Legal Ethics Opinions

Unauthorized Practice of Law Opinions

Organization & Government of the Virginia State Bar

Reciprocity: Admission on Motion

Adopted by the Supreme Court of Virginia November 1, 2013. Effective February 1, 2014.

Amended by the Supreme Court of Virginia October 31, 2014, to remove by examination in paragraph (a) Reciprocity. Effective immediately.

Amended by the Supreme Court of Virginia September 14, 2018. Effective December 1, 2018.

Pro Hac Vice

Rules of the Supreme Court of Virginia Part 1A, Rule 1A:4.
Out-of-State Lawyers – When Allowed to Participate in a Case Pro Hac Vice.

• (1)Introduction. A lawyer who is not a member of the Virginia State Bar, but is currently licensed and authorized to practice law in another state, territory, or possession of the United States of America (hereinafter called an “out-of-state lawyer”) may apply to appear as counsel pro hac vice in a particular case before any court, board or administrative agency (hereinafter called “tribunal”) in the Commonwealth of Virginia upon compliance with this rule.
• (2)Association of Local Counsel. No out-of-state lawyer may appear pro hac vice before any tribunal in Virginia unless the out-of-state lawyer has first associated in that case with a lawyer who is an active member in good standing of the Virginia State Bar (hereinafter called “local counsel”). The name of local counsel shall appear on all notices, orders, pleadings, and other documents filed in the case. Local counsel shall personally appear and participate in pretrial conferences, hearings, trials, or other proceedings actually conducted before the tribunal. Local counsel associating with an out-of-state lawyer in a particular case shall accept joint responsibility with the out-of-state lawyer to the client, other parties, witnesses, other counsel and to the tribunal in that particular case. Any pleading or other paper required to be served (whether relating to discovery or otherwise) shall be invalid unless it is signed by local counsel. The tribunal in which such case is pending shall have full authority to deal with local counsel exclusively in all matters connected with the pending case. If it becomes necessary to serve notice or process in the case, any notice or process served upon local counsel shall be deemed valid as if served on the out-of-state lawyer.
• (3)Procedure for applying. Appearance pro hac vice in a case is subject to the discretion and approval of the tribunal where such case is pending. An out-of-state lawyer desiring to appear pro hac vice under this rule shall comply with the procedures set forth herein for each case in which pro hac vice status is requested. For good cause shown, a tribunal may permit an out-of-state lawyer to appear pro hac vice on a temporary basis prior to completion by the out-of-state lawyer of the application procedures set forth herein. At the time such temporary admission is granted, the tribunal shall specify a time limit within which the out-of-state lawyer must complete the application procedures, and any temporary pro hac vice admission shall be revoked in the event the out-of-state lawyer fails to complete the application procedure within the time limit.
  • (a) Notarized Application. In order to appear pro hac vice as counsel in any matter pending before a tribunal in the Commonwealth of Virginia, an out-of-state lawyer shall deliver to local counsel to file with the tribunal an original notarized application and a non-refundable application fee of $250.00 payable to the Clerk of the Supreme Court. Pro hac vice counsel must submit a notarized application with the non-refundable application fee of $250.00 for each separate case before a tribunal. The fee shall be paid to the Clerk of the Supreme Court of Virginia. The tribunal shall file a copy of the notarized application, as well as its order granting pro hac vice admission in the case and the $250.00 fee, with the Clerk of the Supreme Court of Virginia. Original, notarized applications and orders granting, denying or revoking applications to appear pro hac vice shall be retained in a separate file containing all applications. The clerk of the tribunal shall maintain the application for a period of three years after completion of the case and all appeals.
  • (b) Motion to associate counsel pro hac vice. Local counsel shall file a motion to associate the out-of-state lawyer as counsel pro hac vice with the tribunal where the case is pending, together with proof of service on all parties in accordance with the Rules of the Supreme Court of Virginia. The motion of local counsel shall be accompanied by: (1) the original, notarized application of the out-of-state lawyer; (2) a proposed order granting or denying the motion; and (3) the required application fee.
  • (c) Entry of Order. The order granting or denying the motion to associate counsel pro hac vice shall be entered by the tribunal promptly and a copy of the order shall be forwarded to the Clerk of the Supreme Court. An out-of-state lawyer shall make no appearance in a case until the tribunal where the case is pending enters the order granting the motion to associate counsel pro hac vice unless temporary admission has been approved pursuant to this rule. The order granting pro hac vice status shall be valid until the case is concluded in the courts of this Commonwealth or a court revokes the pro hac vice admission.
• (4)Notarized Application. The notarized application required by this rule shall be on a form approved by the Supreme Court of Virginia and available at the office of the clerk of the tribunal where the case is pending.
• (5)Discretion and Limitation on Number of Matters. The grant or denial of a motion pursuant to this rule by the tribunal is discretionary. The tribunal shall deny the motion if the out-of-state lawyer has been previously admitted pro hac vice before any tribunal or tribunals in Virginia in twelve (12) cases within the last twelve (12) months preceding the date of the current application. In the enforcement of this limitation, the tribunal may consider whether the pending case is a related or consolidated matter for which the out-of-state lawyer has previously applied to appear pro hac vice. Before ruling on a pro hac vice motion, the court shall verify with the Supreme Court of Virginia the number of cases during the preceding twelve (12) months in which the out-of-state lawyer was admitted in Virginia pro hac vice.
• (6)Transfer of Venue and Appeal. The out-of-state lawyer’s pro hac vice admission shall be deemed to continue in the event the venue in the case or proceeding is transferred to another tribunal or is appealed; provided, however, that the tribunal having jurisdiction over such transferred or appealed case shall have the discretion to revoke the authority of the out-of-state lawyer to appear pro hac vice.
• (7)Duty to Report Status. An out-of-state lawyer admitted pro hac vice shall have a continuing obligation during the period of such admission to advise the tribunal promptly of any disposition made of pending disciplinary charges or the institution of any new disciplinary proceedings or investigations. The tribunal shall advise the Clerk of the Supreme Court of Virginia if the tribunal denies or revokes the out-of-state lawyer’s permission to appear pro hac vice.
• (8)Record-keeping. The Clerk of the Supreme Court of Virginia will maintain an electronic database necessary for the administration and enforcement of this rule.
• (9)Disciplinary Jurisdiction of the Virginia State Bar. An out-of-state lawyer admitted pro hac vice pursuant to this rule shall be subject to the jurisdiction of all tribunals and agencies of the Commonwealth of Virginia, and the Virginia State Bar, with respect to the laws and rules of Virginia governing the conduct and discipline of out-of-state lawyers to the same extent as an active member of the Virginia State Bar. An applicant or out-of-state lawyer admitted pro hac vice may be disciplined in the same manner as a member of the Virginia State Bar.
• (10)In-State Services Related to Out-of-State Proceedings. Subject to the requirements and limitations of Rule 5.5 of the Virginia Rules of Professional Conduct, an out-of-state lawyer may provide the following services without the entry of a pro hac vice order:
  • (a) In connection with a proceeding pending outside of Virginia, an out-of-state lawyer admitted to appear in that proceeding may render legal services in Virginia pertaining to or in aid of such proceeding.
  • (b) In connection with a case in which an out-of-state lawyer reasonably believes he is eligible for admission pro hac vice under this rule: (1) the out-of-state lawyer may consult in Virginia with a member of the Virginia State Bar concerning a pending or potential proceeding in Virginia; (2) the out-of-state lawyer may, at the request of a person in Virginia contemplating or involved in a proceeding in Virginia, consult with that person about that person’s retention of the out-of-state lawyer in connection with that proceeding; and (3) on behalf of a client residing in Virginia or elsewhere, the out-of-state lawyer may render legal services in Virginia in preparation for a potential case to be filed in Virginia.
  • (c) An out-of-state lawyer may render legal services to prepare for and participate in an ADR process, regardless of where the ADR process or proceeding is expected to take place or actually takes place.

Appendix of Forms, Form 1 to Part One A as follows:

Corporate Counsel Limited Admission and Registration

Rules of the Supreme Court of Virginia Part 1A, Rule 1A:5.
Virginia Corporate Counsel & Corporate Counsel Registrants.

Introduction

Notwithstanding any rule of this Court to the contrary, after July 1, 2004, any person employed in Virginia as a lawyer exclusively for a for-profit or a non-profit corporation, association, or other business entity, including its subsidiaries and affiliates, that is not a government entity, and the business of which consists solely of lawful activities other than the practice of law or the provisions of legal services (“Employer”), for the primary purpose of providing legal services to such Employer, including one who holds himself or herself out as “in-house counsel,” “corporate counsel,” “general counsel,” or other similar title indicating that he or she is serving as legal counsel to such Employer, shall either (i) be a regularly admitted active member of the Virginia State Bar; (ii) be issued a Corporate Counsel Certificate as provided in Part I of this rule and thereby become an active member of the Virginia State Bar with his or her practice limited as provided therein; or (iii) register with the Virginia State Bar as provided in Part II of this rule; provided, however, no person who is or has been a member of the Virginia State Bar, and whose Virginia License, at the time of application, is revoked or suspended, shall be issued a Corporate Counsel Certificate or permitted to register under this Rule.

Part I

Virginia Corporate Counsel

• (a) A lawyer admitted to the practice of law in a state (other than Virginia), or territory of the United States, or the District of Columbia may apply to the Virginia State Bar for a certificate as a Virginia Corporate Counsel (“Corporate Counsel Certificate”) to practice law as in-house counsel in this state when he or she is employed by an Employer in Virginia.
• (b) Each applicant for a Corporate Counsel Certificate shall:
  • (1) File with the Virginia State Bar an application, under oath, upon a form furnished by the Virginia State Bar.
  • (2) Furnish a certificate, signed by the presiding judge of the court of last resort of a jurisdiction in which the applicant is admitted to practice law, stating that the applicant is licensed to practice law and is an active member in good standing of the bar of such jurisdiction.
  • (3) File an affidavit, upon a form furnished by the Virginia State Bar, from an officer of the applicant’s Employer attesting to the fact that the applicant is employed as legal counsel to provide legal services exclusively to the Employer, including its subsidiaries and affiliates; that the nature of the applicant’s employment conforms to the requirements of Part I of this rule; and that the Employer shall notify the Virginia State Bar immediately upon the termination of the applicant’s employment.
  • (4) Certify that the applicant has read and is familiar with the Virginia Rules of Professional Conduct.
  • (5) Pay an application fee of one-hundred and fifty dollars.
• (c) During the period in which an application for a Corporate Counsel Certificate is pending with the Virginia State Bar until the applicant is notified that either (i) his or her application is rejected; or (ii) he or she is eligible to practice pursuant to Part I of this rule, the applicant may be employed in Virginia as Certified Corporate Counsel on a provisional basis by an Employer furnishing the affidavit required by Part I (b)(3) of this rule.
• (d) Upon a finding by the Virginia State Bar that the applicant has complied with the requirements of Part I(b) of this rule, the Virginia State Bar shall notify the applicant that he or she is eligible to be issued a Corporate Counsel Certificate. After the applicant has taken and subscribed to the oath required of attorneys at law, the applicant shall be issued a Corporate Counsel Certificate, which shall permit the applicant to practice law in Virginia solely as provided in Part I(f) of this rule. The applicant may take the required oath by appearing before the Justices of the Supreme Court of Virginia in Richmond at an appointed date and time or by appearing before a judge of a court of record in Virginia. The necessary motion and oath for an applicant who appears before a judge of a court of record can be found in the Appendix of Forms following Part One A of the Rules.
• (e) A lawyer issued a Corporate Counsel Certificate shall immediately become an active member of the Virginia State Bar, with his or her practice limited as provided in Part I(f) of this rule, and shall pay to the Virginia State Bar the annual dues required of regularly admitted active members of the Virginia State Bar.
• (f) The practice of a lawyer certified pursuant to Part I of this rule shall be limited to practice exclusively for the Employer furnishing the affidavit required by Part I(b)(3) of this rule, including its subsidiaries and affiliates, and may include appearing before a Virginia court or tribunal as counsel for the Employer. Except as specifically authorized under Part I (g) below, no lawyer certified pursuant to Part I of this rule shall (i) undertake to represent any person other than his or her Employer before a Virginia court or tribunal; (ii) offer or provide legal services to any person other than his or her Employer; (iii) undertake to provide legal services to any other person through his or her Employer; or (iv) hold himself or herself out to be authorized to provide legal services or advice to any person other than his or her Employer.
• (g) Notwithstanding the restrictions set out in Part I(f) above on the scope of practice, a lawyer certified pursuant to Part I of this rule may, and is encouraged to, provide voluntary pro bono publico services in accordance with Rule 6.1 of the Virginia Rules of Professional Conduct.
• (h) All legal services provided in Virginia by a lawyer certified pursuant to Part I of this rule shall be deemed the practice of law and shall subject the lawyer to all rules governing the practice of law in Virginia, including the Virginia Rules of Professional Conduct and Part 6, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia.  Jurisdiction of the Virginia State Bar shall continue whether or not the lawyer retains the Corporate Counsel Certificate and irrespective of the lawyer’s presence in Virginia.
• (i) A lawyer certified pursuant to Part I of this rule shall be subject to the same membership obligations as other active members of the Virginia State Bar, including Mandatory Continuing Legal Education requirements. A lawyer certified pursuant to Part I of this rule shall use as his or her address of record with the Virginia State Bar a business address in Virginia of the Employer furnishing the affidavit required by Part I(b)(3) of this rule.
• (j) A lawyer certified pursuant to Part I of this rule shall promptly report to the Virginia State Bar any change in employment, any change in bar membership status in any state, territory of the United States or the District of Columbia in which the lawyer has been admitted to the practice of law, or the imposition of any disciplinary sanction in a state, territory of the United States or the District of Columbia or by any federal court or agency before which the lawyer has been admitted to practice.
• (k) A lawyer’s authority to practice law which may be permitted pursuant to Part I of this rule shall be automatically suspended when (i) employment by the Employer furnishing the affidavit required by Part I(b)(3) of this rule is terminated, (ii) the lawyer fails to comply with any provision of Part I of this rule, or (iii) when the lawyer is suspended or disbarred for disciplinary reasons in any state, territory of the United States or the District of Columbia or by any federal court or agency before which the lawyer has been admitted to practice. Any lawyer whose authority to practice is suspended pursuant to (i) above shall be reinstated upon evidence satisfactory to the Virginia State Bar that the lawyer is in full compliance with the requirements of Part I of this rule, which shall include an affidavit furnished by the lawyer’s new Employer. Any lawyer whose authority to practice is suspended pursuant to (ii) above may be reinstated by compliance with applicable provisions of Part 6, Section IV, Paragraph 19 of the Rules of the Supreme Court of Virginia. Any lawyer whose authority to practice is suspended or terminated under (iii) above shall petition for reinstatement pursuant to Part 6, Section IV, Paragraph 13 I.7. of the Rules of the Supreme Court of Virginia.
• (l) The period of time a lawyer practices law is permitted by a Corporate Counsel Certificate issued pursuant to Part I of this rule shall be considered in determining whether the lawyer has fulfilled the requirements for admission to practice law in Virginia without examination pursuant to Rule 1A:1 and any guidelines approved by the Supreme Court of Virginia for review of applications for admission without examination.
• (m)The Virginia State Bar may adopt regulations as needed to implement the requirements of Part I of this rule.

