Rules of Professional Conduct
Legal Ethics Opinions
Unauthorized Practice of Law Opinions
Organization & Government of the Virginia State Bar
Reciprocity: Admission on Motion
Pro Hac Vice
Corporate Counsel Limited Admission and Registration
Foreign Attorneys — Registered Military Legal Assistance Attorneys
Foreign Legal Consultant
Military Spouse Provisional Admission
Bylaws of the Virginia State Bar and Council
Unauthorized Practice Rules
Mandatory Continuing Legal Education Regulations
MCLE Forms 2, 3 and 4
Clients’ Protection Fund Rules
Attorney Trust Account Regulations
Regulations of Attorney Real Estate Settlement Agents
Virginia Licensed Legal Aid Society Regulations
Principles of Professionalism
Provision of Legal Services Following Determination of Major Disaster
Notice To Virginia State Bar Members
The Virginia State Bar Rules of Professional Conduct, Unauthorized Practice Rules and other regulatory materials contained herein include all amendments approved by the VSB Council and The Supreme Court of Virginia, to date, to the best of our ability.
A complete collection of Legal Ethics and Unauthorized Practice of Law Opinions is contained in unnumbered 1991 and 1996 Added Volumes to the Code of Virginia, published by the Michie Company. These volumes are supplemented with a pocket part each July.
Upon request for LEOs involving a specific issue, the bar will furnish full texts of relevant opinions at no cost. The bar reserves the right to charge for volume requests. Charges will be based upon staff time and copying costs.
A breakdown of the Rules of Professional Conduct and the Professional Guidelines can be found to the left. Amendments proposed, adopted, and rejected after March 1, 2010, are posted at Rule Changes.
The VSB no longer provides printed copies of the Professional Guidelines. Please see the links at the left to print individual current rules and regulations. To print the entire current Rules of Professional Conduct and the Professional Guidelines with one click, visit this page. (Please allow time for all info to load in your browser and be aware that your browser's font settings will determine how many pages it will take to print the entire document.)
A lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
A lawyer may perform various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. As third party neutral, a lawyer represents neither party, but helps the parties arrive at their own solution. As evaluator, a lawyer examines a client's legal affairs and reports about them to the client or to others.
In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.
A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.
As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession's ideals of public service.
A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.
The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.
To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.
The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.
These Rules follow the same format as the current American Bar Association Model Rules of Professional Conduct ("ABA Model Rules"), rather than the former American Bar Association Model Code of Professional Responsibility ("ABA Model Code"), or the former Virginia Code of Professional Responsibility ("Virginia Code"). Although interpretation of similar language in the ABA Model Rules by other states' courts and bars might be helpful in understanding Virginia's Rules, those foreign interpretations should not be binding in Virginia.
The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
These Rules apply to all lawyers, whether practicing in the private or the public sector. However, under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the Attorney General and the commonwealth attorneys in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. They also may have authority to represent the "public interest" in circumstances where a private lawyer would not be authorized to do so. These Rules do not abrogate any such authority.
Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the Rules has either a limited discretion or a limited obligation to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges.
The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure.
The Preamble and this note on Scope provide general orientation. The text of each Rule and the following Terminology section are authoritative and the Comments accompanying each Rule are interpretive.
"Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.
"Consult" or "consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
"Firm" or "law firm" denotes a professional entity, public or private, organized to deliver legal services, or a legal department of a corporation or other organization. See Comment, Rule 1.10.
"Fraud" or "fraudulent" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.
"Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
“Partner” denotes a member of a partnership or a shareholder or member of a professional entity, public or private, organized to deliver legal services, or a legal department of a corporation or other organization.
"Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
"Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
"Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
"Should" when used in reference to a lawyer's action denotes an aspirational rather than a mandatory standard.
"Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.
See also: Virginia Code of Professional Responsibility to Virginia Rules of Professional Conduct
| Virginia Rules of Professional Conduct | Issue or Topic | Virginia Code of Professional Responsibility |
| 1.1 | Competence | DR 6-101 (A)(2) |
| 1.2 (a) | Scope of Representation | *** EC 7-7; EC 7-8 |
| 1.2 (b) | ” ” ” ” | DR 7-101 (B)(1) |
| 1.2 (c) | ” ” ” ” | DR 7-102 (A)(7); DR 7-102 (A)(6); |
| DR 7-105 (A); EC 7-5 | ||
| 1.2 (d) | ” ” ” ” | *** |
| 1.2 (e) | ” ” ” ” | DR 2-108 (A)(1) |
| 1.3 (a) | Diligence | DR 6-101 (B) |
| 1.3 (b) | ” ” ” ” | DR 7-101 (A)(2) |
| 1.3 (c) | ” ” ” ” | DR 7-101 (A)(3) |
| 1.4 (a) | Communication | DR 6-101 (C) |
| 1.4 (b) | ” ” ” ” | *** EC 7-8; EC 9-2 |
| 1.4 (c) | ” ” ” ” | DR 6-101 (D) |
| 1.5 (a) | Fees | DR 2-105 (A); EC 2-20 |
| 1.5 (b) | Contingent Fees | DR 2-105 (C); EC 2-22 |
| 1.5 (c) | Fee Splitting | DR 2-105 (D) |
| 1.5 (d) | Contingent Fees | DR 2-105 (C) |
| 1.5 (e) | Fee Sharing | DR 2-105 (D) |
| 1.5 (f) | ” ” ” ” | *** |
| 1.6 (a) | Confidentiality | DR 4-101 (A), (B) |
| 1.6 (b)(1) | Disclosure Required By Law or Court Order | DR 4-101 (C)(2) |
| 1.6 (b)(2) | Disclosure to Protect Lawyer’s Legal Rights | DR 4-101 (C)(4) |
| 1.6 (b)(3) | Disclosure of Client Fraud on Third Party | DR 4-101 (C)(3) |
| 1.6 (b)(4) | Disclosure of Client Information for Attorney’s Death or Disability | *** |
| 1.6 (b)(5) | Disclosure of Client Information for LOMAP | *** |
| 1.6 (b)(6) | Disclosure of Client Information to Outside Auditor | *** EC 4-3 |
| 1.6 (c)(1) | Disclosure of Client’s Intent to Commit Crime | DR 4-101 (D) |
| 1.6 (c)(2) | Disclosure of Client Fraud on Tribunal | DR 4-101 (D) |
| 1.6 (c)(3) | Reporting Misconduct of Another Attorney | *** |
| 1.7 (a), (b) | Conflict of Interest | DR 5-105 (A), (C) |
| 1.8 (a) | Business Transaction With Client | DR 5-104 (A) |
| 1.8 (b) | Improper Use of Client Confidences or Secrets | DR 4-101 (B)(3) |
| 1.8 (c) | Client Gifts to Lawyer | DR 5-104 (B) |
| 1.8 (d) | Literary Rights in Subject Matter of Representation | *** EC 5-4 |
| 1.8 (e) | Financial Assistance to Client | DR 5-103 (B) |
| 1.8 (f) | Nonclient Paying Lawyer’s Fee | DR 5-106 |
| 1.8 (g) | Aggregate Settlements | DR 5-107 |
| 1.8 (h) | Limitation of Malpractice Liability | DR 6-102 (A) |
| 1.8 (i) | Interfamily Conflicts | *** |
| 1.8 (j) | Proprietary Interest in Client Matter | *** |
| 1.8 (k) | Imputation of Conflicts | *** |
| 1.9 (a) | Conflict of Interest: Former Client | DR 5-105 (D) |
| 1.9 (b) | ” ” ” ” | *** |
| 1.9 (c) | ” ” ” ” | *** |
| 1.10 (a)–(e) | Imputed Disqualification | *** DR 5-105 (E) |
| 1.11 (a) | Public Officials: Conflicts | DR 8-101 (A) |
| 1.11 (b) | ” ” ” ” | DR 9-101 (B) |
| 1.11 (c) | ” ” ” ” | *** |
| 1.11 (d) | ” ” ” ” | *** |
| 1.11 (e) | ” ” ” ” | *** |
| 1.11 (f) | ” ” ” ” | *** |
| 1.12 (a) | Former Judge, Arbitrator or Mediator | DR 9-101 (A); EC 5-20 |
| 1.12 (b) | ” ” ” ” | *** |
| 1.12 (c) | ” ” ” ” | *** |
| 1.12 (d) | ” ” ” ” | *** |
| 1.13 | Organization as a Client | *** EC 5-18; EC 5-24 |
| 1.14 | Client With Impairment | *** EC 7-11: EC 7-12 |
| 1.15 (a) | Safekeeping Property | DR 9-102 (A) |
| 1.15 (b) | ” ” ” ” | *** |
| 1.15 (c) | ” ” ” ” | DR 9-102 (B) |
| 1.15 (d) | ” ” ” ” | *** |
| 1.15 (e)(1) | Recordkeeping Requirements for Trust Accounts | DR 9-103 |
| 1.15 (e)(2) | Recordkeeping Requirements for Lawyers Serving as Fiduciaries | *** |
| 1.15 (f) | Accounting Procedures | DR 9-103 (B) |
| 1.16 (a) | Terminating or Declining Representation | DR 2-108 (A) |
| 1.16 (b) | ” ” ” ” | DR 2-108 (B) |
| 1.16 (c) | ” ” ” ” | DR 2-108 (C) |
| 1.16 (d) | ” ” ” ” | DR 2-108 (D) |
| 1.16 (e) | Delivery of Former Client’s File | *** |
| 1.17 | Sale of a Law Practice | *** EC 4-6 |
| 2.1 | Lawyer as Advisor | *** EC 7-8 |
| 2.3 | Lawyer as Evaluator | *** EC 5-20 |
| 2.10 | Third Party Neutral | *** |
| 2.11 | Mediator | *** |
| 3.1 | Meritorious Claims | DR 7-102 (A)(1), (2) |
| 3.3 (a)(1) | Candor Toward Tribunal | DR 7-102 (A)(5) |
| 3.3 (a)(2) | ” ” ” ” | DR 7-102 (A)(3) |
| 3.3 (a)(3) | Controlling Legal Authority | *** EC 7-20 |
| 3.3 (a)(4) | False Evidence | DR 7-102 (A)(4) |
| 3.3 (b) | ” ” ” ” | *** |
| 3.3 (c) | Ex Parte Proceedings | *** |
| 3.3 (d) | Reporting Third Party Fraud on Tribunal | DR 7-102 (B) |
| 3.4 (a) | Fairness To Opposing Party & Counsel; Obstructing Access to Evidence | DR 7-108 (A) |
| 3.4 (b) | Secreting Witnesses | DR 7-108 (B) |
| 3.4 (c) | Compensating Witnesses | DR 7-108 (C); EC 7-25 |
| 3.4 (d) | Disregarding Court Rules or Orders | DR 7-105 (A) |
| 3.4 (e) | Discovery Abuse | *** |
| 3.4 (f) | Improper Trial Conduct | DR 7-105 (C)(1)-(4) |
| 3.4 (g) | Disruptive Rule Violations | DR 7-105 (C)(5) |
| 3.4 (h) | Discouraging Witnesses | *** |
| 3.4 (i) | Threatening Criminal or Disciplinary Action | DR 7-104 |
| 3.4 (j) | Harassing or Injuring Others | DR 7-102 (A)(1) |
| 3.5 (a), (b), (c) | Communications With Jurors | DR 7-107 (A)-(F), *** |
| 3.5 (d) | Influencing Judges | DR 7-109 (A) |
| 3.5 (e) | Ex Parte Communication With Judge | DR 7-109 (B) |
| 3.5 (f) | Disruptive Conduct Toward Tribunal | *** |
| 3.6 (a), (b) | Trial Publicity | DR 7-106 |
| 3.7 (a) | Lawyer as Witness | DR 5-101 (B); DR 5-102 (A) |
| 3.7 (b) | ” ” ” ” | DR 5-102 (B) |
| 3.7 (c) | ” ” ” ” | *** |
| 3.8 (a) | Additional Responsibilities of a Prosecutor | DR 8-102 (A)(1) |
| 3.8 (b) | ” ” ” ” | DR 8-102 (A)(1) |
| 3.8 (c) | ” ” ” ” | DR 8-102 (A)(2) |
| 3.8 (d) | ” ” ” ” | DR 8-102 (A)(3) |
| 3.8 (e) | ” ” ” ” | DR 7-106 (B) |
| 4.1 (a) | Truthfulness in Statements to Others | DR 7-102 (A)(5) |
| 4.1 (b) | ” ” ” ” | *** DR 7-102 (A)(3); DR 7-102 (A)(7) |
| 4.2 | Ex Parte Communication With Represented Person | DR 7-103 (A)(1) |
| 4.3 (a) | Dealing With Unrepresented Persons | DR 7-103 (B) |
| 4.3 (b) | ” ” ” ” | DR 7-103 (A)(2) |
| 4.4 | Respect for Rights of Third Persons | *** DR 7-102 (A)(1); DR 7-105 (C)(2); DR 7-107 (C); DR 7-107 (D) |
| 5.1 | Responsibilities of a Supervising Lawyer | *** DR 1-103 (A); DR 4-101 (E); (C)(2); DR 7-107 (C); DR 7-107 (D) DR 7-106 (B) |
| 5.3 (a), (b) | Nonlawyer Assistants | DR 3-104 (C); DR 4-101 (E) |
| 5.3 (c) | ” ” ” ” | *** |
| 5.4 (a) | Sharing Fees With Nonlawyer | *** DR 3-102 (A) |
| 5.4 (b) | Partnership With Nonlawyer | DR 3-103 (A) |
| 5.4 (c) | Avoiding Influence By Non-clients | DR 5-106(B) |
| 5.4 (d) | Professional Corporations Owned by Nonlawyers | DR 5-106 (C) |
| 5.5 (a)(1) | Unauthorized Practice of Law | *** EC 3-9 |
| 5.5 (a)(2) | ” ” ” ” | DR 3-101 (A) |
| 5.5 (b) | Employment of Suspended or Disbarred Lawyers | DR 3-101 (B) |
| 5.5 (c) | ” ” ” ” | DR 3-101 (C) |
| 5.6 (a), (b) | Agreements Restricting Practice of Law | DR 2-106 |
| 6.1 | Voluntary Pro Bono Publico Service | *** ECs 2-26, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-33, 2-34 |
| 6.2 | Accepting Appointments | *** EC 2-38; EC 2-39 |
| 6.3 | Membership in Legal Services Organization | *** |
| 6.5 | Nonprofit Limited Legal Services | *** |
| 7.1 | Communications Concerning A Lawyer’s Services | DR 2-101 |
| 7.2 | Advertising | DR 2-101, *** |
| 7.3 | Recommendation or Solicitation of Professional Employment | DR 2-103 |
| 7.4 (a), (b) | Communication of Fields of Practice & Certification | DR 2-104 (A), (B) |
| 7.4 (c) | ” ” ” ” | *** |
| 7.4 (d) | ” ” ” ” | *** |
| 7.5 | Firm Names & Letterheads | DR 2-102 |
| 8.1 | Bar Admission & Disciplinary Matters | DR 1-101 |
| 8.2 | Judicial Officials | *** EC 8-6 |
| 8.3 (a) | Reporting Professional Misconduct | DR 1-103 (A) |
| 8.3 (b) | Reporting Professional Misconduct | *** |
| 8.3 (c) | ” ” ” ” | *** |
| 8.3 (d) | ” ” ” ” | *** |
| 8.3 (e) | Reporting Lawyer’s Own Professional Misconduct | *** |
| 8.4 (a) | Misconduct | DR 1-102 (A)(1) |
| 8.4 (b) | ” ” ” ” | DR 1-102 (A)(3) |
| 8.4 (c) | ” ” ” ” | DR 1-102 (A)(4) |
| 8.4 (d) | ” ” ” ” | DR 9-101 (C) |
| 8.4 (e) | ” ” ” ” | EC 7-31, EC 9-1 |
| 8.5 (a) | Disciplinary Authority; Choice of Law | DR 1-102 (B) |
| 8.5 (b) | ” ” ” ” | *** |
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
[2a] Another important skill is negotiating and, in particular, choosing and carrying out the appropriate negotiating strategy. Often it is possible to negotiate a solution which meets some of the needs and interests of all the parties to a transaction or dispute, i.e., a problem-solving strategy.
[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.
[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.
[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.
[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology. The Mandatory Continuing Legal Education requirements of the Rules of the Supreme Court of Virginia set the minimum standard for continuing study and education which a lawyer licensed and practicing in Virginia must satisfy. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.
Rule 1.1 is substantially similar to DR 6-101(A). DR 6-101(A)(1) provided that a lawyer "shall undertake representation only in matters in which . . . [t]he lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters." DR 6-101(A)(2) also permitted representation in matters if a lawyer "associated with another lawyer who is competent in those matters."
The Committee adopted the ABA Model Rule verbatim, but added the third paragraph of the Comment to make it clear that legal representation, in which a lawyer is expected to be competent, involves not only litigation but also negotiation techniques and strategies.
In addition, the Committee added the second sentence under Maintaining Competence Comment section to note Virginia's Mandatory Continuing Legal Education requirements.
The amendments effective March 1, 2016, added the language “in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology.”
[1] Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. These Rules do not define the lawyer's scope of authority in litigation.
[2-3] ABA Model Rule Comments not adopted.
[4] In a case in which the client appears to be suffering mental disability, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.
[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, a lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
[6] The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.
[7] An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.
[8] ABA Model Rule Comment not adopted.
[9] A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted or required by Rule 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer shall not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. See Rule 1.16.
[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
[12] Paragraph (c) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability. Paragraph (c) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (c) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities. See also Rule 3.4(d).
Paragraph (a) has no direct counterpart in the Disciplinary Rules of the Virginia Code. EC 7-7 stated: "In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client...." EC 7-8 stated that "n the final analysis, however, the ... decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client.... In the event that the client in a nonadjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment." DR 7-101(A)(1) provided that a lawyer "shall not intentionally ... [f]ail to seek the lawful objectives of his client through reasonably available means permitted by law.... A lawyer does not violate this Disciplinary Rule, however, by ... avoiding offensive tactics...."
With regard to paragraph (b), DR 7-101(B)(1) provided that a lawyer may, "with the express or implied authority of his client, exercise his professional judgment to limit or vary his client's objectives and waive or fail to assert a right or position of his client."
With regard to paragraph (c), DR 7-102(A)(7) provided that a lawyer shall not "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR 7-102(A)(6) provided that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-105(A) provided that a lawyer shall not "advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal ... but he may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5 stated that a lawyer "should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor."
Paragraph (d) had no counterpart in the Virginia Code.
With regard to paragraph (e), DR 2-108(A)(1) provided that a lawyer shall withdraw from representation if "continuing the representation will result in a course of conduct by the lawyer that is illegal or inconsistent with the Disciplinary Rules." DR 9-101(C) provided that "[a] lawyer shall not state or imply that he is able to influence improperly ... any tribunal, legislative body or public official."
The Committee adopted this Rule as a more succinct and useful statement regarding the scope of the relationship between a lawyer and the client. However, the Committee moved the language of paragraph (b) of the ABA Model Rule to the Comment section styled "Independence from Client's Views or Activities" since it appears more appropriate as a Comment than a Rule. Subsequent paragraphs were redesignated accordingly.
The Committee added the fourth sentence in Comment [1] requiring lawyers to advise clients of dispute resolution processes that might be "appropriate."
In Comment [7], the Committee used the verb "shall" to match the mandatory standard of the Virginia Code and these Rules.
The amendments effective January 1, 2004, added present paragraph (d) and redesignated former paragraph (d) as present paragraph (e).
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. A lawyer's work load should be controlled so that each matter can be handled adequately.
[2] Additionally, lawyers have long recognized that a more collaborative, problem-solving approach is often preferable to an adversarial strategy in pursuing the client's needs and interests. Consequently, diligence includes not only an adversarial strategy but also the vigorous pursuit of the client's interest in reaching a solution that satisfies the interests of all parties. The client can be represented zealously in either setting.
[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.
[5] A lawyer should plan for client protection in the event of the lawyer's death, disability, impairment, or incapacity. The plan should be in writing and should designate a responsible attorney capable of making, and who has agreed to make, arrangements for the protection of client interests in the event of the lawyer’s death, impairment, or incapacity.
With regard to paragraph (a), DR 6-101(B) required that a lawyer "attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client." EC 6-4 stated that a lawyer should "give appropriate attention to his legal work." Canon 7 stated that "a lawyer should represent a client zealously within the bounds of the law."
Paragraphs (b) and (c) adopt the language of DR 7-101(A)(2) and DR 7-101(A)(3) of the Virginia Code.
The Committee added DR 7-101(A)(2) and DR 7-101(A)(3) from the Virginia Code as paragraphs (b) and (c) of this Rule in order to make it a more complete statement about fulfilling one's obligations to a client. Additionally, the Committee added the second paragraph to the Comment as a reminder to lawyers that there is often an appropriate collaborative component to zealous advocacy.
The amendments effective February 28, 2006, added Comment [5].
[1] This continuing duty to keep the client informed includes a duty to advise the client about the availability of dispute resolution processes that might be more appropriate to the client's goals than the initial process chosen. For example, information obtained during a lawyer-to-lawyer negotiation may give rise to consideration of a process, such as mediation, where the parties themselves could be more directly involved in resolving the dispute.
[2- 4] ABA Model Rule Comments not adopted.
[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps that permit the client to make a decision regarding an offer from another party. A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea agreement in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Rule 1.2(a). Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter. Adequacy of communication depends in part on the kind of advice or assistance involved. For example, in negotiations where there is time to explain a proposal, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.
[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from mental disability. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Practical exigency may also require a lawyer to act for a client without prior consultation.
[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(d) directs compliance with such rules or orders.
Rule 1.4(a) is substantially similar to DR 6-101(C) of the Virginia Code which stated: "A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered."
Paragraph (b) has no direct counterpart in the Virginia Code. EC 7-8 stated that a lawyer "should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." EC 9-2 stated that "a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client."
Paragraph (c) is identical to DR 6-101(D) of the Virginia Code.
The Virginia Code had already substituted the essential notion of paragraph (a) as DR 6-101(C), thus specifically addressing a responsibility omitted from the ABA Model Code. The Committee believed that paragraph (b) specifically addressed a responsibility only implied in the Virginia Code and that adding DR 6-101(D) as paragraph (c) made the Rule a more complete statement regarding a lawyer's obligation to communicate with a client. Additionally, the Committee added a new second paragraph to the Comment to remind lawyers of their continuing duty to help clients choose the most appropriate settlement process.
[1] ABA Model Rule Comment not adopted.
[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the amount, basis, or rate of the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple letter, memorandum, receipt or a copy of the lawyer's customary fee schedule may be sufficient if the basis or rate of the fee is set forth.
[3] ABA Model Rule Comment not adopted.
[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer's special knowledge of the value of the property.
[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. When considering whether a contingent fee is consistent with the client's best interest, the lawyer should offer the client alternative bases for the fee and explain their implications. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage. In any event, a fee should not be imposed upon a client, but should be the result of an informed decision concerning reasonable alternatives.
[6] An arrangement for a contingent fee in a domestic relations matter has been previously considered appropriate only in those rare instances where:
[7] A division of fee refers to a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist.
[8] ABA Model Rule Comment not adopted.
[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.
With regard to paragraph (a), DR 2-105(A) required that a "lawyer's fees . . . be reasonable and adequately explained to the client." The factors involved in assessing the reasonableness of a fee listed in Rule 1.5(a) are substantially similar to those listed in EC 2-20.
Paragraph (b) emphasizes the lawyer's duty to adequately explain fees (which appears in DR 2-105(A)) but stresses the lawyer's duty to disclose fee information to the client rather than merely responding to a client's request for information (as in DR 2-105(B)).
Paragraph (c) is substantially the same as DR 2-105(C). EC 2-22 provided that "[c]ontingent fee arrangements in civil cases have long been commonly accepted in the United States," but that "a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee...."
With regard to paragraph (d), DR 2-105(C) prohibited a contingent fee in a criminal case. EC 2-22 provided that "contingent fee arrangements in domestic relation cases are rarely justified."
With regard to paragraph (e), DR 2-105(D) permitted division of fees only if: "(1) The client consents to employment of additional counsel; (2) Both attorneys expressly assume responsibility to the client; and (3) The terms of the division of the fee are disclosed to the client and the client consents thereto."
There was no counterpart to paragraph (f) in the Virginia Code.
The Committee believes that DR 2-105 placed greater emphasis than the ABA Model Rule on the Full Disclosure of Fees and Fee Arrangements to Clients and therefore added language from DR 2-105(A) to paragraph (a) and from DR 2-105(D)(3) to paragraph (e). The Comment to paragraph (d)(1) reflects the Committee's conclusion that the public policy concerns which preclude contingent fee arrangements in certain domestic relations cases do not apply when property division, support matters or attorney's fee awards have been previously determined. Paragraph (e) eliminates the requirement in the Virginia Code that each lawyer involved in a fee-splitting arrangement assume full responsibility to the client, regardless of the degree of the lawyer's continuing participation. The requirement in the Virginia Code was deleted to encourage referrals under appropriate circumstances by not requiring the lawyer making the referral to automatically assume ethical responsibility for all of the activities of the other lawyers involved in the arrangement. However, such an arrangement is acceptable only if the client consents after full disclosure, which must include a delineation of each lawyer's responsibilities to the client.
The amendments effective January 1, 2004, added paragraph (f).
[1] The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.
[2] The common law recognizes that the client's confidences must be protected from disclosure. The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.
[2a] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that clients usually follow the advice given, and the law is upheld.
[2b] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
[3] The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
[3a] The rules governing confidentiality of information apply to a lawyer who represents an organization of which the lawyer is an employee.
[4] The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.
[5] A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.
[5a] Lawyers frequently need to consult with colleagues or other attorneys in order to competently represent their clients’ interests. An overly strict reading of the duty to protect client information would render it difficult for lawyers to consult with each other, which is an important means of continuing professional education and development. A lawyer should exercise great care in discussing a client’s case with another attorney from whom advice is sought. Among other things, the lawyer should consider whether the communication risks a waiver of the attorney-client privilege or other applicable protections. The lawyer should endeavor when possible to discuss a case in strictly hypothetical or abstract terms. In addition, prior to seeking advice from another attorney, the attorney should take reasonable steps to determine whether the attorney from whom advice is sought has a conflict. The attorney from whom advice is sought must be careful to protect the confidentiality of the information given by the attorney seeking advice and must not use such information for the advantage of the lawyer or a third party.
