I. INTRODUCTION
II. OBLIGATION TO PROFESSION
III. OBLIGATION TO SOCIETY
IV. THE LAWYER'S DUTY: SERVICE IN THE PUBLIC INTEREST
   

OBLIGATION TO PROFESSION
AND TO COMMUNITY

I. INTRODUCTION

Historically, law is one of the four original professions (along with medicine, ministry and soldiering). What distinguished these four professions from occupations was the concept of selflessness. The practitioners of these professions gave of themselves for the benefit of those they serve, willing to face deprivations, including loss of life itself.

The loss of public esteem for all the professions stems, in large part, from the diminishment of the quality of selflessness. Lawyers who engage in pro bono services or participate in community services contribute to a renewal of the historical giving nature of the legal profession.

back to top

II. OBLIGATION TO PROFESSION

A. Maintaining and Improving the Standards of Professionalism

The privilege of practicing law carries with it the obligation to not only maintain our legal system, but to constantly improve the legal system so that it continues to meet the ever changing demands of our society. Dedication to service of the organized bar and vigilance regarding the competence and integrity of those who administer our system of justice assures efficient and responsive justice for all members of our society.

1.  What is “Professionalism?”

Barrie Althoff, Director of Lawyer Discipline and Chief Disciplinary Counsel, Washington State Bar Association since 1994 stated:

The professional [legal ethics] rules are merely the basement level, the lowest common denominator, of acceptable lawyer conduct. Lawyers who consider compliance with them to be complete fulfillment of legal ethics are the equivalent of the cave dwellers in Plato’s The Republic who sincerely believe that mere shadows are reality. But believing it so does not make it so. Barrie Althoff, Big Brother is Watching: Discipline for “Private” Conduct, 2000 Symposium Issue of THE PROFESSIONAL LAWYER of the ABA Center for Professional Responsibility 87 (2000).

Professionalism goes beyond observance of the legal profession’s ethical rules and serves the best interests of clients and the public in general; it fosters respect and trust among lawyers and between lawyers and the public, promotes the efficient resolution of disputes, and makes the practice of law more enjoyable and satisfying. Oregon Supreme Court/Oregon State Bar Joint Commission on Professionalism (est., 1994). ABA Center for Professional Responsibility, A Guide to Professionalism Commissions, January, 2001.

As Joe Condo observed in the film Professionalism Among Lawyers in Virginia (2003), professionalism is demonstrated when lawyers act with decency, dignity, courage and perspective. As an advocate, they can argue more effectively without belittling their opponent; they can question adverse parties and witnesses without personally attacking them. There is a line that can be drawn between being adversarial and being combative.

As another commentator observes: “there is no inconsistency between civility and zealous, effective advocacy. In fact, quite the contrary, advocacy which is both civil and professional is by far the most effective.” Joseph W. Ryan, Jr., Things Your Mother Should Have Taught You, 23 ABA Litigation News, No. 4 (May 1998). Professionals act with courage by admitting to the court that they don’t know the answer instead of bluffing; by representing unpopular clients; and, by refusing to take positions or actions they find repugnant merely because the client insists and is paying them. Professionals have perspective when they do not become personally involved in their clients’ causes.

2. What Standards or Principles Embody Professionalism?

In 2008, the Supreme Court of Virginia endorsed the “Principles of Professionalism” adopted by the Virginia Bar Association.  Those principles, stated in the first person admonish the lawyer:

In my conduct toward everyone with whom I deal, I should:

 • Remember that I am part of a self-governing profession, and that my actions and demeanor reflect upon my profession.

• Act at all times with professional integrity, so that others will know that my word is my bond.

• Avoid all bigotry, discrimination, or prejudice.

• Treat everyone as I want to be treated – with respect and courtesy.

• Act as a mentor for less experienced lawyers and as a role model for future generations of lawyers.

• Contribute my skills, knowledge and influence in the service of my community.

• Encourage those I supervise to act with the same professionalism to which I aspire.

In my conduct toward my clients, I should:

• Act with diligence and dedication – tempered with, but never compromised by, my professional conduct toward others.

• Act with respect and courtesy.

• Explain to clients that my courteous conduct toward to others does not reflect a lack of zeal in advancing their interests, but rather is more likely to successfully advance their interests.