Part II

Corporate Counsel Registrants

• (a) Notwithstanding the requirements of Part I of this rule, any lawyer as defined in the Introduction and Part I(a) of this rule may register with the Virginia State Bar as a “Corporate Counsel Registrant.” A person admitted to the practice of law only in a country other than the United States, and who is a member in good standing of a recognized legal profession in that country, the members of which are admitted to practice law as lawyers, counselors at law, or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or public authority, may also register under Part II of this rule.
• (b) A registrant shall:
  • (1) Register with the Virginia State Bar upon a form, under oath, furnished by the Virginia State Bar, which shall include affirmations that (i) he or she will at no time undertake to represent his or her Employer or any other person, organization or business entity before a Virginia court or tribunal except as permitted pursuant to Rule 1A:4 of this Court, (ii) his or her work is limited to business and legal services related to issues confronting his or her Employer at a regional, national or international level with no specific nexus to Virginia, and (iii) he or she will not provide legal advice or services to any person other than his or her Employer.
  • (2) Furnish a certificate, signed by the presiding judge of the court of last resort of a jurisdiction in which the registrant is admitted to practice law, stating that the registrant is licensed to practice law and is an active member in good standing of the bar of such jurisdiction.
  • (3) File an affidavit, upon a form furnished by the Virginia State Bar, from an officer of the registrant’s Employer attesting to the fact that the registrant is employed as legal counsel to provide legal services exclusively to the Employer, including its subsidiaries and affiliates; that the nature of the registrant’s employment conforms to the requirements of Part II of this rule; and that the Employer shall notify the Virginia State Bar immediately upon the termination of the registrant’s employment.
  • (4) Certify that the registrant has read and is familiar with the Virginia Rules of Professional Conduct.
  • (5) Pay a registration fee of one hundred and fifty dollars.
• (c) During the period in which a corporate counsel registration is pending with the Virginia State Bar until the registrant is notified that either (i) his or her registration is rejected; or (ii) he or she is eligible to practice pursuant to Part II of this rule, the registrant may be employed in Virginia as a Corporate Counsel Registrant on a provisional basis by the Employer furnishing the affidavit required by Part II(b)(3) of this rule.
• (d) Upon completion of the requirements of Part II(b) of this rule, the registrant shall immediately be recorded by the Virginia State Bar as a Corporate Counsel Registrant. Each registrant shall pay to the Virginia State Bar the annual dues required of regularly admitted active members of the Virginia State Bar. No lawyer registered pursuant to Part II of this rule shall (i) undertake to represent his or her Employer or any other person or entity before a Virginia court or tribunal except as permitted for lawyers licensed and in good standing in another United States jurisdiction pursuant to Rule 1A:4 of this Court; (ii) offer or provide legal services to any person other than his or her Employer; (iii) undertake to provide legal services to another through his or her Employer; or (iv) hold himself or herself out to be authorized to provide legal services or advice to any person other than his or her Employer.
• (e) The provision of legal services to his or her Employer by a lawyer registered pursuant to Part II of this rule shall be deemed the practice of law in Virginia only for purposes of subjecting the lawyer to the Virginia Rules of Professional Conduct; the jurisdiction of the disciplinary system of the Virginia State Bar; and Part 6, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia. Jurisdiction of the Virginia State Bar shall continue whether or not the lawyer maintains the registration and irrespective of the lawyer’s presence in Virginia.
• (f) A lawyer registered pursuant to Part II of this rule shall use as his or her address of record with the Virginia State Bar a business address in Virginia of the Employer furnishing the affidavit required by Part II(b)(3) of this rule.
• (g) A lawyer registered pursuant to Part II of this rule shall promptly report to the Virginia State Bar any change in employment, any change in bar membership status in any state, territory of the United States, the District of Columbia, or other country in which the lawyer has been admitted to the practice of law, or the imposition of any disciplinary sanction in a state, territory of the United States, the District of Columbia, or other country, or by any federal court or agency before which the lawyer has been admitted to practice.
• (h) A lawyer’s authority to provide legal services which may be permitted pursuant to Part II of this rule shall be automatically suspended when (i) employment by the Employer furnishing the affidavit required by Part II(b)(3) of this rule is terminated, (ii) the lawyer fails to comply with any provision of Part II of this rule, or (iii) the lawyer is suspended or disbarred for disciplinary reasons in any state, territory of the United States, the District of Columbia, other country, or by any federal court or agency before which the lawyer has been admitted to practice. Any lawyer whose authority to practice is suspended pursuant to (i) above shall be reinstated upon evidence satisfactory to the Virginia State Bar that the lawyer is in full compliance with the requirements of Part II of this rule, which shall include an affidavit furnished by the lawyer’s new Employer. Any lawyer whose authority to practice is suspended pursuant to (ii) above may be reinstated by compliance with applicable provisions of Part 6, Section IV, Paragraph 19 of the Rules of the Supreme Court of Virginia. Any lawyer whose authority to practice is suspended or terminated pursuant to (iii) above, shall petition for reinstatement pursuant to Part 6, Section IV, Paragraph 13 I.7. of the Rules of the Supreme Court of Virginia.
• (i) No time spent as Corporate Counsel Registrant shall be considered in determining eligibility for admission to the Virginia Bar without examination.
• (j) The Virginia State Bar may adopt regulations as needed to implement the requirements of Part II of this rule.

Application forms

The amendment effective June 10, 2011, changed Part I, paragraph (d) and added to appendix of forms.

The amendment effective April 15, 2011, changed Part I, paragraphs (g) and (h).

Foreign Attorneys — Registered Military Legal Assistance Attorneys

Rules of the Supreme Court of Virginia Part 1A, Rule 1A:6.

Foreign Attorneys — Registered Military Legal Assistance Attorneys. —

• (a) A lawyer admitted to the practice of law in a state or territory of the United States, other than Virginia, who is serving in or employed by the armed services and is authorized to provide legal assistance pursuant to 10 U.S. Code § 1044, may apply to the Board of Bar Examiners for a certificate as a Registered Military Legal Assistance Attorney in Virginia (“Military Legal Assistance Attorney Certificate”) to represent clients eligible for legal assistance in the courts and tribunals of this Commonwealth while the lawyer is employed, stationed, or assigned within Virginia.
• (b) Each applicant for a Military Legal Assistance Attorney Certificate shall:
  • 1. File with the secretary of the Virginia Board of Bar Examiners an application, under oath, upon a form furnished by the Board.
  • 2. Furnish a certificate, signed by the presiding judge of the court of last resort, or other appropriate official of the jurisdiction in which the applicant is admitted to practice law, stating that the applicant is licensed to practice law and is an active member in good standing of the bar of such jurisdiction. 
  • 3. File an affidavit, upon a form furnished by the Board, from commanding officer, staff judge advocate or chief legal officer of the military base in Virginia where the applicant is employed, stationed, or assigned, attesting to the fact that the applicant is serving as a lawyer to provide legal services exclusively for the military, that the nature of the applicant's employment or service conforms to the requirements of this rule, and that the commanding officer, staff judge advocate or chief legal officer, or his or her successor, shall notify the Virginia State Bar immediately upon the termination of the applicant's employment or service at the military base.
• (c) Upon a finding by the Board of Bar Examiners that the applicant has produced evidence sufficient to satisfy the Board that the applicant is a person of honest demeanor and good moral character who possesses the requisite fitness to perform the obligations and responsibilities of a practicing attorney at law and satisfies all other requirements of this rule, the Board shall notify the applicant that he or she is eligible to be issued a Military Legal Assistance Attorney Certificate. After the applicant has taken and subscribed to the oaths required of attorneys at law, the Board shall issue to the applicant a Military Legal Assistance Attorney Certificate, which shall entitle the applicant to represent clients eligible for legal assistance in the courts and tribunals of this Commonwealth solely as provided in this rule.
• (d) Each lawyer issued a Military Legal Assistance Attorney Certificate shall immediately register as an active member of the Virginia State Bar, with his or her practice limited as provided in this rule, and pay to the Virginia State Bar the same dues required of regularly admitted active members. (The requirement to pay dues shall be waived for a lawyer during the first two years immediately following the initial issue of a Military Legal Assistance Attorney Certificate to that lawyer.)
• (e) The practice of a lawyer registered under this rule shall be limited within this Commonwealth to practice exclusively pursuant to the laws, rules, and regulations governing the military services, and may include appearing before a court or tribunal of this Commonwealth as counsel for a client eligible for legal assistance on:
  • 1. Adoptions, 
  • 2. Guardianships, 
  • 3. Name changes, 
  • 4. Divorces, 
  • 5. Paternity, 
  • 6. Child custody and visitation, and child and spousal support, 
  • 7. Landlord-tenant disputes on behalf of tenants, 
  • 8. Consumer advocacy cases involving alleged breaches of contracts or warranties, repossession, or fraud, 
  • 9. Garnishment defense, 
  • 10. Probate, 
  • 11. Enforcement of rights under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. APP. §§ 501-548, 560-593), 
  • 12. Enforcement of rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U.S. Code §§ 4301-4333), and 
  • 13. Such other cases within the discretion of the court or tribunal before which the matter is pending.
• (f) Representation in proceedings before courts or tribunals of this Commonwealth shall be limited to low-income legal assistance clients for whom hiring a lawyer in private practice would entail a substantial financial hardship to themselves or their families. All pleadings filed by a legal assistance attorney will cite this rule, include the name, complete address, and telephone number of the military legal office representing the client and the name, rank or grade, and armed service of the lawyer registered under this rule providing representation. 
• (g) No lawyer registered under this rule shall (i) undertake to represent any person other than an eligible legal assistance client before a court or tribunal of this Commonwealth, (ii) offer to provide legal services in this Commonwealth to any person other than as authorized by his or her military service, (iii) undertake to provide legal services in this Commonwealth to any person other than as authorized by his or her military service, or (iv) hold himself or herself out in this Commonwealth to be authorized to provide legal services to any person other than as authorized by his or her military service. 
• (h) Representing clients eligible for legal assistance in the courts or tribunals of this Commonwealth under this rule shall be deemed the practice of law and shall subject the lawyer to all rules governing the practice of law in Virginia, including the Virginia Rules of Professional Conduct and the Rules of Procedure for Disciplining Lawyers (Rules of Court, Pt. 6, Section IV, Paragraph 13). Jurisdiction of the Virginia State Bar shall continue whether or not the lawyer retains the Military Legal Assistance Attorney Certificate and irrespective of the lawyer's presence in Virginia. 
• (i) Each person registered with the Virginia State Bar as an active member on the basis of a Military Legal Assistance Attorney Certificate shall be subject to the same membership obligations as other active members, including completion of the required Professionalism Course and annual Mandatory Continuing Education requirements. A lawyer registered under this rule shall use as his or her address of record with the Virginia State Bar the military address in Virginia of the commanding officer, staff judge advocate or chief legal officer which filed the affidavit on the lawyer's behalf. 
• (j) Each person issued a Military Legal Assistance Attorney Certificate shall promptly report to the Virginia State Bar any change in employment or military service, any change in bar membership status in any state or territory of the United States, or the District of Columbia where the applicant has been admitted to the practice of law, or the imposition of any disciplinary sanction in a state or territory of the United States or the District of Columbia or by any federal court or agency where the applicant has been admitted to the practice of law. 
• (k) The limited authority to practice law which may be granted under this rule shall be automatically terminated when (i) the lawyer is no longer employed, stationed, or assigned at the military base in Virginia from which affidavit required by this rule was filed, (ii) the lawyer has been admitted to the practice of law in this state by examination or pursuant to any other provision of part 1A of these Rules, (iii) the lawyer fails to comply with any provision of this rule, (iv) the lawyer fails to maintain current good standing as an active member of a bar in at least one state or territory of the United States, other than Virginia, or the District of Columbia, or (v) when suspended or disbarred for disciplinary reasons in any state or territory of the United States or the District of Columbia or by any federal court or agency where the lawyer has been admitted to the practice of law. If a lawyer is no longer employed, stationed, or assigned at the military base in Virginia from which affidavit required by this rule was filed, but the lawyer, within six months after the last day of employment or service, is re-employed by, or militarily reassigned to, the same military base or by another military base in Virginia filing the affidavit required by this rule, the Military Legal Assistance Attorney Certificate shall be reinstated upon evidence satisfactory to the Board that the lawyer remains in full compliance with all requirements of this rule. 
• (l) The period of time a lawyer practices law full time on the basis of a Military Legal Assistance Attorney Certificate issued pursuant to this rule shall be considered in determining whether such lawyer has fulfilled the requirements for admission to practice law in this Commonwealth without examination under Rule 1A:1 and any guidelines approved by the Supreme Court of Virginia for review of applications for admission without examination.

Note: Effective January 14, 2003.

Foreign Legal Consultant

Rules of the Supreme Court of Virginia Part 1A, Rule 1A:7.
Certification of Foreign Legal Consultants.

• (a) General Requirements. A person admitted to practice law by the duly constituted and authorized professional body or governmental authority of any foreign nation may apply to the Virginia Board of Bar Examiners (“Board”) for a certificate as a foreign legal consultant, provided the applicant:
  • (1) is a member in good standing of a recognized legal profession in a foreign nation, the members of which are admitted to practice as attorneys or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a governmental authority;
  • (2) for at least five of the seven years immediately preceding his or her application has been a member in good standing of such legal profession and has actually been engaged in the authorized practice of law, substantially involving or relating to the rendering of advice or the provision of legal services concerning the law of the said foreign nation;
  • (3) possesses the good moral character and general fitness requisite for a member of the bar of this Commonwealth;
  • (4) is at least twenty six years of age; and
  • (5) intends to practice as a foreign legal consultant in this Commonwealth and maintain an office in this Commonwealth for that purpose.
• (b) Proof Required. An applicant under this rule shall file with the secretary of the Board:
  • (1) an application for a foreign legal consultant certificate, on a form furnished by the Board,
  • (2) a certificate, for each foreign nation in which the applicant is admitted to practice, from the professional body or governmental authority in such foreign country having final jurisdiction over professional discipline, certifying as to the applicant’s admission to practice and the date thereof, and as to his or her good standing as an attorney or counselor at law or the equivalent;
  • (3) a letter of recommendation, for each foreign nation in which the applicant is admitted to practice, from one of the members of the executive body of such professional body or governmental authority or from one of the judges of the highest law court or court of original jurisdiction of such foreign country;
  • (4) a duly authenticated English translation of each certificate and letter if, in either case, it is not in English;
  • (5) a copy or summary of the law, regulations, and customs of the foreign country that describes the opportunity afforded to a member of the Virginia State Bar (“the Bar”) to establish an office to provide legal services to clients in such foreign country, together with an authenticated English translation if it is not in English;
  • (6) the requisite documentation establishing the applicant’s compliance with the immigration laws of the United States; and
  • (7) such other evidence as to the applicant’s educational and professional qualifications, good moral character and general fitness, and compliance with the requirements of paragraph (a) of this rule as the Board may require.
• (c) Reciprocal Treatment of Members of the Bar of this Commonwealth. In considering whether to certify an applicant to practice as a foreign legal consultant, the Board may in its discretion take into account whether a member of the Bar would have a reasonable and practical opportunity to establish an office and give legal advice to clients in the applicant’s country of admission. Any member of the Bar who is seeking or has sought to establish an office or give advice in that country may request the Board to consider the matter, or the Board may do so sua sponte.
• (d) Scope of Practice. A person certified to practice as foreign legal consultant under this Rule may render legal services in the Commonwealth only with regard to matters involving the law of foreign nation(s) in which the person is admitted to practice or international law. For purposes of this paragraph, the term “international law” means a body of laws, rules or legal principles that are based on custom, treaties or legislation and that control or affect (1) the rights and duties of nations in relation to other nations or their citizens, or (2) the rights and obligations pertaining to international transactions.
  
  The practice permitted under this rule does not authorize the foreign legal consultant to appear in court.
• (e) Rights and Obligations. Subject to the scope of practice limitations set forth in paragraph (d) of this rule, a person certified as a foreign legal consultant under this rule shall be entitled and subject to:
  • (1) the rights and obligations contained in the Virginia Rules of Professional Conduct as set forth in Part 6, Section II of the Rules of the Supreme Court of Virginia; and the procedure for disciplining attorneys as set forth in Part 6, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia
  • (2) the rights and obligations of a member of the Bar with respect to:
    • (i) affiliation in the same law firm with one or more members of the bar of this Commonwealth, including by:
      • (A) employing one or more members of the Bar;
      • (B) being employed by one or more members of the Bar or by any partnership or other limited liability entity authorized to practice law pursuant to Part 6, Section IV, Paragraph 14 of the Rules of the Supreme Court of Virginia, which such entity includes an active member of the Bar or which maintains an office in this Commonwealth;
      • (C) being a director, partner, member, manager or shareholder in any partnership or other professional limited liability entity authorized by Part 6, Section IV, Paragraph 14 to practice law in this Commonwealth which includes an active member of the Bar or which maintains an office in this Commonwealth;
    • (ii) employment as in-house counsel under Part II of Rule 1A:5; and
    • (iii) attorney client privilege, work product privilege and similar professional privileges.
  • (3) No time spent practicing as a foreign legal consultant shall be considered in determining eligibility for admission to the Virginia bar without examination.
• (f) Disciplinary Provisions. A person certified to practice as a foreign legal consultant under this Rule shall be subject to professional discipline in the same manner and to the same extent as any member of the Bar and to this end:
  • (1) Every person certified to practice as a foreign legal consultant under these Rules:
    • (i)shall be subject to regulation by the Bar and to admonition, reprimand, suspension, removal or revocation of his or her certificate to practice in accordance with the rules of procedure for disciplinary proceedings set forth in Part 6, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia; and
    • (ii) shall execute and file with the Bar, in such form and manner as the Bar may prescribe:
      • (A)his or her commitment to observe the Virginia Rules of Professional Conduct and any other rules of court governing members of the bar to the extent they may be applicable to the legal services authorized under paragraph (d) of this Rule;
      • (B)a written undertaking to notify the Bar of any change in such person’s good standing as a member of any foreign legal profession referred to in paragraph (a)(1) of this rule and of any final action of any professional body or governmental authority referred to in paragraph (b)(2) of this rule imposing any disciplinary censure, suspension, or other sanction upon such person; and
      • (C)a duly acknowledged instrument, in writing, setting forth his or her address in this Commonwealth which shall be both his or her address of record with the Bar and such person’s actual place of business for rendering services authorized by this rule. Such address shall be one where process can be served and the foreign legal consultant shall have a duty to promptly notify the Membership Department of the Bar in writing of any changes in his or her address of record.
• (g) Application and Renewal Fees. An applicant for a certificate as a foreign legal consultant under this rule shall pay to the Virginia Board of Bar Examiners the application fee and costs as may be fixed from time to time by the Board. A person certified as a foreign legal consultant shall pay an annual fee to the Virginia State Bar which shall also be fixed by the Supreme Court of Virginia. A person certified as a foreign legal consultant who fails to complete and file the renewal form supplied by the Bar or pay the annual fee shall have his or her certificate as a foreign legal consultant administratively suspended in accordance with the procedures set out in Part 6, Section IV, Paragraph 19 of the Rules of the Supreme Court of Virginia.
• (h) Revocation of Certificate for Non-Compliance. In the event that the Bar determines that a person certified as a foreign legal consultant under this rule no longer meets the requirements under this rule, it shall revoke the certificate granted to such person hereunder.
• (i) Reinstatement. Any foreign legal consultant whose authority to practice is suspended shall be reinstated upon evidence satisfactory to the Bar that such person is in full compliance with this rule; however, a reinstatement of a foreign legal consultant’s certificate following a suspension for non-compliance with paragraph (g) of this rule shall be governed by Part 6, Section IV, Paragraph 19 of the Rules of the Supreme Court of Virginia; and reinstatement of a foreign legal consultant’s certificate following a disciplinary suspension or revocation shall be governed by Part Six, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia.
• (j) Admission to Bar. In the event that a person certified as a foreign legal consultant under this rule is subsequently admitted as a member of the Bar under the provisions of the rules governing such admission, the certificate granted to such person hereunder shall be deemed superseded by the admission of such person to the Bar.
• (k) Regulations. The Bar and the Board may adopt regulations as needed to implement their respective responsibilities under this rule.
• (l) Effective Date. This rule shall become effective on January 1, 2009.