[5b] Compliance with Rule 1.6(a) might include fulfilling duties under Rule 1.14, regarding a client with an impairment.
[5c] Compliance with Rule 1.6(b)(5) might require a written confidentiality agreement with the outside agency to which the lawyer discloses information.
[6] Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
[6a] Lawyers involved in insurance defense work that includes submission of detailed information regarding the client’s case to an auditing firm must be extremely careful to gain consent from the client after full and adequate disclosure. Client consent to provision of information to the insurance carrier does not equate with consent to provide the information to an outside auditor. The lawyer must obtain specific consent to disclose the information to that auditor. Pursuant to the lawyer’s duty of loyalty to the client, the lawyer should not recommend that the client provide such consent if the disclosure to the auditor would in some way prejudice the client. Legal Ethics Opinion #1723, approved by the Supreme Court of Virginia, September 29, 1999.
[6b] The confidentiality rule is subject to limited exceptions. However, to the extent a lawyer is required or permitted to disclose a client's confidences, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited.
[7] Several situations must be distinguished.
[7a] First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(c) to avoid assisting a client in criminal or fraudulent conduct.
[7b] Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(c), because to "counsel or assist" criminal or fraudulent conduct requires knowing that the conduct is of that character.
[7c] Third, the lawyer may learn that a client intends prospective criminal conduct. As stated in paragraph (c)(1), the lawyer is obligated to reveal such information if the crime is reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another. Caution is warranted as it is very difficult for a lawyer to "know" when proposed criminal conduct will actually be carried out, for the client may have a change of mind. If the client’s intended crime is perjury, the lawyer must look to Rule 3.3(a)(4) rather than paragraph (c)(1).
[8] When considering disclosure under paragraph (b), the lawyer should weigh such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the nature of the client's intended conduct, the lawyer's own involvement in the transaction, and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take appropriate action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose.
[8a] Paragraph (b)(7) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.
[9] If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).
[9a] After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.
[9b] Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).
[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(2) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
[10a] If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary proceeding, and can be based on a wrong allegedly committed by the lawyer against the client, or on a wrong alleged by a third person; for example, a person claiming to have been defrauded by the lawyer and client acting together. A lawyer entitled to a fee is permitted by paragraph (b)(2) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.
[11] If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the attorney-client privilege when it is applicable. Except as permitted by Rule 3.4(d), the lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.
[12] The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such a supersession.
[13] Self-regulation of the legal profession occasionally places attorneys in awkward positions with respect to their obligations to clients and to the profession. Paragraph (c)(2) requires an attorney who has information indicating that another attorney has violated the Rules of Professional Conduct, learned during the course of representing a client and protected as a confidence or secret under Rule 1.6, to request the permission of the client to disclose the information necessary to report the misconduct to disciplinary authorities. In requesting consent, the attorney must inform the client of all reasonably foreseeable consequences of both disclosure and non-disclosure.
[14] Although paragraph (c)(2) requires that authorized disclosure be made promptly, a lawyer does not violate this Rule by delaying in reporting attorney misconduct for the minimum period of time necessary to protect a client's interests. For example, a lawyer might choose to postpone reporting attorney misconduct until the end of litigation when reporting during litigation might harm the client's interests.
[15 - 17] ABA Model Rule Comments not adopted.
[18] The duty of confidentiality continues after the client-lawyer relationship has terminated.
[19] Paragraph (d) requires a lawyer to act reasonably to safeguard information protected under this Rule against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of this Rule if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the employment or engagement of persons competent with technology, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).
[19a] Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of this Rule.
[20] Paragraph (d) makes clear that a lawyer is not subject to discipline under this Rule if the lawyer has made reasonable efforts to protect electronic data, even if there is a data breach, cyber-attack or other incident resulting in the loss, destruction, misdelivery or theft of confidential client information. Perfect online security and data protection is not attainable. Even large businesses and government organizations with sophisticated data security systems have suffered data breaches. Nevertheless, security and data breaches have become so prevalent that some security measures must be reasonably expected of all businesses, including lawyers and law firms. Lawyers have an ethical obligation to implement reasonable information security practices to protect the confidentiality of client data. What is “reasonable” will be determined in part by the size of the firm. See Rules 5.1(a)-(b) and 5.3(a)-(b). The sheer amount of personal, medical and financial information of clients kept by lawyers and law firms requires reasonable care in the communication and storage of such information. A lawyer or law firm complies with paragraph (d) if they have acted reasonably to safeguard client information by employing appropriate data protection measures for any devices used to communicate or store client confidential information.
To comply with this Rule, a lawyer does not need to have all the required technology competencies. The lawyer can and more likely must turn to the expertise of staff or an outside technology professional. Because threats and technology both change, lawyers should periodically review both and enhance their security as needed; steps that are reasonable measures when adopted may become outdated as well.
[21] Because of evolving technology, and associated evolving risks, law firms should keep abreast on an ongoing basis of reasonable methods for protecting client confidential information, addressing such practices as:
(a) Periodic staff security training and evaluation programs, including precautions and procedures regarding data security;
(b) Policies to address departing employee’s future access to confidential firm data and return of electronically stored confidential data;
(c) Procedures addressing security measures for access of third parties to stored information;
(d) Procedures for both the backup and storage of firm data and steps to securely erase or wipe electronic data from computing devices before they are transferred, sold, or reused;
(e) The use of strong passwords or other authentication measures to log on to their network, and the security of password and authentication measures; and
(f) The use of hardware and/or software measures to prevent, detect and respond to malicious software and activity.
Rule 1.6 retains the two-part definition of information subject to the lawyer's ethical duty of confidentiality. EC 4-4 added that the duty differed from the evidentiary privilege in that it existed "without regard to the nature or source of information or the fact that others share the knowledge." However, the definition of "client information" as set forth in the ABA Model Rules, which includes all information "relating to" the representation, was rejected as too broad.
Paragraph (a) permits a lawyer to disclose information where impliedly authorized to do so in order to carry out the representation. Under DR 4-101(B) and (C), a lawyer was not permitted to reveal "confidences" unless the client first consented after disclosure.
Paragraph (b)(1) is substantially the same as DR 4-101(C)(2).
Paragraph (b)(2) is substantially similar to DR 4-101(C)(4) which authorized disclosure by a lawyer of "[c]onfidences or secrets necessary to establish the reasonableness of his fee or to defend himself or his employees or associates against an accusation of wrongful conduct."
Paragraph (b)(3) is substantially the same as DR 4-101(C)(3).
Paragraph (b)(4) had no counterpart in the Virginia Code.
Paragraphs (c)(1) and (c)(2) are substantially the same as DR 4-101(D).
Paragraph (c)(3) had no counterpart in the Virginia Code.
The Committee added language to this Rule from DR 4-101 to make the disclosure provisions more consistent with current Virginia policy. The Committee specifically concluded that the provisions of DR 4-101(D) of the Virginia Code, which required broader disclosure than the ABA Model Rule even permitted, should be added as paragraph (c). Additionally, to promote the integrity of the legal profession, the Committee adopted new language as paragraph (c)(3) setting forth the circumstances under which a lawyer must report the misconduct of another lawyer when such a report may require disclosure of privileged information.
The amendments effective January 1, 2004, added present paragraph (b)(4) and redesignated former paragraphs (b)(4) and (5) as present (b)(5) and (6); in paragraph (c)(3), at end of first sentence, deleted “but only if the client consents after consultation,” added the present second sentence, and deleted the former last sentence which read, “Under this paragraph, an attorney is required to request the consent of a client to disclose information necessary to report the misconduct of another attorney.”; added Comment [5b] and [6a]; rewrote Comment [13].
The amendments effective March 1, 2016, added paragraph 1.6 (d); added “Acting Reasonably to Preserve Confidentiality” before adding Comments [19], [19a], [20] and [21] paragraphs “a” through “f”.
The amendments effective December 1, 2016, added paragraph (7); in paragraph (c)(1) added the language “reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another”, and rewrote the last sentence of the paragraph; deleted former paragraph (2) and redesignated former paragraph (3) as present paragraph (2); added the language to comment [7c] “if the crime is reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another”, substituted the language “Caution” is “warranted” in place of “Some discretion is involved”, and added the last sentence; in Comment [8] deleted the language “The lawyer’s exercise of discretion requires consideration of” and replaced it with “When considering disclosure under paragraph (b), the lawyer should weigh”, and added the language “and with those who might be injured by the client”; added Comment [8a]; and in Comments [13] and [14] substituted the language “(c)(3)” with “(c)(2)”.
[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined.
[2] ABA Model Rule Comment not adopted.
[3] The lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the parties and issues involved and to determine whether there are actual or potential conflicts of interest.
[4] If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. As to whether a client lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.
[5] ABA Model Rule Comment not adopted.
[6] As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent. Paragraph (a) expresses that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients.
[7] ABA Model Rule Comment not adopted.
[8] Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Nevertheless, a lawyer can never adequately provide joint representation in certain matters relating to divorce, annulment or separation — specifically, child custody, child support, visitation, spousal support and maintenance or division of property.
[9] Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.
[10] A lawyer may not allow business or personal interests to affect representation of a client. For example, a lawyer’s need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.1 and 1.5. Similarly, a lawyer may not refer clients to an enterprise in which the lawyer has an undisclosed interest. A lawyer’s romantic or other intimate personal relationship can also adversely affect representation of a client.
[11-12] ABA Model Rule Comment not adopted.
[13] A lawyer may be paid from a source other than the client if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence.
[14-18] ABA Model Rule Comment not adopted.
[19] A client may consent to representation notwithstanding a conflict. However, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. A lawyer’s obligations regarding conflicts of interest are not present solely at the onset of the attorney-client relationship; rather, such obligations are ongoing such that a change in circumstances may require a lawyer to obtain new consent from a client after additional, adequate disclosure regarding that change in circumstances.
[20] Paragraph (b) requires that client consent be memorialized in writing. Preferably, the attorney should present the memorialization to the client for signature or acknowledgement; however, any writing will satisfy this requirement, including, but not limited to, an attorney’s notes or memorandum, and such writing need not be signed by, reviewed with, or delivered to the client.
[21–22] ABA Model Rule Comment not adopted.
[23] Paragraph (a)(1) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph(a)(2). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met.
[23a] Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.
[24] A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be materially limited. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.
[25] ABA Model Rule Comment not adopted.
[26] Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is a potential conflict include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree.
[27] For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.
[28] Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may arise. The lawyer should make clear his relationship to the parties involved.
[29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the client’s interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.
[30] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.
[31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect the client’s interests and the right to expect that the lawyer will use that information to that client’s benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client’s informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client’s trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.
[32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer’s role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(b).
[33] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.
[34] ABA Model Rule Comment not adopted.
[35] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director.
This Rule is similar to DR 5-101(A) and DR 5-105(C). DR 5-101(A) provided that "[a] lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client may be affected by his own financial, business, property, or personal interests, except with the consent of his client after full and adequate disclosure under the circumstances." DR 5-105(C) provided that "a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."
Rule 1.7(b) clarifies DR 5-105(A) by requiring that, when the lawyer's other interests are involved, not only must the client consent after consultation but also that, independent of such consent, the lawyer must believe that he can provide competent and diligent representation, that the representation must be lawful, and the representation must not involve asserting a claim on behalf of one client against another client in the same litigation or other proceeding before a tribunal. This requirement appears to be the intended meaning of the provision in DR 5-105(C) that "it [be] obvious that [the lawyer] can adequately represent" the client, and was implicit in EC 5-2, which stated that a lawyer "should not accept proffered employment if his personal interests or desires may affect adversely the advice to be given or services to be rendered the prospective client."
Although there are few substantive differences between this Rule and corresponding provisions in the Virginia Code, the Committee concluded that the ABA Model Rule provides a more succinct statement of a general conflicts rule.
The amendments effective June 30, 2005, substituted entirely new paragraphs (a) and (b) for the former paragraphs (a) and (b); rewrote Comments [1], [4], [6], [8], [19], [23], [24] and [26]; added Comments [29] – [33].
[1] As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. In such transactions a review by independent counsel on behalf of the client is often advisable. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however, apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable. Similarly, paragraph (b) does not limit an attorney’s use of information obtained independently outside the attorney-client relationship.
[2 - 5] ABA Model Rule Comments not adopted.
[6] A lawyer may accept ordinary gifts from a client. For example, an ordinary gift such as a present given at a holiday or as a token of appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the detached advice that another lawyer can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the gift is not substantial.
[7 - 8] ABA Model Rule Comments not adopted.
[9] An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraph (j).
[10] ABA Model Rule Comments not adopted.
[11] Paragraph (f) requires disclosure of the fact that the lawyer's services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning confidentiality, Rule 1.7 concerning conflict of interest, and Rule 5.4(c) concerning the professional independence of a lawyer. Where the client is a class, consent may be obtained on behalf of the class by court-supervised procedure.
[12] Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in paragraph (i) is personal and is not imputed to members of firms with whom the lawyers are associated.
[13-15] ABA Model Rule Comments not adopted.
[16] Paragraph (j) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which has its basis in common law champerty and maintenance, is subject to specific exceptions developed in decisional law and continued in these Rules, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for certain advances or payment of the costs of litigation set forth in paragraph (e).
With regard to paragraph (a), DR 5-104(A) provided that a lawyer "shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full and adequate disclosure . . . ." EC 5-3 stated that a lawyer "should not seek to persuade his client to permit him to invest in an undertaking of his client nor make improper use of his professional relationship to influence his client to invest in an enterprise in which the lawyer is interested."
Paragraph (b) is substantially similar to DR 4-101(B)(3) which provided that a lawyer should not use "a confidence or secret of his client for the advantage of himself, or a third person, unless the client consents after full disclosure."
Paragraph (c) is substantially similar to DR 5-104(B) which stated that a lawyer "shall not prepare an instrument giving the lawyer or a member of the lawyer's family any gift from a client, including a testamentary gift, except where the client is a relative of the donee." EC 5-5 stated that a lawyer "should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that the client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Except in those instances in which the client is related to the donee, a lawyer may not prepare an instrument by which the client gives a gift to the lawyer or to a member of his family."
Paragraph (d) has no direct counterpart in the Virginia Code. EC 5-4 stated that in order to avoid "potentially differing interests" a lawyer should "scrupulously avoid [literary arrangements with a client] prior to the termination of all aspects of the matter giving rise to the employment, even though [the lawyer's] employment has previously ended."
Paragraph (e)(1) incorporates the provisions of DR 5-103(B), including the requirement that the client remain "ultimately liable" for such advanced expenses.
Paragraph (e)(2) has no direct counterpart in the Virginia Code, although DR 5-103(B) allowed a lawyer to advance or guarantee expenses of litigation as long as the client remained ultimately liable.
Paragraph (f) is substantially similar to DR 5-106(A)(1) and DR 5-106(B). DR 5-106(A)(1) stated: "Except with the consent of his client after full and adequate disclosure under the circumstances, a lawyer shall not . . . [a]ccept compensation for his legal services from one other than his client." DR 5-106(B) stated that "[a] lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services."
Paragraph (g) is substantially similar to DR 5-107, but also covers aggregated plea agreements in criminal cases.
The first portion of Paragraph (h) is essentially the same as DR 6-102(A), but the second portion of Paragraph (h) has no counterpart in the Virginia Code. The new provision allows in-house lawyers to arrange for the same indemnity available to other officers and employees, as long as their employers are independently represented in making the arrangement.
Paragraph (i) has no counterpart in the Virginia Code.
Paragraph (j) is substantially the same as DR 5-103(A).
Paragraph (k) had no counterpart in the Virginia Code.
The Committee added "for the advantage of himself or a third person" from DR 4-101(B)(3) to paragraph (b) as a further limitation on a lawyer's use of information relating to representation of a client.
The Committee added a further time limitation to paragraph (d)'s restriction. Borrowing language from EC 5-4, the restriction on agreements giving a lawyer literary or media rights extends through the conclusion of "all aspects of a matter giving rise to the representation."
In Rule 1.8(e)(1), the Committee retained the requirement in DR 5-103(B) that a client must "remain ultimately liable for [litigation] expenses." However, the Committee adopted the limited exception for indigent clients that appears in Rule 1.8(e)(2).
After lengthy debate, the Committee adopted 1.8(h), which retains the general prohibition on lawyers prospectively limiting their malpractice liability to clients (which appeared in Virginia Code DR 6-102). However, the Committee added a limited exception that allows in-house lawyers to arrange for the type of indemnity that other officers and employees of entities may obtain. The Committee voted to insist that the client be independently represented in agreeing to any such arrangement.
In 1.8(i), the Committee adopted the ABA Model Rule approach, which permits lawyers who are members of the same nuclear family to represent clients adverse to each other, as long as both clients consent after full disclosure. The Virginia Code was interpreted to create a non-waivable per se conflict of interest in these circumstances. See LEO 190 (April 1, 1985).
The amendments effective January 1, 2004, in paragraph (c), added new first and second sentences; in current third sentence, deleted “as parent, child, sibling, or spouse” between the present words “lawyer” and “any substantial,” and substituted “unless the lawyer or other recipient of the gift” for “except where the client,” substituted “client” for “donee” and added the third sentence; added paragraph (k); in Comment [1], added the last sentence.
[1] After termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this Rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse. Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.
[2] The scope of a "matter" for purposes of this Rule may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
[3] The second aspect of loyalty to a client is the lawyer's obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved and other lawyers may be subject to imputed disqualification under Rule 1.10. If a lawyer left one firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters, so long as the conditions of paragraphs 1.9 (b) and (c) concerning confidentiality have been met.
[4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the Rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the Rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.
[4a] Reconciliation of these competing principles in the past has been attempted under two rubrics. One approach has been to seek per se rules of disqualification. For example, it has been held that a partner in a law firm is conclusively presumed to have access to all confidences concerning all clients of the firm. Under this analysis, if a lawyer has been a partner in one law firm and then becomes a partner in another law firm, there may be a presumption that all confidences known by the partner in the first firm are known to all partners in the second firm. This presumption might properly be applied in some circumstances, especially where the client has been extensively represented, but may be unrealistic where the client was represented only for limited purposes. Furthermore, such a rigid rule exaggerates the difference between a partner and an associate in modern law firms.
[4b] The other rubric formerly used for dealing with disqualification is the appearance of impropriety proscribed in Canon 9 of the Virginia Code. This rubric has a twofold problem. First, the appearance of impropriety can be taken to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since "impropriety" is undefined, the term "appearance of impropriety" is question-begging. It therefore has to be recognized that the problem of disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety. A rule based on a functional analysis is more appropriate for determining the question of vicarious disqualification. Two functions are involved: preserving confidentiality and avoiding positions adverse to a client.
[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm; and Rule 1.11(d) for restrictions regarding a lawyer moving from private employment to public employment.
[6] Preserving confidentiality is a question of access to information. Access to information, in turn, is essentially a question of fact in particular circumstances, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients.
[6a] Application of paragraph (b) depends on a situation's particular facts. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.
[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9.
[8] Information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using non-confidential information about that client when later representing another client.
[9] Disqualification from subsequent representation is primarily for the protection of former clients but may also affect current clients. This protection, however, can be waived by both. A waiver is effective only if there is full disclosure of the circumstances, including the lawyer's intended role in behalf of the new client.
[10] With regard to an opposing party's raising a question of conflict of interest, see Comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.
Paragraph (a) is substantially the same as DR 5-105(D), although the Rule requires waiver by both a lawyer's current and former client, rather than just the former client.
There was no direct counterpart to paragraph (b) in the Virginia Code. Representation by a lawyer adverse to a client of a law firm with which a lawyer was previously associated was sometimes dealt with under the rubric of Canon 9 of the Virginia Code which provided: "A lawyer should avoid even the appearance of impropriety."
There was no counterpart to paragraph (c) in the Virginia Code. The exception in the last clause of paragraph (c)(1) permits a lawyer to use information relating to a former client that is in the "public domain," a use that also was not prohibited by the Virginia Code which protected only "confidences and secrets." Since the scope of paragraphs (a) and (b) is much broader than "confidences and secrets," it is necessary to define when a lawyer may make use of information about a client after the client-lawyer relationship has terminated.
The Committee believed that, in an era when lawyers frequently move between firms, this Rule provided more specific guidance than the implicit provisions of the Disciplinary Rules. However, the Committee added language to paragraph (a) requiring consent of both present and former clients. Additionally, the Committee adopted broader language in paragraph (c) precluding the use of any information "relating to or gained in the course of" the representation of a former client, rather than precluding the use only of information "relating to" the former representation.
The amendments effective January 4, 2010, in Comment [5], added the reference to Rule 1.11(d) in the last sentence.
[1] Whether two or more lawyers constitute a firm as defined in the Terminology section can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to the other.
[1a] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.
[1b] Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.
[1c] Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(b) and (c); where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(d)(1). The individual lawyer involved is bound by the Rules generally, including Rules 1.6, 1.7 and 1.9.
[1d] Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences and, therefore, to the protections provided in Rules 1.6, 1.9 and 1.11. However, if the more extensive disqualification in Rule 1.10 were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations and, thus, has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government's recruitment of lawyers would be seriously impaired if Rule 1.10 were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11.
[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).
[2a] A lawyer or firm should maintain and use an appropriate system for detecting conflicts of interest. The failure to maintain a system for identifying conflicts or to use that system when making a decision to undertake employment in a particular matter may be deemed a violation of Rule 1.10(a) if proper use of a system would have identified the conflict.
[3 - 4] ABA Model Rule Comments not adopted.
[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).
There was no direct counterpart to this Rule in the Virginia Code. DR 5-105(E) provided that "[ i ]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner of his or his firm may accept or continue such employment."
The ABA Model Code contained a broadly inclusive imputation rule, prohibiting representation by a partner, associate, or any affiliated lawyer when a lawyer would be required to decline employment under any Disciplinary Rule. See ABA Model Code DR 5-105(D). The Virginia Code limited imputation to disqualification under DR 5-105. See Virginia Code DR 5-105(E). The Committee concluded that the provisions of the ABA Model Rule struck the appropriate balance between the confidentiality needs of clients and the professional needs of lawyers.
The amendments effective January 1, 2004, in paragraph (a), added the references to Rules 1.6 and 2.10(e), deleted the references to Rules 1.8(c) and 2.2; added paragraphs (d) and (e).
The amendments effective July 31, 2015, in paragraph (a), deleted “knowingly” and added “the lawyer knows or reasonably should know that…” and added Comment [2a].
[1] This Rule prevents a lawyer from exploiting public office for the advantage of the lawyer or a private client. A lawyer who is a public officer should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with official duties or obligations to the public.
[2] A lawyer representing a government agency, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule.
[3] Paragraphs (b) and (d) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (b). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.
[4] Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The private client should be informed of the lawyer's prior relationship with a public agency at the time of engagement of the lawyer's services.
[5] When the client is an agency of one government, that agency should be treated as a private client for purposes of this Rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.
[6] Paragraphs (b)(1) and (c) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the attorney's compensation to the fee in the matter in which the lawyer is disqualified.
[7] Paragraph (b)(2) does not require that a lawyer give notice to the government agency at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as practicable in order that the government agency will have a reasonable opportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not complying.
[8] Paragraph (c) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.
[9] Paragraphs (b) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.
Paragraph (a) is identical to DR 8-101(A).
Paragraph (b) is substantially similar to DR 9-101(B), except that the latter used the terms "in which he had substantial responsibility while he was a public employee." The Rule also requires consent of both a current client and the former agency.
Paragraphs (c), (d), (e) and (f) have no counterparts in the Virginia Code.
The Committee believed that the ABA Model Rule provides more complete guidance regarding lawyers' movement between the public and private sectors. However, the Committee added the language of DR 8-101(A) as paragraph (a) in order to make this Rule a more complete statement regarding the particular responsibilities of lawyers who are public officials. Additionally, to make paragraph (b) consistent with similar provisions under Rule 1.9(a) and (b), the Committee modified the paragraph to require consent to representation by both the current client and the lawyer's former government agency.
The amendments effective January 1, 2004, rewrote the rule heading.
The amendments effective January 4, 2010, added present paragraph (e) and re-designated former paragraphs (e) and (f) as present paragraphs (f) and (g); deleted Comment [10].
Amendments effective November 1, 2013, moved the definition of “confidential government information” from paragraph (g) to paragraph (e), added a provision to paragraph (d) allowing the conflict to be waived with consent from the private client and the appropriate government agency, and adopted ABA Model Rule Comment 3, which explains why paragraphs (b) and (d) apply even when a lawyer is not adverse to a former client.
[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A (2), B (2) and C of the Virginia Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not "act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto." Although phrased differently from this Rule, those rules correspond in meaning.
[2] Like former judges, lawyers who have served as arbitrators, may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their consent after consultation. Other law or codes of ethics governing these roles may impose more stringent standards of personal or imputed disqualification.
[3] Although lawyers who serve as judges and arbitrators do not have information concerning the parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing their roles. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of paragraph (c) are met.
[4] ABA Model Rule Comments not adopted.
[5] Notice, including a description of the screened lawyer’s representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.
Paragraph (a) is substantially similar to DR 9-101(A), which provided that a lawyer "shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity." Paragraph (a) differs, however, in that it is broader in scope and states more specifically the persons to whom it applies. There was no counterpart in the Virginia Code to paragraphs (b), (c) or (d).
With regard to arbitrators and mediators, EC 5-20 stated that "a lawyer [who] has undertaken to act as an impartial arbitrator or mediator ... should not thereafter represent in the dispute any of the parties involved." DR 9-101(A) did not permit a waiver of the disqualification applied to former judges by consent of the parties. However, DR 5-105(C) was similar in effect and could be construed to permit waiver.