In my conduct toward courts and other institutions with which I deal, I should:

• Treat all judges and court personnel with respect and courtesy.

• Be punctual in attending all court appearances and other scheduled events.

• Avoid any conduct that offends the dignity or decorum of any courts or other institutions, such as inappropriate displays of emotion or unbecoming language directed at the courts or any other participants.

• Explain to my clients that they should also act with respect and courtesy when dealing with courts and other institutions.

In my conduct toward opposing counsel, I should:

• Treat both opposing counsel and their staff with respect and courtesy.

• Avoid ad hominem attacks, recognizing that in nearly every situation opposing lawyers are simply serving their clients as I am trying to serve my clients.

• Avoid reciprocating any unprofessional conduct by opposing counsel, explaining to my clients that such behavior harms rather than advances the client’s interests.

• Cooperate as much as possible on procedural and logistical matters, so that the clients’ and lawyers’ efforts can be directed toward the substance of disputes or disagreements.

• Cooperate in scheduling and discovery, negations, meetings, closing, hearings or other litigation or transactional events, accommodating opposing counsels’ schedules whenever possible.

 • Agree whenever possible to opposing counsels reasonable requests for extensions of time that are consistent with my primary duties to advance my client’s interests.

• Notify opposing counsel of any schedule changes as soon as possible.

• Return telephone calls, e-mails and other communications as promptly as I can, even if we disagree about the subject matter of the communication, resolving to disagree without being disagreeable.

• Be punctual in attending all scheduled events.

• Resist being affected by any ill feelings opposing clients may have toward each other, remembering that any conflict is between the clients and not between the lawyers.    

 

3.      Why should we be concerned about professionalism?

                  a.             Our system of justice can ill‑afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of a case; nor can justice long remain available to deserving litigants if the costs of litigation are fueled unnecessarily to the point of being prohibitive.... Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill of our system of justice.  Dondi Properties Corp. v. Commerce Savings & Loan Ass’n, 121 F.R.D. 284, 286 (N.D. Tex. 1998).

b.             Richard A. Gilbert, then Chairperson of the Hillsborough County Bar Association's Professional Conduct Committee, Tampa, Florida, wrote in 1991 about the threat that lawyer misconduct poses for the role of the legal profession:

Many believe that relations between lawyers have so deteriorated that our profession nears a crisis‑‑one that not only implicates how we deal with each other but threatens our usefulness to society, the ability of our clients to bear the cost of our work, and the essential values that mark us as professionals. Some perceive abusive conduct as gaining new adherence cloaked in the mantle of forceful advocacy. They perceive that clients are best served by the intimidation of opponents, a relentless refusal to accommodate, and the use of tactics that impose escalating expenses on an adversary.

4. What are the causes of the decline in professionalism?

One of the most cited reasons for the decline in professionalism is the belief, thought to be shared among many lawyers, that Canon 7’s duty of “zealous representation” is a requirement carried over into the ABA Model Rules of Professional Conduct, a version of which has been adopted in most states, including Virginia.  The duty of “zealous representation” was purposefully omitted from Model Rule 1.3 and Virginia’s Rule 1.3. 

The phrase “zealous advocacy” has been replaced with the concept of “diligence,” largely because lawyers frequently invoke the phrase “zealous advocacy” to justify unprofessional behavior.  A frequently cited court order issued by Illinois Circuit Court Judge Richard Curry states:

Zealous advocacy is the buzz word which is squeezing decency and civility out of the law profession. Zealous advocacy is the doctrine which excuses, without apology, outrageous and unconscionable conduct, so long as it is done ostensibly for a client, and, of course, for a price. Zealous advocacy is the modern day plague which weakens the truth finding process and makes a mockery of the lawyers' claim to officer of the court status." Hanna v. American National Bank & Trust Co. of Chicago, No. 87CH4561, (Cir. Ct., Cook County, Ill.).

 

5. We are more than legal technicians that carry our our client’s bidding

 

Rule 2.1 provides that in counseling a client “a lawyer may refer not only to law but other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”  In other words, as lawyers, we are more than merely legal technicians.  Comment [4] under this rule states that a lawyer is not expected to give advice until asked by the client:  “[h]owever, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal, moral or ethical consequences to the client or to others, the duty [of communication] to the client under Rule 1.4 may require that the lawyer act if the client’s action is related to the representation.”