The amendment effective January 1, 2009, changed “Board” to “Bar” in subsection (h).

Military Spouse Provisional Admission

Rules of the Supreme Court of Virginia Part 1A, Rule 1A:8.
Military Spouse Provisional Admission.

1.   Requirements.  A person who meets all requirements of subparagraphs (a) through (m) of paragraph 2 of this Rule 1A:8 may, upon motion, be provisionally admitted to the practice of law in Virginia.

2.   Required Evidence.  The applicant for provisional admission shall submit evidence satisfactory to the Virginia Board of Bar Examiners (the "Board") that he or she:

(a) has been admitted by examination to practice law before the court of last resort of any state or territory of the United States or of the District of Columbia;

(b) holds a Juris Doctor degree from a law school accredited by the American Bar Association at the time of such applicant’s graduation;

(c) has achieved a passing score on the Multistate Professional Responsibility Examination as it is established in Virginia at the time of application;

(d) is currently an active member in good standing in at least one state or territory of the United States, or the District of Columbia, where the applicant is admitted to the unrestricted practice of law, and is a member in good standing in all jurisdictions where the applicant has been admitted;

(e) is not currently subject to lawyer discipline or the subject of a pending disciplinary matter in any other jurisdiction;

(f) possesses the good character and fitness to practice law in Virginia;

(g) is the dependent spouse of an active duty service member of the United States Uniformed Services as defined by the Department of Defense (or, for the Coast Guard when it is not operating as a service in the Navy, by the Department of Homeland Security) and that the service member is on military orders stationed in the Commonwealth of Virginia or the National Capitol region, as defined by the Department of Defense;

(h) is physically residing in Virginia;

(i) has submitted all requested character investigation information, in a manner and to the extent established by the Board, including all required supporting documents;

(j) has never failed the Virginia Bar Examination;

(k) has completed twelve (12) hours of instruction approved by the Virginia Continuing Legal Education Board on Virginia substantive and/or procedural law, including four (4) hours of ethics, within the six-month period immediately preceding or following the filing of the applicant’s application;

(l) certifies that he or she has read and is familiar with the Virginia Rules of Professional Conduct; and

(m)  has paid such fees as may be set by the Board to cover the costs of the character and fitness investigation and the processing of the application.

3.   Issuance, Admission, Duration and Renewal. 

(a) Issuance. - The Board having certified that all prerequisites have been complied with, the applicant for provisional admission shall, upon payment of applicable dues and completion of the other membership obligations set forth in Part 6, Section IV of the Rules of the Supreme Court of Virginia, become an active member of the Virginia State Bar. An attorney provisionally admitted pursuant to this Rule shall be subject to the same membership obligations as other active members of the Virginia State Bar, and all legal services provided in Virginia by a lawyer admitted pursuant to this Rule shall be deemed the practice of law and shall subject the attorney to all rules governing the practice of law in Virginia, including the Virginia Rules of Professional Conduct.

(b) Admission. - Upon notification by the Board that the applicant's application has been approved, the applicant shall take and subscribe to the oath required of attorneys at law.  The applicant may take the required oath by appearing before the Justices of the Supreme Court of Virginia in Richmond at an appointed date and time or by appearing before a judge of a court of record in Virginia.  Once the attorney has taken the oath, it shall remain effective until the attorney's provisional admission is terminated pursuant to paragraph 5 of this Rule.

(c) Duration. - A provisional admission may be renewed by July 31 of each year, upon filing with the Virginia State Bar (i) a written request for renewal, (ii) an affidavit by supervising Local Counsel, who certifies to the provisionally admitted attorney's continuing employment by or association with Local Counsel and to Local Counsel's adherence to the supervision requirements as provided under this Rule, and (iii) compliance with the membership obligations of Part 6, Section IV of the Rules of the Supreme Court of Virginia applicable to active members of the Virginia State Bar.

(d) Renewal. -  When the active duty service member is assigned to an unaccompanied or remote follow-on assignment and the attorney continues to physically reside in Virginia, the provisional admission may be renewed until that unaccompanied or remote assignment ends, provided that the attorney complies with the other requirements for renewal.

4.   Supervision of Local Counsel.  A person provisionally admitted to practice under this Rule may engage in the practice of law in this jurisdiction only under the supervision and direction of Local Counsel.

(a) As used in this Rule, Local Counsel means an active member in good standing of the Virginia State Bar, whose office is in Virginia.

(b) Local Counsel must provide to the Virginia State Bar his or her Virginia State Bar number, physical office address, mailing address, email address, telephone number, and written consent to serve as Local Counsel, on the form provided by the Board.

(c) Unless specifically excused from attendance by the trial judge, Local Counsel shall personally appear with the provisionally admitted attorney on all matters before the court.

(d) Local Counsel will be responsible to the courts, the Virginia State Bar, the Supreme Court of Virginia, and the client for all services provided by the provisionally admitted attorney pursuant to this Rule.

(e) Local Counsel is obligated to notify the Executive Director of the Virginia State Bar when the supervising relationship between the provisionally admitted attorney and Local Counsel is terminated.

5.   Events of Termination.  An attorney's provisional admission to practice law pursuant to this Rule shall immediately terminate and the attorney shall immediately cease all activities under this Rule upon the occurrence of any of the following:

(a) The spouse's discharge, separation or retirement from active duty in the United States Uniformed Services, or the spouse's no longer being on military orders stationed in the Commonwealth of Virginia or the National Capitol region as defined by the Department of Defense, except as provided in section 3(c) of this Rule;

(b) Failure to meet the annual licensing requirements of an active member of the Virginia State Bar;

(c) The absence of supervision by Local Counsel;

(d) The attorney no longer physically residing within the Commonwealth of Virginia;

(e) The attorney ceasing to be a dependent as defined by the Department of Defense (or, for the Coast Guard when it is not operating as a service in the Navy, by the Department of Homeland Security) on the spouse's official military orders;

(f) The attorney being admitted to practice law in this Commonwealth under an admissions rule other than that of Provisional Admission;

(g) The attorney receiving a failing score on the Virginia Bar Examination;

(h) The attorney being suspended from the practice of law in Virginia; or

(i) Request by the attorney.

6.   Notices Required. 

(a) An attorney provisionally admitted under this Rule shall provide written notice to the Virginia State Bar of any Event of Termination within thirty (30) days of the occurrence thereof.

(b) Within thirty (30) days of the occurrence of any Event of Termination, the attorney shall:

(i) provide written notice to all his or her clients that he or she can no longer represent such clients and furnish proof to the Executive Director of the Virginia State Bar within sixty (60) days of such notification; and

(ii) file in each matter pending before any court or tribunal in this Commonwealth a notice that the attorney will no longer be involved in the matter, which shall include the substitution of the Local Counsel, or such other attorney licensed to practice law in Virginia selected by the client, as counsel in the place of the provisionally admitted attorney.

7.   Benefits and Responsibilities.  An attorney provisionally admitted under this Rule shall be entitled to the benefits and be subject to all responsibilities and obligations of active members of the Virginia State Bar, and shall be subject to the jurisdiction of the courts and agencies of the Commonwealth of Virginia and to the Virginia State Bar with respect to the laws and rules of this Commonwealth governing the conduct and discipline of attorneys to the same extent as an active member of the Virginia State Bar.

Adopted by the Supreme Court of Virginia May 16, 2014. Effective July 1, 2014.

3. Issuance, Admission, Duration and Renewal. Amended by the Supreme Court of Virginia February 27, 2015. Effective immediately.

Bylaws of the Virginia State Bar and Council

PART I — BYLAWS OF THE VIRGINIA STATE BAR

ARTICLE I

Members

The Virginia State Bar is comprised of all attorneys licensed to practice law in Virginia.

ARTICLE II

Officers

The officers of the Virginia State Bar shall be a President, a President-Elect, an Immediate Past President and a Secretary-Treasurer.

ARTICLE III

Election of President-Elect

Sec. 1.   Nominations.  In order to qualify for election to the office of president-elect for the ensuing bar year, a candidate must be duly qualified as set forth in Paragraph 4 of the Rules of Court, Part Six, Section IV and must file a nominating petition with the executive director.

Sec. 2.   Petition.  The nominating petition shall be signed by at least 50 members of the Virginia State Bar and shall be signed by the candidate, who shall certify that he or she is qualified to run for the office. The nominating petition must be received by the executive director on or before October 1 of each year.

Sec. 3.   Method of Election.  In the event only one nominating petition is received by the executive director on or before October 1 of any year, the election for the office of president-elect shall be held at the next annual meeting in accordance with the provisions of Article IV, below.

In the event two or more nominating petitions are received by the executive director on or before October 1 of any year, the election of the president-elect will be in accordance with the provisions of Sections 4 and 5, below.

Sec. 4.   Ballots.  In the event nominating petitions for two or more candidates are received by the executive director, then:

• (a) The executive director shall prepare a ballot which shall list in alphabetical order the names of those persons nominated to the office of president-elect.
• (b)The ballot shall be distributed by mail or made available by electronic means to all members on or before November 5. The form of the ballot and the procedure for distribution, collection and tabulation of ballots shall be determined by the executive director.
• (c) If any member fails to receive a ballot within ten (10) days of distribution, or by November 15, whichever is later, the intended recipient shall be given a replacement ballot upon executing an affidavit, in a form to be prescribed by the Executive Committee, averring (i) that no ballot has been received and (ii) that in the event the original ballot is subsequently received, it will promptly be returned unmarked to the executive director. The affidavit and request for a replacement ballot must be received by the executive director not later than November 22, and the replacement ballot must be returned to the executive director by December 1.
• (d) If any member receives more than one ballot, he or she shall return the excess ballot or ballots, unmarked, to the executive director in the same envelope provided for return of his or her marked ballot.

Sec. 5.   Ballot Elections.  The ballots shall be collected and counted in a manner which assures the confidentiality of the members' votes. A plurality of the votes cast by all members shall elect. No ballot received by the executive director after December 1 shall be counted. Write-in votes shall be permitted, but the executive director may exclude illegible write-in votes and shall exclude write-in votes for any candidate ineligible to serve pursuant to these bylaws, if elected.

Sec. 6.   General Provisions.  The following provisions shall be applicable to any election of the president-elect under this Article III.

• (a) For purposes of these provisions, a "member" is an active member in good standing of the Virginia State Bar. Only such person may nominate, be nominated, vote or be elected in any election for the office of president-elect.
• (b) Records maintained by the executive director as to membership and good-standing status shall be controlling.
• (c) The failure to comply with the dates designated for the occurrence or completion of certain acts shall not invalidate any election, unless substantial prejudice can be shown to have resulted therefrom.
• (d) For purposes of determining voter and candidate eligibility, the membership list maintained by the executive director as of October 1 shall be controlling. Except to correct clerical errors in records maintained as of that date, no revisions or additions to the membership list for purposes of the election shall be made after October 1.
• (e) The executive director shall announce to the bar the results of the election for the office of president-elect.
• (f) Any responsibility assigned herein to be discharged by the executive director may be assumed and discharged by the Executive Committee, at its discretion.
• (g) Any challenge to an election shall be resolved by a committee which shall be chaired by the president and shall include the president-elect, the immediate past president and two members of Council appointed by the president who shall not be current members of the Executive Committee.

ARTICLE IV

Meetings

Sec. 1. The Secretary shall give thirty days' notice of annual meetings of the bar, and such notice of special meetings of the bar as the Executive Committee shall prescribe in its call. Meetings of the organization shall be held at such times and places and after such notices as may be prescribed by the appropriate provisions of Section IV, Rules of the Supreme Court for the Integration of the Virginia State Bar and Council Bylaws.

Sec. 2. A quorum at any such meeting shall be as set forth in the Court Rules.

Sec. 3. The program and order of business at any meeting of the Virginia State Bar, unless otherwise ordered by the Council, shall be determined by the president in consultation with the president-elect and the executive director.

Sec. 4. Proceedings at any such meeting shall be governed by Roberts Rules of Order, except that no member shall without unanimous consent speak more than twice on any one subject nor more than five minutes at any one time.

Sec. 5. Voting at any such meeting shall be viva voce with each active member present entitled to vote, unless at least ten active members shall either before or immediately after such vote demand a vote by judicial circuits on a roll called in numerical order. In the latter event, each circuit shall be entitled to one vote for each twenty-five active members or fraction of twenty-five registered in that circuit. When a vote by circuits is ordered, the active members present from each circuit shall cast the entire vote to which such circuit is entitled. If there be a division among the active members present from any circuit as to how the vote of such circuit shall be cast, the vote of such circuit shall be divided and cast in proportion to the vote on such division, unless such circuit at a meeting of its members shall have adopted and caused to be certified to the Secretary a resolution providing that the entire vote of such circuit shall be cast as a majority of the active members from that circuit present and voting shall determine.

Provided, however, that in any election for the office of president-elect, voting shall be viva voce unless more than one candidate shall be duly nominated, in which event voting shall be by ballot as provided in Article III above.

Sec. 6. An active member shall be deemed to be registered in the circuit where he or she is entitled to vote for a member of Council provided that for the purpose of this section, no member may change his or her registration within five days preceding a meeting of the organization. At the opening of the meeting the Secretary shall post in a conspicuous place a list showing the number of votes to which each circuit is entitled and shall, upon the request of a member of any circuit, also post a list of the active members officially registered in that circuit. The lists so posted shall be conclusive as to the number of votes to which each circuit is entitled and as to the active members registered in each circuit, provided that any interested active member challenging the correctness of any such list, either as to the number of votes to which a circuit is entitled or as to the circuit in which an active member is registered, may appeal to the floor; but the circuits or members affected shall not vote on such appeal.

ARTICLE V

Committees

Sec. 1. Unless otherwise provided in the Supreme Court Rules, by action of Council, or elsewhere in these by-laws or the by-laws of Council, all committees shall be appointed by the president, who shall have power to determine the size and composition of the committee and to designate the chair thereof and to fill any vacancy therein.

Sec. 2. A majority of any committee shall constitute a quorum.

Sec. 3. In addition to the Executive Committee, district committees, and standing committees specified in the by-laws of Council, there shall be special committees to carry out the other ongoing work of the bar, and study committees, where appropriate in the judgment of the president, to examine and make recommendations on specific proposals or programs within a reasonably brief and discrete period of time.

Sec. 4. Members of special committees shall be appointed to three-year terms, with the exception of the Special Committee on Lawyer Malpractice Insurance whose members shall be appointed to five-year terms. No member shall serve more than two consecutive terms on such a committee. A member appointed to fill an unexpired term shall be eligible to serve two additional full terms. An eligible member wishing to be reappointed to a special committee shall be required to reapply in writing prior to the end of his or her current term under procedures established by Council and administered by the executive director. If any member of a committee fails to attend either three meetings during any bar year or two successive meetings of the committee without providing an explanation satisfactory to the committee chair, or in the case of a lawyer member, is declared not in good standing with the Virginia State Bar, such person’s position shall automatically be considered vacated and filled as in the case of other vacancies.

Sec. 5. In making initial appointments to new special committees, the president shall appoint members to one, two and three-year terms so as to allow for the retirement or reappointment of one-third of the membership of each special committee at the end of each bar year.

Sec. 6. Effective July 1, 1996, the size of special committees shall be as specified by Council. A list of the committees and their respective sizes shall be maintained by the executive director. Changes in the size of special committees may be approved by the Executive Committee.

PART II — BYLAWS OF THE COUNCIL

ARTICLE I

Members

The Council is comprised of attorneys elected or appointed in accordance with applicable provisions of Section IV, Rules of the Supreme Court for the Organization and Government of the Virginia State Bar.

ARTICLE II

Election of Council

The election of members of Council for each circuit shall be by one of the two following methods.

Sec. 1. Circuit Bar Meeting. Prior to March 1 of any year in which a Council member from the circuit is to be elected, the executive director shall notify the Chief Judge of the circuit of the need for a meeting of the bar of the circuit and the number of vacancies to be filled. The executive director shall obtain from the Chief Judge the date and location for a meeting of the members of the circuit which shall be held prior to May 1. The executive director shall give at least fourteen days notice to the members of the meeting.

All members whose Virginia State Bar membership mailing addresses are maintained in the circuit may attend and vote at the meeting. A quorum shall consist of those members who vote at the meeting. No member shall vote by proxy. Prior to the meeting, the executive director shall transmit to the Chief Judge or the designated presiding officer a list of the members whose names appear on the membership roster for such circuit. The Chief Judge shall either preside at the meeting, designate another active or retired judge of the circuit to preside, or designate an attorney to preside who is neither a candidate for election to Council nor associated in the practice of law with a candidate nominated for election.