The Committee adopted the ABA Model Rule essentially verbatim for former judges and arbitrators since it clearly provides more complete guidance to judicial officials than DR 9-101(A). However, the committee chose not to extend these provisions to mediators and other third-party neutrals, as those roles are distinguishable.
The amendments effective January 1, 2004, in paragraph (c)(1), added the word “timely” between “is” and “screened”; in paragraph (c)(2), added “parties and any” between “the” and “appropriate” and substituted “them” for “it”; added Comments [2], [3], [5].
[1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. These persons are referred to herein as the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. "Other constituents" as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.
[2] When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.
[3] The decisions of constituents of the organization ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. However, different considerations arise when the lawyer knows that the organization may be substantially injured by action of a constituent that is in violation of law. In such a circumstance, it may be reasonably necessary for the lawyer to ask the constituent to reconsider the matter. If that fails, or if the matter is of sufficient seriousness and importance to the organization, it may be reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. Substantial justification should exist for seeking review over the head of the constituent normally responsible for it. The stated policy of the organization may define circumstances and prescribe channels for such review, and a lawyer should encourage the formulation of such a policy. Even in the absence of organization policy, however, the lawyer may have an obligation to refer a matter to higher authority, depending on the seriousness of the matter and whether the constituent in question has apparent motives to act at variance with the organization's interest. Review by the chief executive officer or by the board of directors may be required when the matter is of importance commensurate with their authority. At some point it may be useful or essential to obtain an independent legal opinion.
[4] ABA Model Rule Comments not adopted.
[5] In an extreme case, it may be reasonably necessary for the lawyer to refer the matter to the organization's highest authority. Ordinarily, that is the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions highest authority reposes elsewhere; for example, in the independent directors of a corporation.
[6] The authority and responsibility provided in paragraph (b) are concurrent with the authority and responsibility provided in other Rules. In particular, this Rule does not limit or expand the lawyer's responsibility under Rules 1.6, 1.8, 1.16, 3.3 or 4.1. If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rule 1.2(c) can be applicable.
[7 - 8] ABA Model Rule Comments not adopted.
[9] The duty defined in this Rule applies to government organizations. However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Government lawyers, in many situations, are asked to represent diverse client interests. The government lawyer may be authorized by the organization to represent subordinate, internal clients in the interest of the organization subject to the other Rules relating to conflicts.
Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority. See note on Scope.
[10] When the organization's interest may be or become adverse to those of one or more of its constituents, the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.
[11] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.
[12] Paragraph (e) recognizes that a lawyer for an organization may also represent individuals within the organization. When an organization's lawyer is assigned or authorized to represent such an individual, the lawyer has an attorney-client relationship with both that individual and the organization. Accordingly, the lawyer's representation of both is controlled by the confidentiality and conflicts provisions of these Rules.
[13] Under generally prevailing law, the shareholders or members of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization.
[14] The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer's client does not alone resolve the issue. Most derivative actions are a normal incident of an organization's affairs, to be defended by the organization's lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer's duty to the organization and the lawyer's relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.
There was no direct counterpart to this Rule in the Disciplinary Rules of the Virginia Code. EC 5-18 stated that a "lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. In advising the entity, a lawyer should keep paramount its interests and the lawyer’s professional judgment should not be influenced by the personal desires of any person or organization. Occasionally, a lawyer for an entity is requested by a stockholder, director, officer, employee, representative, or other person connected with the entity to represent the individual in an individual capacity; in such case the lawyer may serve the individual only if the lawyer is convinced that differing interests are not present." EC 5-24 stated that although a lawyer "may be employed by a business corporation with non lawyers serving as directors or officers, and they necessarily have the right to make decisions of business policy, a lawyer must decline to accept direction of his professional judgment from any layman." DR 5 106(B) provided that a lawyer "shall not permit a person who ... employs ... him to render legal services for another to direct or regulate his professional judgment in rendering such legal services."
The Committee adopted this Rule because it directly addresses matters only implicitly addressed in Ethical Considerations of the Virginia Code.
The amendments effective January 1, 2004, in paragraph (b)(1), inserted the word “for”.
[1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacities often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.
[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act as de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
[3] ABA Model Rule Comments not adopted.
[4] If the client has a legal representative, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If there is no legal representative, the lawyer should seek such an appointment where it would serve the client's best interests. Thus, if a disabled client has substantial property that should be sold for the client's benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer's part. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).
[5 - 7] ABA Model Rule Comments not adopted.
[8] Court Rules generally provide that minors or persons suffering mental disability shall be represented by a guardian or next friend if they do not have a guardian. However, disclosure of the client's disability can adversely affect the client's interests. For example, raising the question of disability could, in some circumstances, lead to proceedings for involuntary commitment. The lawyer's position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician.
There was no direct counterpart to this Rule in the Disciplinary Rules of the Virginia Code. EC 7-11 stated that the "responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client.... Examples include the representation of an illiterate or an incompetent...." EC 7-12 stated that "[a]ny mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent."
The Committee adopted this Rule because it directly addresses matters only implicitly addressed in Ethical Considerations of the Virginia Code.
The amendments effective January 1, 2004, rewrote the rule.
This rule is substantially the same as the original Rule 1.15 adopted January 1, 2000 except that the language has been substantially simplified for ease of understanding and the portions regarding the Financial Institutions duties redacted as they are appropriately incorporated into the “Trust Account Notification Agreement” signed by all Virginia approved financial institutions.
The Committee chose to modify the rule for ease of understanding and enforcement with no substantive changes to a lawyer’s safekeeping property and recordkeeping requirements.
Amendments effective November 1, 2013, clarified that paragraph (a)(1) requires that funds must be placed in an identifiable trust account, while other property may be placed in a safe deposit box or other place of safekeeping.
[1] A lawyer should not accept or continue representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion.
[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may wish an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.
[4] A client has a right to discharge a lawyer at any time, with or without cause. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
[5] Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring the client to proceed pro se.
[6] If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and, in an extreme case, may initiate proceedings for a conservatorship or similar protection of the client. See Rule 1.14.
[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client's interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is illegal or unjust, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. The lawyer also may withdraw where the client insists on a repugnant or imprudent objective.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.
[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. Whether or not a lawyer for an organization may under certain unusual circumstances have a legal obligation to the organization after withdrawing or being discharged by the organization's highest authority is beyond the scope of these Rules.
[10] Paragraph (e) eschews a "prejudice" standard in favor of a more objective and easily-applied rule governing specific kinds of documents in the lawyer's files.
[11] The requirements of paragraph (e) should not be interpreted to require disclosure of materials where the disclosure is prohibited by law.
Paragraph (a) is substantially the same as DR 2-108(A).
Paragraph (b) is substantially similar to DR 2-108(B) which provided that a lawyer "may withdraw from representing a client if: (1) Withdrawal can be effected without material prejudice to the client; or (2) The client persists in a course of conduct involving the lawyer's services that the lawyer reasonably believes is illegal or unjust; or (3) The client fails to fulfill an obligation to the lawyer regarding the lawyer's services and such failure continues after reasonable notice to the client; or (4) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client."
Paragraph (c) is identical to DR 2-108(C).
Paragraph (d) is based on DR 2-108(D), but does not address documents in the lawyer's files (which are handled under paragraph (e).
Paragraph (e) is new.
The provisions of DR 2-108 of the Virginia Code derived more from ABA Model Rule 1.16 than from its counterpart in the ABA Model Code, DR 2-110. Accordingly, the Committee generally adopted the ABA Model Rule, but substituted the "illegal or unjust" language from DR 2-108(B)(2) for the "criminal or fraudulent" language of the ABA Model Rule. Additionally, the Committee substituted the language of DR 2-108(C) for that of paragraph (c) of the ABA Model Rule to make it clear that a lawyer, in circumstances involving court proceedings, has an affirmative duty to request leave of court to withdraw. The Committee recommended paragraph (e) instead of a "prejudice" standard as being more easily understood and applied by lawyers.
The amendments effective January 1, 2004, in paragraph (e), first sentence, inserted “therefore, upon termination of the representation, those items” between “client and” and “shall,” inserted “within a reasonable time” between “returned” and “to the client,” and inserted “or the client’s new counsel” between “the client” and “upon request; in paragraph (e), third sentence, substituted “Also upon termination,” for “Upon request,” inserted “upon request” between “the client” and “must also,” inserted “within a reasonable time” between “provided” and “copies,” inserted “transcripts” before the present word “pleadings,” and inserted “or collected” between “prepared” and “for the client; in paragraph (e), added the last sentence; and added Comment [11].
A lawyer or a law firm may sell or purchase a law practice, partially or in its entirety, including good will, if the following conditions are satisfied:
[1] The practice of law is a profession, not merely a business. Clients are not commodities that can be purchased and sold at will. Pursuant to this Rule, when a lawyer or an entire firm ceases to practice and another lawyer or firm takes over the representation, the selling lawyer or firm may obtain compensation for the reasonable value of the practice as may withdrawing partners of law firms. See Rules 5.4 and 5.6.
[2] The fact that a number of the seller's clients decide not to be represented by the purchaser but take their matters elsewhere does not result in a violation. Neither does the seller's return to private practice after the sale as a result of an unanticipated change in circumstances result in a violation. For example, a lawyer who has sold the practice to accept an appointment to judicial office does not violate the requirement that the sale be attendant to cessation of practice if the lawyer later resumes private practice upon leaving the office.
[3] Comment [3] to ABA Model Rule 1.17 substantially appears in paragraph (a) of this Rule.
[4] The Rule permits a sale of an entire practice attendant upon retirement from the private practice of law within the jurisdiction.
[5] This Rule also permits a lawyer or law firm to sell an area of practice. If an area of practice is sold and the lawyer remains in the active practice of law, the lawyer must cease accepting any matters in the area of practice that has been sold, either as counselor co-counselor by assuming joint responsibility for a matter in connection with the division of a fee with another lawyer as would otherwise be permitted by Rule 1.5(e). For example, a lawyer with a substantial number of estate planning matters and a substantial number of probate administration cases may sell the estate planning portion of the practice but remain in the practice of law by concentrating on probate administration; however, that practitioner may not thereafter accept any estate planning matters. Although a lawyer who leaves a jurisdiction or geographical area typically would sell the entire practice, this Rule permits the lawyer to limit the sale to one or more areas of the practice, thereby preserving the lawyer's right to continue practice in the areas of the practice that were not sold.
[6] The Rule requires that the seller's entire practice, or an entire area of practice, be sold. The prohibition against sale of less than an entire practice area protects those clients whose matters are less lucrative and who might find it difficult to secure other counsel if a sale could be limited to substantial fee-generating matters. The purchasers are required to undertake all client matters in the practice or practice area, subject to client consent. This requirement is satisfied, however, even if a purchaser is unable to undertake a particular client matter because of a conflict of interest.
[7] Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Rule 1.6 than do preliminary discussions concerning the possible association of any lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser access to client-specific information relating to the representation and to the file, however, requires client consent. The Rule provides that before such information can be disclosed by the seller to the purchaser the client must be given actual written notice of the contemplated sale, including the identity of the purchaser and any proposed change in the terms of future representation, and must be told that the decision to consent or to make other arrangements must be made within 90 days. If nothing is heard from the client within that time, the client's refusal to consent to the sale is presumed.
[8] A lawyer or law firm ceasing to practice cannot be required to remain in practice because some clients cannot be given actual notice of the proposed purchase. Since these clients cannot themselves consent to the purchase or direct any other disposition of their files, the Rule requires an order from a court having jurisdiction authorizing their transfer or other disposition. The Court can be expected to determine whether reasonable efforts to locate the client have been exhausted, and whether the absent client's legitimate interest will be served by authorizing the transfer of the file so that the purchaser may continue the representation. Preservation of client confidences requires that the petition for a court order be considered in camera.
[9] All the elements of client autonomy, including the client's absolute right to discharge a lawyer and transfer the representation to another, survive the sale of the practice.
[10] The sale may not be financed by increases in fees charged the clients of the practice. Existing agreements between the seller and the client as to fees and the scope of work must be honored by the purchaser, unless the client consents after consultation.
[11] Lawyers participating in the sale of a law practice are subject to the ethical standards applicable to involving another lawyer in the representation of a client. These include, for example, the seller's obligation to assure that the purchaser is qualified to assume the practice and the purchaser's obligation to undertake the representation competently (see Rule 1.1); the obligation to avoid disqualifying conflicts, and to secure client consent after consultation for those conflicts which can be agreed to (see Rule 1.7); and the obligation to protect information relating to the representation (see Rules 1.6 and 1.9).
[12] If approval of the substitution of the purchasing attorney for the selling attorney is required by the rules of any tribunal in which a matter is pending, such approval must be obtained before the matter can be concluded in the sale (see Rule 1.16).
[13] This Rule applies to the sale of a law practice by representatives of a deceased, disabled or disappeared lawyer. Thus, the seller may be represented by a nonlawyer representative not subject to these Rules. Since, however, no lawyer may participate in a sale of a law practice which does not conform to the requirements of this Rule, the representatives of the seller as well as the purchasing lawyer shall see to it that they are met.
[14] Admission to or retirement from a law partnership or professional association, retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase governed by this Rule.
[15] This Rule does not apply to the transfers of legal representation between lawyers when such transfers are unrelated to the sale of a practice.
Ethical Consideration 4-6 states that a lawyer should not attempt to sell a law practice as a going business because, among other things, to do so would involve the disclosure of confidences and secrets.
The Committee was persuaded to eliminate the prohibition of the sale of a law practice currently set forth in Ethical Consideration 4-6 by several arguments, the first being that sole practitioners and their clients are often unreasonably discriminated against when the attorney's practice is terminated. When lawyers who are members of firms retire, the transition for the client is usually smooth because another attorney of the firm normally takes over the matter. Such a transition is usually more difficult for the clients of a sole practitioner, who must employ another attorney or firm.
Another persuasive argument is that some attorneys leaving practice, firm members and sole practitioners alike, indirectly "sell" their practices, including its good will, by utilizing various arrangements. For example, firm members sometimes receive payments from their firm pursuant to retirement agreements that have the effect of rewarding the lawyer for the value of his/her practice. Sole practitioners contemplating leaving the practice of law may sell their tangible assets at an inflated price or bring in a partner prior to retirement, then allow the partner to take over the practice pursuant to a compensation agreement. Such arrangements do not always involve significant client participation or consent.
In addition, an attorney's practice has value that is recognized in the law. Under Virginia divorce law, for example, a professional's practice, including its good will, may be subject to equitable distribution. (Russell v. Russell, 11 Va. App. 411, 399 S.E.2d 166 (1990)). Therefore, under the Virginia Code, an attorney in a divorce proceeding may be required to compensate his/her spouse for the value of the practice, yet be forbidden to sell it.
The Committee recommended, after considering all of these factors, that adopting a carefully crafted rule allowing such sales without resort to these alternate methods would be preferable and would assure maximum protection of clients. This recommended Rule is based on the ABA Model Rule 1.17 with several significant changes, the chief ones relating to consent and fees.
The amendments effective January 1, 2004, paragraph (a), added the exception; deleted Comment [3].
The amendments effective January 4, 2010, paragraph (a), inserted "or in the area of practice that has been sold" following the current word "law"; added present paragraph (b) and redesignated former paragraphs (b) through (d) as present paragraphs (c) through (e); added present Comments [4] through [6].
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
[1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
[2] Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It could also ignore, to the client's disadvantage, the relational or emotional factors driving a dispute. In such a case, advice may include the advantages, disadvantages and availability of other dispute resolution processes that might be appropriate under the circumstances.
[2a] It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.
[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.
[4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.
[5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal, moral or ethical consequences to the client or to others, duty to the client under Rule 1.4 may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.
There was no direct counterpart to this Rule in the Disciplinary Rules of the Virginia Code. DR 5-106(B) provided that a lawyer "shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." EC 7-8 stated that "[a]dvice of a lawyer to his client need not be confined to purely legal considerations.... In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible.... In the final analysis, however, the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client...."
The Committee adopted the ABA Model Rule verbatim because it sets forth more clearly than the Disciplinary Rules the scope of a lawyer's advisory role.
The amendments effective January 1, 2004, this rule was deleted in its entirety.
[1] An evaluation may be performed at the client's direction but for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender. In some situations, the evaluation may be required by a government agency; for example, an opinion concerning the legality of the securities registered for sale under the securities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business.
[1a] Lawyers for the government may be called upon to give a formal opinion on the legality of contemplated government agency action. In making such an evaluation, the government lawyer acts at the behest of the government as the client but for the purpose of establishing the limits of the agency's authorized activity. Such an opinion is to be distinguished from confidential legal advice given agency officials. The critical question is whether the opinion is to be made public.
[2] A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser to analyze a vendor's title to property does not have a client-lawyer relationship with the vendor. So also, an investigation into a person's affairs by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in this Rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences apply, which is not the case if the lawyer is retained by someone else. For this reason, it is essential to identify the person by whom the lawyer is retained. This should be made clear not only to the person under examination, but also to others to whom the results are to be made available.
[3] When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings.
[4] The quality of an evaluation depends on the freedom and extent of the investigation upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be categorically excluded, or the scope of search may be limited by time constraints or the noncooperation of persons having relevant information. Any such limitations which are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer's obligations are determined by law, having reference to the terms of the client's agreement and the surrounding circumstances.
[5] ABA Model Rule Comments not adopted.
[6] When a question concerning the legal situation of a client arises at the instance of the client's financial auditor and the question is referred to the lawyer, the lawyer's response may be made in accordance with procedures recognized in the legal profession. Such a procedure is set forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information, adopted in 1975.
There was no counterpart to this Rule in the Virginia Code.
The Committee adopted this Rule because it addressed matters not addressed in the Virginia Code. This Rule generally follows ABA Model Rule 2.3, but the Committee added paragraph (c) in recognition of the statutory requirement of confidentiality in the dispute resolution process. See Code of Virginia Section 8.01-576.10.
ABA Model Rule not adopted.
[1] This Rule sets forth conflicts of interest and other ethical guidelines for a lawyer who serves as a third party neutral. Dispute resolution proceedings that are conducted by a third party neutral include mediation, conciliation, early neutral evaluation, non-binding arbitration and non-judicial settlement conferences.
[2] A lawyer who serves as a third party neutral under this Rule or as a mediator under Rule 2.11 is engaged in the provision of a law-related service that may involve the application of a lawyer's particular legal expertise and skills. The standards set forth in this Rule, however, do not amount to a determination that a lawyer who serves as a third party neutral pursuant to this Rule or as a mediator pursuant to Rule 2.11 is engaged in the practice of law. The determination of whether a particular activity constitutes the practice of law is beyond the scope and purpose of these Rules.
[3] A lawyer serving as third party neutral shall not offer any of the parties legal advice, which is a function of the lawyer who is representing a client (See Preamble: A Lawyer’s Responsibilities). A third party neutral may, however, offer neutral evaluations, if requested by the parties. Special provisions under which a lawyer-mediator can offer certain neutral evaluations are contained in Rule 2.11.
[4] Confidentiality of information revealed in the dispute resolution process is governed by Code of Virginia Sections 8.01-576.9 and 8.01-576.10.
[5] A third party neutral as defined in these Rules does not include a lawyer providing binding arbitration services (See Code of Virginia Section 8.01-577 et. seq.).
[6] The imputation of conflicts arising under paragraph (e) is addressed in Rule 1.10.
There was no counterpart to this Rule in the Virginia Code.
The Committee adopted this Rule, not part of the ABA Model Rules, to provide guidelines for lawyers who serve as neutrals and who do not represent a party to a dispute or transaction. Following adoption of Virginia Rule 2.10, the ABA adopted Model Rule 2.4 governing third-party neutrals. The Virginia and ABA Rules are substantially different.
The amendments effective January 1, 2004, in paragraph (h), substituted “joint representation” for “intermediation” and substituted “Rule 1.7” for “Rule 2.2”.
[1] Offering assessments, evaluations, and advice are traditional lawyering functions for the lawyer who represents a client. A lawyer-mediator, who does not represent any of the parties to the mediation, should not assume that these functions are appropriate. Although these functions are not specifically prohibited in the statutory definition of mediation, which is set forth as paragraph (a) of this Rule, an evaluative approach which interferes with the parties’ self-determination and the mediator’s impartiality would be inconsistent with this definition of mediation.
[2] Defining mediation to exclude an evaluative approach is difficult not only because practice varies widely but because no consensus exists as to what constitutes an evaluation. Also, the effects of an evaluation on the mediation process depend upon the attitude and style of the mediator and the context in which it is offered. Thus, a question by a lawyer-mediator to a party that might be considered by some as “reality testing” and facilitative, might be viewed by others as evaluative. On the other hand, an evaluation by a facilitative mediator could help free the parties from the narrowing effects of the law and help empower them to resolve their dispute.
[3] The Rule focuses on the informed consent of the prospective mediation clients to the particular approach, style and subject matter expertise of the lawyer-mediator. This begins with consultation about the nature of the mediation process, the limitations on evaluation, the lawyer-mediator’s approach, style and subject matter expertise and the parties’ expectations regarding the mediation process. If the parties request an evaluative approach, the lawyer-mediator shall explain the risk that evaluation might interfere with mediator impartiality and party self-determination. Following this consultation the lawyer-mediator and the parties shall sign a written agreement to mediate which reflects the choice and expectation of the parties. The lawyer-mediator shall then conduct the mediation in a manner that is consistent with the parties’ choice and expectations. This is similar to the lawyer-client consultation about the means to be used in pursuing a client’s objectives in Rule 1.2.
[4] If the parties choose a lawyer-mediator who is willing and able to offer evaluation during the mediation process and has met the requirements of paragraph (e), a lawyer-mediator has a continuing responsibility under paragraphs (b) and (d) to assess the situation and consult with the parties before offering or responding to a request for an evaluation. Consideration shall be given again as to whether mediator impartiality and party self-determination are at risk. Consideration should also be given as to whether an evaluation could detract from the willingness of the parties to work at understanding their own and each other’s situation and at considering a broader range of interests, issues and options. Also, with an evaluation the parties may miss out on opportunities to maintain or improve relationships or to create a higher quality and more satisfying result.
[5] On the other hand, the parties may expect the lawyer-mediator to offer an evaluation in helping the parties reach agreement, especially when the most important issues are the strengths or weaknesses of legal positions, or the significance of commercial or financial risks. This is particularly useful after parties have worked at possible solutions and have built up confidence in the mediator’s impartiality or where widely divergent party evaluations are major barriers to settlement.
[6] The presence of attorneys for the parties offers additional protection in minimizing the risk of a poor quality evaluation and of too strong an influence on the parties’ self-determination. An evaluation, coupled with a reminder to the parties that the evaluation is but one of the factors to be considered as they deliberate on the outcome, may in certain cases be the most appropriate way to assure that the parties are making fully informed decisions.
[7] A lawyer-mediator shall not offer any of the parties legal advice which is a function of the lawyer who is representing a client. However, a lawyer-mediator may offer legal information under the conditions outlined in paragraph (c). Offering legal information is an educational function which aids the parties in making informed decisions. Neutral evaluations in the mediation process consist of, for example, opining as to the strengths and weaknesses of positions, assessing the value and costs of alternatives to settlement or assessing the barriers to settlement.
[8] The lawyer-mediator shall not, however, make decisions for any party to the mediation process nor shall the lawyer-mediator use a neutral evaluation to coerce or influence the parties to settle their dispute or to accept a particular solution to their dispute. Paragraphs (d), (e), and (f) restrict the use of evaluative techniques by the lawyer-mediator to situations where the parties have given their informed consent to the use of such techniques and where a neutral evaluation will assist, rather than interfere with the ability of the parties to reach a mutually agreeable solution to their dispute.
[9] While a lawyer is cautioned in Rule 1.7 regarding the special considerations in common representation, these should not deter a lawyer-mediator from accepting clients for mediation. In mediation, a lawyer-mediator represents none of the parties and should be trained to deal with strong emotions. In fact mediation can be especially useful in a case where communication and relational breakdown have made negotiation or litigation of legal issues more difficult.
[10] Confidentiality of information revealed in the mediation process is governed by Code of Virginia Sections 8.01-576.9 and 8.01-576.10 and Section 8.01-581.22.
There was no counterpart to this Rule in the Virginia Code.
The Committee adopted this Rule, not part of the ABA Model Rules, to give further guidance to lawyers who serve as mediators. Although Legal Ethics Opinions [e.g., LEO 590 (May 17, 1985)] have approved of lawyers serving as mediators, different approaches to and styles of mediation ranging from pure facilitation to evaluation of positions are being offered. This Rule requires lawyer-mediators to consult with prospective parties about the lawyer-mediators’ approach, style and subject matter expertise and to honor the parties’ choice and expectations.
The amendments effective December 30, 2009, in Comment [9], deleted the references to Rule 2.2 that was deleted by Court order dated September 24, 2003.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and is never static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.
Rule 3.1 is similar to DR 7-102(A)(1), but with three differences. First, the test of improper conduct is changed from "merely to harass or maliciously injure another" to the requirement that there be a basis for the litigation measure involved that is "not frivolous." This includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by good faith argument for an extension, modification, or reversal of existing law." Second, the test in Rule 3.1 is an objective test, whereas DR 7-102(A)(1) applied only if the lawyer "knows or when it is obvious" that the litigation is frivolous. Third, Rule 3.1 has an exception that in a criminal case, or a case in which incarceration of the client may result (for example, certain juvenile proceedings), the lawyer may put the prosecution to its proof even if there is no nonfrivolous basis for defense.
Although Rule 3.1 is similar in substance to existing Virginia Code provisions, the Committee concluded that the objective standard of the ABA Model Rule was preferable and more closely paralleled Section 8.01-271.1 of the Code of Virginia, dealing with lawyer sanctions.
ABA Model Rule not adopted.
[1] The advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal. However, an advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.
[2] ABA Model Rule Comment not adopted.
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, Section 8.01-271.1 of the Code of Virginia states that a lawyer's signature on a pleading constitutes a certification that the lawyer believes, after reasonable inquiry, that there is a factual and legal basis for the pleading. Additionally, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(c) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(c), see the Comment to that Rule. See also the Comment to Rule 8.4(b).