 

6. Hardball Tactics Hurt the Profession.

 

Stanford legal ethics scholar Deborah L. Rhode describes the motivation of many hard-ball lawyers to engage in zealous representation:  “In a market-based system of legal representation, it is convenient to leave no stone unturned for clients who pay by the stone.”  She describes hardball lawyering as:

 

  • A mind-set that litigation is war and that describes trial practice in military terms.
  • A conviction that it is invariably in your interest to make life miserable for your opponent.
  • A disdain for common courtesy and civility, assuming that they ill-befit the true warrior.
  • A wondrous facility for manipulating facts and engaging in revisionist history.
  • A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding.
  • An urge to put the lawyer on center stage rather than the client or his cause.

 

Deborah L. Rhode, An Adversarial Exchange on Adversarial Ethics: Text, Subtext and Context, 41 J. Legal Educ. 29 at 37 (1991).

 

Washington, D.C. trial lawyer, Robert Saylor stated that “Rambo” trial tactics or hardball lawyering is “like pornography, you know it when you see it.”  Saylor also said “I never lost to a Rambo style litigator.  Robert N. Saylor, Rambo Litigation:  Why Hardball Tactics Don’t Work, ABA Journal (March 1, 1988) at 79.

 

   7. Egregious Acts of Unprofessional Conduct May Form the Basis for Discipline

(a)      For example, under Rule 3.4 (j), a lawyer may not “file a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.”

(b)      Similarly, Rule 4.4 states that “[i]n representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

B. Service

1.        The Preamble of the Virginia Rules of Professional Conduct opens with the statement:  “[a] lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

2         A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services.  Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.  Rule 6.1(a).   

3.        Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.  The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral.  Cmt. [1], Rule 6.1.

C.            Improper Criticism of  Judges

 A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.  Preamble., Va. Rules of Prof. Conduct.  

RULE 8.2                 Judicial Officials  

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or other judicial officer.  

Rationale or Policy in Support of Rule:  Lawyers, correctly or otherwise, are assumed to have special knowledge about the quality of the legal system and the actors within it.  Consequently, the assessments of lawyers “may carry disproportionate weight,” Hazard & Hodes, Judicial and Legal Officials, The Law of Lawyering §§ 63 (3rd Ed. 2004).  “Members of the public,” similarly notes another commentary, “may regard lawyers as possessed of special knowledge about the qualifications and integrity of judicial officers and, hence, may give stronger weight to lawyer criticism than to comments of nonlawyers,” A Lawyer’s Statements Concerning a Judicial Officer, Restatement of the Law (Third) Governing Lawyers §114 (2000).  “Precisely because lawyers are perceived to have special competence in assessing judges, the public tends to believe what lawyers say about judges, even when lawyers speak inappropriately or make claims about which they are uncertain.” Essay, Three Discussions of Legal Ethics, 126 U. Pa. L. Rev. 452 (1977).  

A unique concern about judicial criticism is that the judiciary cannot defend itself.  “Special protection for judges can be justified.  Judges are constrained from public response to charges made against them out of a proper concern not to involve judges in public controversy. Restatement of the Law (Third) Governing Lawyers, supra at §114.  

The judiciary cannot respond to, much less defend itself against scurrilous charges which, but for rules of professional conduct, are made without consequence.  “Codes of judicial conduct typically constrain judicial response to public comment.  It is therefore doubly important that lawyers conscientiously strive to keep their negative comments about judges both accurate and germane.  As a supplement to this self-control, the rules of professional conduct, such as ABA Model Rule of Professional Conduct 8.2, have traditionally placed some limits on a lawyer’s right of public criticism of judges and other public officials.” Hazard & Hodes, supra at  §63.2.

1. Anthony v. Virginia State Bar, 270 Va. 601, 621 S.E. 2d 121 (2005).  Derogatory statements about judges in pleadings filed by lawyer were not protected speech.  Lawyer publicly reprimanded for violating Rule 8.2. See also Pilli v. Virginia State Bar, 269 Va. 391, 611 S.E. 2d 389 (2005) (statements made by lawyer were not expressions of pure opinion and violated Rule 8.2; 90-day suspension based on prior disciplinary record); and Taboada v. Daly Seven, Inc. 272 VA 211, 636 S.E. 2d 889 (2006) (lawyer’s intemperate attack of court’s decision in petition for rehearing justified one-year suspension of lawyer’s privilege to practice before Virginia Supreme Court).

