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.
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 the late 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, 49 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 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. Since that time, the Virginia State Bar’s Standing Committee on Legal Ethics has served as the clearinghouse for further amendments to the Virginia Rules of Professional Conduct. 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.