I. PREFACE
II.

FOREWORD

   


Virginia State Bar
Course on Professionalism
2013-2014 Edition

A digital version of the handbook used in conjunction with the Course on Professionalism
Presented at the direction of the Supreme Court of Virginia and by the Virginia State Bar

Virginia State Bar
707 East Main Street, 15th Floor
Richmond, VA 23219-2800
(804) 775-0500
fax (804) 775-0501
www.vsb.org

Preface

The centerpiece of this course is the Virginia Rules of Professional Conduct. Without a thorough grounding in the Rules and its day-to-day, practical applications, you will commence your career as an accident waiting to happen. Accordingly, this course will present the Rules as they pertain to a lawyer's functional roles. The Rules of Professional Conduct were approved by the Virginia Supreme Court on January 25, 1999, to be effective January 1, 2000.

In general, lawyers operate in three spheres that overlap at many points. First, lawyers represent clients. Second, lawyers are obliged to implement and improve our legal system. Third, lawyers of necessity must concern themselves with the mundane minutiae of making a living. The Rules permeate all three aspects of practicing law. This course is intended to demonstrate just how they do so, with heavy emphasis on the genuine ethical dilemmas that challenge us all.

Mere adherence to the Rules, however, is not always enough to ensure that we will continue to uphold the exacting standards of Professionalism that have characterized the practice of law in Virginia. Thus, this course will emphasize not simply what the Rules require, but also what is additionally necessary if we are to preserve the right to call ourselves professionals.

The practice of law has never been a business in the traditional sense. Lawyers must undergo rigorous formal training and then be qualified by a state licensing authority. By common consent and tradition, but only with the Commonwealth's continued sufferance, we regulate ourselves. Our Rules of Professional Conduct balance many important interests, but exclude self-interest. As professionals, we must subordinate financial reward to social responsibility, and we should aspire to conduct ourselves with honor and civility.

Your faculty has been drawn from among the best of our judges and lawyers. They are a diverse group. They are united, however, by their deep commitment to the principles that underlie the Rules of Professional Conduct and the ideals that inspire Professionalism in the practice of law.

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Foreword

The Code of Professional Responsibility was adopted by the Supreme Court of Virginia in 1970 and became effective January 11, 1971. This Code was published in the Rules of Court at 216 Va. 941 and became the polestar for the development and issuance of legal ethics opinions.

There was a great flux in the law of attorney regulation during the 1970s as various principles embodied in the Code were subject to judicial scrutiny. Bans against advertising and some forms of solicitation of legal employment were struck down. Rules regarding conflicts of interest and clients' funds were strengthened. This decade of turbulence resulted in the formation of a Virginia State Bar Special Committee to Study the Code of Professional Responsibility. Virtually all organized bar groups, including the American Bar Association, saw the need to remodel the existing standards of professional conduct. The bar committee completed its review in early 1983, and in June 1983 the Supreme Court of Virginia adopted a Revised Code of Professional Responsibility, effective October 1, 1983.

So important did the Court believe that all attorneys understand the rules of conduct for the practice of law, that it ordered every active member of the bar to attend a videotape course on the Revised Code. Some 16,000 members of the bar did so. Thereafter, all newly licensed lawyers were required to attend the course. This new course on Professionalism replaces the videotape course.

In 1983, when Virginia revised the Code of Professional Responsibility, the American Bar Association (ABA) adopted the Model Rules of Professional Conduct. More than twelve years passed without a comprehensive review of the Code when the Virginia State Bar, in 1994, launched a five-year effort to examine and revise the rules in a comprehensive manner. This was done by a special committee chaired initially by the Honorable Donald W. Lemons, and succeeded by Dennis W. Dohnal. As the special committee progressed on its limited mission of revamping the Code of Professional Responsibility, it became apparent that the ABA Model Rules format was more "user friendly," and better organized than the Code with its confusing array of DRs and ECs. As of this writing, at least 42 states use the ABA Model Rules as the framework for their professional regulation. Most law schools use the Model Rules in their professional responsibility curricula. Although changing the format, the committee endeavored to perpetuate the substance of the Code, and the majority of the Rules maintain the substance of corresponding Code provisions. At the same time, the committee did not hesitate to consider substantive changes and ultimately did recommend numerous changes that were deemed necessary and appropriate to keep pace with ever-changing professional environment. This five-year effort gave birth a set of rules that are based on a mix of the ABA Model Rules of Professional Conduct, the Code of Professional Responsibility and some new provisions not found in either.

In October 1996, the Council of the Virginia State Bar received and approved the special committee’s report and recommendation to adopt the ABA’s Model Rules format. The proposed new rules were presented to Council in three stages, and ultimately, the bar petitioned the Virginia Supreme Court to adopt the Virginia Rules of Professional Conduct. The Rules of Professional Conduct were approved by the Virginia Supreme Court on January 25, 1999, and became effective January 1, 2000. Despite this significant change, most of the legal ethics opinions (LEOs) and ethical considerations (ECs) aptly express and apply the ethical precepts embodied in the Rules of Professional Conduct. Therefore, many of the citations to these provisions are kept. Most of the citations to DRs have been replaced with citations to the Rules, and, of course, this book has been reviewed and edited to address those substantive changes made by adoption of the Rules of Professional Conduct. In some sections, however, references to a DR are kept, for example, within the text of an opinion or case or for purposes of comparison to a corresponding Rule.

As you review the course material, you will observe several abbreviations or terms. These are:

Rule This refers to one of the Rules of Professional Conduct which, effective January 1, 2000, replace the Code of Professional Responsibility. Like the disciplinary rules, the Rules of Professional Conduct set forth the minimum acceptable conduct for lawyers. They are found in the Rules of Court, Pt. 6, § II. Compliance with the Rules is mandatory and a violation is a basis for disciplinary action. Each of the Rules are followed by interpretive comments, which are not merely aspirational, but typically explain how the rule is applied.

LEO This is a legal ethics opinion issued pursuant to the Rules of Court, Part 6: § IV: ¶ 10. (Vol. 11, Va. Code)

DR This is a disciplinary rule within the Virginia Code of Professional Responsibility. The DRs set forth the minimum acceptable conduct for lawyers. They are found in the Rules of Court, id. § II. Compliance with the DRs is mandatory.

EC This is an ethical consideration. Although not mandatory, the ECs provide guidance in many situations and lend understanding to the DRs they follow. They, too, are found in the Rules of Court.

LAO This a lawyer advertising opinion issued by the Standing Committee on Lawyer Advertising and Solicitation pursuant to Rules of Court, Part 6: §IV: ¶10. (Vol. 11, Va. Code)

Finally, this course emphasizes that “professionalism’ embraces much more than compliance with the minimum standards established by the Rules of Professional Conduct.  To this end, included in this Course Book are the “Principles of Professionalism” that were adopted by the Virginia Bar Association and endorsed by the Supreme Court of Virginia in 2008.

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Copyright © 2013 Virginia State Bar. All rights reserved. Updated 11/01/13