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Furthermore, the complexity of law often makes it difficult for a tribunal to be fully informed unless pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose controlling adverse authority in the subject jurisdiction which has not been disclosed by the opposing party.
[5] When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes.
[6] When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce evidence that is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.
[7] ABA Model Rule Comment not adopted.
[8] The prohibition against offering false evidence only applies if the lawyer knows the evidence is false. A lawyer’s reasonable belief or suspicion that evidence is false does not preclude its presentation to the trier of fact. A lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, but the lawyer cannot ignore an obvious falsehood.
[9] Although paragraph (a)(4) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.
[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness, offers testimony during that proceeding that the lawyer knows to be false. In such situation or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done.
[11] Except in the defense of a criminal accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperates in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(c). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.
[12] Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available.
[13] The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.
[13a] Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.
[13b] The ultimate resolution of the dilemma, however, is that the lawyer must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. See Rule 1.2(c).
[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. For purposes of this Rule, ex parte proceedings do not include grand jury proceedings or proceedings which are non-adversarial, including various administrative proceedings in which a party chooses not to appear. However, a particular tribunal (including an administrative tribunal) may have an explicit rule or other controlling precedent which requires disclosure even in a non-adversarial proceeding. If so, the lawyer must comply with a disclosure demand by the tribunal or challenge the action by available legal means. The failure to disclose information as part of a legal challenge to a demand for disclosure will not constitute a violation of this Rule.
[15] The obligation to rectify false evidence or false statements of law and fact should have a practical time limit. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.
Paragraph (a)(1) is substantially similar to DR 7-102(A)(5), which provided that "[ i ] n his representation of a client, a lawyer shall not knowingly make a false statement of law or fact."
With regard to paragraph (a)(2), DR 7-102(A)(3) provided that "[ i ] n his representation of a client, a lawyer shall not conceal or knowingly fail to disclose that which he is required by law to reveal."
Paragraph (a)(3) has no direct counterpart in the Virginia Code. EC 7-20 stated: "Where a lawyer knows of legal authority in the controlling jurisdiction directly adverse to the position of his client, he should inform the tribunal of its existence unless his adversary has done so; but, having made such disclosure, he may challenge its soundness in whole or in part."
With regard to paragraph (a)(4), the first sentence of this paragraph is similar to DR 7-102(A)(4), which provided that a lawyer shall not "knowingly use perjured testimony or false evidence." DR 4-101(D)(2), adopted here as Rule 1.6(c)(2), made it clear that the "remedial measures" referred to in the second sentence of paragraph (a)(4) could include disclosure of the fraud to the tribunal.
Paragraph (b) confers discretion on the lawyer to refuse to offer evidence that the lawyer "reasonably believes" is false. This gives the lawyer more latitude than DR 7102(A)(4), which prohibited the lawyer from offering evidence the lawyer "knows" is false.
There was no counterpart in the Virginia Code to paragraph (c).
Paragraph (d) is identical to DR 7-102(B).
The Committee generally adopted the ABA Model Rule, but it deleted the word "material" from paragraph (a)(1) to make it identical to DR 7-102(A)(5) and from paragraph (a)(2) because it appeared to be redundant. Additionally, the word "directly," preceding "adverse" was deleted from paragraph (a)(3).
With respect to paragraph (a)(3), the Committee believed it advisable to adopt a provision requiring the disclosure of controlling adverse legal authority. While there was no corresponding provision within the Disciplinary Rules of the Virginia Code, there is a corresponding provision within the ABA Model Code, DR 7-106(B)(1). However, the Committee deleted the word "directly" from the paragraph in the belief that the limiting effect of that term could seriously dilute the paragraph's meaning.
The Committee determined to retain the obligation to report a non-client's fraud on the tribunal, and therefore repeated the provisions of DR 7-102(B) in paragraph (d).
The amendments effective December 1, 2016, deleted “…, subject to Rule 1.6” at the end of paragraph (a)(2); rewrote the second half of paragraph (d) to read “…upon the tribunal in a proceeding in which the lawyer is representing a client shall promptly reveal the fraud to the tribunal.”; added paragraph (e); deleted the phrase from Comment [6] “Upon ascertaining that material evidence is false” and replaced it with “If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce evidence that is false”; deleted Comments “[7 – 9] ABA Model Rule Comments not adopted.”; added Comments [7], [8], and [9]; removed the language “ABA Model Rule Comments not adopted” from Comment [10] and added the remainder of the comment; changed “cooperate” to “cooperates” in Comment [11]; and added “Duration of Obligation” before adding new Comment [15].
A lawyer shall not:
[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.
[2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Paragraph (a) applies to evidentiary material generally, including computerized information.
[3] With regard to paragraph (c), it is not improper to pay a witness's reasonable expenses or to pay a reasonable fee for the services of an expert witness. The common law rule is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.
[3a] The legal system depends upon voluntary compliance with court rules and rulings in order to function effectively. Thus, a lawyer generally is not justified in consciously violating such rules or rulings. However, paragraph (d) allows a lawyer to take measures necessary to test the validity of a rule or ruling, including open disobedience. See also Rule 1.2(c).
[4] Paragraph (h) prohibits lawyers from requesting persons other than clients to refrain from voluntarily giving relevant information. The Rule contains an exception permitting lawyers to advise current or former employees or other agents of a client to refrain from giving information to another party, because such persons may identify their interests with those of the client. The exception is limited to civil matters because of concerns with allegations of obstruction of justice (including perceived intimidation of witnesses) that could be made in a criminal investigation and prosecution. See also Rule 4.2.
[5] Although a lawyer is prohibited by paragraph (i) from presenting or threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter, a lawyer may offer advice about the possibility of criminal prosecution and the client’s rights and responsibilities in connection with such prosecution.
[6] Paragraph (j) deals with conduct that could harass or maliciously injure another. Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or solely for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is tolerated by the bench and the bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.
[7] In the exercise of professional judgment on those decisions which are for the lawyer’s determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of a client. However, when an action in the best interest of a client seems to the lawyer to be unjust, the lawyer may ask the client for permission to forego such action. The duty of lawyer to represent a client with zeal does not militate against his concurrent obligation to treat, with consideration, all persons involved in the legal process and to avoid the infliction of needless harm. Under this Rule, it would be improper to ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade any witness or other person.
[8] In adversary proceedings, clients are litigants and though ill feeling may exist between the clients, such ill feeling should not influence a lawyer’s conduct, attitude or demeanor towards opposing counsel. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system. A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of the client. A lawyer should follow the local customs of courtesy or practice, unless the lawyer gives timely notice to opposing counsel of the intention not to do so. A lawyer should be punctual in fulfilling all professional commitments.
With regard to paragraph (a), DR 7-108(A) provided that a lawyer "shall not suppress any evidence that he or his client has a legal obligation to reveal or produce."
Paragraph (b) is identical to DR 7-108(B).
Paragraph (c) is substantially similar to DR 7-108(C) which provided that a lawyer "shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying; (2) Reasonable compensation to a witness for his loss of time in attending or testifying; (or) (3) A reasonable fee for the professional services of an expert witness." EC 7-25 stated that witnesses "should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."
Paragraph (d) is substantially the same as DR 7-105(A).
Paragraph (e) is new.
Paragraph (f) is substantially similar to DR 7-105(C)(1), (2), (3) and (4) which stated:
In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. (2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person. (3) Assert his personal knowledge of the facts in issue, except when testifying as a witness. (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused, but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
Paragraph (g) is identical to DR 7-105 (C)(5).
Paragraph (h) is new.
Paragraph (i) is similar to DR 7-104, although a lawyer is no longer prohibited from “participat[ing] in presenting” criminal charges and therefore may freely offer advice to the client about the client’s rights under the criminal law.
Paragraph (j) is identical to DR 7-102(A)(1).
The Committee attempted to join the best of both the Virginia Code and ABA Model Rule 3.4 in this Rule. For example, paragraph (a) was adopted because it appears to place a broader obligation on lawyers than DR 7-108(A), but DR 7-108(B) was added to the Rule as paragraph (b) because it states explicitly what is only implicit in paragraph (a).
Language from DR 7-108(C) was added to paragraph (c) to make it clear that certain witness compensation is permitted—something not clear from the language of the ABA Model Rule, although it is stated in the ABA Model Rule's Comment.
The language of DR 7-105(A) was adopted as paragraph (d) in lieu of the ABA Model Rule language because it states more clearly what is apparently intended by the Rule. However, the Committee deleted as unnecessary the word "appropriate" preceding "steps."
With respect to paragraph (e), the Committee saw no reason to limit the discovery request provisions to the pretrial period, as is explicitly the case in the ABA Model Rule.
Paragraph (f) parallels similar provisions in DR 7-105(C) and paragraph (h) covers a subject not addressed in the Virginia Code.
Paragraph (i) is similar to DR 7-104, although the Committee voted to delete the reference to “participate in presenting.” This deletion allows a lawyer to offer advice to the client about the client’s rights under the criminal law without violating this Rule.
The Committee determined that the existing language of DR 7-102(A)(1) should appear as paragraph (j), although the ABA Model Rules do not contain this section.
The amendments effective January 1, 2004, added present paragraph (g) and redesignated former paragraphs (g) through (i) as present paragraphs (h) through (j).
[1] ABA Model Rule Comment not adopted.
[2] To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extra-judicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or juror about the case. After the trial, communication by a lawyer with jurors is permitted so long as the lawyer refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, the lawyer could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected. When an extra-judicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.
[3] All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which the judge presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party. For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to an adverse party proceeding pro se. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or, if there is none, to the opposing party. A lawyer should not condone or lend himself or herself to private importunities by another with a judge or hearing officer on behalf of the lawyer or the client.
[4] The advocate's function is to present evidence and arguments so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer must stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics. Rule 8.3(b) also requires a lawyer to report such conduct by a judge to the appropriate authority and with this duty and recourse there is no reason for a lawyer to reciprocate.
Paragraphs (a)-(c) are substantially the same as DR 7-107(A) - 7-107(F). Paragraph (a)(2)(ii) and (iii) are new.
Paragraph (d) is identical to DR 7-109(A).
Paragraph (e) is identical to DR 7-109(B).
Paragraph (f) is new.
The Committee believed that the adopted language of DR 7-107 and DR 7-109 provides better guidance to lawyers than that of paragraphs (a) and (b) of the ABA Model Rule. In paragraph (f) of this Rule, the Committee adopted the language of paragraph (d) of the ABA Model Rule, which prohibits "conduct intended to disrupt a tribunal," because the Committee considered the general admonition against "conduct prejudicial to the administration of justice" to be vague.
The amendments effective January 1, 2004, in paragraph (a)(2), inserted the (i) designator and added subparagraphs (ii) and (iii).
[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. In a criminal matter which may be tried by a jury, preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a defendant or witnesses prior to trial. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. In addition to its legitimate interest in the conduct of judicial proceedings, the public has a right to know about threats to its safety and measures aimed at assuring its security.
Rule 3.6 is substantially the same as DR 7-106, except that paragraph (a) adopts a "substantial likelihood of material prejudice" standard rather than the "clear and present danger" standard of DR 7-106(A).
The Committee believed that one lesson of Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) is that a rule, such as the ABA Model Rule, which sets forth a specific list of prohibited statements by lawyers in connection with a trial, is constitutionally suspect. Accordingly, the more succinct language of DR 7-106 was adopted. However, the Committee changed the standard to the arguably broader "substantial likelihood of material prejudice," in accord with the language approved by the Supreme Court of the United States in Gentile v. State Bar, 501 U.S. 1030 (1991).
[1] Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
[2] The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate witness should be taken as proof or as an analysis of the proof.
[3] Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.
[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The principle of imputed disqualification stated in Rule 1.10 has no application to this aspect of the problem.
[5] ABA Model Rule Comments not adopted.
[6] Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Where a lawyer may be called as a witness other than on behalf of the client, paragraph (b) allows the lawyer to continue representation until it becomes apparent that the testimony may be prejudicial to the client. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also.
With regard to paragraph (a), DR 5101(B) prohibited a lawyer, or the lawyer's firm, from serving as advocate if the lawyer "knows or it is obvious that he or a lawyer in his firm ought to be called as a witness" unless "(1) . . . the testimony will relate solely to an uncontested matter or to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (2) . . . the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (3) . . . refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case." Similarly, DR 5-102(A) stated: "If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (3)," quoted above.
Paragraph (b) is substantially the same as DR 5-102(B).
Paragraph (c) had no counterpart in the Virginia Code.
The Committee concluded that the test in the ABA Model Rule, i.e., whether a lawyer "is likely to be a necessary witness," is more instructive than that in DR 5-101(B), i.e., whether the lawyer "knows or it is obvious that he . . . ought to be called as a witness." The Committee did, however, conclude that the ABA Model Rule should be modified to apply not just to trials but to any "adversarial proceeding." Additionally, the ABA Model Rule applies only to individual lawyers and not, in general, to an entire firm--providing a flexibility which the Committee believed is needed. Additionally, the Committee incorporated the language of DR 5-102(B) as paragraph (b) to give the Rule additional flexibility. With respect to paragraph (b), the Committee deleted the DR 5-102(B)'s reference to "a lawyer in his firm" since that situation is now addressed by paragraph (c) and the conflicts provisions of these Rules.
A lawyer engaged in a prosecutorial function shall:
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.
[1a] Paragraph (a) prohibits a prosecutor from initiating or maintaining a charge once he knows that the charge is not supported by even probable cause. The prohibition recognizes that charges are often filed before a criminal investigation is complete.
[1b] Paragraph (b) is intended to protect the unrepresented defendant from the overzealous prosecutor who uses tactics that are intended to coerce or induce the defendant into taking action that is against the defendant's best interests, based on an objective analysis. For example, it would constitute a violation of the provision if a prosecutor, in order to obtain a plea of guilty to a charge or charges, falsely represented to an unrepresented defendant that the court's usual disposition of such charges is less harsh than is actually the case, e.g., that the court usually sentences a first-time offender for the simple possession of marijuana under the deferred prosecution provisions of Code of Virginia Section 18.2-251 when, in fact, the court has a standard policy of not utilizing such an option.
[2] At the same time, the prohibition does not apply to the knowing and voluntary waiver by an accused of constitutional rights such as the right to counsel and silence which are governed by controlling case law. Nor does (b) apply to an accused appearing pro se with the ultimate approval of the tribunal. Where an accused does appear pro se before a tribunal, paragraph (b) does not prohibit discussions between the prosecutor and the defendant regarding the nature of the charges and the prosecutor’s intended actions with regard to those charges. It is permissible, therefore, for a prosecutor to state that he intends to reduce a charge in exchange for a guilty plea from a defendant if nothing in the manner of the offer suggests coercion and the tribunal ultimately finds that the defendant’s waiver of his right to counsel and his guilty plea are knowingly made and voluntary.
[3] The qualifying language in paragraph (c), i.e., “. . . after a party has been charged with an offense,” is intended to exempt the rule from application during the investigative phase (including grand jury) when a witness may be requested to maintain secrecy in order to protect the integrity of the investigation and support concerns for safety. The term "encourage" in paragraph (c) is intended to prevent a prosecutor from doing indirectly what cannot be done directly. The exception in paragraph (d) also recognizes that a prosecutor may seek a protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
[4] Paragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations (paragraph (d)), for example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the exculpatory nature of evidence or situations (paragraph (e)) where the lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel who may be only minimally involved in a case.
With respect to paragraphs (a), DR 8-102(A)(1) provided that a “public prosecutor or other government lawyer shall . . . refrain from prosecuting a charge that [he] . . . knows is not supported by probable cause.”
Paragraph (b) is derived from DR 8-102(A)(2) which prohibited prosecutors from inducing an unrepresented defendant to "surrender important procedural rights."
The counterpart to paragraph (c) is DR 8-102(A)(3) which proscribed “discouraging” a person from giving relevant information to the defendants.
Paragraph (d) is similar to DR 8-102(A)(4), but requires actual knowledge on the part of prosecuting lawyers that they are in possession of exculpatory evidence as opposed to simply being in knowing possession of evidence that may be determined to be of such a nature, although acknowledging that such disclosure may be affected by court orders.
Paragraph (e) has no direct counterpart in Virginia Code, but it generally parallels DR 7-106 (B), now Rule 3.6(b), which directed that a lawyer “exercise reasonable care to prevent his employees and associates from making a [prohibited] extrajudicial statement.”
Paragraph DR 8-102(A)(5), which prohibited the subpoena of an attorney as a witness in a criminal prosecution regarding a present or past client without prior judicial approval, has been deleted in light of prevailing case law.
The Committee retitled this Rule “Additional Responsibilities of a Prosecutor,” rather than “Special Responsibilities of a Prosecutor,” as in the ABA Model Rule, to make it clear that the Rule’s provisions are in addition to the obligations of the attorney acting in a prosecutorial role as set forth in the remaining Rules. The Committee also thought it appropriate to address the proscriptions of the Rule to any “lawyer engaged in a prosecutorial function” as opposed to just a “prosecutor in a criminal case” so as to eliminate any confusion on the part of any lawyer (such as a County Attorney or assistant Attorney General) who may be acting in the role of a prosecutor without being a member of a Commonwealth’s Attorney’s office.
The Committee believed that paragraph (a) in which actual knowledge is required is more understandable and more susceptible to ready enforcement where any more subjective standard (such as “or it is obvious”) is too vague. At the same time, the Committee wanted to strengthen the proscription set forth in the Virginia Code (“shall refrain”) so as to make clear that the prosecutor should not even file a charge if it is not supported by “probable cause” and should certainly not pursue a charge to trial, even if initially supported by the minimum standard of “probable cause,” if it cannot reasonably expected to survive a motion to strike the evidence or motion for judgment of acquittal. The original ABA Model Rule language only proscribed “prosecuting a charge that... is not supported by probable cause.”
The Committee did not include the language of ABA Model Rule 3.8(b) in which the prosecutor is required to “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel” because the Committee did not believe that such an obligation should formally be placed on the lawyer-prosecutor.
The Committee concluded that the language of proposed paragraph (b) more accurately focuses on the type of prosecutorial conduct that is prohibited, rather than the provision of the existing DR and ABA Model Rule 3.8(c) which address the waiver of important procedural rights which, in fact, can be knowingly waived as the Comment attempts to explain. In addition, the Committee felt that the example of the waiver of such a procedural right as that of a preliminary hearing as set forth in the existing DR and ABA Model Rule is misleading at best, since it is exceedingly rare that a defendant charged with a felony would insist on proceeding pro se and then agree to waive the hearing.
The Committee felt that it was appropriate to strengthen the provisions of DR 8-102(A)(3) to provide that the lawyer acting in a prosecutorial function shall not “instruct or encourage a person to withhold information from the defense” as opposed to the more subjective and less enforceable “shall not discourage.” In addition, in recognition of the reality of the investigative stage of a matter in which a witness may be asked to “keep quiet” in order to protect the witness and the integrity of the investigation, the Committee felt it appropriate to restrict application of the prohibition to that point in the process after formal charge when the “person” becomes a “party.”
The Committee felt a change from existing DR 8-102(A)(4) concerning the disclosure of exculpatory evidence to the defense was appropriate by clarifying that it would apply only to that evidence which the prosecutor knows is exculpatory as opposed to a more subjective analysis of evidence which may be in the knowing possession of the prosecutor but which he does not have reason to believe would be exculpatory.
The Committee felt that the language of the ABA Model Rule which speaks in terms of "exercising reasonable care" to prevent others involved in a prosecution from making prohibited extrajudicial statements placed an unreasonable affirmative duty on the attorney acting in a prosecutorial role whereby the attorney would be held responsible for attempting to control the conduct of others.
Finally, the Committee decided to recommend deletion of DR 8-102(5) prohibiting the subpoena of an attorney as a witness in a criminal matter involving a present or former client without prior judicial approval because of prevailing case law and judicial fiat (the United States District Court for the Eastern District of Virginia) which does not require same.
ABA Model Rule not adopted.
In the course of representing a client a lawyer shall not knowingly:
[1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act or by knowingly failing to correct false statements made by the lawyer's client or someone acting on behalf of the client.
[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.
[3] Paragraph (b) recognizes that substantive law may require a lawyer to disclose certain information to avoid being deemed to have assisted the client's crime or fraud. The requirement of disclosure is governed by Rule 1.6.
Paragraph (a) is substantially similar to DR 7102(A)(5), which stated, "n his representation of a client, a lawyer shall not ... [k]nowingly make a false statement of law or fact."
With regard to paragraph (b), DR 7102(A)(3) provided, "In his representation of a client, a lawyer shall not. . . [c]onceal or knowingly fail to disclose that which he is required by law to reveal."
The Committee deleted the ABA Model Rule's references to a "third person" in the belief that such language merely confused the Rule. Additionally, the Committee deleted the word "material" preceding "fact or law" from paragraph (a) to make it more closely parallel DR 7-102(A)(5). The word "material" was similarly deleted from paragraph (b) as it appears somewhat redundant. Finally, the modified Comment expands the coverage of the Rule to constructive misrepresentation – i.e., the knowing failure of a lawyer to correct a material misrepresentation by the client or by someone on behalf of the client.
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
[1-2] ABA Model Rule Comments not adopted.
[3] The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. A lawyer is permitted to communicate with a person represented by counsel without obtaining the consent of the lawyer currently representing that person, if that person is seeking a “second opinion” or replacement counsel.
[4] This Rule does not prohibit communication with a represented person, or an employee or agent of a represented person, concerning matters outside the representation. For example, the existence of a controversy between an organization and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with the other party is permitted to do so.
[5] In circumstances where applicable judicial precedent has approved investigative contacts prior to attachment of the right to counsel, and they are not prohibited by any provision of the United States Constitution or the Virginia Constitution, they should be considered to be authorized by law within the meaning of the Rule. Similarly, communications in civil matters may be considered authorized by law if they have been approved by judicial precedent. This Rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct.
[6] ABA Model Rule Comment not adopted.
[7] In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons in the organization's "control group" as defined in Upjohn v. United States, 449 U.S. 383 (1981) or persons who may be regarded as the "alter ego" of the organization. The "control group" test prohibits ex parte communications with any employee of an organization who, because of their status or position, have the authority to bind the corporation. Such employees may only be contacted with the consent of the organization's counsel, through formal discovery or as authorized by law. An officer or director of an organization is likely a member of that organization's "control group." The prohibition does not apply to former employees or agents of the organization, and an attorney may communicate ex parte with such former employee or agent even if he or she was a member of the organization's "control group." If an agent or employee of the organization is represented in the matter by separate counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.
[8] This Rule covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question. Neither the need to protect uncounselled persons against being taken advantage of by opposing counsel nor the importance of preserving the client-attorney relationship is limited to those circumstances where the represented person is a party to an adjudicative or other formal proceeding. The interests sought to be protected by the Rule may equally well be involved when litigation is merely under consideration, even though it has not actually been instituted, and the persons who are potentially parties to the litigation have retained counsel with respect to the matter in dispute.
[9] Concerns regarding the need to protect uncounselled persons against the wiles of opposing counsel and preserving the attorney-client relationship may also be involved where a person is a target of a criminal investigation, knows this, and has retained counsel to receive advice with respect to the investigation. The same concerns may be involved where a "third-party" witness furnishes testimony in an investigation or proceeding, and although not a formal party, has decided to retain counsel to receive advice with respect thereto. Such concerns are equally applicable in a non-adjudicatory context, such as a commercial transaction involving a sale, a lease or some other form of contract.
This Rule is substantially the same as DR 7-103(A)(1), except for the change of "party" to "person" to emphasize that the prohibition on certain communications with a represented person applies outside the litigation context.
The Committee believed that substituting "person" for "party" more accurately reflected the intent of the Rule, as shown in the last sentence of the Comment, and was preferable to the apparent limitation of DR 7-103(A)(1) which referred to "[c]ommunicat[ion] on the subject of the representation with a party . . . ."
The following revision to Comment [3] was made to include the language of Comment [3] from the ABA rule regarding the prohibition against communicating with a represented party even when the represented person or the lawyer initiates the contact.
The amendments effective April 13, 2007, added Comment [3].
[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.
Paragraph (a) is identical to DR 7-103(B) and paragraph (b) is similar to DR 7-103(A)(2).
The Virginia Code had deviated from the ABA Model Code by using the language of ABA Model Rule 4.3(a) as DR 7-103(B). This provision continues unchanged in Rule 4.3.
In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons.
Rule 4.4 has no direct counterpart in the Virginia Code. DR 7-105(C)(2) provided that a lawyer shall not "[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provided that a lawyer shall not "take ... action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." DR 7-107(C) provided that "[a]fter discharge of the jury ... the lawyer shall not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror...." DR 7-107(D) provided that a lawyer "shall not conduct ... a vexatious or harassing investigation of either a venireman or a juror."
The Committee adopted this Rule, for which there was no specific corresponding Disciplinary Rule, as a reminder that there is some limitation placed upon activities for which "zealous representation" might be offered as an excuse. For the same reason, the Committee deleted the word "substantial" from the ABA Model Rules provision.
[1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a firm. This includes members of a partnership and the shareholders in a law firm organized as a professional corporation; lawyers having managerial authority in the law department of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in a firm. See the “partner” definition in the Terminology section at the beginning of these Rules. Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers.
[2] Paragraph (a) requires lawyers with a managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.
[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can depend on the firm's structure and the nature of its practice. In a small firm, informal supervision and periodic review ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners or those lawyers with managerial authority may not assume that all lawyers associated with the firm will inevitably conform to the Rules.
[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also Rule 8.4(a).
[5] Paragraph (c)(2) defines the duty of a lawyer having direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has such supervisory authority in particular circumstances is a question of fact. Partners of a private firm have at least indirect responsibility for all work being done by the firm, while a partner in charge of a particular matter ordinarily has responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner would depend on the immediacy of the partner's involvement and the seriousness of the misconduct. The supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.
There was no direct counterpart to this Rule in the Virginia Code. DR 1-103(A) provided that "[a] lawyer having information indicating that another lawyer has committed a violation of the Disciplinary Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness to practice law in other respects, shall report such information to the appropriate professional authority . . . ."