At the circuit meeting, any member eligible to vote in the circuit who is not then serving a second successive full term on Council shall be eligible for election. Nominations may be made at the circuit meeting or by any member eligible to vote in the circuit. No supporting petition or second for such nomination will be required. After the nominations are closed, an election by written ballot shall be conducted. In the event of a tie vote, the winner shall be chosen by lot drawn by the presiding judge or his designee.

Within ten days after the meeting, the presiding officer or the Chief Judge shall communicate the names of the person or persons elected to the executive director.

Sec. 2. Ballot. On or about March 1, the executive director shall cause to be distributed by mail or electronic means to every member eligible to vote in the circuit a notice of any vacancy or vacancies on Council, and a brief description of the method of nomination and voting. All members whose Virginia State Bar membership mailing addresses are maintained in the circuit are eligible to vote.

Nominations for election to Council shall be by petition filed by the candidate with the executive director. Such petition shall be signed by not fewer than ten other members eligible to vote in the circuit, and shall be accompanied by a statement of qualifications not exceeding one hundred and fifty words. Nominations must be filed in the office of the executive director on or before April 1. Any petition failing to comply with these requirements shall be rejected.

On or before April 15, the executive director shall distribute by mail or electronic means to all eligible members of the circuit a ballot containing the names of all persons nominated, along with each nominee's statement of qualifications.

The form of the ballot and the procedure for distribution, collection and tabulation of ballots shall be determined by the executive director. In the event of a tie vote, the executive director shall pick the winner by lot. No ballot received by the executive director after May 1 shall be counted.

Write-in votes shall be permitted, but the executive director may exclude illegible write-in votes and shall exclude write-in votes for any candidate ineligible to serve pursuant to these bylaws, if elected. In those instances where there are more candidates for Council positions than there are positions to be filled from the circuit, the ballot will contain instructions to vote only for the same number of persons or fewer person(s) as there are positions to be filled; ballots which do not conform to this requirement will not be counted.

Sec. 3. General Provisions. The following provisions shall be applicable to both methods of election:

• (a) The timeline for special elections to fill vacancies on Council shall be determined by the executive director.
• (b) For purposes of these provisions, a "member" is an active member in good standing of the Virginia State Bar. Only such person may nominate, be nominated, vote or be elected in any Council election.
• (c) Records maintained by the executive director as to membership, good-standing status and assignment of a member to a particular circuit shall be controlling.
• (d) The failure to comply with the dates designated for the occurrence or completion of certain acts shall not invalidate any election unless substantial prejudice can be shown to have resulted therefrom.
• (e)
  • 1) In all elections the candidate receiving the highest number of votes shall be elected.
  • 2) In the event that more than one full term is to be filled by a circuit at any single election, the candidates receiving the highest number of votes shall be elected.
  • 3) In the event that a regular election and special election to fill an unexpired term are held simultaneously in the same circuit, they shall be conducted as a single election and the successful candidate receiving the highest number of votes shall be entitled to choose either a regular term or the unexpired term, with the choice passing down in order until the unexpired term is selected. The successful candidate(s) receiving the lower number of votes shall be elected to fill the term(s) not chosen. In the event two or more unexpired terms are to be filled in the same election, the longer unexpired term(s) shall go to the successful candidate(s) receiving the highest number of votes who choose(s) to fill an unexpired term.
  • 4) As a part of the election process in each circuit under these bylaws, the voting members of the circuit shall prescribe the method for that circuit's next election and, in the event of a meeting, shall determine the length of time during which ballots may be cast in the next election, not to exceed one business day. A vote to change the method of election shall be by majority of votes cast. The ballot in each circuit's election shall provide a space for the voting member to indicate a preference for one of the two election methods described by these bylaws. For the meeting method, the ballot shall also provide a space to indicate whether voting shall be allowed all day, half day or only during the meeting. No quorum call shall be required for any meeting.
  • 5) For purposes of determining voter and candidate eligibility, the membership list maintained by the executive director as of March 15 shall be controlling. Except to correct clerical errors in records maintained as of that date, no changes in circuit membership, revisions or additions to the membership list for purposes of the election shall be made after March 15.
  • 6) The executive director shall announce to the bar the results of the election for the office of Council.
  • 7) Any challenge to an election shall be resolved by a committee which shall be chaired by the president and shall include the president-elect, the immediate past president, and two members of Council appointed by the president who shall not be current members of the Executive Committee.
  • 8) Should a member of Council change his or her address of record from the circuit he or she represents, his or her seat shall be declared vacant.  A vacancy among the elected members of Council shall be cause for a special election to occur for the unexpired term of the vacant seat.

ARTICLE III

Secretary-Treasurer [Executive Director]

Sec. 1.   The Secretary-Treasurer [Executive Director] shall perform all duties prescribed by the Rules and these by-laws, and in addition such other duties as may be delegated to him from time to time by the Council or Executive Committee. He or she shall act as Secretary of the Bar, of the Council and of the Executive Committee.

Sec. 2.   The Secretary-Treasurer [Executive Director] shall give bond of $250,000 with corporate surety conditioned for the faithful performance of his or her duties, the premium of which shall be paid by the bar.

ARTICLE IV

Notices of Meetings

The Secretary shall give twenty days' notice by mail of all meetings of the Council, and five days' notice by mail of all meetings of the Executive Committee. Notice of mailing shall commence on the date of mailing.

ARTICLE V

Meetings

Sec. 1.   In the absence of specific action by the Council, the Executive Committee shall fix the time and place of the annual meeting of the bar, and may call any special meetings of the bar at such time and place as it shall designate.

Sec. 2.   In the absence of specific action by the Council, the Executive Committee shall fix the time and place of all meetings of the Council. There shall be at least two meetings annually. Special meetings of the Council may be called at any time by the Executive Committee. The Executive Committee shall call a special meeting at the written request of twelve members of the Council.

Sec. 3.   The Executive Committee shall meet on the call of the president or of the president-elect and a meeting shall be called at the written request of three members of the committee.

Sec. 4.   Proceedings at all meetings shall be governed by Roberts Rules of Order, except that no member shall without unanimous consent speak more than twice on any one subject or more than five minutes at any one time.

ARTICLE VI

Executive Committee

Sec. 1.   There shall be an Executive Committee consisting of thirteen members, six of whom shall be elected annually by and from the Council, with the president, president-elect, immediate past president, President of the Young Lawyers Conference, Chair of the Senior Lawyers Conference, Chair of the Conference of Local Bar Associations, and Chair of the Diversity Conference serving as ex officio members.

Sec. 2.   A quorum of the Executive Committee shall consist of six members thereof.

Sec. 3.   The Executive Committee shall have authority to:

• (a) Allocate funds as required for authorized bar purposes and functions within amounts available to the bar;
• (b) Employ such staff as it deems necessary and fix the duties and compensation of such staff;
• (c) Cause proper books and records of account to be kept and audited annually, and cause proper financial statements of receipts and expenditures to be prepared and regularly presented to Council;
• (d) Review annually the performance of the Executive Director, Deputy Executive Director and Bar Counsel and set the compensation of each;
• (e) Review matters which are placed on the agenda for Council meetings and make recommendations to Council when appropriate; and
• (f) Between meetings of Council, perform any other duties and powers prescribed for Council under any of the rules of the Supreme Court of Virginia, except such duties and powers as Council may reserve to itself or delegate to other committees.

Article VII

District Committees and the Disciplinary Board

Sec. 1.   District Committees —The several district committees provided for by Part 6, Section IV, Paragraph 13 of the Rules of Court and elected by the Council shall be known as District Committees under numerical designation of the respective districts, for example, First District Committee, etc. A district committee shall consist of ten or, in the discretion of Council, twenty, thirty or forty members. Three members of a ten-member district committee, six members of a twenty-member district committee, nine members of a thirty member district committee, and twelve members of a forty member district committee shall be non-lawyers. All other district committee members shall be active members of the bar. No member of the Council shall be a member of a district committee. All potential district committee appointees shall fulfill the qualification requirements provided for in Paragraph 13 before appointment.

Effective July 1, 1992, the District Committees shall be comprised of the following judicial circuits:

• First District Committee: Circuits 1, 3, 5, 7 and 8
• Second District Committee: Circuits 2 and 4 (2 sections)
• Third District Committee: Circuits 6, 11, 12, 13 and 14 (3 sections)
• Fourth District Committee: Circuits 17 and 18 (2 sections)
• Fifth District Committee: Circuits 19 and 31 (3 sections)
• Sixth District Committee: Circuits 9 and 15
• Seventh District Committee: Circuits 16, 20 and 26
• Eighth District Committee: Circuits 23 and 25
• Ninth District Committee: Circuits 10, 21, 22 and 24
• Tenth District Committee: Circuits 27, 28, 29 and 30 (2 sections)

The Secretary shall notify the members of each district committee of their appointments and each district committee shall meet within forty (40) days thereafter and shall elect from their attorney members a Chair, Vice-Chair, and Secretary and such other officers as they deem necessary.

Sec. 2.  Disciplinary Board —The Council shall recommend persons to the Court for appointment as members of the Disciplinary Board. The Disciplinary Board shall consist of twenty members, four of whom shall be non-lawyers and sixteen of whom shall be active members of the bar. The Council shall also recommend attorney members of the Disciplinary Board to the Court to serve as Chair and two Vice Chairs. All potential Disciplinary Board appointees shall fulfill the qualification requirements provided for in Paragraph 13 before appointment.

ARTICLE VIII

Standing Committees

Sec. 1.   Committee on Legal Ethics —There shall be a standing committee to be appointed by the president and to be known as the Committee on Legal Ethics. The committee shall consist of nine active members of the bar, at least two of whom shall be members of the Council. All powers and duties of the Council with respect to legal ethics, not otherwise delegated or reserved, shall be exercised and discharged by the committee.

Members shall be appointed to three-year terms. No member shall serve more than two consecutive three-year terms. A member appointed to fill an unexpired term shall be eligible to serve two additional full three-year terms. An eligible member wishing to be reappointed shall be required to reapply in writing prior to the end of his or her current term under procedures established by Council and administered by the executive director

Sec. 2.   Committee on Lawyer Discipline —There shall be a standing committee to be appointed by the president and to be known as the Committee on Lawyer Discipline. The committee shall consist of twelve persons, ten of whom shall be active members of the bar and two shall be non-lawyers. In addition, the vice-chairman of the Virginia State Bar Disciplinary Board shall be an ex-officio, non-voting member of the committee. At least two of the lawyers who are members shall be members of the Council. All members shall serve a three-year term and the president shall appoint members to the committee so as to allow for the retirement from the committee of one third of its membership at the end of each fiscal year. No member shall serve more than two consecutive three-year terms. A member appointed to fill an unexpired term shall be eligible to serve two additional full three-year terms. An eligible member wishing to be reappointed shall be required to reapply in writing under procedures established by Council and administered by the executive director. All powers and duties of the Council with respect to operation of the bar's disciplinary system, not otherwise delegated or reserved, shall be exercised and discharged by the committee.

Sec. 3.   Committee on Professionalism —There shall be a standing committee to be appointed by the president and to be known as the Committee on Professionalism. The committee shall consist of fifteen members, each of whom shall be an active or judicial member of the bar. At least two of the committee members shall be members of the Council, at least three shall be current or former members of the faculty of the mandatory course on professionalism, and at least one shall, when initially appointed, be an officer or member of the board of governors of the Young Lawyers Conference. In addition, the Virginia State Bar Counsel shall be an ex officio member of the committee. All members shall serve for a three-year term. No member may serve more than two consecutive three-year terms. A member appointed to fill an unexpired term shall be eligible to serve two additional full three-year terms. An eligible member wishing to be reappointed shall be required to reapply in writing under procedures established by Council and administered by the executive director. All powers and duties of Council with respect to the implementation of Paragraph 13.1 of Part Six, Section IV of the Rules of the Supreme Court of Virginia, and with respect to professionalism in the practice of law in Virginia, not otherwise delegated or reserved, shall be exercised and discharged by the Committee.

Sec. 4.   Budget and Finance Committee —There shall be a standing committee to be appointed by the president and to be known as the Budget and Finance Committee. The committee shall consist of nine active members of the bar, three of whom shall be elected members of the Executive Committee and three of whom shall be other members of Council. In addition, the president-elect shall serve as an ex officio member.

All members, other than the president-elect, shall serve three-year terms. No member shall serve more than two consecutive three-year terms. A member appointed to fill an unexpired term shall be eligible to serve two additional full three-year terms. An eligible member wishing to be reappointed shall be required to reapply in writing under procedures established by Council and administered by the Executive Director.

The committee shall perform such tasks as are delegated or assigned by the Executive Committee and/or the Bar Council. The committee shall work with appropriate members of the bar staff to develop the bar's annual budget and present the budget to the Executive Committee and Council for approval. The committee shall also be responsible for reviewing and making recommendations with respect to the bar's appropriation requests prior to their submission to the Commonwealth of Virginia, Department of Planning and Budget. The committee shall also be responsible for assessing and making recommendations to the Executive Committee and Council regarding other budget matters, including personnel issues which are budget-related or budget-driven.

Sec. 5.   Committee on Access to Legal Services —There shall be a standing committee to be appointed by the president and to be known as the Committee on Access to Legal Services. The committee shall consist of fifteen members, each of whom shall be an active or judicial member of the bar. At least two of the committee members shall be members of the Council. Additionally, at least one of the committee members shall be a member of the Virginia Access to Justice Commission; at least one shall be a staff attorney, director or executive director of a licensed legal aid society; and at least one shall be an executive director or director of Legal Services Corporation of Virginia.

All members shall serve for a three-year term. No member may serve more than two consecutive three-year terms. A member appointed to fill an unexpired term shall be eligible to serve two additional full three-year terms. An eligible member wishing to be reappointed shall be required to reapply in writing under procedures established by Council and administered by the executive director.

All powers and duties of Council with respect to advancing the availability of legal services provided to the people of Virginia and assisting in improving access to the legal system for all Virginians, not otherwise delegated or reserved, shall be exercised and discharged by the Committee.

ARTICLE IX

Votes by Mail or Telephone

By unanimous consent of the members of any committee, all questions before such committee may be settled by mail ballot or telephone call.

ARTICLE X

Vacancies in Committees

All vacancies in committees appointed by the president shall be filled by him. Vacancies in other committees shall be temporarily filled by the president, his or her appointees to act until the next meeting of the Council.

ARTICLE XI

Sections

The Council may create and abolish sections as it may consider necessary or desirable to accomplish the purposes and serve the interests of the Virginia State Bar and of the sections and shall prescribe the powers and duties of the sections. The bylaws of any section shall be subject to approval of Council.

Part III — MISCELLANEOUS

Amending Bylaws

Upon motion of a Council member, the bylaws contained in either Part I or Part II may be amended at any regular meeting of the Bar Council provided there has been at least 30 days' notice of the proposed amendment to all Virginia State Bar members. Amendment of the bylaws must be by a two-thirds vote of the Council members present and voting at that regular meeting.

Revised by Council 6/13/19, effective immediately

Revised by Council 10/24/14, effective immediately

Revised by Council 6/12/14, effective immediately

Revised by Council 6/13/13, effective immediately

Unauthorized Practice Rules

Rules of the Supreme Court of Virginia Part 6, § I

THE PRACTICE OF LAW IN THE COMMONWEALTH OF VIRGINIA AND THE UNAUTHORIZED PRACTICE OF LAW

1. PROHIBITION AGAINST UNAUTHORIZED PRACTICE OF LAW: No non-lawyer shall engage in the practice of law in the Commonwealth of Virginia or in any manner hold himself or herself out as authorized or qualified to practice law in the Commonwealth of Virginia except as may be authorized by rule or statute. The term “non-lawyer” means any person, firm, association or corporation not duly licensed or authorized to practice law in the Commonwealth of Virginia. Any person or entity who practices law without being licensed or otherwise authorized to practice law shall be guilty of a Class 1 misdemeanor. Va. Code § 54.1-3904.
    
2. GENERAL DEFINITION: A person or entity engages in the practice of law when representing to another, by words or conduct, that one is authorized to do any of the following: 
   1. Undertake for compensation, direct or indirect, to give advice or counsel to an entity or person in any matter involving the application of legal principles to facts. 
   2. Select, draft or complete legal documents or agreements which affect the legal rights of an entity or person.
   3. Represent another entity or person before a tribunal.
   4. Negotiate the legal rights or responsibilities on behalf of another entity or person. 
       
