On Friday night, March 27, 2015, the Virginia State Bar (VSB) ignited a firestorm of controversy by sending a blast email to 43,000 members cancelling a planned November 2015 Mid-Year Legal Seminar in Jerusalem (the “Israel Trip”).  In a follow up email blast on March 29, VSB defended the decision, citing a U.S. State Department travel advisory on entry procedures to Israel.

The firestorm was not over the cancellation itself, but accusations of Israeli discrimination that were both contested as to accuracy and context, and VSB appearing to take sides in the anti-Israel boycott movement.  VSB officials deny that was their intent, VSB is not boycotting Israel, and they were not even aware of a boycott movement against Israel.

The cancellation took place within hours of an email complaint from 36 VSB members, all as detailed in our prior posts:

This post updates our prior posts based upon documents received under a Virginia Freedom of Information Act (FOIA) request filed by Judicial Watch on our behalf.  (We are not yet convinced that our request has been fully answered, and are reviewing the issue.)

These are the main takeaways from the newly-produced documents:

  1. The rush to cancel the Israel Trip the same day as the email complaint remains hard to explain since VSB was aware of Israeli security and entry procedures, including a State Department Travel Warning, for at least several weeks prior to March 27.  That information was incorporated, at the Virginia Attorney General’s insistence, in the Israel Trip Terms and Conditions.  Those security procedures were reviewed by VSB again earlier in March, when there were two complaints about the Trip.  Yet VSB continued to promote the Israel Trip, even as late as March 25.
  2. On March 27 there was a near panic at VSB after receiving an email complaint from about three dozen members, with the issue being escalated all the way to Hon. Donald W. Lemons, Chief Justice of the Virginia Supreme Court. Justice Lemons participated in a conference call at 4 p.m. on March 27.  Soon thereafter emails indicate that the decision had been made to “pull the plug” on the Israel Trip, and to get the email to members out that night.  What role — if any — the Chief Justice played in the decision making process is unknown, as my requests for interviews, and inquiries as to VSB’s position, have gone unanswered.
  3. There still remain numerous unanswered questions.  The rush to a decision on a disputed political issue still makes no sense in the context of a trip likely to be cancelled within days anyway for failure to meet the registration requirement.

In this post I only address documents leading up to and the days of the cancellation.  The reaction, which was mostly furious, may be addressed at a future time.

VSB Well Aware of Israeli Security and Entry Policies

Statements and interviews by VSB created the impression that the February 18, 2015, State Department Travel Warning, at least as related to Israeli security and entry procedures as explained in State Department country-specific materials, took VSB by surprise when raised in the Friday, March 27 morning email complaint.  While not saying it explicitly, the two blast emails suggest that this information came as a surprise.

The Virginia Lawyers Weekly presented the following account:

The petition from dissenters arrived Friday, March 27. Citing Israeli travel restrictions aimed at Arabs, Muslims and Palestinians, the petition demanded a location accessible to all VSB members.

Bar leaders counted about 30 signatures of Virginia lawyers who objected to the Jerusalem program, more than those who actually wanted to take the trip, Weiner said.

Until the petition arrived, Weiner said he had not anticipated concerns about exclusion or heightened scrutiny of some bar members on the trip.

“No one on the committee ever thought about the plight of the Palestinian Virginia lawyer,” he said. “Someone should have thought about that. We did not,” Weiner said.

Once alerted to concerns about travel restrictions, Weiner said he envisioned a bus load of seminar participants idling at the airport while a handful of Virginia lawyers were questioned by Israeli authorities.

“You could be a member in good standing with the Virginia State Bar but not be in good standing at Ben Gurion Airport,” he reflected.

Martingayle and Weiner – together at The Greenbrier on Friday for a meeting of the Virginia Trial Lawyers Association – determined to call off the seminar, Weiner said.

“Let’s just pull the plug a few days early. Let’s start looking for another location,” Weiner reasoned.

Documents, however, indicate that VSB was well aware of these issues long prior to March 27.

In mid-February, the travel warning was raised, and a decision was made on advice of the Virginia Attorney General’s office to include such information in the Terms and Conditions:

Virginia State Bar Israel Trip Terms and Conditions

VSB has withheld its communications with the Attorney General’s office on the ground of attorney client privilege, but this email from the tour operator reflects the advice:

VSB Email 2-20-2015 1027 Tour International Update State Dept Warning

The Israeli entry procedures also were reviewed after two written complaints as well as phone complaints were received soon after the Israel Trip was announced.

A complaint was received from someone alleging (inaccurately) that Israel would exclude Muslims from the trip:

VSB Email 3-13-2015 826 Complaint JayDC

President Martingayle was made aware of the Complaint:

VSB Email 3-13-2015 926 Martingayle re Complaint JayDC

There was at least one other written complaint from someone else who might very well faced greater security scrutiny because of information available about him online, including a run-in with Israeli police in the West Bank years earlier.

VSB Email 3-13-2015 855 Hate Mail

Apparently there were a number of “rude” phone calls to VSB.