2. Kentucky Bar Association v. Waller, 929 S.W.2d 181 (Ky. 1996) (lawyer characterized judge as lying, incompetent asshole in court-filed papers and received a six-month suspension).

3. In Re Topp 129 Idaho 414, 925 P.2d 1113 (1996).  In proceeding in which attorney is accused of making statements critical of judge, attorney’s First Amendment interests must be balanced against protecting integrity of judicial system.  Lawyer made statements to media that a judge’s decision was motivated by political concerns.  Lawyer received public reprimand.

4. In re McClellan, 754 N.E.2d 500 (Ind. 2001).  Attorney publicly reprimanded for filing a petition for rehearing criticizing the court's decision as being “like a bad lawyer joke” and encouraging lawyers to lie.  The lawyer “supports a negative perception of lawyers generally and impugns the integrity of the judges who decided that case.”  

 5. Hanson v. Superior Court, 109 Cal.Rptr.2d 782 (Cal. Ct. App. 3d Dist. 2001).  Court upheld direct contempt finding against attorney who told jury that his criminal defense client did not receive a fair trial.  Court found that statement impugned the integrity of the judge, because indicated that judge had failed to provide defendant with fair trial.  

6. In re Dinhofer, 690 N.Y.S.2d 245 (N.Y.A.D. 1 Dept. 1999).  Attorney suspended for 90 days for telling a judge she was “corrupt” and her proceedings were “a sham” in a phone conference.  

7. Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425 (Ohio 2003).  In this case, the respondent was suspended for six months for filing a motion for reconsideration that accused the Ohio Court of Appeals of being dishonest and ignoring well-established law.   Respondent stated, among other things: “any fair-minded judge” would have been “ashamed to attach his/her name” to the decision; that the judges did not give “a damn about how wrong, disingenuous, and biased its opinion is;” that the judges had “distorted the truth;” and that “wouldn’t it be nice if this panel had the basic decency and honesty to write and acknowledge these simple unquestionable truths in its opinion?  Would writing an opinion that actually reflected the truth be that hard?”  Id. at 427.   

The Ohio Supreme Court, in rejecting respondent’s argument that the First Amendment protected his speech, relied upon the U.S. Supreme Court’s decisions in In re Sawyer, 360 U.S. 622 (1959) and Gentile v. Nevada Bar, 501 U.S. 1030 (1991) to hold that an attorney’s free speech rights were extremely circumscribed, and that lawyers in pending cases are subject to ethical restrictions on speech that an ordinary citizen would not be.  Id. at 428.    The Court said, “[T]he First Amendment does not insulate an attorney from professional discipline even for expressing an opinion, during court proceedings, that a judge is corrupt when the attorney knows that the opinion has no factual basis or is reckless in that regard.”  Id.

8. After an evidentiary hearing in which Respondent and his client were sanctioned, Moseley also wrote a letter to the AAA, stating that the circuit court judge who had adjudicated the evidentiary hearing "was caught engaging in serious misconduct" and that the circuit court judge was the subject of an investigation by JIRC. Moseley sent an email to colleagues in which he stated that the monetary sanctions award entered by the circuit court judge was "an absurd decision from a whacko judge, whom I believe was bribed," and that he believed that opposing counsel was demonically empowered. A three-judge court found that Moseley had violated Rules 3.3(a)(1), 3.4(e), 3.4(j), 4.1(a), 8.2 and 8.4(a), (b), and (c). The panel suspended Moseley’s license to practice law for six months.  The Va. S. Ct. affirmed.  Moseley v. Virginia State Bar,  280 Va. 1 (2010).

9. Attempting to have a circuit judge disqualified, Respondent made several remarks that were found to have violated Rule 8.2:

- “I don’t feel that you’re appropriate to hear any cases that I might be. . .defending.”
- “It makes me feel comfortable for you not to hear any jury trial that I got against any of my clients.”
- Respondent accused the judge of harboring animosity toward Respondent and implied it would cause the judge to treat the defendant unfairly.
- Respondent suggested that the judge was biased for the Commonwealth in criminal cases.