The Committee adopted the language of ABA Model Rule 5.1 because lawyers who practice in firms should have an affirmative obligation to assure adherence to the Rules of Professional Conduct by those with whom they professionally associate.
The amendments effective January 1, 2004, in the rule heading, substituted “Partners and Supervisory Lawyers” for “A Partner or Supervisory Lawyer”; in paragraph (a), inserted “or a lawyer who individually or together with other lawyers possesses managerial authority”; in paragraph (c)(2), inserted “or has managerial authority”; rewrote Comments [1], [3] – [5]; inserted new Comment [2].
ABA Model Rule not adopted.
With respect to a nonlawyer employed or retained by or associated with a lawyer:
[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. At the same time, however, the Rule is not intended to preclude traditionally permissible activity such as misrepresentation by a nonlawyer of one's role in a law enforcement investigation or a housing discrimination "test".
Rule 5.3(a) and (b) are similar to DR 3-104(C). The Virginia Code also addressed a supervising lawyer's responsibilities in DR 4-101(E) and DR 7-106(B). The Virginia Code did not contain any explanation of a lawyer's responsibility for a nonlawyer assistant's wrongdoing, which is addressed in Rule 5.3(c).
The Committee adopted this Rule as a parallel companion to Rule 5.1 which applies similar provisions to lawyers with supervisory authority over other lawyers. The Committee inserted the phrase "or should have known" in Rule 5.3(c)(2) to reflect a negligence standard. The Committee also deemed it appropriate to add the language in the last sentence of the Comment to cover such recognized and accepted activities as those described.
The amendments effective January 1, 2004, in paragraph (a), inserted “or a lawyer who individually or together with other lawyers possesses managerial authority” following the current word “partner”; and in paragraph (c)(2), inserted “or has managerial authority” following “partner.”
[1] The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer's professional judgment. See also Rule 1.8(f).
Paragraph (a)(1) is identical to DR 3-102(A)(1).
Paragraph (a)(2) is substantially similar to DR 3-102(A)(2) which stated: "A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer."
Paragraph (a)(3) is substantially the same as DR 3-102(A)(3).
Paragraph (a)(4) had no counterpart in the Virginia Code.
Paragraph (b) is identical to DR 3-103(A).
Paragraph (c) is identical to DR 5-106(B).
Paragraph (d) is identical to DR 5-106(C).
Paragraph (d)(2) was amended to reflect Virginia Code §54.1-3902(B)(1), which creates an exception to the general rule that a nonlawyer may not be a director or officer of a professional corporation, professional limited liability company, or registered limited liability partnership that provides legal services.
The ABA Model Rule generally paralleled various Disciplinary Rules.
The amendments effective January 1, 2004, added paragraph (a)(4).
Amendments effective November 1, 2013, revised paragraph (d)(2) in light of legal authority permitting a nonlawyer to serve as the secretary, treasurer, office manager, or business manager of a professional entity that is authorized to practice law, notwithstanding the Rule’s prohibition against a lawyer practicing in a law firm in which a nonlawyer serves as a corporate officer.
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (c) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person.
[1a] For purposes of paragraphs (a) and (b), "Lawyer" denotes a person authorized by the Supreme Court of Virginia or its Rules to practice law in the Commonwealth of Virginia including persons admitted to practice in this state pro hac vice.
[2] The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unauthorized persons. Paragraph (c) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.
[3] Likewise, the definition of the practice of law does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law — for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed in government agencies.
[4] Other than as authorized by law or this Rule, a Foreign Lawyer violates paragraph (d)(2)(i) if the Foreign Lawyer establishes an office or other systematic and continuous presence in Virginia for the practice of law. Presence may be systematic and continuous even if the Foreign Lawyer is not physically present here. Such "non-physical" presence includes, but is not limited to, the regular interaction with residents of Virginia for delivery of legal services in Virginia through exchange of information over the Internet or other means. Such Foreign Lawyer must not hold out to the public or otherwise represent that the Foreign Lawyer is admitted to practice law in Virginia. See also, Rules 7.1(a) and 7.5(b). Despite the foregoing general prohibition, a Foreign Lawyer may establish an office or other systematic and continuous presence in Virginia if the Foreign Lawyer’s practice is limited to areas which by state or federal law do not require admission to the Virginia State Bar. Examples of lawyers admitted in another United States jurisdiction include those lawyers whose practices are limited to federal tax practice before the IRS and Tax Court, patent law before the Patent and Trademark Office, or immigration law. A Foreign Lawyer admitted to practice in a jurisdiction outside the United States may be authorized to practice under Rule 1A:7 as a foreign legal consultant and may likewise establish an office or other systematic and continued presence in Virginia.
[5] Paragraph (d)(4) identifies circumstances in which a Foreign Lawyer may provide legal services on a temporary basis in Virginia that do not create an unreasonable risk to the interests of their clients, the public, or the courts. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. Except as authorized by this rule or other law, a Foreign Lawyer may not establish an office or other systematic and continuous presence in Virginia without being admitted to practice generally here.
[6] There is no single test to determine whether a Foreign Lawyer’s services are provided on a "temporary basis" in Virginia, and may therefore be permissible under paragraph (d)(4). Services may be "temporary" even though the Foreign Lawyer provides services in Virginia on a recurring basis, or for an extended period of time, as when the Foreign Lawyer is representing a client in a single lengthy negotiation or litigation. "Temporary" refers to the duration of the Foreign lawyer’s presence and provision of services, while "occasional" refers to the frequency with which the Foreign lawyer comes into Virginia to provide legal services.
[7] Paragraph (d)(1) requires that the Foreign Lawyer be authorized to practice in the jurisdiction in which the Foreign Lawyer is admitted and excludes a Foreign Lawyer who, while technically admitted, is not authorized to practice because, for example, the Foreign Lawyer is on inactive status.
[8] Paragraph (d)(4)(i) recognizes that the interests of clients and the public are protected if a Foreign Lawyer associates with a lawyer licensed to practice Virginia. For this paragraph to apply, however, the lawyer admitted to practice in Virginia must actively participate in and share responsibility for the representation of the client.
[9] Foreign Lawyers not admitted to practice generally in this jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. Under paragraph (d)(4)(ii), a Foreign Lawyer does not violate this Rule when the Foreign Lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of Virginia requires a Foreign Lawyer to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the Foreign Lawyer to obtain that authority.
[10] Paragraph (d)(4)(ii) also provides that a Foreign Lawyer rendering services in Virginia on a temporary basis does not violate this Rule when the Foreign Lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the Foreign Lawyer is authorized to practice law or in which the Foreign Lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a Foreign Lawyer may engage in conduct temporarily in Virginia in connection with pending litigation in another jurisdiction in which the Foreign Lawyer is or reasonably expects to be authorized to appear, including taking depositions in Virginia.
[11] ABA Model Rule Comment not adopted.
[12] Paragraph (d)(4)(iii) permits a Foreign Lawyer to perform services on a temporary basis in Virginia if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the Foreign Lawyer’s practice in a jurisdiction in which the Foreign Lawyer is admitted to practice. The Foreign Lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.
[13] Paragraph (d)(4)(iv) permits a Foreign Lawyer to provide certain legal services on a temporary basis in Virginia that arise out of or are reasonably related to that lawyer’s practice in a jurisdiction in which the Foreign Lawyer is admitted but are not within paragraphs (d)(4)(ii) or (d)(4)(iii). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.
[14] Paragraphs (d)(4)(ii), (d)(4)(iii), and (d)(4)(iv) require that the services arise out of or be reasonably related to the Foreign Lawyer’s practice in a jurisdiction in which the Foreign Lawyer is admitted to practice. A variety of factors evidence such a relationship. The Foreign Lawyer’s client may have been previously represented by the Foreign Lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the Foreign Lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the Foreign Lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their Foreign Lawyer in assessing the relative merits of each. In addition, the services may draw on the Foreign Lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
[14a] Paragraph (d)(4)(iv) recognizes that a Foreign Lawyer may provide legal services when the services provided are governed by international law or the law of a foreign jurisdiction in which the Foreign Lawyer is admitted to practice.
[15 - 18] ABA Model Rule Comments not adopted.
[19] A Foreign Lawyer who practices law in Virginia pursuant to this Rule is subject to the disciplinary authority of Virginia. See Rule 8.5(a).
[20] ABA Model Rule Comment not adopted.
[21] Paragraph (d)(4) does not authorize communications advertising legal services to prospective clients in Virginia by Foreign Lawyers who are admitted to practice in other jurisdictions. Whether and how Foreign Lawyers may communicate the availability of their services to prospective clients in Virginia is governed by Rules 7.1 to 7.5.
Neither former Rule 5.5 nor any other of the Virginia Rules of Professional Conduct provided any criteria for practice in Virginia by a foreign lawyer (non-Virginia or non-U.S.). Such practice was controlled by Part 6, §I (C) of the Rules of the Virginia Supreme Court which defined “non-lawyer” and set out the parameters for temporary practice in Virginia by a “foreign lawyer,” defined only as admitted to practice and in good standing in any state in the U.S. There was no provision for practice by a foreign, non-U.S. lawyer. Enforcement of Part 6, §I (C) fell within the authority of the Virginia State Bar’s Standing Committee on the Unauthorized Practice of Law. Rule 5.5 allows for temporary and occasional practice in Virginia by both non-Virginia and non-U.S. lawyers and places enforcement within the Virginia State Bar’s disciplinary system.
The Committee adopted this Rule in light of the recommendation of the American Bar Association (ABA) that the states adopt more specific rules governing multi-jurisdictional practice. This rule adopts language similar to ABA Model Rule 5.5 allowing for circumstances of temporary and occasional practice by lawyers licensed in other U.S. jurisdictions, but expands such practice to include lawyers licensed in non-U.S. jurisdictions. Paragraphs (a) and (b) are identical to paragraphs (b) and (c) in former Virginia Rule 5.5.
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The amendments effective March 1, 2009, rewrote the Rule and Commentary thereto.
The amendments effective December 13, 2013, in Comment [5], deleted the “s” in “Paragraphs”, “(i), (ii) and (iii)” and changed “identify” to “identifies”; and in Comment [13], deleted the last sentence.
The amendments effective February 1, 2016, in Comment [1a], deleted the comma after “(a)”; added “and” before the “(b)”; deleted “and (c)”, and deleted the comma after “Lawyer”.
A lawyer shall not participate in offering or making:
[1] An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.
[2] Paragraph (b) prohibits lawyers from agreeing to a restriction on their right to practice, unless approved by a tribunal (in such situations as the settlement of mass tort cases) or a governmental entity. However, the lawyer must fully disclose the extent of any restriction to any future client and refer the client to another lawyer if requested to do so.
This Rule is similar to DR 2-106, although it specifically permits a restriction if it is approved by a tribunal or a governmental entity.
After a lengthy debate about the merits of settlements and the public policy favoring clients' unrestricted choice of legal representation, the Committee decided to generally prohibit provisions in settlement agreements that restricted a lawyer's right to practice, but added an exception if a tribunal or a governmental entity approves the restriction. The Comment emphasizes that lawyers whose right to practice has been restricted by a court-approved settlement should advise all future clients of the restriction and refer them to other counsel, if necessary.
Originally, Rule 5.6(b) prohibited only broad restrictions on an attorney’s right to practice in settlement agreements. However, in line with the recommendations of the Boyd-Graves Conference Report of August 2004, the prohibition in Rule 5.6(b) is now expanded to reach all restrictions on the right to practice in settlement agreements, other than those within the exception afforded for settlement agreements approved by a tribunal or governmental entity. The current more expansive prohibition is in line with both the ABA’s Model Rule 5.6 and with provisions in other jurisdictions.
The amendments effective January 1, 2004, in Comment [1], first sentence, substituted “lawyers” for “partners or associates”.
The amendments effective September 1, 2006, in paragraph (b), deleted the word “broad” between “which a” and “restriction”; in Comment [2], first sentence, deleted the word “broad” between “agreeing to a” and “restriction”; in Committee Commentary, first sentence, deleted the word “broadly” between “agreements that” and “restricted” and added the last paragraph.
ABA Model Rule not adopted.
(a) Absent a specific agreement otherwise:
(1) Neither a lawyer who is leaving a law firm nor other lawyers in the firm shall unilaterally contact clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer and an authorized representative of the law firm have conferred or attempted to confer and have been unable to agree on a joint communication to the clients concerning the lawyer leaving the law firm; and
(2) A lawyer in a dissolving law firm shall not unilaterally contact clients of the law firm unless authorized members of the law firm have conferred or attempted to confer and have been unable to agree on a method to provide notice to clients.
(b) When no procedure for contacting clients has been agreed upon:
(1) Unilateral contact by a lawyer who is leaving a law firm or the law firm shall not contain false or misleading statements, and shall give notice to the clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms; and
(2) Unilateral contact by members of a dissolving law firm shall not contain false or misleading statements, and shall give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.
(c) Timely notice to the clients shall be given promptly either by agreement or unilaterally in accordance with Rule 5.8(a) or (b).
(d) In the event that a client of a departing lawyer fails to advise the lawyer and law firm of the client’s intention with regard to who is to provide future legal services, the client shall be deemed a client of the law firm until the client advises otherwise or until the law firm terminates the engagement in writing.
(e) In the event that a client of a dissolving law firm fails to advise the lawyers of the client’s intention with regard to who is to provide future legal services, the client shall be deemed to remain a client of the lawyer who is primarily responsible for the legal services to the client on behalf of the firm until the client advises otherwise.
[1] Although there may also be significant business and legal issues involved when a lawyer leaves a law firm or a law firm dissolves, this rule addresses the rights of the clients to be fully informed and able to make decisions about their representation. Accordingly, the rule emphasizes both the timing and the content of the required notice to clients. Upon the departure of a lawyer or the dissolution of the law firm, the client is entitled to notice that clearly provides the contact information for the departing lawyer and information about the ability and willingness of the lawyer and/or firm to continue the representation, subject to Rule 1.16. Either the departing lawyer or the law firm shall take appropriate steps in accordance with Rule 1.16 regarding the client's file, and any other property, including advanced legal fees. Nothing in this rule or in the contract for representation may alter the ethical obligations that individual lawyers have to a client as provided elsewhere in these rules. Any client notification agreement, whether pursuant to this rule or otherwise, must also comport with Rule 5.6(a). Lawyers may also have fiduciary, contract, or other obligations to their firms that are outside the scope of these rules.
[2] While this rule requires the departing lawyer and the law firm to confer in order to make a joint communication to the departing lawyer’s clients, the duty to communicate with clients and to avoid prejudicing the clients during the course of representation requires prompt communication when the lawyer primarily responsible for those clients is leaving the firm. See, e.g., Rules 1.3(c), 1.16(d) and 1.16(e). If continued representation by the departing lawyer and/or by the law firm is not possible, the communication shall clearly state that fact and advise the client of the remaining options for continued representation, including the client’s right to choose other lawyers or law firms.
[3] For purposes of the notification required by this rule, "client" refers to clients for whose active matters the departing lawyer has primary responsibility.
[4] While clients have the right to choose counsel, such choice may implicate obligations. Those obligations may include a requirement to pay for legal services previously rendered and costs expended in connection with the representation as well as a reasonable fee for copying the client’s file. See Rule 1.16(e). Some clients may be limited in their ability to choose counsel. For example, when the lawyer is appointed by a court to represent a client, the appointed lawyer is responsible for the representation until relieved or replaced by the court.
[5] Lawyers involved in either a change in law firm composition or a law firm dissolution may have duties to notify the court if they represent clients in litigation. In either case, a lawyer who is counsel of record before a court must file a motion to withdraw or a motion for substitution of counsel if he no longer represents the client. See Rule 1.16(c).
Adopted by the Supreme Court of Virginia February 27, 2015. Effective May 1, 2015.
[1] Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral.
[2] Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer. Private attorneys participating in legal aid referral programs are typical examples of “poverty law.” Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as “poverty law,” provided the free or nominal fee nature of any such legal work is established in advance.
[3] Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of “civil rights law,” provided the free or nominal fee nature of any such legal work is established in advance.
[4] Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of “public interest law.”
[5] Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of “volunteer activities designed to increase the availability of pro bono legal services.”
[6] Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify.
[7] Although every lawyer has an individual responsibility to provide pro bono publico services, some legal matters require the application of considerably greater effort and resources than a lawyer, acting alone, could reasonably provide on a pro bono basis. In fulfilling their obligation under this Rule, a group of two or more lawyers may pool their resources to ensure that individuals in need of such assistance, who would otherwise be unable to afford to compensate counsel, receive needed legal services. The designation of one or more lawyers to work on pro bono publico matters may be attributed to other lawyers within the firm or group who support the representation.
[8] ABA Model Rule Comment not adopted.
[9] The provision of free or nominally priced legal services to those unable to pay continues to be the obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need Not only do these needs far exceed the capacity of the collective bar, the nature of legal practice for many lawyers places constraints on their ability to render pro bono publico legal services. For example, some lawyers (e.g., some government lawyers) are prohibited by the terms of their employment from engaging in any outside practice. Other lawyers lack the experience and access to resources necessary to provide competent legal assistance.
[10] To provide legal services beyond those available through the pro bono efforts of individual lawyers, the legal profession and government have established additional programs to provide such services. Lawyers who are unable to fulfill their pro bono publico obligation through direct, legal representation should support programs that provide legal services for the purposes described in (a) through financial contributions in proportion to their professional income.
There was no direct counterpart to this Rule in the Disciplinary Rules of the Virginia Code. EC 2-27 stated that the “basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer. . . . Every lawyer, regardless of professional prominence or professional work load, should find time to participate in serving the disadvantaged.” EC 8-9 stated that “[t]he advancement of our legal system is of vital importance in maintaining the rule of law . . . [and] lawyers should encourage, and should aid in making, needed changes and improvements.” EC 8-3 stated that “[t]hose persons unable to pay for legal services should be provided needed services.”
The subject matter of this Rule was not specifically addressed in the Disciplinary Rules of the Virginia Code. The Committee drafted language different from that of the ABA Model Rule to bring the Rule in line with Ethical Considerations approved by the Supreme Court of Virginia on June 17, 1994 (specifically EC 2-28 and 2-29). The Committee then adopted the new versions of EC 2-27 and EC 2-30, EC 2-31, and EC 2-32 as the Rule’s Comment for paragraph (a). Paragraphs (b) and (c) permit greater flexibility in the manner in which lawyers fulfill their pro bono obligations.
A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
[1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.
[2] For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.
[3] An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.
There was no counterpart to this Rule in the Disciplinary Rules of the Virginia Code. EC 2-38 stated that when a lawyer is "appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case." EC 2-39 stated that "a lawyer should decline employment if the intensity of his personal feelings, as distinguished from a community attitude, may impair his effective representation of a prospective client."
The Committee adopted this Rule as an appropriate companion to Rule 6.1 because it emphasizes the responsibility of lawyers to increase the availability of legal services by accepting court appointed clients.
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
[1] Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer's clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession's involvement in such organizations would be severely curtailed.
[2] It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances.
There was no counterpart to this Rule in the Virginia Code.
The Committee adopted this Rule to recognize and address the potential tension between private clients and participation by their lawyers in legal services organizations -- which was not addressed by the Virginia Code.
ABA Model Rule not adopted.
[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms - that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.
[2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client's informed consent to the limited scope of the representation. See Rule 1.2(b). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.
[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified by Rules 1.7 or 1.9(a) in the matter.
[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer's firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.
[5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.
This Rule had no counterpart in the Virginia Code.
The committee adopted this specific conflicts of interest rule in recognition of the distinctive nature of services provided in this context.
Effective date – This rule and commentary thereto became effective January 1, 2004.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
[1] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.
[2] A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.
[3] In communications about a lawyer’s services, as in all other contexts, it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law. Rule 8.4(c). See also Rule 8.4(d) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.
Areas of Expertise/Specialization
[4] A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer who is a specialist in a particular field of law by experience, specialized training, or education, or is certified by a named professional entity, may communicate such specialty or certification so long as the statement is not false or misleading.
Firm Names
[5] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm’s identity or by a trade name such as the “ABC Legal Clinic.” A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name such as “clinic” that also includes a geographical name such as “Springfield Legal Clinic,” an express disclaimer that it is not a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.
[6] Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. Lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing law together in a firm.
The amendments effective July 1, 2013, rewrote the Rule and commentary.
The amendments effective July 1, 2017, significantly rewrote the Rule, deleting sections (b)-(d) and incorporating them, along with much of Rules 7.4 and 7.5, in the comments to the Rule.
The amendments effective July 1, 2013, deleted this Rule.
(1) the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.
(2) has a familial, personal, or prior professional relationship with the lawyer; or
(3) is one who has had prior contact with the lawyer.(4) is contacted pursuant to court-ordered notification.
(1) pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1, including online group advertising;
(2) pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.
[1] A lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.
[2] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has a close personal or family relationship; nor is there a serious potential for abuse when the person contacted is a lawyer or when the person has already initiated contact with the lawyer. Consequently, the requirements of Rule 7.3(c) are not applicable in those situations.
[2a] The requirement in Rule 7.3(c) that certain communications include “ADVERTISING MATERIAL” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors; however, prior contact from the lawyer in the form of advertising material does not circumvent the need to include the words “ADVERTISING MATERIAL” in future contacts. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a potential client known to be in need of legal services within the meaning of this Rule.
[3] Even permitted forms of solicitation can be abused; thus, any solicitation that contains information that is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(a), or which involves contact with a potential client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(a), is prohibited. Moreover, if after sending a letter or other communication to a potential client the lawyer receives no response, continued repeated efforts to communicate with the potential client may constitute harassment and therefore violate the provisions of Rule 7.3(a). Regardless of the form of the communication, its propriety will be judged by the totality of the circumstances under which it is made, including the potential client’s sophistication and physical, emotional, and mental state, the nature and characterization of the legal matter, the parties’ previous relationship, the lawyer’s conduct, and the words spoken.
[4] Lawyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.1 and this Rule. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. However, Paragraph (d)(1) allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and group advertising. A lawyer may compensate employees, agents, and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff, and website designers, as long as the employees, agents, and vendors do not direct or control the lawyer’s professional judgment in violation of Rule 5.4(c). See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them. Moreover, a lawyer may pay others for generating client leads, such as internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 5.4, and the lead generator’s communications are consistent with Rule 7.1. To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.
[5] Selection of a lawyer by a layperson should be made on an informed basis. Advice and recommendation of third parties—relatives, friends, acquaintances, business associates, or other lawyers—and publicity and personal communications from lawyers may help to make this possible. A lawyer should not compensate another person for recommending him or her, for influencing a potential client to employ him or her, or to encourage future recommendations.
[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists potential clients to secure legal representation. Not-for-profit lawyer referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule permits a lawyer to pay only the usual charges of a not-for-profit lawyer referral service.
The amendments effective July 1, 2013, rewrote the Rule and commentary.
The amendments effective July 1, 2017, include minor changes on solicitation of clients, to more clearly define the term “solicitation” and to expand the comments to more clearly explain how the Rules apply to paying for marketing services, including paying for lead generation.
The amendments effective November 1, 2002, removed reference to "Rule 7.2” following “Rule 7.1” once in the first paragraph and once in Comment [1].
The amendments effective July 1, 2017, deleted this Rule.
The amendments effective July 1, 2013, rewrote the Rule and commentary.
The amendments effective July 1, 2017, deleted this Rule.
An applicant for admission to the bar, or a lawyer already admitted to the bar, in connection with a bar admission application, any certification required to be filed as a condition of maintaining or renewing a license to practice law, or in connection with a disciplinary matter, shall not:
[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a materially false statement in connection with an application for admission or a certification necessary for license renewal, it may be the basis for disciplinary action once that person has been admitted to the Bar. The duty imposed by this Rule applies to a lawyer's own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. This Rule also requires affirmative clarification of any material misstatement, of which the person involved becomes aware, that could lead to a misunderstanding on the part of the admissions or disciplinary authority.
[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution, corresponding provisions of state constitutions, or other lawfully recognized matters of privilege. A person relying on such a provision in response to a question should openly assert the basis for nondisclosure.
[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the Rules applicable to the attorney-client relationship.
[4] The Rule also prohibits the obstruction of either an admissions or disciplinary inquiry. "Obstruction" is used in the ordinary sense and includes, among other intentional acts, purposeful delay, attempts to improperly influence others who are requested to provide information, and the falsification or destruction of relevant documentation.
Rule 8.1 is broader than DR 1-101 of the Virginia Code. DR 1-101(A) provided that a lawyer is "subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his or another's application for admission to the bar." DR 1-101(B) provided that a lawyer is "subject to discipline if he has made a materially false statement in any certification required to be filed as a condition of maintaining or renewing his license to practice law."
The Committee preferred the broader coverage of the ABA Model Rule to that of DR 1-101 and made it even broader by adding language to the opening sentence covering required certifications and license renewal. Additionally, the Committee added paragraph (c) to impose an affirmative duty of cooperation with lawful demands for information, and added paragraph (d) to make it a separate violation to obstruct any investigation by a disciplinary or admissions authority.
The amendments effective September 26, 2002, in introductory paragraph, inserted “or” after present words “to practice law” to read “or in connection with a disciplinary matter…”
The amendments effective January 1, 2004, in introductory paragraph, inserted “already admitted to the bar,” and deleted “in connection with” between present words “application” and “any certification.”
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or other judicial officer.
[1] False statements by a lawyer concerning the qualifications or integrity of a judge can unfairly undermine public confidence in the administration of justice. To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.
There was no direct counterpart to Rule 8.2 in the Virginia Code. EC 8-6 stated: "While a lawyer as a citizen has a right to criticize [judges and other judicial officers], he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system."
The Committee adopted this Rule because it addressed a subject not explicitly addressed by the Virginia Code. However, the Committee deleted ABA Model Rule language which brought candidates for judicial office under the protection of this Rule and which required such candidates to abide by applicable provisions of the Virginia Code -- concluding that such requirements and protections were neither necessary nor advisable for lawyers who are being considered for judicial office. While the dignity of courts and the attendant requirement that judicial officials be treated with respect acts as a restraint on lawyer criticism of those officials, the Committee concluded that to extend this Rule to those being considered for judicial office might have a chilling effect on free discussion of judicial candidates' qualifications.