VSB Email 3-16-2015 1215 Rude Calls

These complaints caused VSB to review in detail not only the Travel Warning, but also the State Department Country Specific information regarding Israeli entry practices for Palestinian-Americans, which was linked in the Travel Warning.

VSB Email 3-19-2015 1005 Entry Exit Visas Palestinian Americans - redacted

On March 18, 2015, as part of this VSB review, the State Department country specific page was marked up by someone at VSB (only portions are reproduced below):

VSB Email 3-18-2015 State Department Page 1 marked cropped

The Israel Embassy also was contacted, but could not advise on whether any particular VSB member would be barred entry without knowing their names.  An Israeli official denied that the Embassy suggested that some members might be barred. (See my prior post about this.)

This information was discussed internally, with at least two people expressing concerns.  Yet on March 25, VSB issued an email blast encouraging sign up, as the 60 person quota was nowhere near being reached.

Indeed, internal communications confirm what was previously known — that the primary concern regarding the trip leading up to March 27 was that it was under-subscribed, with an April 1 deadline fast approaching.  There were individual emails and outreach to members who had gone on prior trips as well as to people known to the VSB leadership.

Plans were being discussed for “Plan B” — moving the trip to Vienna, even before March 27, because of weak registration.

Key Committees Not Consulted

As previously detailed, at about 9:15 a.m. on Friday, VSB Council members received an email complaint, with text also part of a Change.org online petition.

The night before, however, VSB was alerted also to the Change.org petition by a reporter for Virginia Lawyers Weekly:

VSB Email 3-26-2015 625 Vieth Lawyers Weekly Getting Notice of Organized Opposition

Concerns escalated during the day.  It is unclear from the documents what new investigation, if any, was carried out that day beyond the materials and Israeli Embassy contacts that took place earlier in March.

There were informal expressions of doubt as to whether the Israeli security measures were discriminatory:

VSB Email 3-27-2015 1027 Korman Everyone Subject to Search

As noted in a prior post, the Bar Council, to which the complaint was made, was not consulted or asked to vote.

A request was made for an Executive Committee meeting, but that also does not appear to have happened:

VSB Email 3-27-2015 1000 Call for Executive Committee Mtg and Investigation

One Mid-Year Legal Seminar Committee member circulated a mid-afternoon request for a full committee meeting, but there is no indication in the documents that took place:

I do believe that most of us did not anticipate this opposition, and while we might not agree with all of the statements made, it is apparent that we must discuss this thoroughly in a special meeting to be called as soon as deemed appropriate by Bar officials. I may be overstating the gravity of this situation, but I feel that the entire future of our State Bar trips may depend on how we react to this opposition and the actions that we take from here.

Concerns also were expressed as to how the Governor’s office would view cancellation, since the Governor was taking a delegation to Israel just two weeks before VSB’s scheduled seminar:

VSB Email 3-27-2015 1106 Martingayle Governor Trip

Virginia Supreme Court Chief Justice Brought Into Issue

VSB, as a state agency, is under the jurisdiction of the Virginia Supreme Court. About an hour after the complaint was received, Chief Justice Lemons was notified:

VSB Email 3-27-2015 1025 Gould to Lemons - redacted

 

At about 1:30, a conference call was arranged with the Chief Justice for 4 p.m.

VSB Email 3-27-2015 128 Chief Justice Set Up Conf Call - redacted

 

At 1:48, the Chief Justice was provided with information as to past trip locations abroad, and whether there were entry problems in those countries:

VSB Email 3-27-2015 148 Chief Justice Other Countries - redacted

VSB has not answered my written questions about who was on the 4 p.m. call, the content of the call, whether the decision to cancel was made on that call, who made the decision, and whether Chief Justice Lemons was a decision-maker or expressed an opinion.

Shortly after the conference call, notice went out internally at VSB that a decision had been made to pull the plug:

VSB Email 3-27-2015 436 Party Line

 

Drafting of the cancellation blast email appears to have taken place prior to the meeting, as it was ready to go as soon as the meeting was over.

President Martingayle predicted the anticipated storm would blow over.  It is not clear what Martingayle meant by “the Chief Justice wanted that,” but the email sequence suggests it concerned either getting the email out immediately or notifying Virginia Lawyers Weekly reporter Peter Vieth, who had contacted VSB the night before.  Since no one will speak with me, I can’t confirm those or some other meaning.

VSB Email 3-27-2015 443 Chief Wants This

Not everyone was happy with the process, and the lack of involvement of the Council and Executive Committee in such a momentus decision:

VSB Email 3-27-2015 545 No consult w Exec Committee or Council

Many Questions Remain

I made numerous requests for interviews with the Chief Justice, President Martingayle, President-Elect Weiner, and Executive Director Gould.  As of this writing, none has agreed.