3. EXCEPTIONS: Non-lawyers and/or Foreign Lawyers (as defined by Part 6, § II, Rule 5.5, Rules of Supreme Court of Virginia) may engage in any of the following actions, even though they may constitute the practice of law: 
   1. Providing legal services as permitted by Va. Code § 54.1-3900 (military legal assistance attorneys; third-year law students or persons in the last year of study in the law reader program practicing under the supervision of a practicing attorney; employees of state agencies in the course of employment representing the agency; non-lawyer employees of the Department of Social Services preparing and signing form petitions for the establishment, modification or enforcement of support in juvenile and domestic relations district courts); legal aid societies licensed by the Virginia State Bar pursuant to Va. Code § 54.1-3916 and non-lawyer employees thereof representing society patrons before a tribunal under the direct supervision of a legal aid staff attorney as authorized by the governing body of that society and the rules of that tribunal; provided, however, that the legal aid staff attorney shall assume personal responsibility for any work performed by the non-lawyer.
   2. Providing legal services as a foreign attorney as authorized by Part IA of the Rules of Supreme Court of Virginia to include attorneys admitted pro hac vice, corporate counsel, registered military assistance attorneys, foreign legal consultants and military spouse provisional admittees. 
   3. Providing legal services as a Foreign Lawyer pursuant to Part 6, § II, Rule 5.5 of the Rules of Supreme Court of Virginia (Virginia Rules of Professional Conduct). 
   4. Acting as a lay representative authorized by law to appear before administrative agencies or tribunals.
   5. Appearing and filing certain pleadings as authorized under Va. Code § 16.1-88.03 and § 16.1-81.1 (employees or officers of certain business entities).
   6. Acting as a real estate settlement agent authorized by law to provide escrow, closing or settlement services for real estate transactions in the purchase or financing of real estate in the Commonwealth of Virginia. Va. Code, Title 55, Chapters 27.2 and 27.3. 
   7. Preparing legal documents as an employee of an entity that are incidental to the entity’s business and in connection with a transaction in which the entity has a direct or primary interest.
   8. Performing the tasks as a trustee pursuant to Va. Code § 64.2-778.
   9. Discharging the duties and exercising the powers of a trustee on a deed of trust pursuant to Va. Code § 55-59.4.
   10. Preparing Advanced Medical Directives pursuant to Va. Code §§ 54.1-2984, 54.1-2988, 54.1-2988.1 and 54.1-2993.1.
   11. Practicing before the Internal Revenue Service and the United States Tax Court as authorized by law.
   12. Participating in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements. 
   13. Preparing a memorandum of understanding or agreement resulting from an alternative dispute resolution proceeding, to include, when necessary, completion of a child support guidelines worksheet.
   14. Working as a paralegal or providing other administrative support under the direct supervision of a licensed attorney.
   15. Providing assistance as a court clerk to litigants in completing for filing, forms prescribed by the Supreme Court of Virginia or other tribunal; information shall be limited to description of forms, instructions for use, and required sections to complete.  Court clerks shall not engage in providing legal advice, recommendations or opinions as part of the court clerk’s assistance. 
   16. Serving as a registered patent agent.
   17. Preparing and filing pleadings in general district court to recover possession of leased premises and/or recovery of rent as permitted by Va. Code § 55-246.1.
   18. Providing other legal services as authorized by state, federal or other law.
        
4. EXCLUSIONS: The following actions do not constitute the practice of law:
   1. Providing translation services. 
   2. Selling legal forms.
   3. Pro se representation.
   4. Serving as a mediator, arbitrator, conciliator, or facilitator. 
   5. Serving as a fiduciary.
   6. Acting as a lobbyist.
   7. Teaching law or providing legal information. 
   8. Negotiating settlements and preparing releases in the course of employment as an adjuster or agent for an insurer.
   9. Preparing tax returns to the extent authorized by the Internal Revenue Service or other state law. 
       
5. COMMENTS:
   1. Definition of “tribunal”: The term “tribunal” shall include any agency, authority, board, commission or court when it determines the rights and obligations of parties to proceedings before it, as opposed to promulgating rules and regulations of general applicability. 
   2. Real Estate Settlement Agents. A non-lawyer licensed real estate agent may, pursuant to Va. Code § 54.1-2101.1, prepare contracts incident to the regular course of conducting a licensed real estate business. Paragraph 3(F) of this rule allows attorneys licensed by the Virginia State Bar, a title insurance company licensed by the State Corporation Commission, a title agency or title agent licensed by the State Corporation Commission, or a real estate broker licensed by the Virginia Real Estate Board to serve as a “settlement agent” and provide “escrow, closing or settlement services” to close a transaction involving any real estate located within the Commonwealth, subject to the requirements of Chapters 27.2 and 27.3 of Title 55 of the Code of Virginia. No other person may lawfully act or hold himself or herself out as a settlement agent. See Va. Code §§ 55-525.19(2)-(3), 55-525.18(B)(1).
      1. In connection with a real estate closing, the following tasks may be performed by a non-lawyer settlement agent or a non-lawyer employed by such settlement agent, and do not involve the practice of law:
         1. ordering a survey, termite or other inspection(s), casualty insurance or certificates of insurance, lien payoff figures, loan checks or title insurance;
         2. creating or preparing a title abstract;
         3. determining the status of utility services and assisting in their transfer;
         4. making mathematical calculations involving the proration of taxes, insurance, rent, interest and the like in accordance with the contract or local custom;
         5. completing form documents selected by and in accordance with the instructions of the parties to the transaction, but not drafting or selecting such documents;
         6. obtaining lien waivers from mechanics or materialmen in a form acceptable to the parties in interest, but not drafting such waivers or giving advice as to the legal sufficiency thereof;
         7. preparing settlement statements; 
         8. receiving and disbursing settlement funds;
         9. drafting receipts and certificates of satisfaction, but not deeds, deeds of trust, deed of trust notes, or deeds of release;
         10. completing other forms such as the Owner's/Seller's Affidavit, Notice of Availability, and tax reporting forms. 
      2. A non-lawyer settlement agent cannot provide any legal representation or give legal advice to any party to a transaction. Examples of legal advice which, if provided by a Settlement Agent, would be the unauthorized practice of law, include:
         1. explaining the legal obligations of the parties under the real estate sales contract;
         2. explaining the meaning of legal terms used in taking title to property or advising the parties to the transaction which way to take title to the property;
         3. explaining the legal obligations of the parties under the loan documents;
         4. explaining the legal effect of an item reported as an exception in a title commitment;
         5. explaining the legal effect of a document in the chain of title;
         6. drafting legal instruments for a party to the transaction, other than completing form documents selected by and in accordance with the instructions of the parties to the transaction;
         7. selecting a legal instrument for a party if to do so requires the exercise of legal judgment;
         8. instructing or assisting a party in the completion of a legal document if to do so requires the exercise of legal judgment;
         9. providing legal opinions in response to the following types of questions:
            1. "What should I do?"
            2. "What are my rights or obligations under this document?"
            3. "What are the lender's rights or obligations under this document?"
   3. It is now well settled that a lay corporation may not ordinarily employ an attorney to provide legal services to customers or clients of the corporation. See, e.g., Richmond Ass’n of Credit Men v. Bar Ass’n of Richmond, 167 Va. 327, 189 S.E. 153 (1937).  The underlying basis of this rule was explained by the Virginia Supreme Court in Richmond Association of Credit Men as follows: 

      [The practice of law] is not a lawful business except for members of the Bar who have complied with all the conditions required by statute and the rules of the Courts. As these conditions cannot be performed by a corporation, it follows that the practice of law is not a lawful business for a corporation to engage in.

      The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence.  It cannot be delegated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client. 

      Independent of statute, it is contrary to public policy for a corporation to practice law, directly or indirectly. UPL Opinion 60 (1985).

   4. The following are examples of activity that fall within the scope of paragraph 3(R) (“Providing other legal services as authorized by state, federal or other law”):
      1. Serving as a legal representative or lay advocate for a party in a state or federal administrative proceeding as permitted by, and subject to, the rules of that agency.  (For example, the Social Security Administration and the Virginia Employment Commission.)
      2. Serving as lay advocate for parents in IDEA cases and parents litigating their own child’s IDEA claim.
      3. A non-lawyer entity, such as an insurance company, that employs staff lawyers or captive law firms to provide legal services to its insureds so long as the lawyer employed is able to comply with the Virginia Rules of Professional Conduct. See UPL Op. 60.
      4. Any non-profit entity that employs a licensed staff lawyer to assist its consumers and provide pro bono or nominal fee legal services. Provided, however:
         1. the staff lawyer shall exercise independent professional judgement on behalf of each client;
         2. the board or management, if composed of non-lawyers, shall not direct or control the lawyer’s independent professional judgement on behalf of any client;
         3. the initial screening or interview of prospective clients must be done by a lawyer or a non-lawyer under the direct supervisory authority of a staff lawyer; and
         4. access to confidential information of clients served by the organization shall be restricted to a lawyer or non-lawyers under their direct supervisory authority.
      5. Non-lawyers making any disclosures or advisements required by state or federal law, e.g., police officer explaining Miranda rights to an arrestee.
      6. When Congress grants authority to an agency to prescribe regulations governing the recognition and conduct of a person representing the interests of another before such agency, the state is preempted from enforcing its own rules of practice while such person is acting reasonably within the scope of the practice authorized by the agency. Sperry v. Florida ex rel. Florida Bar 373 U.S. 379 (1963) (Florida may not prohibit non-lawyer patent agent from performing within Florida tasks which are incident to the preparation and prosecution of patent applications before the Patent Office).
   5. Paragraph 4(B) (“Sale of legal forms”) permits the sale of legal forms provided no legal advice is provided to complete the forms.
   6. The following are examples of activity which fall within the scope of paragraph 4(G) (“Teaching law or providing legal information”):
      1. A law professor instructing a class in the application of law to an actual situation is not engaged in the practice of law because he or she is not undertaking to provide advice or services for one or more clients as to their legal interests.
      2. Non-lawyer employees of an entity or organization providing legal information or education about law, regulations, legal procedures or compliance issues for the purpose of training other employees or members of the entity or organization. For example, a human resource manager or FOIA officer is not engaged in the practice of law when advising the employer as to what the employer must do to comply with state or federal laws.
      3. Non-lawyer providing information about the application of the law to a product or service that the non-lawyer is otherwise authorized to provide to the public. For example: 
         1. Lender explaining right of rescission to borrower in a refinancing of real estate.
         2. Preparation of privacy notices for customers by credit card companies.
         3. Preparation of authorization to share patient’s medical information under HIPAA. 
         4. Tax accountants, real estate agents, title company attorneys, securities advisors, pension consultants, and the like, who do not indicate they are providing legal advice or services based on competence and standing in the law are not engaged in the practice of law, because their relationship with the customer is not based on the reasonable expectation that learned and authorized professional legal advice is being given.
      4. Non-lawyer employees and supervised volunteers of nonprofit entities, whose primary purpose is assisting domestic violence and sexual assault victims, may explain to victims how to seek legal recourse, accompany victims throughout all stages of court proceedings, and respond to inquiries by the court. However, they shall not examine witnesses, make arguments to the court, or otherwise act in a representative capacity for the victims.
      5. A lay trustee on a deed of trust may prepare the legal instruments necessary to sell or encumber real estate to which he holds the legal title, e.g., contracts, deeds, deeds of trust, etc. 
   7. Pro se representation. Every jurisdiction recognizes the right of an individual to proceed pro seby providing his or her own representation in any matter, whether or not the person is a lawyer. Because the appearance is personal only, it does not involve an issue of unauthorized practice. The right extends to self‑preparation of legal documents and other kinds of out‑of‑court legal work as well as to in‑court representation.
       
6. ANNOTATIONS: 
   1. Preparation of legal instruments incident to the ordinary course of conducting a licensed business is not the unauthorized practice of law: A non-lawyer may prepare legal instruments incident to the ordinary course of conducting a licensed business.  For example, a real estate broker or agent may prepare and have the buyer and seller execute a contract for the sale of real estate which the agent or broker participated. Commonwealth v. Jones & Robins, Inc.,186 Va. 30, 41 S.E.2d 720 (1947). It is not the unauthorized practice of law for a pension plan administrator to offer the legal services of preparing, amending and submitting pension plans to the IRS where such activities arise in association with the administrator’s primary business of administering individually-tailored plans. UPL Op. 77 (1985).
   2. Preparation/completion of Advance Medical Directive by non-lawyer: Ministerial assistance to another in completing and executing an advanced medical directive in the form prescribed by Va. Code § 54.1-2984 is not unauthorized practice of law.  Va. Code § 54.1-2988.1.  Ministerial assistance does not include expressing an opinion about the legal effect of the alternative choices or offering legal advice. Id.
   3. A non-lawyer may serve as an arbitrator or mediator since neither activity is the practice of law. The Supreme Court of Virginia allows certification of non-lawyers as well as lawyers as mediators. See Guidelines for the Training & Certification of Court-Referred Mediators,Judicial Council of Virginia, November 1, 2017. Whether certified or not, a lawyer or non-lawyer serving as a mediator or arbitrator shall not give the parties legal advice. SeeVa. Code § 8.01-581.26(3) (requiring mediator to inform parties at the outset of the mediation process that the mediator does not give legal advice). See also Pt. 6, § II, Rule 2.10 (Third Party Neutral), cmt. [3] and Rule 2.11 (Mediator) cmt. [7] (prohibiting a lawyer serving as a third party neutral or mediator from offering any of the parties legal advice as distinct from legal information or neutral evaluation); and Standards of Ethics and Professional Responsibility for Certified Mediators, Standard D.2(1), adopted by Judicial Council of Virginia effective July 1, 2011.
   4. Non-lawyer advocates in Social Security matters: The Social Security Act permits a non-lawyer to represent a third person in pursuing a Social Security claim.  42 U.S.C. § 406(a)(1) ("The Commissioner of Social Security may prescribe rules and regulations governing the recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants before the Commissioner of Social Security, and may require of such agents or other persons, before being recognized as representatives of claimants that they shall show that they are of good character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their cases.")
   5. Non-lawyer employees of a business or company:  A non-lawyer employee of a corporation may permissibly draft legal documents, negotiate complex transactions, and perform other tasks for the employing organization, even if the task is typically performed by lawyers for the organization. Restatement (Third) of Law Governing Lawyers § 4 cmt. e(2000). By statute, lay employees may prepare certain pleadings and appear on behalf of their employer in a limited role in general district court. Va. Code § 16.1-88.03. Small businesses may appear pro se in general district court through one of its owners or officers if the claim does not exceed $2500. Va. Code § 16.1-81.1. A non-lawyer officer or designated employee may represent his or her employer’s interests in dispute resolution processes such as mediation or arbitration. UPL Op. 206 (2004). It is not the unauthorized practice of law for bank personnel to prepare deeds of trust with the bank as sole beneficiary. UPL Op. 49 (1980); UPL Op. 109 (1988). In small claims court, an owner, a general partner, an officer or an employee of a corporate or partnership plaintiff or defendant may represent that corporation or partnership and shall have all the rights and privileges given an individual to represent, plead and try a case without an attorney. Va. Code § 16.1-122.4.
   6. Serving as lay advocate for parents and pro se representation in IDEA cases: Parents may represent their child in due process hearings and in federal court under the IDEA. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007) (IDEA allows parents to litigate their child’s claim pro se); UPL Op. 187 (1996) (34 C.F.R. § 300.58 permits the aggrieved parents in IDEA hearings to be represented by counsel or a lay advocate, provided the lay advocate is a person having special knowledge or training concerning the problems of children with disabilities. Under the Virginia IDEA statutes, specifically § 22.1-214(C), a party may be “represented by legal counsel or other representative before such hearing officer without being in violation of the provisions of § 54.1-3904 [prohibition against unauthorized practice of law].” Virginia Department of Education regulations permit a party to be “accompanied and advised” by an advocate “without [a] violation of the provisions of § 54.1-3904 of the Code of Virginia as amended.”)
   7. Trustee in a foreclosure sale — statutory duties: Virginia law does not require that a lawyer serve as the trustee on a deed of trust and a non-lawyer is authorized to serve in this capacity. Virginia Code Section 55-58.1 requires only that a person named as trustee be a Virginia resident. Incident to the sale of property under a deed of trust, Va. Code § 55-59.4 requires the trustee to perform tasks and make judgments which undoubtedly require the exercise of legal knowledge, judgment and skill. Since the trustee is a party to the deed, the trustee is authorized to prepare this legal instrument. The trustee must also be aware that unpaid real estate tax, water and sewer liens on the subject property have priority over the deed of trust and the trustee is to pay these charges out of the foreclosure sale proceeds. See Va. Code § 55-59.4 (“Powers and duties of trustee in event of sale under or satisfaction of deed of trust”); see UPL Opinion 193 (1999) and UPL Op. 198 (2006) (activities of a business composed of non-lawyers and offering residential foreclosure services to mortgage lenders acting as trustees).      
   8. Representation of others before state and federal administrative agencies: Representing another before an administrative agency normally constitutes the practice of law. Regulation of the practice of law before administrative agencies is the responsibility of Congress or the Virginia General Assembly. Also, an agency’s own rules or regulations may authorize a non-lawyer or foreign lawyer to represent a party before that agency. See also, UPL Op. 113 (1988) (on behalf of their employer a non-lawyer may participate in informal fact-finding hearing before state agencies as permitted by Virginia Administrative Procedures Act); UPL Op. 74 (1984) (Va. Code § 60.1-124.1 authorizes the appearance of a non-lawyer on behalf of another before the Virginia Employment Commission).

Approved by the Supreme Court of Virginia on April 26, 2019, and effective July 1, 2019.

Mandatory Continuing Legal Education Regulations

Purpose

The Virginia Supreme Court has established, by Rule of Court, a mandatory continuing legal education program in the Commonwealth of Virginia, which requires each active member of the Virginia State Bar annually to complete a minimum of twelve (12) hours of approved continuing legal education courses, of which at least two (2) hours shall be in the area of legal ethics or professionalism, unless expressly exempted from such requirement.

The Virginia Supreme Court has established a Continuing Legal Education Board to administer the program and has given to it those general administrative and supervisory powers necessary to effectuate the purposes of the Rule, including the power to adopt reasonable and necessary regulations consistent with the Rule.

Pursuant to this authority, these regulations have been adopted by the Continuing Legal Education Board.