[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.
[2] A report about misconduct is not required where it would involve violation of Rule 1.6. See Rule 1.6(c)(3).
[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
[3a] In court-related dispute resolution proceedings, a third party neutral cannot disclose any information exchanged or observations regarding the conduct and demeanor of the parties and their counsel during the proceeding. Mediation sessions are covered by another statute, which is less restrictive, covering "any communication made in or in connection with the mediation which relates to the controversy being mediated." Thus a lawyer serving as a mediator or third party neutral may not be able to discharge his or her obligation to report the misconduct of another lawyer if the reporting lawyer's information is based on information protected as confidential under the statutes. However, both statutes permit the parties to agree in writing to waive confidentiality.
[3b] The Rule requires a third party neutral lawyer to attempt to obtain the parties' written consent to waive confidentiality as to professional misconduct, so as to permit the lawyer to reveal information regarding another lawyer's misconduct which the lawyer would otherwise be required to report.
[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer or judge whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.
[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in or cooperation with an approved lawyers or judges assistance program. In that circumstance, providing for the confidentiality of such information encourages lawyers and judges to seek treatment through such program. Conversely, without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. The duty to report, therefore, does not apply to a lawyer who is participating in or cooperating with an approved lawyer assistance program such as the Virginia Bar Association's Committee on Substance Abuse and who learns of the confidences and secrets of another lawyer who is the object of a particular assistance effort when such information is obtained for the purpose of fulfilling the recognized objectives of the program. Such confidences and secrets are to be protected to the same extent as the confidences and secrets of a lawyer's client in order to promote the purposes of the assistance program. On the other hand, a lawyer who receives such information would nevertheless be required to comply with the Rule 8.3 reporting provisions to report misconduct if the impaired lawyer or judge indicates an intent to engage in illegal activity, for example, the conversion of client funds to personal use.
[6] The duty of a lawyer to self-report a criminal conviction or professional discipline under paragraph (e) of this rule is triggered only after the conviction or decision has become final. Whether an offense is a felony shall be governed by the state, U.S. territory, District of Columbia or federal law under which the conviction is obtained. Thus, it is possible that an offense in another jurisdiction may be a misdemeanor crime for which there is no duty to self-report, even though under Virginia law the offense is a felony.
Paragraph (a) is substantially similar to DR 1-103(A) when coupled with the reference to Rule 1.6 in paragraph (d). DR 1-103(A) stated: "A lawyer having information indicating that another lawyer has committed a violation of the Disciplinary Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness to practice law in other respects, shall report such information to the appropriate professional authority, except as provided in DR 4-101."
Paragraph (c) has no counterpart in the Virginia Code.
With respect to paragraph (d), DR 1-103(B) effectively excluded from the disclosure requirements of DR 1-103(A) "any information gained in the performance of . . . duties" by "a lawyer who is a member of The Virginia Bar Association's Committee on Substance Abuse and/or who is a trained intervenor for the Committee."
These attorney misconduct reporting requirements do not differ substantially from those of the corresponding Disciplinary Rule, DR 1-103. Although paragraph (b), requiring the reporting of judicial misconduct, and paragraph (c), requiring reporting of lawyer misconduct by a third party neutral, have no counterpart in the Virginia Code, the Committee believed them to be appropriate additions. With respect to both paragraphs (a) and (b) and (c), the Committee believed that the phrase "reliable information" indicated more clearly than the ABA Model Rule's "knowledge" the sort of information which should support a report of attorney misconduct.
The amendments effective September 26, 2002, in the rule heading, deleted “Professional” before “Misconduct,” in paragraph (a), substituted “to practice law” for “as a lawyer”; added paragraph (e); and added Comment [6].
The amendments effective February 1, 2016, added the unnumbered paragraph immediately following 8.3(e)(3).
It is professional misconduct for a lawyer to:
[1] ABA Model Rule Comment not adopted.
[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
[3] ABA Model Rule Comment not adopted.
[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(c) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law. See also Rule 3.1, Rule 3.4(d).
[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
With regard to paragraphs (a) through (c), DR 1-102(A) provided that a lawyer shall not:
Paragraph (d) is substantially the same as DR 9-101(C).
There was no direct counterpart to paragraph (e) in the Disciplinary Rules of the Virginia Code. EC 7-31 stated in part that "[a] lawyer ... is never justified in making a gift or a loan to a [judicial officer] under circumstances which might give the appearance that the gift or loan is made to influence official action." EC 9-1 stated that a lawyer "should promote public confidence in our [legal] system and in the legal profession."
Much of this Rule parallels provisions of the Disciplinary Rules of the Virginia Code. Paragraph (e), however, sets forth a prohibition not in the Virginia Code, and the Committee believed it is an appropriate addition.
The amendments effective March 25, 2003, in paragraph (b), substituted “fitness to practice law” for “fitness as a lawyer”; in paragraph (c), deleted “professional” after present words “engage in” and added “which reflects adversely on the lawyer’s fitness to practice law”; added the last sentence to Comment [5].
[1] In the past, a jurisdiction’s authority to discipline a lawyer has been based upon whether the lawyer is admitted in that jurisdiction. Subparagraph (a) is a significant change in that a lawyer not admitted in Virginia is nonetheless subject to the disciplinary authority of Virginia for conduct occurring in the course of providing, holding himself out as providing, or offering to provide legal services in Virginia. Subparagraph (a) adopts the scope of jurisdiction recommended by the ABA Model Rules for Lawyer Disciplinary Enforcement, as amended in 1996, by extending Virginia’s disciplinary authority to any lawyer who commits misconduct within Virginia.
It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purposes of this Rule. A lawyer who is subject to the disciplinary authority of this jurisdiction under Rule 8.5(a) appoints the Clerk of the Supreme Court of Virginia to receive service of process in this jurisdiction.
[2-7] ABA Model Rule Comments not adopted.
[8] Subparagraph (b) seeks to resolve conflicts that may arise when a lawyer is subject to the rules of more than one jurisdiction. The rules of one jurisdiction may prohibit the questioned conduct while the rules of another jurisdiction may permit it. A lawyer admitted in only one jurisdiction may also be subject to the rules of another jurisdiction in which he is not admitted to practice for conduct occurring in the course of providing, holding himself out as providing, or offering to provide legal services in the non-admitting jurisdiction. Also, a lawyer admitted in one jurisdiction may be subject to the rules of another jurisdiction if he appears before a court, agency, or other tribunal in that jurisdiction.
[9] If the lawyer appears before a court, agency, or other tribunal in another jurisdiction, subparagraph (b)(1) applies the law of the jurisdiction in which the court, agency, or other tribunal sits. In some instances, the court, agency, or other tribunal may have its own lawyer conduct rules and disciplinary authority. For example, the United States Patent and Trademark Office ("PTO"), through the Office of Enrollment and Discipline, enforces its own rules of conduct and disciplines practitioners under its own procedures. A lawyer admitted in Virginia who engages in misconduct in connection with practice before the PTO is subject to the PTO rules, and in the event of a conflict between the rules of Virginia and the PTO rules with respect to the questioned conduct, the latter would control.
[10] As to other conduct, if jurisdictions have conflicting rules regarding the questioned conduct, subparagraph (b)(2) resolves the conflict by choosing the rules of the jurisdiction where the conduct occurred. The physical presence of the lawyer is not dispositive in determining where the questioned conduct occurred. Determining where the lawyer’s conduct occurred in the context of transactional work may require the appropriate disciplinary tribunal to consider other factors, including the residence and place of business of any client, third person, or public institution such as a court, tribunal, public body, or administrative agency, the interests of which are materially affected by the lawyer’s actions.
Virginia Rule 8.5 made no provision for disciplinary authority over a lawyer not admitted to practice in Virginia. Rather, a non-lawyer who committed misconduct in Virginia was subject to Virginia’s unauthorized practice of law rules and the authority of the Virginia State Bar’s Standing Committee on the Unauthorized Practice of Law.
Under former Rule 8.5 (b)(2), if a lawyer was subject to the rules of more than one jurisdiction, the rules of the jurisdiction in which the lawyer principally practiced applied unless the conduct had its predominant effect in another jurisdiction in which the lawyer was admitted to practice. The former rule, however, did not provide clear guidance if the lawyer’s conduct occurred in a jurisdiction where the lawyer was not admitted.
The Committee adopted this Rule in light of the ABA recommendation that the states adopt more specific rules governing multi-jurisdictional practice. Like ABA Model Rule 8.5 (a), this rule states that for conduct occurring in the course of providing, holding oneself out as providing, or offering to provide legal services in Virginia the Virginia State Bar may exercise disciplinary authority over a lawyer not admitted in Virginia. Consistent with ABA Model Rule 8.5, the Virginia rule adopts choice of law rules for circumstances in which the lawyer is subject to the professional conduct rules of more than one jurisdiction and they conflict. The Virginia rule adopts verbatim ABA Model Rule 8.5 (b)(1), applying the rules of the jurisdiction in which the court, agency, or other tribunal sits. The Committee, however, did not adopt the "predominant effect" test used in ABA Model Rule 8.5 (b)(2), favoring instead the application of the rules of the jurisdiction in which the lawyer’s conduct occurred. Virginia Rule 8.5 (b)(3) is new. The Committee did not adopt ABA Model Rule Comments 2-7.
The amendments effective March 1, 2009, rewrote the Rule and Commentary thereto.
The powers of the Virginia State Bar shall be exercised by a Council composed of at least thirty-seven members in addition to the President, President-elect and Immediate Past President, as ex officio members, elected and appointed as follows:
At least one active member from each of the thirty-one judicial circuits, elected for a term of three years by the members of the bar of each circuit, and nine members appointed by the Supreme Court of Virginia from the active members of the bar of the state at large. The Court shall appoint the at-large members to serve for a term of three years and, further, shall appoint in such a manner as to ensure that three members are appointed annually. A person who has served two successive full three-year terms as an elected or appointed member of Council shall not be eligible for election or appointment to a third successive term.
For each additional judicial circuit, whenever created, there shall be a member of the Council, who shall be an active member of the bar of that circuit. An election shall be held in such circuit within sixty (60) days after the creation of such circuit or as soon thereafter as may be feasible in the manner provided at Paragraph 6. The Council at its meeting next thereafter shall determine the length of the term of the first member from that circuit so that, as nearly as possible, the terms of one-third of the members of the Council expire each year.
Any circuit having as of the 1st day of February in any year more than 500 active members in good standing who are domiciled or principally practice their profession in such circuit shall be entitled to one additional member of the Council for each additional 500 members or major fraction thereof. In the event that the membership in a circuit as of February 1 is such that it is no longer entitled to one or more additional members, the term of such additional member[s] of the Council shall end at the expiration of the term for which the member[s] was elected. Provided, however, that the number of Council members from each circuit as of July l, 2008, shall not be reduced unless the active membership in the circuit first increases to the number which will sustain its allocation of Council members as of July l, 2008, under the above formula, and subsequently falls below that number.
Whenever a judicial circuit shall be abolished, the term of any member of the Council from that circuit shall end forthwith.
The President of the Young Lawyers Conference shall serve as an ex officio member of the Council.
The Chair of the Conference of Local Bar Associations shall serve as an ex officio member of the Council.
The Chair of the Senior Lawyers Conference shall serve as an ex officio member of the Council.
The Chair of the Diversity Conference shall serve as an ex officio member of the Council.
Annually, on or before July 1, there shall be held a meeting of the members of the Virginia State Bar at a time and place designated by the Council or Executive Committee and presided over by the President. All officers elected at the annual meeting or by the Council shall take office immediately upon adjournment of the annual meeting except in cases where vacancies are filled for an unexpired term. At such meeting there shall be a report from the officers and from the Council, and there shall be elected the President and President-Elect for the ensuing year.
A quorum at such meeting shall be those members of the Virginia State Bar present and voting.
There may be transacted also such other business as may come before the meeting.
A special meeting of the Virginia State Bar may be called by the Council.
To promote reforms in judicial procedure and the judicial system that are intended to improve the quality and fairness of the system;
To recommend to the Supreme Court procedures for the disciplining, suspending and disbarring of attorneys;
To recommend to the Supreme Court the adoption of, modifications to, amendments to or the repeal of any rule of the Rules of the Supreme Court of Virginia;
To regulate the legal profession;
To improve the quality of the legal services made available to the people of Virginia;
To investigate, evaluate or endorse judicial candidates on a nonpartisan, merit basis;
To uphold and elevate the standards of honor, of integrity and of courtesy in the legal profession;
To encourage higher and better education for membership in the profession; and
To encourage and promote diversity in the profession and the judiciary; and
To perform all duties imposed by law.
10-1. DEFINITIONS
As used in this Paragraph, the following terms shall have the meaning herein stated unless the context clearly requires otherwise:
"Advisory Opinion" means a written statement of the subject involved, the question presented, the Rule of Court or other precedents relied upon, the opinion reached, and the reasons therefore.
"Bar" means the Virginia State Bar.
"Committee" means the Standing Committee on Legal Ethics.
"Council" means the Council of the Virginia State Bar.
"Court" means the Supreme Court of Virginia.
"Ethics Counsel" means the Ethics Counsel or an assistant ethics counsel of the Virginia State Bar.
"Member" means any active member of the Virginia State Bar or a Foreign Lawyer as defined under Rule 5.5(d)(1) of the Rules of Professional Conduct.
"Notice" means publishing in the Virginia Lawyer Register and at a minimum posting on the Virginia State Bar’s website for at least 30 calendar days.
"Rule" means any proposed new Rule of Court or any modification, amendment, or proposed repeal of any existing Rule of Court promulgated by either the Standing Committee on Legal Ethics.
10-2. ADVISORY OPINIONS OR RULES.
10-3. ADVISORY OPINION OR RULE CONSIDERATION BY COUNCIL.
10-4. ADVISORY OPINION OR RULE REVIEW BY THE SUPREME COURT OF VIRGINIA.
Review. After considering all materials submitted to it, the Court shall approve, modify, or disapprove any Advisory Opinion or Rule, which shall become a decision of the Court.
10-5. INFORMAL STAFF OPINIONS OF ETHICS COUNSEL.
Informal Advice. At the request of a Member, Ethics Counsel shall provide informal advice or opinion based on the facts provided.
Protection. Ethics Counsel shall not be compelled to testify, via subpoena or otherwise, in any judicial or adjudicative proceeding, except on behalf of a respondent in disciplinary proceedings of the Virginia State Bar, regarding any advice or opinion provided to that attorney. Except as stated herein, Ethics Counsel shall not be subject to subpoena or otherwise compelled to testify or to produce any documents in any judicial or adjudicative proceeding or to testify as an expert witness regarding legal ethics or the practice of law. In a disciplinary proceeding, testimony of Ethics Counsel shall be limited to the substance of any communications by and between Ethics and the Member, where such communications are an issue in the proceeding.
10-6. COMPLAINTS OF UNAUTHORIZED PRACTICE OF LAW.
The amendments effective March 19, 2010, rewrote Paragraph 10.
The amendments effective October 30, 2015, rewrote Paragraph 10-2 C. and 10-3 A.
The amendments effective May 1, 2016, in 10-1, changed definition for “Committee” and “Rule”; in 10-2 A. deleted the word “appropriate” from “…to the appropriate Committee….”; deleted 10-2 D. “Appeal” and re-lettered paragraphs “E.” and “F.” to “D.” and “E.”; rewrote “10-6. COMPLAINTS OF UNAUTHORIZED PRACTICE OF LAW.”
The amendments effective December 15, 2016, in 10-4 added "which shall become a decision of the Court."
Each active member shall pay to the Treasurer of the Virginia State Bar, annual dues not to exceed $250, and each associate member shall pay to the Treasurer of the Virginia State Bar annual dues not to exceed $125, on or before the 31st day of July of each fiscal year, provided that persons admitted to practice by examination or under Rule 1A:1 of the Supreme Court of Virginia shall not be liable for dues in the year of admission if admitted during the last three months of any fiscal year. Persons admitted to practice under Rule 1A:1 at any other point during any fiscal year shall pay the full amount of dues as specified above at the time they register with the Virginia State Bar. Persons admitted to practice by examination at any other point during any fiscal year shall pay one-half the amount of dues as specified above at the time they register with the Virginia State Bar. On or before April 1st, the Bar shall report to the Court the annual dues amount proposed for the next fiscal year.
No increase in the annual dues above $250 for active members or $125 for associate members will be authorized by the Court whenever the total combined cash balances of the State Bar Fund and the Virginia State Bar's Administration and Finance Account shall exceed fifteen (15) percent of the total annual operating expenditures of the Virginia State Bar for the year preceding the year in which the dues increase is sought.
All monies collected hereunder shall be accounted for and paid into the State Treasury of Virginia.
Failure to comply with this Rule shall subject the member to penalties set forth in Paragraph 19 herein.
The amendments effective March 11, 2011, revised Paragraph 11 regarding VSB annual dues
Chart comparing sections of Paragraph 13 in effect prior to May 1, 2009, with sections of reformatted Paragraph 13 as effective May 1, 2009 (PDF file)
Paragraph 13 index (PDF file)
Part 6, Section IV, Paragraph 13
Rules of the Supreme Court of Virginia
As used in this Paragraph, the following terms shall have the meaning herein stated unless the context clearly requires otherwise:
“Adjudication of a Crime Proceeding” means the proceeding which follows the summary Suspension of an Attorney after receipt by the Clerk of the Disciplinary System of initial notification from any court of competent jurisdiction stating that an Attorney has been found guilty of a Crime, irrespective of whether sentencing has occurred.
“Admonition” means a private sanction imposed by a Subcommittee sua sponte, a private or public sanction based upon an Agreed Disposition approved by a Subcommittee, or a public sanction imposed by a District Committee or the Board upon a finding that Misconduct has been established, but that no substantial harm to the Complainant or the public has occurred, and that no further disciplinary action is necessary.
“Agreed Disposition” means the disposition of a Disciplinary Proceeding agreed to by Respondent and Bar Counsel and approved by a Subcommittee, District Committee, the Board or a Circuit Court.
“Attorney” means a member of the Bar, a Corporate Counsel Registrant, Foreign Lawyer, Foreign Legal Consultant, and any member of the bar of any other jurisdiction while engaged, pro hac vice or otherwise, in the practice of law in Virginia.
“Bar” means the Virginia State Bar.
“Bar Counsel” means the Attorney who is appointed as such by Council and who is approved by the Attorney General pursuant to Va. Code §2.2-510, and such deputies, assistants, and Investigators as may be necessary to carry out the duties of the office, except where the duties must specifically be performed by the individual appointed pursuant to Va. Code §2.2-510.
“Bar Official” means any Bar officer or any member, employee, or counsel of Council, the Board, a District Committee, or COLD.
“Board” means the Bar Disciplinary Board.
“Certification” means the document issued by a Subcommittee or a District Committee when it has elected to certify allegations of Misconduct to the Board for its consideration, which document shall include sufficient facts to reasonably notify Bar Counsel and Respondent of the basis for such Certification and the Disciplinary Rules alleged to have been violated.
“Certification for Sanction Determination” means the document issued by a District Committee to certify to the Board that a sanction within the power of the Board is in order where the District Committee has found that Respondent failed to fulfill the terms of a Public Reprimand with Terms issued either by a Subcommittee on the basis of an Agreed Disposition or by a District Committee.
“Chair,” unless otherwise specified, means the Chair, Vice Chair, or Acting Chair of a District Committee, or a Section, Panel, or Subcommittee of a District Committee, or of the Board or any Panel of the Board.
“Charge of Misconduct” means the notice given by the Bar to a Respondent, setting forth generally the Misconduct alleged to have been committed by the Respondent, and identifying the specific Disciplinary Rule(s) alleged to have been violated by the Respondent. The Charge of Misconduct shall also include the date, time, and place of the hearing.
“Circuit Court” means a court designated as such by Va. Code §17.1-500.
“Clerk of the Disciplinary System” means the employee of the Bar who, together with such assistants as may be required, provides administrative support to the disciplinary system and serves as official custodian of the Disciplinary Records.
“COLD” means the Standing Committee on Lawyer Discipline.
“Complainant” means the initiator of a Complaint.
"Complaint" means any written communication to the Bar alleging Misconduct or from which allegations of Misconduct reasonably may be inferred.
“Committee Counsel” means an Attorney District Committee member assigned to prosecute a Complaint.
“Corporate Counsel Registrant” means a person who has been recorded by the Virginia State Bar as a Corporate Counsel Registrant pursuant to Rule 1A:5.
“Costs” means reasonable costs paid by the Bar to outside experts or consultants; reasonable travel and out-of-pocket expenses for witnesses; Court Reporter and transcript fees; electronic and telephone conferencing and recording costs, if such procedures are requested by Respondent; copying, mailing, and required publication costs, translator fees and an administrative charge determined by Council.
“Council” means the Council of the Bar.
“Court Reporter” means a person who is qualified to transcribe proceedings in a Circuit Court.
“CRESPA” means the Virginia Consumer Real Estate Settlement Protection Act, Va. Code, Title 6.1, Chapter 1.3, and any regulations promulgated thereunder.
“Crime” means:
1. Any offense declared to be a felony by federal or state law;
2. Any other offense involving theft, fraud, forgery, extortion, bribery, or perjury;
3. An attempt, solicitation or conspiracy to commit any of the foregoing; or
4. Any of the foregoing found by a foreign jurisdiction.
“Disbarment” has the same meaning as Revocation.
“Disciplinary Proceeding” means any proceeding governed by this Paragraph.
“Disciplinary Record” means any tangible or electronic record of:
1. Any proceeding in which the Respondent has been found guilty of Misconduct, including those proceedings in which (a) the Board’s or Court’s finding of Misconduct has been appealed to this Court; (b) the Respondent’s License has been revoked upon consent to revocation or Respondent has been found guilty of a Crime; or (c) the Respondent has received a sanction pursuant to this Paragraph; and
2. Any proceeding which has been resolved by (a) a De Minimis Dismissal; (b) a Dismissal for Exceptional Circumstances; or (c) an Admonition; and
3. Any proceeding in which the Respondent has been found guilty of a violation of CRESPA; and
4. Any proceeding which resulted in a sanction which created a disciplinary record at the time it was imposed.
“Disciplinary Rules” means:
1. the Virginia Rules of Professional Conduct and Virginia Code of Professional Responsibility, as applicable; and
2. the disciplinary rules of any other jurisdiction applicable under Rule 8.5 of the Virginia Rules of Professional Conduct.
“Dismissal” means the dismissal of a Complaint or Disciplinary Proceeding by Bar Counsel, a Subcommittee, a District Committee, the Board or a Circuit Court.
“Dismissal De Minimis” means a finding that the Respondent has engaged in Misconduct that is clearly not of sufficient magnitude to warrant disciplinary action, and Respondent has taken reasonable precautions against a recurrence of same.
“Dismissal for Exceptional Circumstances” means a finding that the Respondent has engaged in Misconduct but there exist exceptional circumstances mitigating against further proceedings, which circumstances shall be set forth in writing.
“District Committee” means one of the District Committees appointed as hereinafter provided or, where the context requires, a Panel, a Section, or a Subcommittee thereof.
“District Committee Determination” means the written decision of a District Committee or a Subcommittee of a District Committee, relating to a Complaint or Charge of Misconduct.
“Executive Committee” means the Executive Committee of the Bar.
“Executive Director” means the Executive Director of the Bar and any deputy or assistant designated by Council to act as Executive Director.
“Files” means those files maintained by the Clerk of the Disciplinary System, and office of Bar Counsel with respect to each Complaint.
“Foreign Lawyer” means a person authorized to practice law by the duly constituted and authorized governmental body of any State or Territory of the United States or the District of Columbia, or a foreign nation, but is neither licensed by the Court or authorized under its rules to practice law generally in the Commonwealth of Virginia, nor disbarred or suspended from practice in any jurisdiction.
“Foreign Legal Consultant” means a person who has been issued a foreign legal consultant certificate by the Virginia Board of Bar Examiners pursuant to Rule 1A:7.
“Impairment” means any physical or mental condition that materially impairs the fitness of an Attorney to practice law.
“Impairment Proceeding” means the proceeding:
1. Initiated by Bar Counsel to petition the Board to order the Respondent to undergo examination(s) and provide releases for records;
2. Initiated by Bar Counsel to determine whether an Attorney has an Impairment;
3. That follows the summary Suspension of an Attorney who may have an Impairment; or
4. That follows a request by Respondent to terminate an Impairment Suspension.
“Investigation” means any inquiry by Bar Counsel, Committee Counsel, or the Bar’s designee concerning any alleged Misconduct or Crime committed by an Attorney or any Impairment of an Attorney.
“Investigative Report” means the report prepared as a result of an Investigation.
“Investigator” means a person designated by the Bar to conduct an Investigation.
“Judge” means a judge within the meaning of Va. Code §2.1-37.1, and any judge appointed or elected under the laws of any other jurisdiction.
“License” means the license or authority to practice law granted by this Court.
“Memorandum Order” means the opinion and order of the Board entered following a Disciplinary Proceeding that shall contain a brief statement of the findings of fact; the nature of the Misconduct shown by such finding of facts; the Disciplinary Rules found to have been violated by clear and convincing evidence; the sanction imposed; the notice requirements, if any, imposed upon Respondent; the time in which Terms are required to be satisfied by Respondent, if Terms are imposed; the alternative sanction, if Respondent fails to comply with any Terms that are imposed; the name and address of the Court Reporter who served at the hearing; the names of the members of the Board that constituted the Panel; and that Costs shall be reimbursed by Respondent.
“Misconduct” means any:
1. Unlawful conduct described in Va. Code § 54.1-3935;
2. Violation of the Disciplinary Rules;
3. Conviction of a Crime;
4. Conviction of any other criminal offense or commission of a deliberately wrongful act that reflects adversely on the Attorney’s honesty, trustworthiness, or fitness as an Attorney; or
5. Violation of CRESPA or any regulations adopted pursuant thereto.
“Panel” means a group of members of a Section, District Committee, or the Board hearing a disciplinary matter that constitutes the quorum required by this Paragraph.