Instead, I received a call from a staff member at VSB in response to my requests, offering to provide information I needed. I provided a list of written questions at approximately 11 a.m. Thursday morning, but as of this writing, despite repeated follow up, I have received neither responses nor an indication whether or when responses would be provided:

Thank you for reaching out to me in response to my messages left for various people as VSB. If any of the people (Martingayle, Weiner, Gould; or separately the Chief Justice) would be available for a phone interview, please let me know as soon as possible.

In response to your question as to what I was looking for, and your offer to try to get me the information, I mentioned that I’m trying to understand the role played, if any, by the Chief Justice in the decision to cancel the Israel Trip, and the sequence of events that day.

I noted to you that I had not previously heard of his involvement, but that the emails produced pursuant to our FOIA request indicated not only emails to him, but also a 4 p.m. telephone conference call. I ask that you give me a narrative, written statement which addresses the following questions, in addition to whatever other information you believe is needed for a full context:

What time on March 27 was the decision made to cancel the Israel Trip, and who made that decision? Who was consulted about that decision.

Was there any contact with the Israeli Embassy or other Israeli officials on March 27, and what was the content of that contact on that date (as opposed to earlier dates)?

Was there any contact with the U.S. State Department (other than looking at the website) on March 27? If so, what was the content of that contact on that date?

Why was the Chief Justice brought into the issue? What role did he play, if any. Were any other Justices involved?

Was the Governor’s office consulted, and if so, what was the Governor’s office’s response. (I don’t recall seeing any communications in the FOIA production, but if there were any, please provide.)

Who attended the 4 p.m. conference call?

Are there any recordings, notes or minutes of the conference call? If so, would you provide them to me?

Was the decision to cancel made during the 4 p.m. conference call? If the decision was made earlier, was the decision confirmed or approved in that call?

Did the Chief Justice make the decision? Did he express an opinion?

Were either the Executive board or the Council consulted? If not, why not?

Why was it determined that a mass email would go out on Friday, rather than waiting until after the weekend?

Were there any discussion about reaching out to “pro-Israel” domestic groups or Israeli travel authorities to get feedback in response to the allegations made in the online petition and March 27 complaint letter. If that did not happen, why not?

As mentioned, I’ve been holding off posting about the FOIA production in order to provide the key people identified in the FOIA production the opportunity to be interviewed, so a prompt response would be appreciated. Please give me a time estimate of when the response will be received. A response by noon would be much appreciated since I have held off all morning already.

Thank you for your effort in responding to this.

Very truly yours,

William A. Jacobson

Will It All “Blow Over”?

The FOIA documents demonstrate many more facts as to what happened, but don’t really shed light on the reasons the decision was taken in such haste.  The documents don’t tell us who said what to whom that was not put in writing.

None of this makes sense. With the trip likely to be cancelled anyway just a few days later, VSB decided to take a seemingly political position, even if it did not intend to do so.

If VSB was going to take a position on such a highly political issue, why couldn’t it wait until after the weekend, giving time for committees to be consulted and other voices heard? Was there a fear that the Change.org and email petition would morph into something more?

Were other bar associations contacted to learn of their experiences with trips to Israel, to understand if State Department warnings of what “may” happen to people actually happens any more so than at our own borders?

Shouldn’t VSB seek research as to other countries’ practices and legitimate security requirements beyond Wikipedia? Did VSB investigate the unique political arrangement between Israel and the Palestinian Authority as to entry procedures for people the PA considers citizens of Palestine?

Unless there is something else going on here.  Something not revealed by the documents; there were some hints in post-cancellation emails questioning who was “driving the car” on this.

That’s why we will continue to pursue this.

But Martingayle may be right in his assessment Friday afternoon that “It will blow over, but may take a few days.”

The bigger question, though, is whether this is anyway for a state agency to act.

VSB received many complaints, some of which were merely accusatory, others of which were quite thoughtful, like a March 31, 2015, three-page letter from Attorney Andrew B. Golkow, which concluded as follows:

The question now is what is the way forward. Sometimes I have to tell clients an old expression, “when you’ve dug yourself into a hole, the first order of business is to stop digging.” The explanation released on March 29 just dug the hole deeper. We should take stock of where we are right now: members of the Virginia State Bar are infuriated; members of the General Assembly have been antagonized; the story has been reported in national outlets and the VSB has been made to look bad; and the important bond of trust between the VSB ‘s members and its leaders has been damaged. It is a sad state of affairs when members discount a proffered explanation from Bar leadership.

The way forward is not to ignore this matter and sweep it under the rug- it will just hang out there, and not easily go away. I suggest that, on the other hand, members will support Bar leadership that honestly admits to a mistake, and rescinds a bad decision. I believe that Bar members will respect leadership that openly says “we made a mistake and we apologize”, and reinstates the program. If the program is adequately advertised, and it turns out after a long enough period (certainly not two days) that there truly is insufficient interest, at that point nobody will quarrel with canceling a program for insufficient sign-ups.

Based on everything I’ve seen, it appears that the Virginia State Bar will keep digging.

[Note: There were some minor corrections and wording changes after publication.]