Regulation 101
Definitions

As used in these regulations, the following definitions shall apply:

• (a) The "Rule" shall mean the provisions of the Mandatory Continuing Legal Education (also referred to as “MCLE”) Rule established by Paragraph 17 of Section IV, Part Six, Rules of Virginia Supreme Court.
• (b) The "Board" shall mean the Virginia State Bar Mandatory Continuing Legal Education Board established by Paragraph B of the Rule.
• (c) A "Member" as defined by Paragraph 2 of Section IV, Part Six, Rules of Virginia Supreme Court, shall comprise all attorneys-at-law in this commonwealth.
• (d) An "Active Member," shall mean an Active or Emeritus Member as defined by Paragraph 3 of Section IV, Part Six, Rules of Virginia Supreme Court.
• (e) A "newly-admitted member" shall mean a person first admitted to practice during the current completion period.
• (f) A "program sponsor" or "sponsor" is any person or entity presenting or offering to present one or more continuing legal education programs.
• (g) The terms "course" and "program" mean a discrete continuing legal education (also referred to as “CLE”) offering, regardless of length or daily schedule, provided that the course or program is a minimum of 30 minutes in length.
• (h) An "accredited sponsor" shall mean an organization which, based on a history of providing approved courses and pursuant to Regulation 105, has been granted approval for its programs. The programs must meet the approval standards of Regulation 103 and are not subject to the individual course application procedures of Regulation 104(a).
• (i) An "approved course" means a course expressly approved by the Board for the relevant completion period or a course offered by an accredited sponsor during the completion period for which the sponsor is accredited and meets the approval standards of Regulation 103.
• (j)     A “pre-recorded course” means a program where a live presentation has been recorded and presented via any electronic media (e.g. videotaped, DVD or CD-ROM presentations, audiotaped or CD presentations, pre-recorded telephone seminars or webcasts, on-demand online courses, etc.) that does not include simultaneous, live interaction with the presenter.
• (k) A "specially approved course or program" means a course which does not meet the standards of regulation 103(b) and (c) but which, because of its significant value to the practice of a member who has sought approval, has been approved by the Board for such member. As to such member, the term "approved course" includes a specially approved course or program.
• (l) The term "panel(s)" shall mean a committee or committees organized by the Board for the purpose of expeditiously considering and deciding matters arising under the Rule and these regulations.
• (m)    The term “Director of MCLE” or “MCLE Director” shall mean the head of the Mandatory Continuing Legal Education Department of the Virginia State Bar who acts as the liaison and administrative staff for the Board.
• (n) A course or program offered "in-house" means one sponsored by a single private law firm, a single corporate law department or a single federal, state or local governmental agency or military branch for lawyers who are members or employees of the firm, department, agency or branch.
• (o) The term "completion period" shall mean a period of one year beginning on November 1, of one year and ending on October 31 of the next year; provided, however, that the next completion period following June 30, 2001, shall be July 1, 2001, to October 31, 2002.
• (p) The term "faculty member" shall mean a person qualified by practical or academic experiences to teach the subject he or she covers.
• (q) "Credit hours" (also referred to in context as "hours," "credits," and "hours credit") are the 60-minute units used for measuring completion of Mandatory Continuing Legal Education as required by the Rule.
• (r) "Ethics credits" are credit hours which apply toward Mandatory Continuing Legal Education in the area of legal ethics or professionalism as required by the Rule.
• (s) A "qualified ethics course or component" is a clearly identified segment of a course or program which meets the requirements of Regulation 103(d) and is devoted to one or more topics embraced in recognized formulations of rules of professional conduct or codes of professional responsibility applicable to attorneys and/or to the systems and procedures which have been established for enforcement and interpretation of those rules or codes. An ethics component in a course or program involving a substantive area of law may constitute a “clearly identified segment” if the integration of the substantive material is necessary to understand the ethical topic, and if the ethical topic is the primary focus of the segment. Such a segment must be appropriately described or entitled in the course materials and must have a defined duration in the course or program schedule.
• (t) A "qualified professionalism course or component" is a clearly identified segment of a course or program which meets the requirements of Regulation 103(d) and is devoted to one or more topics designed to educate and encourage attorneys to aspire to and achieve higher and more noble standards of professional conduct than the minimum standards set forth in recognized formulations of rules of professional conduct or codes of professional responsibility. All or part of a malpractice program may qualify as a professionalism course or component if it is devoted to one or more topics designed to educate and encourage attorneys to take measures in the conduct of the practice of law to serve the interests of the client, consistent with the attorney’s fiduciary duty to the client, and to endeavor to maintain an appropriate standard of care in the practice of the profession. Such a course or component will not be approved if the primary focus is malpractice litigation tactics or strategy. A professionalism component in a course or program involving a substantive area of law may constitute a “clearly identified segment” if the integration of the substantive material is necessary to understand the professionalism topic, and if the professionalism topic is the primary focus of the segment. Such a segment must be appropriately described or entitled in the course materials and must have a defined duration in the course or program schedule.
• (u) A “course presented by distance learning methods” includes any course in which the participant seeking credit received the instruction at a location different from the location from which the instruction was presented or at a time different from the time when the instruction was presented.  Thus, all courses presented to participants from pre-recorded media (e.g. videotape, DVD or CD-ROM presentations, audiotape or CD presentations, pre-recorded telephone seminars or webcasts, on-demand online courses, etc.) are “courses presented by distance learning methods.”  Similarly, any course taken by a participant at a location separate from the instructor (e.g. live telephone seminars, live webcasts, live videoconferences, etc.) are “courses presented by distance learning methods.”  (Comment: See MCLE Board Opinion 16.)
• (v)    The term “online MCLE record” shall mean the electronic access to the individual attorney's MCLE record maintained by the MCLE Department of the Virginia State Bar.

Regulation 102
Requirements and Computations

• (a) Each active member, other than a newly-admitted member as defined in Regulation 101, shall complete, during each completion period in which he or she is an active member for any part thereof, a minimum of twelve (12) credit hours of approved continuing legal education (also referred to as CLE) courses, of which at least two (2) hours shall be in the area of legal ethics or professionalism.  Of the twelve credit hours required, no more than eight (8) may be earned from pre-recorded courses.  Credit must be obtained in the manner hereinafter provided, unless expressly exempted therefrom pursuant to the provisions of Regulation 110 or waived pursuant to Regulation 111.
• (b) Credit will be given to a member who personally attends an approved course and to a member who prepares written materials for an approved course and to a member who personally participates as an instructor for such course. Credit in the area of legal ethics or professionalism will be given a member who attends a course approved for credit in such area and to a member who personally prepares materials for a qualified ethics or professionalism component of such course and to a member who personally participates as an instructor for such a component.
• (c) Credits for attendance will be awarded on the basis of time spent in personal attendance at an approved course which meets the standards of these regulations. Credits for teaching will be awarded on the basis of time spent in personal participation as an instructor at an approved course. However, no credit will be awarded for teaching and preparation of a "specially approved course or program." Credit hours will be computed by calculating the total instructional minutes attended or taught for the course, rounded to the nearest half hour. Credit will not be given for time spent in meal or coffee breaks. Credit will not be given for keynote speeches or introductory remarks or time spent on any subject matter which is not directly related to instruction pertinent to that course.

• EXAMPLES:

  • (1) A member attends a one-day course or seminar with seven (7) segments, each lasting 50 minutes. Two of the segments are in the area of legal ethics or professionalism under the standards set forth in Regulation 103. Credit hours will be computed by calculating the total instructional minutes rounded to the nearest half hour. Since there are 350 total instructional minutes (5 hours, 50 minutes) the Board will round this time to the nearest half hour and the member will receive six (6) hours credit, not seven (7). Of such six (6) hours credit, one and one-half (11/2) hours (100 minutes rounded to the nearest half hour) will be in the area of legal ethics or professionalism.
  • (2)A member attends a course or program which is presented all day Friday and on Saturday morning. The member attends a 3 hour, 15 minute Friday morning session; a 2 hour, 15 minute Friday afternoon session; and a 3 hour, 10 minute Saturday morning session. Since the total instruction time is eight (8) hours and 40 minutes for the two-day program, the Board will round this time to the nearest half hour and the member will receive 8 1/2 hours of credit.
  • (3)A member attends a course or program which is advertised as having been "approved by the Virginia Mandatory Continuing Legal Education Board" for six (6) credit hours, of which one and one-half (1 1/2) apply in the area of legal ethics or professionalism. No further computation need be made by the member if he attends the entire course or program.
  • (4)A member personally teaches any of the courses in the previous examples. The teaching member will receive credit hours for teaching time computed in the same fashion as the credit hours are computed for the attending member.
  • (5)A member is a teacher at a one-day course or program with seven (7) segments, each lasting 50 minutes. Application forms are filed certifying that the member taught one segment and also attended one segment. The member did not attend or teach the other five segments. Since the member attended or taught 100 total instructional minutes for the course, the Board will round this time to the nearest half hour and the member will receive 1 1/2 hours of credit. The member does not receive one credit hour for 50 minutes teaching plus one credit hour for the other 50 minutes attending.
• (d) Credits for preparation will be awarded on the basis of time spent by a member (i) in preparing written materials which meet the standards of these regulations for use in the presentation of an approved course; and (ii) in preparing a personal presentation as an instructor for an approved course. The number of preparation minutes eligible for credit shall not exceed four times the number of instructional minutes in the presentation which is being prepared. Credit hours will be computed by calculating the total minutes spent in preparation for the course, rounded to the nearest half hour. In no event shall more than eight (8) hours of credit be awarded for preparing a single course or program.

  EXAMPLES:

  • (1) A member prepares thorough, high-quality instructional written materials which appropriately cover the subject matter for an approved program which lasts 120 minutes. The member certifies that eight (8) hours or more was spent preparing the written materials. The Board will award eight (8) credit hours for preparation time. This does not exceed the maximum limit of four times the presentation time of the program and is consistent with the maximum limit of eight (8) hours of credit for preparing a single course or program.
  • (2) Same as example 1 above except the member also taught the entire program and certifies that an additional eight (8) hours or more was spent preparing for the presentation as an instructor. This is a total preparation time of sixteen (16) hours. The Board will still award eight (8) credit hours for preparation time because this is the maximum limit of four times the presentation time and also because this is the maximum limit of credit for preparing a single course or program. However, the member will be awarded two (2) credit hours for teaching time and will therefore receive a total of ten (10) credit hours for the activities in preparing and teaching the program.
  • (3)A member teaches at a course approved for five (5) credits including one (1) ethics credit.  The member certifies that he taught the morning ethics segment of twenty (20) minutes.  The member further certifies that one hour and twenty minutes was spent preparing for the presentation.  Since the member taught twenty (20) minutes eighty (80) minutes (four (4) times the presentation time) of the member's preparation time is eligible for credit.  The Board will total the minutes and round this time to the nearest half hour and the member will therefore receive a total of one and one half (1.5) hours CLE credit including one and one half (1.5) hours ethics credit for teaching and preparing the ethics segment.
• (e) A one-year carryover of credit hours will be permitted, so that accrued credit hours in excess of one year's requirement may be carried forward to meet the requirement of the following year.  A member may carry forward a maximum of twelve (12) credit hours, not more than two (2) of which, if earned in the area of legal ethics or professionalism, may be counted toward credit hours required in such area.  No more than eight (8) credit hours, of which not more than two (2) ethics or professionalism credit hours, may be carried forward from pre-recorded programs.
• (f) A member shall not receive credit for any course attended in preparation for admission to practice law in any state.  A member shall not receive credit for teaching that is directed primarily to persons preparing for admission to practice law.  Regular full time, part-time and adjunct academic faculty shall not receive credit for teaching any law school courses (undergraduate or graduate) or bar review courses.  A member attending law classes, for a purpose other than preparing for admission to practice law, may receive credit in accordance with the manner described in Regulation 102(c).  A member may not receive credit for any course which is not materially different in substance from a course for which the same member received credit during the same completion period or the completion period immediately prior to the one for which credit is sought.
• (g) A member may receive credit for attending a course delivered by distance learning methods which otherwise satisfies the requirements of these Regulations.  No more than eight (8) credit hours may be earned in any twelve hour period attending pre-recorded courses.  (Comment: See MCLE Board Opinion 16.)

Regulation 103
Standards for Approval of Programs

• (a) Subject to the provisions of Regulation 105(d), a course is approved for credit if it has been specifically approved by the Board or is presented by an accredited sponsor previously designated by the Board under the provisions of Regulation 105. A course is approved for credit in the area of legal ethics or professionalism if and to the extent specifically approved by the Board. Subject to the provisions of Regulation 105(d), a course presented by an accredited sponsor is also approved for credit in the area of legal ethics or professionalism if and to the extent so represented by such sponsor.
• (b) The course must have significant intellectual or practical content. Its primary objective must be to increase the attendee's professional competence and skills as an attorney, and to improve the quality of legal services rendered to the public.
• (c) The course must pertain to a recognized legal subject or other subject matter which integrally relates to the practice of law, or to the professional responsibility or ethical obligations of the participants.
• (1)    A course which addresses law practice management may be approved so as to promote the efficient, economical and competent delivery of legal services.  The course must cover topics that teach attorneys how to organize and manage their law practices and other law practice issues, which if improperly handled, could result in malpractice, disciplinary complaints or client dissatisfaction.  A course which primarily focuses on marketing techniques, client development or other general business topics applicable to any business shall not be approved.  (Comment: See MCLE Board Opinion 17.)
  
  (2)    A course which addresses substance abuse, stress management, or work/life balance issues may be approved if the topics relate to the practice of law and the quality of legal services rendered to the public.  (Comment: See MCLE Board Opinion 19.)
  
  (3)    A course which addresses general skills topics such as time management, writing, communication or presentation skills may be approved provided the topics are specifically directed to an attorney audience and are covered in the context of the practice of law.
• (d) A course may be approved for credit in the area of legal ethics or professionalism only to the extent that the course constitutes or contains one or more qualified ethics or professionalism components as defined in Regulation 101.  Topics which will not generally be approved for ethics credit include ethics standards of conduct applicable to other professions such as government employees, government contractors, accountants and businesses including corporate compliance.  Also, rules of procedure, rules of evidence and litigation tactics will not generally be approved for ethics credit.  (Comment: See MCLE Board Opinion 13.) A minimum scheduling of thirty (30) minutes in the aggregate of one or more qualified ethics or professionalism components is required before an approved course can be approved for credit in the area of legal ethics or professionalism.

  EXAMPLES:

  • (1) A sponsor's application for approval of a one-day program comprising seven 50 minute segments states in relevant part "each speaker will devote ten minutes of allotted time to ethical considerations." The program does not contain a qualified ethics component and is not eligible for approval for credit in the area of legal ethics. The requirement that a qualified component be a "clearly defined segment" is not met. Such segment must be capable of identification on the schedule and have a defined beginning and end.
  • (2) A sponsor's application for approval of a one-day program reveals in relevant part that the opening 30 minute morning segment is clearly identified as devoted to ethical considerations and that the concluding 20 minutes of the afternoon session is also clearly identified as devoted to ethical considerations. Assuming that other requirements for course approval are met, the Board will approve the program for one (1) hour credit in the area of legal ethics or professionalism. (See Regulation 102.)
• (e) Courses must be conducted in a setting physically suitable to the educational course or program, free from distractions and conducive to learning.
• (f)     No credit will be allowed (or “be granted”) for any course or part thereof taken simultaneously with any other course or part thereof.
• (g) Thorough, high quality instructional written materials which appropriately cover the subject matter must be distributed to all attendees at or before the time the course is presented. A mere agenda or topical outline will not be sufficient. (Comment: See MCLE Board Opinion 14.)
• (h) Each course shall be presented by a faculty member or members qualified by academic or practical experience to teach the subjects covered. Consistent with Virginia State Bar policy, course sponsors should exercise care to ensure that faculty members, where possible, reflect the racial and gender diversity of the State Bar as a whole.
• (i) A course presented by distance learning methods which otherwise satisfies the requirements of these Regulations may be approved provided the speakers and attendees are participating simultaneously. Pre-recorded courses in any electronic form which otherwise satisfy the requirements of these regulations may be approved however no other form of self-study will be approved.  (Comment: See MCLE Board Opinion 16.) 
• (j) A program offered "in-house" may be approved by the Board provided the subject matter of the program does not primarily focus on internal policies, practices and procedures.  An in-house program will be approved if it otherwise meets the standards of these regulations and if the approval procedures prescribed by these regulations are followed.  (Comment: See MCLE Board Opinion 17.)
• (k) Participation in deliberative groups concerned with political activism, law reform, judicial administration, or regulation of the profession generally will not be approved for credit.  Activities associated with membership or attendance at committee meetings, business meetings or work sessions will generally not be approved for credit.
• (l)    To be accredited, a course must have no attendance restrictions based on race, color, national origin, religion, creed, gender, age, disability, sexual orientation or marital status.
• (m)    No credit will be given for any course primarily focused on marketing a particular product or service.  (Comment: See MCLE Board Opinion 15.)
• (n) A course that does not meet the requirements of subsections (b) and (c) of this Regulation may, on application of a member, be approved as a "specially approved course or program" for the applicant where the Board is satisfied that the course has significant value to the applicant's practice. Thus, for example, in appropriate cases courses on engineering, accounting or medical topics may be approved for a particular member.

