A. Capasalis, beginning in July and continuing in October and December, concerning his Diversity Initiative.

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First, it is sophistry. It is marked by his repeated statements of urgent personal belief in “diversity” and his affront and condescension to anyone who questions his meaning or firm intention. . . . If Mr. Capsalis has evidence that the bar or the courts routinely or systematically discriminate against persons or groups based on race, sex, or national origin, let him put on his evidence and make his case as any other lawyer is required to do.

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Mr. Capsalis offers us little glimpses at it—that it involves “taking into account gender, race, and heritage” in the administration of justice and the practice of law. But he is quick to close the curtain, noting that the “transcendent ideal of diversity” cannot be captured; it must be free to fly to the heavens or wherever it will.

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I urge Mr. Capsalis to disband the Diversity Task Force, withdraw its proposals to the bar council, and cease funding or supporting it immediately. If, in his conscience, he believes that he cannot abandon this initiative, then let him have the honor and courage to resign and pursue it on his own with his own resources.

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The writer wants proof? I regularly receive calls from LGBT Virginians seeking legal counsel who report that they have been rejected as clients as soon as their sexual orientation becomes known. I even have one local Circuit Court that refers transgender individuals seeking to have their birth certificates amended to me because I am the only attorney they know who will take on that type of matter. The sad truth is that many members of the Virginia Bar continue to be racists who also discriminate based on gender, ethnicity and sexual orientation. If there is anything wrong with the Bar's diversity effort it is that it goes nowhere near far enough in addressing the discriminatory reality of how lawyers and law firms select clients, hire new attorneys, and select firm partners, respectively.

Another Regent Law School Graduate in the News

In the past I have posted about some of Regent University Law School’s less than illustrious graduates, including Monica Goodling in connection with the Justice Department’s firing of U. S. Attorneys. Now locally, another Regent Law graduate, Troy Titus, is getting justified publicity. Sadly, it is long overdue and had the Virginia State Bar and FBI acted sooner, a number of victims might never have been swindled out of their money. Troy Titus, son of the former dean of Regent Law School could be most charming and always wore his religion on his sleeve - most likely to reel in the trusting and unwary. Of the many attorneys I have know and done transactions with over the past 30 years, it is ironic that the ones, in my opinion, who are the most unethical and dishonest are all graduates of Regent Law School. In my opinion, they are modern day snake oil merchants and are anything but true Christians. When an attorney starts talking about religion while seeking to provide legal consultation, my advice is hold on to your wallet and run!! Here are some highlights of this Regent Law graduate put his legal training into action (http://hamptonroads.com/2008/02/titus-touch-fbi-investigating-popular-lawyer-and-asset-protection-guru):

VIRGINIA BEACH - Josephine Bodmer is 84 years old and broke. A lawyer took all of her savings. She remembers the man vividly. His name is Troy A. Titus - a handsome, charismatic, young man. Good Christian family. His father was dean of the Regent University School of Law.
He seemed smart, trustworthy. Bodmer gave him $220,000 to put into a trust fund so she could live off the $1,500-a-month annuity. For a while, the checks arrived every month, then they started arriving late. Finally, they stopped altogether. She never got her money back. Today, Bodmer lives in an assisted living apartment and depends on her children for day-to-day expenses. She is deeply embarrassed. "He took every cent I had," she said. "He destroyed me."

Tallying up the court claims, clients of Titus say they lost somewhere between $2 million and $3 million. Other clients and investors interviewed said they gave Titus money and never sued to get it back because they didn't think they could recover their money. The Virginia State Bar revoked Titus' license for "ethical misconduct" - bouncing checks on his client trust accounts. And not just a few checks: At one point in 2004, Titus' real estate trust account was $2.5 million in the hole, according to the bar.

For several years before he surrendered his law license, Titus traveled the country giving lectures and selling DVDs, telling people how to shelter money from the taxman and courts. In one taped lecture, Titus told his audience, hypothetically, "I want to have my cake and eat it, too. I want to keep all of my assets but not have to lose them in the event that a judgment does come against me." Bodmer still doesn't understand how such a nice man could have taken her savings. "If you met him," she said, "you'd be impressed. He had so much charisma, and he was so charming. I loved him." In a videotaped lecture, Titus exudes confidence. He is dressed in a dark business suit and appears younger than his 41 years. He talks smoothly, reassuringly, without hesitations. Half a dozen former clients and investors interviewed for this story used the same word to describe him: charming.