“Paragraph” means Paragraph 13 of the Rules of this Court, Part Six, Section IV.
“Petitioner” means:
1. An Attorney seeking Reinstatement after a Revocation; or
2. An Attorney seeking termination of an Impairment Suspension; or
3. A Bar Counsel or District Committee Chair seeking an expedited hearing before the Board and alleging that an Attorney is engaging in Misconduct likely to result in injury to or loss of property of a client or other entity, or alleging an Attorney poses imminent danger to the public.
“Private Discipline” means an Admonition without Terms issued by a Subcommittee sua sponte, a Private Reprimand or any form of discipline which is not public.
“Private Reprimand” means a form of non-public discipline that declares privately the conduct of the Respondent improper but does not limit the Respondent’s right to practice law.
“Proceeding” means the same as Disciplinary Proceeding.
“Public Reprimand” means a form of public discipline that declares publicly the conduct of the Respondent improper, but does not limit the Respondent’s right to practice law.
“Receivership” means a receivership created pursuant to Va. Code § 54.1-3900.01 or § 54.1-3936.
“Reinstatement” means the restoration by this Court of an Attorney’s License in the manner provided in this Paragraph.
“Reinstatement Proceeding” means the proceeding which takes place upon referral from this Court of a Petition for Reinstatement by an Attorney whose License was previously revoked.
“Respondent” means any Attorney:
1. Who is the subject of a Complaint;
2. Who is the subject of any proceeding under this Paragraph, Va. Code §§ 54.1-3900.01, 54.1-3935, 54.1-3936, or CRESPA; or
3. Who is the subject of an Adjudication of a Crime Proceeding, Proceedings upon Disbarment, Revocation or Suspension in another jurisdiction, Impairment Proceeding, or Reinstatement Proceeding.
“Revocation” means any revocation of an Attorney’s License and, when applied to a lawyer not admitted or authorized to practice law in Virginia, means the exclusion from the admission to, or the exercise of any privilege to, practice law in Virginia.
“Section” means a subgroup of a District Committee that has the same powers, authority, and duties as the District Committee.
“Subcommittee” means a subgroup of a District Committee or any Section thereof, convened for the purpose of performing the functions of a Subcommittee as described in this Paragraph.
“Summary Order” means a bench order entered by the Chair following a Disciplinary Proceeding that outlines in summary form the findings as to the allegations of Misconduct, the sanctions to be imposed, the effective date of any sanctions imposed, and any notice requirements.
“Suspension” means the temporary suspension of an Attorney’s License for either a fixed or indefinite period of time and, when applied to a lawyer not admitted or authorized to practice law in Virginia, means the temporary or indefinite exclusion from the admission to, or the exercise of any privilege to, practice law in Virginia.
“Terms” shall mean those conditions imposed on the Respondent by a Subcommittee, District Committee, Board, or Circuit Court, that require the Respondent to perform certain remedial actions as a necessary condition for the imposition of an Admonition, a Private or Public Reprimand, or a Suspension pursuant to this Paragraph.
“Va. Code” means the 1950 Code of Virginia, as amended.
The amendments effective January 31, 2014, revised Paragraph 13-1 regarding the definition of Bar Counsel.
The amendments effective February 17, 2011, revised Paragraph 13-1 regarding multijurisdictional practice.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
Nothing in this Paragraph shall be interpreted so as to eliminate, restrict or impair the jurisdiction of the courts of this Commonwealth to deal with the disciplining of Attorneys as provided by law. Every Judge shall have authority to take such action as may be necessary or appropriate to protect the interests of clients of any Attorney whose License is subject to a Suspension or Revocation. Every Circuit Court shall have power to enforce any order, summons or subpoena issued by the Board, a District Committee or Bar Counsel and to adjudge disobedience thereof as contempt.
Council shall have general administrative authority over and responsibility for the disciplinary system created pursuant to this Paragraph.
The amendments effective August 21, 2015, revised Paragraph 13-4 E. regarding establishment of district committees.
The amendments effective February 17, 2011, revised Paragraph 13 regarding multijurisdictional practice.
All powers and duties of Council, with respect to the Disciplinary System, except the power to appoint District Committee members, may be exercised by COLD, subject to the direction and control of Council. Notwithstanding any rule to the contrary, any member of COLD may attend proceedings of the Subcommittees, District Committees or the Board. Service by an Attorney on COLD shall be deemed to be a professional relationship within the meaning of Disciplinary Rules 1.6, 1.7, 1.9, 1.10 and 3.7. Such service shall be deemed the holding of public office within the meaning of Disciplinary Rules 1.11 and 1.12. Consent under Disciplinary Rules 1.6, 1.7 and 1.9 shall be deemed to include Bar Counsel's consent on behalf of the Bar. The membership of COLD shall consist of twelve persons, ten of whom shall be active members of the Bar and two shall be nonlawyers. In addition, a vice chair of the Board shall be an ex-officio, nonvoting member.
The amendments effective February 17, 2011, revised Paragraph 13 regarding multijurisdictional practice.
The amendments effective February 17, 2011, revised Paragraph 13 regarding multijurisdictional practice.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendment effective April 13, 2012, revised Paragraph 13 regarding appointment to the Disciplinary Board.
The amendments effective February 17, 2011, revised Paragraph 13 regarding multijurisdictional practice.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendments effective March 19, 2010, revised Paragraph 13-10 B. dealing with the use of the phrase "Charge of Misconduct" and rewrote Paragraph 13-10 C.
There shall be no right to discovery in connection with disciplinary matters, including matters before three-judge Circuit Courts, except:
The amendments effective March 1, 2016, added language to Paragraph 13-1 B.3.
The amendments effective February 17, 2011, revised Paragraph 13 regarding multijurisdictional practice.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendments effective January 31, 2014, revised Paragraph 13 regarding Participation and Disqualification of Counsel.
The amendments effective February 17, 2011, revised Paragraph 13 regarding multijurisdictional practice.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendments effective March 1, 2009, deleted from Paragraph 13-18 M.3. "for a stated period not exceeding five years; provided, however, if the Suspension is for more than one year, the Respondent must apply for Reinstatement as provided in this Paragraph; or". Changes posted April 28, 2016, conform to SCV Order of December 30, 2008.
The amendments effective March 19, 2010, rewrote Paragraph 13-22.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
13-24 BOARD PROCEEDINGS UPON DISBARMENT, REVOCATION OR SUSPENSION IN ANOTHER JURISDICTION
A. Definitions Specific to Paragraph 13-24. The following terms shall have the meaning set forth below unless the content clearly requires otherwise:
1. “State Jurisdiction” means any state, United States Territory, or District of Columbia law licensing or attorney disciplinary authority, including the highest court of any such Jurisdiction, authorized to impose attorney discipline effective throughout the Jurisdiction.
2. “Jurisdiction” shall refer to either a “State Jurisdiction” or any federal court or agency authorized to discipline attorneys, including the United States military.
B. Initiation of Proceedings. Upon receipt of a notice from the Clerk of the Disciplinary System that another Jurisdiction has, as a disciplinary measure, suspended or revoked the law license of an Attorney (“Respondent”) or has suspended or revoked Respondent’s privilege to practice law in that Jurisdiction, and that such action has become final (the “Suspension or Revocation Notice”), any Board member shall enter on behalf of the Board an order requiring Respondent to show cause why discipline that is the same or equivalent to the discipline imposed in the other Jurisdiction should not be imposed by the Board. If the Suspension or Revocation Notice is from a State Jurisdiction and the suspension or revocation has not been suspended or stayed, then the Board’s order shall suspend Respondent’s License pending final disposition of the Proceeding hereunder. The Board shall serve upon Respondent by certified mail the following: a copy of the Suspension or Revocation Notice; a copy of the Board’s order; and a notice fixing the date, time and place of the hearing before the Board to determine what action should be taken in response to the Suspension or Revocation Notice and stating that the purpose of the hearing is to provide Respondent an opportunity to show cause why the same or equivalent discipline that was imposed in the other Jurisdiction should not be imposed by the Board. Notwithstanding the above, notice of a suspension or revocation for merely administrative reasons, such as the failure to pay dues or the failure to complete required continuing legal education, shall not be considered a Suspension or Revocation Notice.
C. Opportunity for Response. Within 14 days of the date of mailing of the Board order, via certified mail, to Respondent’s last address of record with the Bar, Respondent shall file with the Clerk of the Disciplinary System a written response, which shall be confined to argument and exhibits supporting one or more of the following grounds for dismissal or imposition of lesser discipline:
1. The record of the proceeding in the other Jurisdiction would clearly show that such proceeding was so lacking in notice or opportunity to be heard as to constitute a denial of due process;
2. The imposition by the Board of the same or equivalent discipline upon the same proof would result in an injustice;
3. The same conduct would not be grounds for disciplinary action or for the same or equivalent discipline in Virginia; or
4. The misconduct found in the other Jurisdiction would warrant the imposition of substantially lesser discipline in the Commonwealth of Virginia.
D. Scheduling and Continuance of Hearing. Unless continued by the Board for good cause, the hearing shall be set not less than 21 nor more than 30 days after the date of the Board’s order.
E. Provision of Copies. The Clerk of the Disciplinary System shall furnish to the Board members designated for the hearing and make available to Respondent copies of the Suspension or Revocation Notice, the Board’s order against the Respondent, the notice of hearing, any notice of continuance of the hearing, and any written response or materials filed by Respondent or by Bar Counsel.
F. Hearing Procedures. Insofar as applicable, the procedures for Proceedings on allegations of Misconduct shall govern. Bar Counsel has discretion to put forth evidence and argument that one or more of the grounds specified in Paragraph 13-24.C exists. If Respondent does not file a timely written response, but appears at the hearing and expresses intent to present evidence or argument supporting the existence of one or more of the grounds specified in Paragraph 13-24.C, Respondent shall make a proffer to the Board. The Board may refuse to consider such evidence or argument as untimely. If the Board in its discretion is willing to consider such evidence or argument, then Bar Counsel, upon motion, may be entitled to a continuance.
G. Burden of Proof. The burden of proof to establish the existence of one or more of the grounds specified in Paragraph 13-24.C is clear and convincing evidence. Unless one or more of the grounds specified in Paragraph 13-24.C has been established by clear and convincing evidence, the Board shall conclude that Respondent was afforded due process by the other Jurisdiction and the findings of the other Jurisdiction shall be conclusive of all matters for purposes of the Proceeding before the Board.
H. Action by the Board. If the Board determines that none of the grounds specified in Paragraph 13-24.C exist by clear and convincing evidence, it shall impose the same or equivalent discipline as imposed in the other Jurisdiction. If the Board finds by clear and convincing evidence the existence of one or more of the grounds specified in Paragraph 13-24.C, the Board shall enter an order it deems appropriate. A copy of any order imposing discipline shall be served upon Respondent via certified mail, return receipt requested. Any such order shall be final and binding, subject only to appeal as set forth in the Rules of Court.
The amendments effective March 1, 2017, revised Paragraph 13 to clarify what qualifies as another jurisdiction for reciprocal discipline purposes; clarify the disciplinary board’s authority to impose the same, equivalent, or lesser discipline as another jurisdiction; allow for leniency as appropriate; and provide the disciplinary board with discretion in enforcing the default provision..
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
A. Waiver of Confidentiality. The filing by a former Attorney of a petition for Reinstatement shall constitute a waiver of all confidentiality relating to the petition, and to the Complaint or Complaints that resulted in, or were pending at the time the former Attorney resigned or his or her License was revoked.
B. Investigation of Impairment in Reinstatement Matters. Upon receipt of notice or evidence that an individual seeking Reinstatement has or may have an Impairment, Bar Counsel shall cause an Investigation to be made to determine whether there is reason to believe that the Impairment exists. As part of the Investigation of whether an Impairment exists, and for good cause shown in the interest of public protection, Bar Counsel may petition the Board to order the individual:
1. To undergo at his or her expense a psychiatric, physical or other medical examination by a qualified physician or other health care provider selected by the Board; and
2. To provide appropriate releases to health care providers authorizing the release of his or her psychiatric, physical or other medical records to Bar Counsel and the Board for purposes of the Investigation and any subsequent Reinstatement Proceedings.
The Board shall hold a hearing to determine whether such examination(s) and releases(s) are appropriate, upon notice to the individual petitioning for Reinstatement.
C. Readmission After Resignation. If after resigning from the Bar, a former Attorney wishes to resume practicing law in the Commonwealth of Virginia, the former Attorney must apply to the Board of Bar Examiners, satisfy the character and fitness requirements and pass the Bar examination. Before being readmitted to the Bar, the former Attorney must also satisfy any membership obligations that were delinquent when the former Attorney resigned.
D. Reinstatement After Disciplinary Suspension for More than One Year. After a Suspension for more than one year, the License of the Attorney subject to the Suspension shall not be reinstated unless the Attorney demonstrates to the Board that he or she has:
1. Attended 12 hours of continuing legal education, of which at least two hours shall be in the area of legal ethics or professionalism, for every year or fraction thereof of the Suspension;
2. Taken the Multistate Professional Responsibility Examination since imposition of discipline and received a scaled score of 85 or higher;
3. Reimbursed the Bar’s Clients’ Protection Fund for any sums of money it may have paid as a result of the Attorney’s Misconduct;
4. Paid to the Bar all Costs that have been assessed against him or her, together with any interest due thereon at the judgment rate at the time the Costs are paid; and
5. Reimbursed the Bar for any sums of money it may have paid as a result of a receivership involving Petitioner's law practice.
E. Petition for Reinstatement After Revocation. After a Revocation, a Petitioner may file with the Clerk of the Disciplinary System a petition for Reinstatement, setting forth in that petition the reasons why his or her License should be reinstated. The Petitioner must comply with the requirements of subparagraph 13-25.F as a precondition to filing the petition. Compliance with subparagraph 13-25.F shall be determined by the Clerk of the Disciplinary System after the petition is filed, and the Clerk of the Disciplinary System shall notify the Petitioner of compliance or noncompliance. Upon a determination of compliance with the requirements of subparagraph 13-25.F, the Clerk of the Disciplinary System shall enter the petition on the docket of the Board and shall refer it to the office of Bar Counsel for investigation. The Board may recommend approval or disapproval of the petition. Final action on the petition shall be taken by the Supreme Court of Virginia.
F. Threshold Requirements for Reinstatement After Revocation. After a Revocation, Petitioner’s License shall not be considered for Reinstatement unless the Petitioner has provided clear and convincing evidence of proof of compliance with the following requirements:
1. No petition may be filed sooner than five years from the effective date of the Revocation;
2. The petition has been filed under oath or affirmation with penalty of perjury;
3. Within five years prior to the filing of the petition, Petitioner has attended 60 hours of continuing legal education, of which at least ten hours shall be in the area of legal ethics or professionalism;
4. The Petitioner has taken the Multistate Professional Responsibility Examination and received a scaled score of 85 or higher;
5. The Petitioner has reimbursed the Bar’s Clients’ Protection Fund for any sums of money it may have paid as a result of Petitioner’s Misconduct;
6. The Petitioner has paid the Bar all Costs previously assessed against Petitioner, together with any interest due thereon at the judgment rate;
7. The Petitioner has reimbursed the Bar for any sums of money paid as a result of a receivership involving Petitioner's law practice; and
8. The Petitioner has posted with his or her petition for Reinstatement a $5,000 cash bond for payment of Costs resulting from the Reinstatement Proceedings.
G. Reinstatement Proceedings After a Revocation. If the threshold requirements of subparagraph 13.25-F have been met, the following processes shall ensue:
1. Investigation. Bar Counsel shall conduct such Investigation and make such inquiry as it deems appropriate. On request of Bar Counsel, the Petitioner shall promptly sign such forms and give such permission as are necessary to permit inquiry of the Petitioner’s background through the Internal Revenue Service, the National Criminal Information Center, the National Criminal Information Network and any other similar information network or system. The petition for Reinstatement shall not proceed without such forms and permissions being signed by Petitioner and returned to Bar Counsel.
2. Bill of Particulars. On written request by Bar Counsel, served by certified mail, return receipt requested, a Petitioner seeking Reinstatement shall file with the Clerk of the Disciplinary System within 21 days after service of the request, an original and six copies of a bill of particulars setting forth the grounds for Reinstatement. The petition for Reinstatement shall not proceed without such Bill of Particulars being filed with the Clerk of the Disciplinary System.
3. Hearing Date. The date of the hearing shall be determined by the Clerk of the Disciplinary System, in consultation with the Bar Counsel and the Petitioner.
4. Notice. Reasonable notice of filing of the petition and the date of the hearing shall be distributed by mail or electronic means by the Clerk of the Disciplinary System to all members of the Bar of the circuit in the jurisdictions in which the Petitioner resided, and of the circuit in which the Petitioner maintained a principal office, at the time of the Revocation. The Clerk of the Disciplinary System shall also distribute by mail or electronic means the notice to the members of the District Committee who heard the original Complaint, to members of the Board who heard the original Complaint, to the members of the District Committee for the judicial circuit in which the Petitioner currently resides, to the complaining witness or witnesses on all Complaints pending against the Petitioner before the Board, a District Committee or a court at the date of the Revocation or Suspension and to such other individuals as the Clerk of the Disciplinary System deems appropriate. The Clerk of the Disciplinary System shall publish a synopsis of the petition in the Virginia Lawyer and in a newspaper of general circulation in the judicial circuit where the Petitioner currently resides and where the Petitioner maintained a principal office at the time of the Revocation or Suspension. The entire petition, as well as the transcript, exhibits, pleadings and orders from the original Disciplinary Proceedings and Bill of Particulars, together with the documents referred to in subparagraph 13-25.F. above, shall be available for inspection and copying at the office of the Bar on reasonable notice and on payment of costs incurred to make the copies.
5. Proof of Good Character. Petitioner must prove by clear and convincing evidence that Petitioner is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law. After a Revocation, an attorney’s license shall not be reinstated without such proof.
6. Powers of the Board in Reinstatement Cases. The Board is empowered to hold a hearing and make its recommendation to this Court either to approve or disapprove the petition.
a. Hearing. On the date set for the hearing, the Petitioner shall have the right to representation by counsel, to examine and cross-examine witnesses and to present evidence. The testimony and other incidents of the hearing shall be transcribed and preserved, together with all exhibits (or copies thereof) received into evidence or refused. Bar Counsel shall appear and represent the Commonwealth and its citizens. Bar Counsel shall have the right to cross-examine, call witnesses and present evidence in opposition to the petition. Board members may examine witnesses called by either party. Legal advice to the Board, if required, shall be rendered by the Office of the Attorney General.
b. Factors to be Considered. In considering the matter prior to making a recommendation to this Court the Board may consider the following factors
i. The severity of the Petitioner’s Misconduct, including, but not limited to, the nature and circumstances of the Misconduct;
ii. The Petitioner’s character, maturity and experience at the time of his or her Revocation;
iii. The time elapsed since the Petitioner’s Revocation;
iv. Restitution to the clients and/or the Bar;
v. The Petitioner’s activities since Revocation, including, but not limited to, his or her conduct and attitude during that period of time;
vi. The Petitioner’s present reputation and standing in the community;
vii. The Petitioner’s familiarity with the Virginia Rules of Professional Conduct and his or her current proficiency in the law;
viii. The sufficiency of the punishment undergone by the Petitioner;
ix. The Petitioner’s sincerity, frankness and truthfulness in presenting and discussing factors relating to his Revocation and Reinstatement; and
x. The impact upon public confidence in the administration of justice if the Petitioner’s License is restored.
c. Character Witnesses. Up to five character witnesses supporting and up to five character witnesses opposing the petition shall be heard. In addition, the Board may consider any letters submitted regarding the Petitioner’s character and fitness.
d. Character and Fitness Determination. The Board shall offer an opinion in its recommendation as to whether the Petitioner is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law.
e. Determination by the Board. The Board shall, within 60 days after the receipt of the transcript, forward the record and its recommendations to the Supreme Court of Virginia. A copy of the recommendation shall be forwarded to the Petitioner and Bar Counsel.
i. If the Board recommends Reinstatement, it may be conditioned upon Petitioner obtaining malpractice insurance coverage and/or a blanket fidelity bond or dishonesty insurance coverage in an amount(s) set by the Board from an approved professional insurance carrier for a definite term or on an ongoing basis.
ii. At the conclusion of the Reinstatement Proceeding. the Clerk of the Disciplinary System shall determine the Costs associated with such Proceeding.
iii. Upon approval of a petition by this Court, the Petitioner shall meet the following requirements prior to and as a condition of his or her Reinstatement:
a) Pay to the Bar any Costs assessed in connection with the Reinstatement Proceeding;
b) Take and pass the written portion of the Virginia State Bar examination;
c) If required by the Board, obtain and maintain a professional liability insurance policy issued by a company authorized to write such insurance in Virginia at the cost of the Petitioner in an amount and for such term as set by the Board; and
d) If required by the Board, obtain and maintain a blanket fidelity bond or dishonesty insurance policy issued by a company authorized to write such bonds or insurance in Virginia at the Petitioner’s cost in an amount and for such term as set by the Board.
The amendments effective March 1, 2016, updated language regarding reinstatement after revocation.
The amendments effective January 31, 2014, revised Paragraph 13-26 regarding appeals from Disciplinary Board determinations.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
After a Suspension against a Respondent is imposed by either a Summary or Memorandum Order and no stay of the Suspension has been granted by this Court, or after a Revocation against a Respondent is imposed by either a Summary Order or Memorandum Order, that Respondent shall forthwith give notice, by certified mail, of his or her Revocation or Suspension to all clients for whom he or she is currently handling matters and to all opposing Attorneys and the presiding Judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters then in his or her care in conformity with the wishes of his or her clients. The Respondent shall give such notice within 14 days of the effective date of the Revocation or Suspension, and make such arrangements as are required herein within 45 days of the effective date of the Revocation or Suspension. The Respondent shall also furnish proof to the Bar within 60 days of the effective date of the Revocation or Suspension that such notices have been timely given and such arrangements made for the disposition of matters. The Board shall decide all issues concerning the adequacy of the notice and arrangements required herein, and the Board may impose a sanction of Revocation or additional Suspension for failure to comply with the requirements of this subparagraph 13-29.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
The amendments effective March 1, 2016, added language referencing subparagraph 13-11 to A. Confidential Matters.
When an Attorney’s License is revoked without consent, or upon the death of an Attorney, Bar Counsel, in his or her discretion, may dismiss without prejudice any and all Complaints or allegations of Misconduct then pending against said Attorney by notifying the Clerk of the Disciplinary System, the Complainant(s) and the District Committee, Board or court wherein the matter(s) lies.
The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".
Each person admitted to the Virginia State Bar on or after July 1, 1988, as an active member shall complete the course of study prescribed by the Executive Committee of the Virginia State Bar and approved by the Supreme Court of Virginia on the Rules of Professional Conduct and the lawyer’s broader professional obligations, and any active member who fails to complete the course shall be suspended unless an extension is obtained for good cause shown. Such course of study shall be funded by attendance fees paid by those attending the course.
Any active member licensed after June 30, 1988, and any other member who changes his or her membership to active status shall complete the required course within twelve months of becoming an active member. Failure to comply with this Rule shall subject the active member to the penalties set forth in Paragraph 19 herein.
“Good cause shown” as used herein shall include illness, hospitalization or such other cause as may be determined by the Executive Committee, whose determination shall be final. The Executive Director of the Virginia State Bar is authorized to grant extensions for compliance with this paragraph until the next Executive Committee meeting. Any determination by the Executive Committee or the Executive Director may be reviewed by the Supreme Court on request of the member seeking an extension.
The amendments effective March 1, 2017, authorize the VSB executive director to grant, for good cause, an extension request from a member who fails to complete the Professionalism Course by the deadline.
Each active member of the Virginia State Bar shall complete the Continuing Legal Education requirement prescribed by Paragraph 17 of these Rules, and any active member who fails to complete the requirement shall be suspended unless a waiver is obtained for good cause shown. Any active member licensed on or after July 1, 1986, shall thereafter annually file prior to, but no later than, December 15, certifications that he or she has completed the mandatory continuing legal education programs required by Paragraph 17, or obtain a waiver for good cause shown; provided, however, the next certification deadline following July 31, 2001, shall be December 15, 2002.
Failure to comply with this Rule shall subject the active member to the penalties set forth in Paragraph 19 herein.
“Good cause shown” as used herein shall include illness, hospitalization, or such other cause as may be determined by the Continuing Legal Education Board whose determination shall be final. Any determination by the Continuing Legal Education Board may be reviewed by the Supreme Court upon request of the suspended member.
The rules and regulations in the following provisions of this Paragraph 14 shall constitute a Code of Ethics governing the professional conduct of the practice of law through professional law corporations, professional limited liability companies and registered limited liability partnerships in Virginia.
The Council may establish a Clients’ Protection Fund for the purposes of reimbursing all or part of losses sustained by a client or other person or entity to whom a fiduciary duty is owed as a result of dishonest conduct of a member of the Virginia State Bar. The Board shall be appointed by Council, and shall receive, hold, manage, invest and distribute funds appropriated to it by Council or otherwise received, in accordance with procedures established by Council.
Effective July 1, 2007, each active member of the Virginia State Bar shall be assessed a required fee of $25 for the Clients’ Protection Fund on the bar’s annual dues statement. The fee shall be in addition to each member’s annual dues as prescribed in Part 6, Section IV, Paragraph 11 of these rules, and it shall be paid on or before the 31st day of July each fiscal year.
All monies collected under this Paragraph 16 shall be accounted for and paid into the State Treasury of Virginia and transferred by the bar from the Treasury to the Clients’ Protection Fund. The bar shall report annually on or about January 15 to the Supreme Court of Virginia on the financial condition of the Clients’ Protection Fund, and the assessment will be discontinued whenever directed by the Court.
Failure to comply with the requirements of this Paragraph 16 shall subject the active member to penalties set forth in Part 6, Section IV, Paragraph 19 of these rules.
The Virginia Supreme Court hereby establishes a Mandatory Continuing Legal Education Program in the Commonwealth of Virginia.