Regulation 104
Procedure for Approval of Programs

• (a) A member or course sponsor desiring approval of a course or program shall submit to the Board all information called for by the "Application for Approval of a Continuing Legal Education Course." The content of this application has been promulgated by the Board and may be changed from time to time. A member seeking approval of a course as a "specially approved course or program" should include on the Application for Approval of a Continuing Legal Education Course, or as an attachment thereto, a statement of why the course has significant value to the member’s practice. The Board shall then determine whether or not the course or program satisfies the requirements of Regulation 103. If the course or program is approved, the Board also shall determine the number of credit hours to be awarded. The Board shall notify the requesting member or sponsor of its decision within 90 days after receipt of the completed application. The Board shall maintain and make available a list of all approved courses and programs for each completion period. An approved course or program is accredited only for the completion period for which it is approved. A "specially approved course or program" is accredited only for the member for whom approved.
• (b) The sponsor of an approved course or program should include in its brochures or course descriptions the information contained in the following illustrative statement: "This course or program has been approved by the Virginia Mandatory Continuing Legal Education Board for _____ hours of credit, of which _____ hours will also apply in the area of legal ethics or professionalism.” An announcement is permissible only after the course or program has been specifically approved pursuant to an application submitted directly by the sponsor.
• (c) The sponsor of an approvable course or program that has not yet been approved after application should announce:  "Application for approval for this course or program is pending with the Virginia Mandatory Continuing Legal Education Board."
• (d) At each presentation of an approved course or program or one for which approval is pending, the sponsor shall make available copies of the Board's Certification of Attendance for completion by the attendees and the Board's Certification of Teaching for completion by the instructors, copies of which will be provided by the Board with the course approval notification.  The content of these certifications has been promulgated by the Board and may change from time to time.  Where some portion of the program has not been approved for CLE or ethics credit, the sponsor shall provide that information to the attendees with the certification of attendance.
• (e) In the instance of a course or program presented while an application for approval is pending, it will be the responsibility of the sponsor to provide the attendees with the Board's Certification of Attendance or Teaching as required in Regulation 104(d) immediately upon receipt of the approval notification.  If such course or program is not approved, the sponsor shall immediately notify the attendees that credit for the course has been denied.  Under certain circumstances a member may seek approval for a specially approved course or program as defined in Regulation 101(k) in the manner specified in Regulation 104(f).
• (f) Any member seeking credit for attendance at a course or program shall submit to the Board immediately following such attendance all information called for on the Application for Approval of a Continuing Legal Education Course.  The Board will then determine whether the program qualifies under these Regulations and, if so, how many credit hours are approved.  The Board will promptly notify the applicant of its decision.  Applications received more than 90 days following the date of the program shall be subject to a late application fee.
• (g)  Any sponsor seeking approval after presenting a course or program, shall submit to the Board within 30 days after the date of the program all information called for on the Application for Approval of a Continuing Legal Education Course.  The Board will then determine whether the program qualifies under these Regulations and, if so, how many credit hours are approved.  The Board will promptly notify the applicant of its decision.
• (h)   Failure to comply with the sponsor requirements of Regulation 104 or Regulation 105 may result in fines; revocation of course approval; denial of future course credit; suspension or revocation of accreditation; or any other sanction deemed fit by and in the discretion of the Board.

Regulation 105
Procedure for Accreditation of Sponsors

• (a) Any sponsor may apply for approval of individual courses by complying with the criteria of Regulation 103 and the procedures of Regulation 104.
• (b) If the Board determines that a sponsor regularly provides a significant volume of continuing legal education courses, that these courses uniformly meet the approval criteria of Regulation 103, and that the sponsor will maintain and submit the records directed by these Regulations, the Board may designate such a course provider as an "accredited sponsor" under the Rule. Such designation shall be effective for a period of no more than two years unless renewed.
• (c) A sponsor applying for status as an accredited sponsor shall submit to the Board all information called for on the Application for Status as Accredited Sponsor of Continuing Legal Education.
• (d) An accredited sponsor shall be subject to and governed by the applicable provisions of the Rule and these regulations, including the quality standards of Regulation 103 and the record-keeping and reporting requirements of this Regulation 105. The Board may at any time review an accredited sponsor program and reserves the right to deny CLE or ethics credit when the standards for approval are not met. Accordingly, for example, an accredited sponsor may represent in its descriptive literature that a course or program generates credits in the area of legal ethics or professionalism only to the extent the course contains one or more qualified ethics components as provided in Regulation 103.
• (e) The approval procedure of Regulation 104 does not apply to accredited sponsors.  An accredited sponsor shall provide the Board at least thirty days in advance of a program with a descriptive course agenda or brochure which includes the name, date, location and credit hours requested for a particular course pursuant to the approval standards of Regulation 103, including, where appropriate, credit hours requested in the area of legal ethics or professionalism and a description of the content of the ethics session(s).  The Board may request additional information regarding a course or program.  The Board will provide the sponsor with copies of the Board's Certification of Attendance and Certification of Teaching for each course or program and the sponsor shall make available, collect and transmit such forms in accordance with the requirements of Regulation 104(d).
• (f) The Board may at any time reevaluate and revoke the status of an accredited sponsor. If the Board finds there is a basis for revocation of the accreditation granted to an accredited sponsor, the Board shall send notice by certified mail to that sponsor of the revocation within thirty (30) days of the Board's decision.
• (g) Law firms, professional corporations, and corporate law departments are not eligible to become accredited sponsors.

Regulation 106
Delegation

• (a) The Board may organize itself into panels to facilitate course approval, sponsor accreditation, interpretation of these regulations and to consider and decide matters arising under the Rule and under these regulations.
   
• (b) To facilitate the orderly and prompt administration of the Rule and these regulations, and to expedite the processes of course approval the Board may, under its supervision and direction, delegate to the Director of MCLE (hereafter referred to as the MCLE Director) general authority to act on behalf of the Board to review applications and approve or deny programs for credit pursuant to the approval standards of Regulation 103.

Regulation 107
Board's Determination and Review

• (a) Pursuant to directions established by the Board, a panel or the MCLE Director on behalf of the Board shall, in response to written requests for approval of courses or programs or for awarding of credit for the attendance at or teaching in approved courses, waivers, extensions of time deadlines and interpretations of these regulations, make a written response describing the action taken.  A Panel or the MCLE Director may seek a determination of the Board before taking action.  Upon request of the Board, the panel or MCLE Director shall report on all determinations made since the last meeting of the Board.
• (b) An aggrieved party may file with the Board a written appeal of an adverse decision by a panel or the MCLE Director within thirty (30) days after notice of the adverse decision has been mailed to him or her.  No form of appeal is required but the affected person or program sponsor shall state in narrative form the action complained of and all of the reasons he or she believes the decision is erroneous.
• (c) The Board shall review any adverse determination of a panel or the MCLE Director which has been appealed to it pursuant to Regulation 107(b).  The aggrieved party may present information to the Board in writing or in person, and at such time and place as the Board may direct.  If the Board finds that a panel or the MCLE Director has incorrectly interpreted the facts, the provisions of the Rule or the provisions of these regulations, it may take such action as may be appropriate.  The Board shall advise the affected party or program sponsor of its findings and any action taken.
• (d)Pursuant to Paragraph 17 of Section IV, Part Six, Rules of the Virginia Supreme Court, the Virginia State Bar may from time to time establish fees for processing applications, approving courses and accrediting sponsors; the remittance of any of these may be required before action is taken by the Board.
• (e) All decisions of the Board under this Regulation 107 and any other of these regulations shall be final and binding on all persons affected thereby and no appeal or other relief therefrom shall lie, except as specifically provided in Regulation 109.

Regulation 108
Reporting of Certification Procedures

• (a) Where a sponsor makes copies of the Certification of Attendance and the Certification of Teaching available at a course or program, each active member who wishes credit may certify attendance electronically as instructed on the MCLE attendance reporting site of the Virginia State Bar's internet website.
• (b) Where a member attends a course or program, and for any reason the member is unable to certify his or her attendance or teaching credit electronically, the member who wishes the Board to record credit may obtain a copy of the Certification of Attendance or Certification of Teaching from the sponsor, complete it and forward it to the Board.
• (c) On or before October 31 of each year each active member shall certify attendance online or submit the Certification of Attendance or Certification of Teaching for the minimum educational requirement.
• (d) The MCLE Board shall provide ongoing access to each individual attorney's MCLE record for the current compliance year on the Virginia State Bar's internet website.  The record shall include carryover hours from the previous reporting period, identifying course information including the number of hours reported for each course and the total hours of CLE, including the totals for those CLE hours designated as ethics or professionalism and those hours for pre-recorded courses which are limited to eight (8) hours per reporting period.  Attorneys shall periodically review this online MCLE record to ensure accuracy and timely compliance. 
• (e) Following the end of each completion period, the Board shall advise each active member of his or her status respecting completion of the annual educational requirements.  This notice shall be entitled the "MCLE END OF YEAR REPORT" and shall include the information reflected on the individual attorney's MCLE record as of October 31 and instructions for completion and timely compliance.
• (f) If the active member accepts the MCLE END OF YEAR REPORT as accurately reflecting his or her credit hours for the period, including any carryover hours from the previous reporting period, and the form lists 12.0 or more CLE credits of which 2.0 or more are ethics or professionalism credits, the member does not need to file his form with the MCLE Board. If a member believes that the information reflected on the Board's records is erroneous or incomplete, then additions and corrections to the MCLE END OF YEAR REPORT must be filed as instructed and received by the MCLE office no later than close of business on December 15 of the year in which the credit is sought.
• (g) To the extent not completed online, the MCLE End of Year Report must accompany any request for credit or corrections submitted after October 31.
• (h) Delinquency fees for failure to timely complete the MCLE requirements are set forth in Paragraph 19 of Section IV, Part Six, Rules of Virginia Supreme Court.  Members who have attended an insufficient number of required credits by the October 31 deadline shall remit a delinquency fee hereto referred to as a “noncompliance fee.”  Members who certify attendance after the December 15 certification deadline shall remit the appropriate delinquency fee hereto referred to as a “late filing fee.”  The late filing fee amount shall be doubled for members who fail to comply with the certification requirements by February 1 following the completion period.
• (i) After December 15, a member who wishes to receive credit for credit hours earned during the previous completion period whether for compliance or additional carryover credit may forward to the Board a certification on the appropriate forms together with remittance of the late filing fee.  Any credits approved shall be recorded for the previous completion period and shall be eligible for the one year carryover into the current completion period in the same fashion as other credits.  A member may not apply for credits earned earlier than the next preceding completion period.

Regulation 109
Noncompliance, Restoration and Reinstatement

• (a) Noncompliance
  • (1) An active member who fails to comply with the educational and certification requirements of the Rule and these regulations, including payment of any required fees, and has not obtained a waiver or extension for good cause shown by December 15 of each year, shall be subject to suspension of such active member's license to practice law as is provided by Paragraph 13.2 of Section IV, Part Six, Rules of Virginia Supreme Court.
  • (2) Pursuant to Paragraph 13.2 of Section IV, Part Six, Rules of Virginia Supreme Court, whenever the Board determines that an active member has failed to (i) complete the mandatory continuing legal education requirements as required by Regulation 102 and/or (ii) failed to certify attendance and pay any required fees as required by Regulation 108 without first obtaining a waiver or extension in accordance with Regulation 111, the member shall be deemed to be delinquent.
• (b) Restoration and Reinstatement
  • (1) A delinquent member may be restored to good standing only following (i) his or her certifying to the Secretary-Treasurer of the Virginia State Bar of compliance with the requirements of the Rule in the manner provided by Regulation 108 and as instructed in the notice of impending suspension provided pursuant to Paragraph 19 of Section IV, Part Six, Rules of Virginia Supreme Court, and a determination by the Board that he or she has completed the mandatory continuing legal education requirements of the Rule and paying any required fees, or (ii) the obtaining of a waiver or extension in accordance with Regulation 111.
  • (2) A delinquent member who is suspended pursuant to Paragraph 13.2 shall not further engage in the active practice of law until he or she has been reinstated. A suspended member may be reinstated only after paying any required fees and certifying compliance with the Rule as provided in Paragraph 13.2 and these regulations.
  • (3) Where a default in compliance is cured by earning credit hours in a subsequent completion period, credit hours applied to correct the default shall not be applied to satisfy the requirements of any other period.
  • (4) A member suspended for an entire completion period must show attendance at 12.0 CLE credit hours including 2.0 ethics credits earned within the previous 12 months.  This member cannot rely on credits earned through carryover in the previous completion period or credits used to satisfy the requirement of any previous compliance year.

Regulation 110
Exemptions

The Rule exempts from the certification requirement a newly admitted member for the completion period in which he or she is first admitted to practice in Virginia. A newly admitted member will not receive credit under these regulations for attending or teaching any course prior to his or her admission to the Virginia State Bar.

EXAMPLE:

Attorney A is first licensed to practice law in October 2009.  Attorney A is not required to comply with the minimum continuing legal education requirement of the Rule and these regulations by taking or teaching approved courses until on and after November 1, 2009.  Attorney A also shall not be required to file the certification required by Regulation 108 until December 15, 2010.  If Attorney A attends or teaches approved courses between October 2009 and November 1, 2009, he may "carry over" to the next completion period credits in accordance with Regulation 102.  Attorney A, beginning on November 1, 2009, will be subject to said requirement as long as he or she is an active member of the Virginia State Bar.

Regulation 111
Waivers, Extensions and Deferrals

• (a) Waivers
  • (1) A waiver of the MCLE requirement or of any fees associated with MCLE noncompliance may be sought by filing a request with the Board, together with any appropriate or required supporting material or documentation (e.g. doctors' letters, medical records).  The filing of any waiver request does not toll the running of any time limit set forth in these regulations or the Rule regarding suspension.
  • (2) A waiver shall be valid for a single completion period, unless renewed or extended by the Board. A waiver will be granted only for good cause.
  • (3) If the waiver is based on medical reason, condition, illness or hospitalization, then the application for waiver shall be a completed form entitled "Request for Waiver Based on Hospitalization, Illness or Medical Reason." It must be completed and signed by the admitting, family or attending health care provider and it must set forth the medical condition, hospitalization or illness which prevents the member from completing the required MCLE courses for the period for which the Waiver is being requested and have attached to it any appropriate supporting material or documentation.
  • (4) If the waiver is based on non-medical reasons, then the grounds shall be stated in a letter to the Board and any appropriate supporting material or documentation shall be attached.
  • (5) A member who is unable to satisfy the MCLE requirement due to extraordinary or extenuating circumstances beyond the control of the member may apply as prescribed in Regulation 111(a)(1) to have all or part of the eight-hour limitation on pre-recorded courses waived.
  • (6) All waiver requests should be promptly submitted when the grounds for the waiver request become known to the applicant or applicant's representative. Failure to file a waiver request in a timely manner may be considered by the Board in determining whether to grant a waiver. A prudent lawyer will use the carryover of credits provision of the Rule to avoid most nonmedical based waiver requests.
• (b) Extensions
  • (1) An extension may be sought by filing with the Board a request, together with any appropriate or required supporting material or documentation (e.g. physicians' letters, medical records, military deployment orders).  The filing of an extension request does not toll the running of any time limit set forth in these regulations or the Rule regarding suspension.
  • (2) An extension shall be valid for the specific time period granted by the Board unless renewed or extended. An extension will be granted only for good cause.
  • (3) If the extension is based on medical reason, condition, illness or hospitalization, then the application for extension shall be a completed form entitled "Request for an Extension Based on Hospitalization, Illness or Medical Reason." It must be completed and signed by the admitting, family or attending health care provider and it must set forth the medical condition, hospitalization or illness which prevents the member from completing the required MCLE courses for the period for which an extension is being requested and have attached to it any appropriate supporting material or documentation.
  • (4) If the extension is based on non-medical reasons, then the grounds should be stated in a letter to the Board and any appropriate supporting material or documentation should be attached.
  • (5) All extension requests should be promptly submitted when the grounds for the extension request become known to the applicant or the applicant's representative. Failure to file an extension request in a timely manner may be considered by the Board in determining whether to grant an extension. A prudent lawyer will use the carryover of credits provision of the Rule to avoid most non-medical based extension requests.
• (c)    Deferrals
  • (1) Members who change their class of membership from Active or Emeritus Member to any other class of membership, as defined in Paragraph 3 of Section IV, Part Six, Rules of Virginia Supreme Court, during the course of the compliance year may defer the completion of any remaining MCLE requirements (including payment of any outstanding MCLE delinquency fee obligations) for that compliance year including any MCLE deficiencies for any previous year(s).  Prior to reactivation of their membership status, members shall satisfy all deferred MCLE requirements in addition to the requirement for the current compliance year.  Credit hours reported for compliance with the current year's requirement must have been completed within the previous twelve months prior to reactivation.

  Regulation 112
  Representations By Members

  A member who makes a materially false statement in any document filed with the Board shall be subject to appropriate disciplinary action.

   

  Effective November 1, 2011

   

   

Clients’ Protection Fund Rules

PURPOSE, FUNDING, AUTHORITY AND ADMINISTRATION

PARAGRAPH 1       PURPOSE AND FUNDING

A.        The purpose of the Clients’ Protection Fund (the “Fund”) is to promote public confidence in the administration of justice and the honor and integrity of the legal profession by, as set forth at Part Six, Section IV, Paragraph 16 of the Rules of the Supreme Court, reimbursing all or part of losses sustained by clients or those to whom a fiduciary duty is owed as a result of a Virginia State Bar member’s dishonest conduct. 

B.        The Council of the Virginia State Bar (“Council”) shall appoint a Clients’ Protection Fund Board (the “Board”) to receive, hold, manage, invest and distribute the monies transferred to the Fund in accordance with the procedures established by Council, as set forth herein.