A three-judge court found Respondent violated Rules 3.5(f)(conduct intended to disrupt a tribunal) and Rule 8.2 (attacking qualifications or integrity of a judge). Virginia State Bar v. Curtis Tyrone Brown, CL09-5166 (Dec. 15, 2009). Respondent defaulted on his appeal by failing to timely file the notice of appeal with the trial court. Curtis Tyrone Brown v. Virginia State Bar, Record No. 100491 (May 10, 2010)

 

D. Improving the Profession

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.  Preamble, Virginia Rules of Professional Conduct.

 

E. Support of the Organized Bar

The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.  

To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.  

The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

back to top

III. OBLIGATION TO SOCIETY

A. Providing Access to the Legal System

The privilege to practice law carries with it the clear and distinct responsibility to ensure that legal services are provided to those who, by reason of financial circumstances, are denied effective access to the legal system. The denial of access to the legal system by the indigent is, in reality, a denial of justice to a significant and definable segment of the public.

B. Providing Affordable Legal Services

Rule 6.1. Voluntary Pro Bono Publico Service

(a) A lawyer should render at least two percent each year of the lawyer's professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase availability of pro bono legal services.

(b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.

(c) Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer's responsibility under this Rule.

1. Definition of "Legal Services"

Legal services should be viewed broadly as including any service which utilizes lawyer's training and skills.

Pro bono publico legal services are defined as including any of the following:

a. Poverty Law: Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer. Private attorneys participating in legal aid referral programs are typical examples of "poverty law." Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as "poverty law," provided the free or nominal fee nature of any such legal work is established in advance. Comment [2], Rule 6.1.

b. Civil Rights Law: Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of "civil rights law," provided the free or nominal fee nature of any such legal work is established in advance. Comment [3], Rule 6.1.

c. Civic or Public Interest Law: Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of "public interest law." Comment [4], Rule 6.1.

d. Increasing the Availability of Pro Bono Legal Services: Uncompensated activity designed to increase the availability of legal services of the types described above. Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of "volunteer activities designed to increase the availability of pro bono legal services." Comment [5], Rule 6.1.

2. Special Considerations

a. Legal services should be rendered for free or a reduced fee to those who cannot afford legal counsel.

b. Attorneys' fees statutes.

c. Contingent fees: Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify. Comment [6], Rule 6.1.

3. Pro Bono Representation

a. Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.  The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services.  Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral. Comment. [1], Rule 6.1

b. Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer.  Private attorneys participating in legal aid referral programs are typical examples of “poverty law.”  Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as “poverty law,” provided the free or nominal fee nature of any such legal work is established in advance.  Comment [2], Rule 6.1

c. Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest.  Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of “civil rights law,” provided the free or nominal fee nature of any such legal work is established in advance.  Comment [3], Rule 6.1.

d.      Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of “public interest law.”  Comment [4], Rule 6.1.  

e.      Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of “volunteer activities designed to increase the availability of pro bono legal services.”Comment [5], Rule 6.1

Rule 6.2. Accepting Appointments

A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

1. For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust. Comment [2], Rule 6.2.

2.  An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules. Comment [3], Rule 6.2.

C.  Participation In Legal Services Organizations

Rule 6.3. Membership In Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

Comments: Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer's clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession's involvement in such organizations would be severely curtailed. Comment [1], Rule 6.3.

It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances. Comment [2], Rule 6.3.

back to top

IV. THE LAWYER'S DUTY: SERVICE IN THE PUBLIC INTEREST

Competing with the responsibility for providing pro bono service to the public and active participation in the affairs of the local and state bars is the reality of the economics of law practice. Economic pressure has prompted law firms to increase the demand for more "billable hours" and for "increased billing rates." While economic pressure does not justify ignoring professional responsibilities, it undoubtedly provides a reasonable and not surprising explanation for the increase in lawyer reluctance to participate in pro bono services or in bar activities. However, the lawyer's objective of accumulating economic gain from the practice of law should not be incompatible with his or her professional obligation to participate actively in local and state bar affairs and to provide pro bono service to the disadvantaged and those unable to afford access to quality legal services.

back to top

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