C.        Pursuant to Va. Code § 54.1-3913.1, the Clients’ Protection Fund is a special fund of the Virginia State Bar that consists of moneys transferred to it from the State Bar Fund and the Virginia State Bar’s Administration and Finance Account. Va. Code § 54.1-3913.1 authorizes the Supreme Court of Virginia to adopt rules assessing members an annual fee of up to $25 to fund the Clients’ Protection Fund. The Council shall transfer to the Fund all amounts specially assessed upon Virginia State Bar members for the Fund and shall make appropriations adequate to maintain the funding of the Fund at a reasonable level.

D.        Council shall review the financial condition of the Fund annually as part of the Virginia State Bar’s budgetary process at which time Council may approve disbursements to the Fund.

E.         AUTHORIZED INVESTMENTS

Investment of monies of the Clients' Protection Fund shall be restricted to the following:

1.         Interest-bearing deposits, in federally insured banks and savings institutions (including certificates of deposit as authorized by Va. Code §§ 2.2-4407, 4509 and 4518);

2.         Direct obligations of the Commonwealth of Virginia and the United States Government, and securities of entities created by Congress and authorized to issue such securities; provided that no such obligation or security shall have a maturity beyond ten years from the date of the investment; and provided further that the interest, discount or other gain or income realized from any such investment, net of any bank or brokerage charges incurred in connection therewith, shall automatically become a part of the Fund; and

3.         Corporate notes as authorized by Va. Code § 2.2-4510.

F.         The interest and any other income received from any other sources by the Fund is to be added to and automatically become a part of the Clients’ Protection Fund.

G.        The Council at any time may abolish the Clients’ Protection Fund and the Board. In the event of such abolition, all assets of the Clients’ Protection Fund shall be and remain the property of the Virginia State Bar to be used for its general purposes, as determined by the Council. 

PARAGRAPH 2       THE CLIENTS’ PROTECTION FUND BOARD

The Board shall consist of fourteen (14) members, one of whom shall be a non-lawyer, appointed by the Council. One member shall be from each of the ten (10) Disciplinary Districts in Virginia, and four (4) shall be appointed from the Commonwealth at large. All appointments shall be for a term of three (3) years. No appointee shall serve more than two (2) consecutive full terms. No appointee shall be reappointed until after the expiration of at least one (1) year following the end of the second full term.  Vacancies shall be filled by appointment by the president of the Virginia State Bar for the unexpired term. 

PARAGRAPH 3       POWERS OF BOARD

The Board may use or employ the Clients’ Protection Fund for any of the following purposes within the scope of the Board’s objectives:

1. To make payments or reimbursements on approved petitions as herein provided to clients or other persons or entities to whom a fiduciary duty is owed;
2. To purchase insurance to cover such losses in whole or in part, provided that such insurance is obtainable at reasonable cost and is deemed appropriate and provided that the purchase of such insurance is approved by the Council;
3. To pay the Board’s operating expenses in accordance with Council policies; and
4. To reimburse to the Virginia State Bar, in whole or in part, only those costs of receiverships initiated by the Virginia State Bar that were occasioned by the need for the receiver to administer, pursue or defend assets, the recovery or preservation of which would inure to the benefit of one or more clients or other members of the public who have suffered losses as a result of the dishonest conduct of the Virginia State Bar member who is the subject of the receivership, acting as either a lawyer or as a fiduciary in the matter or matters in which the loss or losses occurred.

PARAGRAPH 4       ELIGIBLE CLAIMS            

A.        The Board is authorized to consider petitions for reimbursement of actual, quantifiable losses caused by the dishonest conduct of a member of the Virginia State Bar, acting either as a lawyer or as a fiduciary in the matter in which the loss arose, except to the extent to which they are bonded or such losses are otherwise covered. The Fund is intended to be a remedy of last resort for persons who cannot obtain reimbursement from other sources. The Fund does not cover malpractice or the inadequate, insufficient or negligent rendition of services by the lawyer or collateral losses suffered as a result of the lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services.   

B.        The member must have:

1.         been disbarred or suspended from the practice of law pursuant to any provision of Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia;

2.         voluntarily resigned from the practice of law in Virginia;

3.         died;

4.         been adjudicated incompetent;

5.         been the subject of a bankruptcy case that would stay, reduce or discharge the claims of the member’s past or present clients; or

6.         the member’s whereabouts is unknown to the Virginia State Bar.

C.        The Board shall have complete discretion to approve or deny petitions including the order, extent and manner of payment.

D.        In establishing, maintaining and administering the Fund, the Virginia State Bar does not create or acknowledge any legal responsibility for the acts of individual lawyers. 

E.         All reimbursements of losses from the Fund shall be in the sole discretion of the Board and not as a matter of right. No client or member of the public shall have any right in the Fund as a third party beneficiary or otherwise.

F.         No attorney shall be compensated for presenting a petition except as authorized by the Board.

PARAGRAPH 5       DUTIES AND RESPONSIBILITIES OF BOARD

The Board shall have the following duties and responsibilities:

1.         To investigate and review all claims submitted to the Board in accordance with its Rules of Procedure;   

2.         To approve or deny the claim, and if approved, determine the amount which should be paid on the claim;  

3.         To make recommendations to Council regarding policies and procedures involving the Fund as it deems necessary and appropriate;

4.         To provide a full report at least annually to Council and to provide all necessary reports;

5.         To publicize, as permitted by law, its activities to the public and the members of the Virginia State Bar; and

6.         To manage the monies in the Fund.

PARAGRAPH 6       BOARD MEETINGS

The Board shall meet at least one time during each fiscal year and as frequently as necessary to conduct the business of the Fund and to timely process claims upon call of the Chair or two or more members of the Board. Written minutes of each meeting shall be prepared and maintained as required by law and Library of Virginia guidance.

PARAGRAPH 7       NOTICE OF MEETINGS

Board members shall be given not less than fifteen (15) days' written notice of the time and place of a regular meeting and not less than five (5) days' written notice of each special meeting. Notice of any meeting may be waived by a Board member either before or after the meeting.

PARAGRAPH 8       QUORUM

            Six or more members of the Board shall constitute a quorum for the transaction of business.

PARAGRAPH 9       OFFICERS AND TERMS

The chair and vice chair of the Board shall be elected by a majority of the Board at the last meeting of the fiscal year. Their terms shall extend until the last meeting of the next fiscal year and until their successors are elected.   Should a vacancy occur in the office of chair or vice chair, such vacancy shall be filled by majority vote of the members of the Board at the meeting next following the occurrence of the vacancy.

PARAGRAPH 10     CONFLICT OF INTEREST

A Board member who has or has had an attorney-client relationship or fiduciary relationship with a Petitioner or Lawyer who is the subject of a claim shall not participate in the investigation or adjudication of a claim involving that Petitioner or Lawyer. A Board member with any other past or present relationship with a Petitioner or the Lawyer whose alleged conduct is the subject of the claim shall disclose such relationship to the Board and, if the Board deems appropriate, that Board member shall not participate in any investigation or adjudication of the claim.

RULES OF PROCEDURE OF THE CLIENTS' PROTECTION FUND OF THE VIRGINIA STATE BAR

I.         DEFINITIONS

For the purpose of these Rules of Procedure, the following definitions shall apply:

A.        The “Board” shall mean the Clients' Protection Fund Board.

B.        The “Fund” shall mean the Clients' Protection Fund of the Virginia State Bar.

C.        A “Lawyer,” “Attorney” or “Respondent” shall mean one who, at the time of the act complained of, was a member of the Virginia State Bar and was actually engaged in the practice of law in Virginia. The fact that the act complained of took place outside of the Commonwealth of Virginia does not necessarily mean that the Lawyer was not engaged in the practice of law in Virginia.

D.        A “Petitioner” or “Claimant” shall mean a person or entity that applies to the Board for payment pursuant to the rules applicable to the Fund.

E.         “Reimbursable Losses” are limited to actual, quantifiable losses, supported by documentation, of money or other property that meet the following tests:

1.         The loss must be caused by the dishonest conduct of the Lawyer and shall have arisen out of and by reason of a lawyer-client or fiduciary relationship. The Board is authorized to consider petitions for reimbursement of actual, quantifiable losses caused by the dishonest conduct of a member of the Virginia State Bar, acting either as a Lawyer or as a fiduciary in the matter in which the loss arose, except to the extent to which the Lawyer is bonded or such losses are otherwise covered. The Fund is intended to be a remedy of last resort for persons who cannot obtain reimbursement from other sources. The Fund does not cover malpractice or the inadequate, insufficient or negligent rendition of services by the lawyer or collateral losses suffered as a result of the lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services.  Fee disputes are not reimbursable losses.

2.         The Lawyer has been disbarred or suspended from the practice of law pursuant to any provision of Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia, has voluntarily resigned from the practice of law in Virginia, has died, has been adjudicated incompetent, has been the subject of a bankruptcy case that would stay, reduce or discharge the claim, or whose whereabouts is unknown to the Virginia State Bar.

F.         The following shall be excluded from “Reimbursable Losses”:

1.         Losses of spouses, parents, children, grandparents, siblings or other close relatives, partners, associates, employers and employees of the Lawyer causing the losses;

2.         Losses by any business entity controlled by the Lawyer;

3.         Losses of any governmental entity or agency;

4.         Losses occasioned by a loan or an investment transaction with the Lawyer, unless it arose out of and in the course of the attorney-client or fiduciary relationship and, which, but for the fact that the Lawyer enjoyed an attorney-client or fiduciary relationship with the Petitioner, could not have occurred. In considering whether that standard has been met, the following factors will be considered:

a.         Any disparity in bargaining power between the Lawyer and the client, including differences in their respective educational backgrounds and business sophistication;

b.         The extent to which the attorney-client or fiduciary relationship overcame the will or wishes of the Petitioner;

c.         The extent to which the Lawyer, by virtue of the attorney-client or fiduciary relationship with the Petitioner, became privy to information as to the Petitioner's financial affairs; and

d.         Whether a principal part of the service arose out of a relationship requiring a license to practice law.

5.         Losses or collateral losses arising from the Lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services;

6.         Claims by a Petitioner for damages for a cause of action in which a Lawyer represented the Petitioner and that never resulted in a settlement or judgment;

7.         Claims for interest, late fees, penalties or surcharges or any type of consequential or incidental losses or damages, whether or not such losses or damages arise out of Reimbursable Losses; and  

8.         Because the Fund is intended to be a remedy of last resort, and the Petitioner must first pursue other sources of recovery, the following shall be excluded from Reimbursable Losses:

a.         Losses covered by any bond, surety agreement or insurance contract to the extent covered thereby, including any loss to which any bonding agent, surety or insurer is subrogated to the extent of that subrogated interest.  The Fund is intended to be a remedy of last resort;

b.         Losses that may be covered from any source, such as through litigation, mediation or enforcement of a judgment by the Petitioner; and

c.         Losses of any financial institution which are recoverable under a "banker's blanket bond" or similar commonly available insurance or surety contract.

G.        “Dishonest Conduct” may include, but is not necessarily limited to:

1.         Any act committed by a Lawyer in the nature of theft, conversion, embezzlement or withholding of money or property from its rightful owner, recipient or person entitled to receive such money or property.

2.         Any act committed by a Lawyer in the nature of failure, refusal or inability to refund unearned fees received in advance where the Lawyer performed no legal services or such an insignificant service that the failure, refusal or inability to refund the unearned fees constitutes a wrongful taking or conversion. Where the Board finds that the legal services performed by the Lawyer are more than insignificant, but the Lawyer has not fully earned the entire fee, the failure, refusal or inability to refund the unearned fees may still constitute a wrongful taking or conversion, and the Board may reimburse fifty percent of the total fees paid by the Petitioner.

3.         The Fund does not cover malpractice or the inadequate, insufficient or negligent rendition of services by the Lawyer or collateral losses suffered as a result of the Lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services.  

II.        BOARD’S DISCRETION AND FACTORS TO CONSIDER IN EVALUATING PETITION

The Board shall exercise its discretion in deciding whether a Lawyer committed Dishonest Conduct. In making its determination, the Board may consider such evidence as it deems appropriate, including, but not limited to, the following:

A.        An order from any court or disciplinary tribunal disciplining a Lawyer for the same act or conduct alleged in a petition or otherwise finding that a Lawyer committed Dishonest Conduct; or

B.        A final judgment imposing civil or criminal liability upon a Lawyer for such conduct.

III.      PETITION FOR REIMBURSEMENT

A.        The Virginia State Bar staff shall prepare a form of petition for reimbursement.  In its discretion the Board may waive a requirement that a petition be filed on such form. 

B.        The petition shall contain the following statement:

“IN ESTABLISHING THE CLIENTS' PROTECTION FUND, THE VIRGINIA STATE BAR DID NOT CREATE OR ACKNOWLEDGE ANY LEGAL RESPONSIBILITY FOR THE ACTS OF INDIVIDUAL LAWYERS. THE PAYMENT OF REIMBURSABLE LOSSES FROM THE CLIENTS' PROTECTION FUND SHALL BE IN THE SOLE DISCRETION OF THE CLIENTS’ PROTECTION FUND BOARD AND NOT AS A MATTER OF RIGHT.  THE CLIENTS’ PROTECTION FUND IS INTENDED TO BE A REMEDY OF LAST RESORT, AND PETITIONERS MUST PURSUE OTHER RECOVERY OPTIONS BEFORE FILING A CLAIM.  NO PERSON OR ENTITY SHALL HAVE ANY RIGHT IN THE CLIENTS' PROTECTION FUND AS A THIRD PARTY BENEFICIARY OR OTHERWISE.”

C.        At a minimum the Board will require the following information from the Petitioner:

1.         Petitioner’s name, address and telephone number;

2.         The name and last known address of the Lawyer allegedly responsible for the claimed loss;

3.         The amount of the loss claimed and documentation supporting the loss, including a copy of any written fee or retainer agreement pertaining to the claim and proof of payment for monies the Petitioner or anyone on his or her behalf paid directly to the Lawyer;

4.         The date or period of time over which the alleged loss occurred;

5.         The date the Petitioner discovered the loss and how the Petitioner discovered the loss;

6.         A description of the Lawyer’s dishonest conduct and the names and addresses of any witnesses who have knowledge of the loss;

7.         The name of the person or entity, if any, to whom or which the loss has been reported (e.g. Commonwealth’s Attorney, police, Virginia State Bar, disciplinary agency, or other person or entity);

8.         Any other source of reimbursement, including but not limited to, any insurance, fidelity or surety agreement or bond;

9.         A description of the efforts by the Petitioner to recover the alleged loss from the Lawyer or from other sources of reimbursement besides the Virginia State Bar;

10.       The circumstances under which the Petitioner has been, or will be, reimbursed for any part of the claim (including the amount received, or to be received, and the source), along with a statement that the Petitioner agrees to notify the Fund of any reimbursements the Petitioner received during the pendency of the claim;

11.       The existence of facts known to the Petitioner relevant to the claim;  

12.       The name, address, e-mail address and phone number of the lawyer assisting the Petitioner with the claim, if any;

13.       The Petitioner’s agreement to cooperate with the Virginia State Bar regarding the claim or with any civil actions which may be brought in the name of the Virginia State Bar and/or the Petitioner, pursuant to a subrogation and assignment clause;

14.       The Petitioner’s agreement to repay the Fund if the Petitioner is subsequently reimbursed from another source, but only to the extent the Petitioner’s recovery from the other source would exceed the amount of the claim;

15.       The name and address of any other fund to which the Petitioner has applied or intends to apply for reimbursement, together with a copy of the application;

16.       A statement that the Petitioner agrees to the publication of appropriate information about the nature of the claim and the amount of reimbursement, if reimbursement is approved; and  

17.       The notarized signature of the Petitioner.

D.        All information and statements by the Petitioner shall be under oath.

E.         Petitions shall be submitted to the Virginia State Bar. If the staff of the Virginia State Bar determines that the petition complies with the minimum requirements of these Rules, the petition shall be investigated and approved or denied by the Board.

IV.      PROCESSING PETITIONS

A.        Virginia State Bar staff shall promptly send each petition to a Board member for investigation and report.  A copy shall be sent to the Lawyer at his or her address of record maintained by the Virginia State Bar. The Lawyer or his or her representative may respond to the petition within thirty (30) days of the date of the letter transmitting the petition to him or her.

B.        Petitions shall be assigned based on the workload of each Board member, and, when possible, by giving preference for assignment to a Board member who works or lives in the jurisdiction in which the Lawyer maintained his office, place of employment or address of record with the Virginia State Bar.

C.        A member to whom a petition is referred for investigation shall conduct such investigation as to him or her seems necessary and desirable in order (1) to determine whether the petition is for a Reimbursable Loss, and (2) to guide the Board in determining the extent, if any, to which the loss should be reimbursed from the Fund.

D.        The Board member who investigates a petition shall prepare a written report and recommendation as to whether the petition should be approved or denied. Such report shall be available for inspection by the Board members attending the meeting at which the petition is reviewed.

E.         Petitions shall be processed based on the investigating Board member’s written report and recommendation.  Upon request of a Board member, the Board shall hear the Petitioner, the Lawyer or such other evidence as may be presented.  The Lawyer or his or her personal representative, or the Petitioner or his or her personal representative, may request to address the Board at a meeting at which the Board is considering the claim. Any such request must be made to the Chair or his or her designee, and the Chair may restrict or limit the length or subject matter of any statements permitted.

F.         The Board shall, in its sole discretion and by a majority vote, determine whether a claim is approved or denied, and if approved, the amount of loss, if any, for which any Petitioner shall be reimbursed from the Fund. Although only a majority vote is required to approve or deny a petition, the Board should aspire to come to a consensus on every pet