In order to make available to the public information about the financial responsibility of each active member of the Virginia State Bar for professional liability claims, each such member shall, upon admission to the bar, and with each application for renewal thereof, submit the certification required herein or obtain a waiver for good cause shown. The active member shall certify to the bar on or before July 31 of each year: a) whether or not such member is currently covered by professional liability insurance, other than an extended reporting endorsement; b) whether or not such member is engaged in the private practice of law involving representation of clients drawn from the public, and, if so, whether the member intends to maintain professional liability insurance coverage during the period of time the member remains engaged in the private practice of law; and c) the date, amount, and court where rendered, of any unsatisfied final judgment(s) against such member, or any firm or professional corporation in which he or she has practiced, for acts, errors, or omissions (including, but not limited to, acts of dishonesty, fraud, or intentional wrongdoing) arising out of the performance of legal services by such member.
The foregoing shall be certified by each active member of the Virginia State Bar in such form as may be prescribed by the Virginia State Bar and shall be made available to the public by such means as may be designated by the Virginia State Bar.
Each active member who certifies to the bar that such member is covered by professional liability insurance shall notify the bar in writing within thirty (30) days if the insurance policy providing coverage lapses, is no longer in effect or terminates for any reason, unless the policy is replaced with another policy and no lapse in coverage occurs.
Failure to comply with this Rule shall subject the active member to the penalties set forth in Paragraph 19 herein. An untruthful certification or unjustified failure to notify the bar of a lapse or termination of coverage shall subject the member to appropriate disciplinary action.
“Good cause shown” as used herein shall include illness, absence from the Commonwealth of Virginia, or such cause as may be determined by the Executive Committee of the Virginia State Bar whose determination shall be final. Any determination by the Executive Committee may be reviewed by the Supreme Court upon request of the member seeking a waiver.
Whenever it appears that a member of the Virginia State Bar has failed to comply with any of the Rules of Court relating to such person's membership in the bar, the Secretary-Treasurer shall mail a notice to the member advising of the member's noncompliance and demanding (1) compliance within sixty (60) days of the date of such notice and (2) payment of a delinquency fee of $50, for each Rule violated, provided, however, that the delinquency fee for an attorney who does not comply with the timely completion requirements of Paragraphs 13.2 and 17 (C) of these rules shall be $100, and the delinquency fee for an attorney who does not comply with the certification requirements of Paragraphs 13.2 and 17 (D) of these rules shall be $100, and shall increase by $100 on February 1 for noncompliance with the certification requirements. The notice shall be mailed to the member at his last address on file at the Virginia State Bar.
In the event the member fails to comply with the directive of the Secretary-Treasurer within the time allowed, the Secretary-Treasurer will then mail a notice to the member by certified mail to advise (1) that the attorney's membership in the bar has been suspended and (2) that the attorney may no longer practice law in the Commonwealth of Virginia or in any way hold himself or herself out as a member of the Virginia State Bar. Thereafter the attorney's membership in the Virginia State Bar may be reinstated only upon showing to the Secretary-Treasurer (1) that the attorney has complied with all the Court's rules relating to his or her membership in the bar and (2) upon payment of a reinstatement fee of $150 for each Rule violated, provided, however, that the reinstatement fee for an attorney who was suspended for noncompliance with Paragraphs 13.2 and 17 of these rules shall be $250, and shall increase by $50 for each subsequent such suspension, not to exceed a maximum of $500.
Whenever the Secretary-Treasurer notifies a member that his or her membership in the bar has been administratively suspended, the Secretary-Treasurer shall also (1) advise the Chief Judges of the circuit and district in which the attorney has his or her office, as well as the clerks of those courts and the Clerk of the Supreme Court, of such suspension and (2) publish notice of the suspension in the next issue of the Virginia Lawyer Register.
An administrative suspension shall not relieve the delinquent member of his or her annual responsibility to attend continuing legal education programs or to pay his or her dues to the Virginia State Bar.
Every trust account maintained by an active member of the VSB under Rules of Professional Conduct 1.15 shall also be maintained at a “financial institution approved by the Virginia State Bar” and maintained in accordance with this paragraph and Rule 1.15. A “financial institution approved by the Virginia State Bar” includes regulated state or federal chartered banks, savings institutions, and credit unions that are properly licensed and authorized to do business, have federal insurance on deposits, and have entered into and agreed to abide by a Virginia State Bar Approved Financial Institution Agreement. (See Appendix A which the Virginia State Bar reserves the right to amend or modify upon notice to all approved financial institutions.) The Virginia State Bar shall maintain and publish from time to time a list of approved financial institutions.
Virginia State Bar Approved Financial Institution Agreement
This Virginia State Bar Financial Institution Agreement (“Agreement”) is made this _____ day of ______________ , by and between the Virginia State Bar and __________________________ , (“Financial Institution”).
The undersigned, an officer of the Financial Institution executing this Agreement, being duly authorized to bind said institution by this Agreement, hereby applies to be approved as a depository to receive escrow, trust, or client funds, as defined in Part 6, § IV, Para. 20, of the Rules of Supreme Court of Virginia, or any successor provision(s), from attorneys for deposit in what are hereinafter referred to as “Trust Accounts.” The Financial Institution agrees to comply with the following requirements, or any successor provisions:
In either case of a dishonored instrument or an instrument presented against insufficient funds in a Trust Account, but honored by the financial institution, the report shall be identical to the notice customarily forwarded to the depositor and shall include the name and address of the depositor notified, including the name of the lawyer responsible for the account, as well as a copy of the dishonored instrument, if such copy is normally provided to the depositor. In addition, the report shall identify the financial institution reporting the overdraft, the account number, the date of the overdraft, the name of the person making the report, their address and telephone number and date. The report shall be made simultaneously with and within the time provided by law for notice of dishonor to the depositor or, in the case of instruments that are honored by the financial institution, within five (5) banking days after the date of presentation for payment against insufficient funds.
ATTEST:
___________________________________
Name of Financial Institution
___________________________________
Address of Financial Institution
___________________________________
By_________________________________
Officer’s Name
(Please print)
___________________________________
Officer's Signature
___________________________________
Corporate Office Held
The Supreme Court of Virginia hereby authorizes and directs the Virginia State Bar to contract to provide online computerized legal research services to its members.
Update on MCLE Course for Reciprocity Applicants
The MCLE Board has approved instruction courses under Rule 1A:1. See Reciprocity Course on Virginia CLE’s website.
Rule 1A:1. Admission to Practice in This Commonwealth Without Examination
(a) Reciprocity – Any person who has been admitted to practice law before the court of last resort of any state or territory of the United States or of the District of Columbia may file an application to be admitted to practice law in this Commonwealth without examination, if counsel licensed to practice law in this Commonwealth may be admitted in that jurisdiction without examination.
(b) Application – An applicant for admission to practice law without examination in this Commonwealth shall:
(1) File with the Secretary of the Virginia Board of Bar Examiners (the Board) an application under oath on a form furnished by the Board;
(2) Furnish a certificate, signed by the presiding judge of the court of last resort or other proper official for every jurisdiction in which the applicant is or has been licensed to practice law, stating:
i. that the applicant is in good standing, and if not the reasons why;
ii. the length of time the applicant has been or was licensed in that jurisdiction; and
iii. any restriction or condition placed on the applicant’s license to practice law in that jurisdiction.
(3) Certify in writing under oath that the applicant has completed 12 hours of instruction approved by the Virginia Continuing Legal Education Board on Virginia substantive and/or procedural law within the preceding six-month period;
(4) Certify in writing under oath that the applicant has read and is familiar with the Virginia Rules of Professional Conduct;
(5) Complete the Applicant’s Character and Fitness Questionnaire and furnish a report of the National Conference of Bar Examiners, or such other report as the Board may require, concerning the applicant’s past practice and record, and pay the fee for such report; and
(6) Pay the filing fee as fixed from time to time by the Board.
(c) Board Review – Upon receipt of a completed application, the Board will determine in accordance with the regulations issued by the Supreme Court whether the applicant has established by satisfactory evidence that he or she:
The Board may require the applicant to appear personally before the Board, the Character and Fitness Committee (the Committee) of the Board, or a member of either the Board or the Committee, and furnish any such additional information as may be required. If the applicant’s license to practice law in any other jurisdiction is subject to any restriction or condition, the Board shall determine whether the nature of such restriction or condition is inconsistent with the general practice of law and, if so, shall deny the application. If the Board determines that the applicant is qualified to be admitted to the practice of law in this Commonwealth without examination, the Board shall approve the application and shall notify the applicant of its decision.
(d) Admission – Upon notification by the Board that the applicant’s application has been approved, the applicant may be issued a certificate, pursuant to Code § 54.1-3931, to practice law in this Commonwealth if:
(e) Active Membership – Upon payment of applicable dues and completion of other membership obligations set forth in Part 6, Section IV of the Rules of the Supreme Court of Virginia, the applicant shall become an active member of the Virginia State Bar. An attorney admitted pursuant to this Rule shall be deemed subject to the same membership obligations as other active members of the Virginia State Bar, and all legal services provided in Virginia provided by an attorney 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. The rules set forth in Part 6, Section IV, governing how members may change their status to associate, judicial, disabled, retired or emeritus shall apply to attorneys admitted pursuant to this Rule.
(f) An attorney admitted to practice law in this Commonwealth without examination under prior versions of this Rule is no longer subject to the requirement that he or she intends to practice law full time as a member of the Virginia State Bar.
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.
Rule 1A:3. Revocation of Certificates Issued to Attorneys Admitted Pursuant to Rule 1A:2.
Following receipt of evidence that a person who was admitted to practice pursuant to Rule 1A:2 prior to July 1, 2000, has been disbarred pursuant to Part Six of the Rules, the Supreme Court will revoke the certificate issued to that person.
Appendix of Forms, Form 1 to Part One A as follows:
Application to Appear Pro Hac Vice Before a Virginia Tribunal (PDF file)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
Part II
Corporate Counsel Registrants
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. —
Note: Effective January 14, 2003.
Foreign Legal Consultant Application (PDF file)
The amendment effective January 1, 2009, changed “Board” to “Bar” in subsection (h).
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.
The Virginia State Bar is comprised of all attorneys licensed to practice law in Virginia.
The officers of the Virginia State Bar shall be a President, a President-Elect, an Immediate Past President and a Secretary-Treasurer.
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:
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.
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.
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.
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.
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:
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.
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.
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.
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:
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:
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.
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 Unauthorized Practice of Law —There shall be a standing committee to be appointed by the president and to be known as the Committee on the Unauthorized Practice of Law. The committee shall consist of nine members. Seven of the members shall be active members of the bar, at least two of whom shall be members of the Council. Two of the members shall be non-lawyers. All powers and duties of the Council with respect to the unauthorized practice of the law, 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. 3. 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. 4. 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. 5. 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.
By unanimous consent of the members of any committee, all questions before such committee may be settled by mail ballot or telephone call.
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.
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.
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 10/24/14, effective immediately
Revised by Council 6/12/14, effective immediately
Revised by Council 6/13/13, effective immediately
The right of individuals to represent themselves is an inalienable right common to all natural persons. But no one has the right to represent another; it is a privilege to be granted and regulated by law for the protection of the public.
The Supreme Court of Virginia has the inherent power to make rules governing the practice of law in the Commonwealth of Virginia. The Court has promulgated the definition of the practice of law. See "PRACTICE OF LAW IN THE COMMONWEALTH OF VIRGINIA," infra.
The public is best served in legal matters by lawyers. A client is entitled to be served disinterestedly by a lawyer who is not motivated or influenced by any allegiance other than to the client and our system of justice.
The services of a lawyer are essential and in the public interest whenever the exercise of professional legal judgment is required. The essence of such judgment is the lawyer's educated ability to relate the general body and philosophy of law to a specific legal problem. The public is better served by those who have met rigorous educational requirements, have been certified of honest demeanor and good moral character, and are subject to high ethical standards and strict disciplinary rules in the conduct of their practice.
By statute, any person practicing law without being duly authorized or licensed is guilty of a misdemeanor. The Attorney General of Virginia may leave the prosecution to the local attorney for the Commonwealth, or he may in his discretion institute and conduct such proceedings.
The courts of the Commonwealth have the inherent power, apart from statute, to inquire into the conduct of any person to determine whether he is illegally engaged in the practice of law, and to enjoin such conduct. The State Corporation Commission of Virginia may order the dissolution of any corporation or revoke its certificate of authority to transact business in the Commonwealth upon a finding that any officer, member, agent or employee thereof has been engaged in the unauthorized practice of law.
Any fees charged by a person engaged in the unauthorized practice of law are not collectible in court.
Any lawyer who aids a non-lawyer in the unauthorized practice of law is subject to discipline and disbarment. A lawyer has an affirmative duty to report unprivileged knowledge of such misconduct by another lawyer to the appropriate District Committee, and to discontinue his representation of a client when he discovers that his employment furthers the unauthorized practice of law by the client. Advisory opinions on the unauthorized practice of law, therefore, are as much intended to assist lawyers in fulfilling their ethical responsibilities as to inform and deter those who are engaged, or would engage, in such practice in derogation of the public's interest in a trained and regulated legal profession.
With the increase in the complexity of our society and its laws, the independence and integrity of a strong legal profession, devoted disinterestedly to those requiring legal services, are crucial to a free and democratic society. Allegiance to this principle, rather than the preservation of economic benefits for lawyers, is the basis upon which the Virginia State Bar, as the administrative agency of the Supreme Court of Virginia, carries forward the responsibility for the discipline of lawyers and the investigation of persons practicing law in the Commonwealth without proper authority.
The relation of attorney and client is direct and personal, and a person, natural or artificial, who undertakes the duties and responsibilities of an attorney is nonetheless practicing law though such person may employ others to whom may be committed the actual performance of such duties.
The gravity of the consequences to society resulting from abuses of this relation demands that those assuming to advise or to represent others shall be properly trained and educated, and be subject to a peculiar discipline. That fact, and the necessity for protection of society in its affairs and in the ordered proceedings of its tribunals, have developed the principles which serve to define the practice of law.
Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge or skill.
Specifically, the relation of attorney and client exists, and one is deemed to be practicing law whenever
UPR 1-101. Representation Before Tribunals.
UPC 1-1. The term "tribunal" shall include, in addition to the courts and judicial officers of Virginia or of the United States of America, the State Corporation Commission of Virginia and its various divisions, the Virginia Workers' Compensation Commission, and the Alcoholic Beverage Control Board, or any agency, authority, board, or commission when it determines the rights and obligations of parties to proceedings before it, as opposed to promulgating rules and regulations of general applicability. Such term does not include a tribunal established by virtue of the Constitution or laws of the United States, to the extent that the regulation of practice before such tribunal has been preempted by federal law, nor does it include a tribunal established under the Constitution or laws of Virginia before which the practice or appearance by a non-lawyer on behalf of another is authorized by statute.
UPC 1-2. A non-lawyer may represent himself, but not the interest of another, before any tribunal. A non-lawyer regularly employed on a salary basis or one specially retained as an expert (whether as an independent contractor or an employee of another) may present facts, figures, or factual conclusions, as distinguished from legal conclusions, when such presentation does not involve the examination of witnesses or preparation of briefs or pleadings.
UPC 1-3. A corporation (other than a duly registered law corporation) does not have the same right of appearance before a tribunal as an individual and may not be represented before a tribunal by its officers, employees or agents who are not duly authorized or licensed to practice law in Virginia. A corporation can be represented only by a lawyer before a tribunal, with respect to matters involving legal conclusions, examination of witnesses or preparation of briefs or pleadings.
UPC 1-4. A lawyer who is duly authorized or licensed to practice law in Virginia and who is also regularly employed on a salary basis by a corporation may represent such corporation before a tribunal as lawyer for the corporation, with the same privileges of a lawyer in private practice (including confidential communications with his employer when he is acting as a lawyer in connection with such communication).
UPC 1-5. A lawyer who is duly authorized or licensed to practice law in Virginia and who is regularly employed on a salary basis by a corporation may also represent before a tribunal the interest of a subsidiary or affiliated corporation when requested to do so by his employer and when not otherwise in conflict with the Virginia Code of Professional Responsibility. Such lawyer (unless a regular employee of a duly registered law corporation) in the course of his employment may not normally represent before a tribunal customers or patrons of his employer.
UPR 2-101. Definitions.
UPR 2-102. Investigation.
UPR 2-103. Negotiation of a Settlement.
UPR 2-104. Preparation of Documents.
UPR 2-105. Third Party Claims.
UPC 2-1. For example, the activities of a lay adjuster in claims may consist of acting on behalf of his principal in identifying the facts and parties, securing witness statements, estimating the costs of repair, and compiling other information about the claim. Statements are given by the lay adjuster to his principal from whom he receives instructions as to the disposition of the claim. The lay adjuster then may attempt to settle the claim at the monetary value his principal is willing to pay or accept.
UPC 2-2. As a part of his factual analysis, a lay adjuster may express his opinion on the extent of damage or injury and the monetary value of any claim investigated by him.
UPC 2-3. A lay adjuster may, incident to his investigation of the facts, give to his principal his opinion of liability as disclosed by his investigation. Such lay adjuster is authorized to make a settlement on behalf of his principal and, in the course of such negotiations, make statements as to his principal's liability or as to the law governing the facts to the extent consistent with the Rules Governing Unfair Claim Settlement Practices, as applicable. A lay adjuster not now covered by such Rules may make statements as to his principal's legal liability, or as to the law governing the facts to the extent consistent with the principles enunciated in such Rules, and with the requirements of UPR 2-103(A)(2).
UPC 2-4. In a claim pending in court, a lay adjuster may properly secure factual data and transmit settlement offers made on behalf of his principal when acting with the consent of the lawyers for both plaintiff and defendant. With such consent, he may also assist in the settlement negotiations with the approval of the lawyer for his principal.
UPC 2-5. A lawyer who is regularly employed on a salary basis as a lay adjuster is deemed to be acting on behalf of his employer and is subject to the same limitations with respect to representing his employer's customers or patrons as are imposed on his employer hereunder.
UPC 2-6. If a lay adjuster in any case attempts to draft legally binding settlement papers, he is engaged in the unauthorized practice of law. A lay adjuster may draft a receipt or fill in blanks supplying factual data in a form of release or other document prepared or approved by his principal, but he may not otherwise undertake to draft particular provisions intended to have legally binding effect in a specific case.
UPR 3-101. Attorney Client Relationship.
UPR 3-102. Referral and Control of Claims.
UPR 3-103. Preparation of Documents.
UPC 3-1. A collection agency (herein referred to as "an agency") is a business involved in the collection of past-due accounts for its customer (herein referred to as "the creditor"). The efforts of an agency to collect such a claim through correspondence or personal contacts, or both, are not the unauthorized practice of law. It is, however, improper for an agency to refer an account to a lawyer in a manner which disrupts the fundamental lawyer client relationship.
UPC 3-2. It is critical to the lawyer-client relationship that the lawyer remain in a position that will enable him to exercise independent judgment on behalf of his client, the creditor. A lawyer should not accept a claim from an agency under circumstances or pursuant to an arrangement that would render his judgment susceptible to control by the agency.
UPC 3-3. A referral by an agency which permits the agency to fix the lawyer's compensation, or share in a percentage of his compensation, or prescribe the terms of his employment, or control and direct his actions, is improper. The lawyer, while handling such a claim, would not be governed by his independent judgment of what would best benefit his client, the creditor, but would be influenced, if not controlled, by the provisions of the agreement by which the referral was made. Since an agency itself cannot directly provide the creditor with legal advice, it cannot be permitted to provide such advice indirectly by influencing the actions of the lawyer.
UPC 3-4. With regard to referrals by an agency to a lawyer, any arrangement or understanding requiring that communications between the lawyer and the creditor be handled only through the agency is improper. Such an arrangement could disrupt the relationship of trust and direct personal responsibility which ought to exist between a lawyer and his client. With direct communications, the lawyer can better perceive and analyze the individual needs of his client, and the creditor's direct contact with his lawyer lessens the possibility of misunderstanding and affords him the opportunity to determine for himself the quality of service that he is receiving. Furthermore, if the agency is the sole conduit of information, the lawyer is unable to preserve the confidences and secrets of his client. There can be no effective representation of a client if the client is reluctant to provide his lawyer with a complete and accurate statement of the facts because of his concern that this information might be divulged to some third party without his permission. It is the responsibility of both the lawyer and the agency to abide by these considerations and to avoid arrangements contrary thereto.
UPC 3-5. The decision to bring suit on a claim involves the application of legal principles to a factual situation. An agency threatening the institution of legal proceedings is engaged in the unauthorized practice of law, but the mere statement that the claim is being or will be referred to a lawyer, without more, is not deemed to be threatening the institution of legal proceedings as long as the lawyer remains free to exercise his independent professional judgment on behalf of the creditor. Likewise, the use by an agency of letters or forms that simulate or are intended to simulate judicial process or notice of judicial process is improper.
UPC 3-6. Statements of account and affidavits of facts relating to accounts and other matters are not legal instruments, and the preparation of the same by an agency is not the unauthorized practice of law. Such preparation does not require legal training or the application of legal principles; nor is the mere filing of such accounts or affidavits with personal representatives, trustees in bankruptcy and the like representing the interest of another before a tribunal.
UPC 3-7. A non-lawyer may properly act as a trustee in bankruptcy but may not prepare pleadings in the bankruptcy court except as authorized by the Bankruptcy Rules.
UPR 4-101. Estate Planning Advice.
UPR 4-102. Holding Out With Regard to Estate Planning.
UPR 4-103. Preparation of Documents.
UPR 4-104. Settlement of Estates.
UPC 4-1. "Estate planning," as that term is generally used and understood today, refers to the orderly arrangement of an individual's assets so as to provide most effectively for his economic needs while living, and for the personal and economic needs of those he may wish to benefit after his death. Estate planning necessarily involves, among other things, a knowledge and application of principles of the law relating to wills and descents and distribution, trusts and future interests, real and personal property, gifts, and taxation. In addition, effective postmortem estate planning requires an intimate familiarity with probate procedure and practice.
UPC 4-2. The proper planning of an individual's estate is often aided by the services of non-lawyers skilled in insurance, investments, accounting services, and the like. An analysis of the facts and assets of an estate in relation to its economic or investment needs, and the giving of general information as to the laws affecting the disposition of estates without any specific application thereof to a particular situation, other than mathematical computations to support a hypothetical analysis, is not the unauthorized practice of law.
UPC 4-3. The holding out to the public, directly or indirectly, overtly or subtly, by any non-lawyer of his willingness to give advice as to the legal consequences of a particular plan which goes beyond matters incident to the sale or transfer of a particular investment asset, such as a life insurance policy or security, in the regular course of the non-lawyer's business, or his willingness to perform legal services in the field of estate planning, is a holding out to engage in the unauthorized practice of law. A non-lawyer cannot solicit such services and then hire a lawyer to perform them. A non-lawyer consultant or adviser cannot offer the legal services of his own lawyer. Such practices are not purged or purified by an acknowledgment that the consultant or adviser is not authorized to give legal advice, or by any disclaimer or suggestion that such advice should be reviewed by the customer's own lawyer.
UPC 4-4. Activities geared to motivating an individual to give consideration to his estate, and to seek the advice of a lawyer of his own choosing as early as possible, preferably from the outset, with regard to the development of an overall estate plan, are in the public interest. Advice on matters of law with respect to the particular factual situation of the individual concerned, however, is the unauthorized practice of law whenever it goes beyond advice on matters incident to the sale or transfer of a particular investment asset, such as a life insurance policy or security, in the regular course of the non-lawyer's business.
UPC 4-5. The preparation of legal instruments such as wills, codicils and trusts by a non-lawyer for another, with or without compensation, goes beyond the area of permitted advice incident to the regular course of a non-lawyer's business. There is nothing improper, however, in the submission of suggested forms for various types of wills or trusts to lawyers for present or prospective customers of a non-lawyer. Distributing forms of separate administrative or dispositive provisions setting forth the proper name of a fiduciary, a charity or the like is not improper.
UPC 4-6. Selecting or filling out a form of will or trust for another is an exercise in legal judgment. As an aid to a customer's lawyer, a non-lawyer may submit to such lawyer, and only to him, specimen language for technical provisions to be included in his client's will, codicil or trust; but such non-lawyer is not entitled to hold himself out as the responsible draftsman of such provisions.
UPC 4-7. Advice by a non-lawyer as to the use of his "standard form trust," "plain English trust," "mini-trust," or the like constitutes the unauthorized practice of law when the provisions of such instrument go beyond the legitimate interest of the non-lawyer therein, seek to do more than the normal agency or deposit contract, or affect the legal rights of persons not parties to the contract. For example, the furnishing by a non-lawyer to his customer of a power of attorney which extends the authority of the attorney-in-fact to deal on behalf of his principal with all his principal's assets or accounts, whether or not maintained by that particular non-lawyer, goes beyond the area of that non-lawyer's legitimate interest.
UPC 4-8. The settlement of a decedent's estate invariably poses problems of a legal nature. Such settlement may involve the practice of law in such areas, among others, as the offering of writings for probate, the qualification of fiduciaries, the preparation of accountings, and the determination of legal rights and liabilities with respect to the assets of the estate. In administering and settling the affairs of an estate, a fiduciary is not acting primarily for himself; and the drafting of instruments and appearance at probate hearings by a non-lawyer, as contrasted to the preparation and filing of a list of heirs, inventory or accountings, whether in person or through lawyers who are salaried employees, ordinarily constitutes the unauthorized practice of law.
UPR 5-101. Holding Out as a Tax Expert.
UPR 5-102. Practicing Law in Tax Matters.
UPC 5-1. Taxation affects almost every phase of modern life. The giving of tax advice necessarily involves many branches of law and requires a familiarity with many non-tax legal principles on which the tax issues depend. In addition, the legal and accounting phases of tax practice are often so interrelated and overlapping that they are difficult to distinguish.
UPC 5-2. The preparation of a tax return does not necessarily involve the practice of law. It may often be accomplished by one having only incidental legal knowledge.
UPC 5-3. A non-lawyer otherwise entitled to do so may hold himself out as a tax return preparer or as enrolled to practice before the Internal Revenue Service; but he may not hold himself out as qualified to deal with difficult and involved questions of tax law, wholly apart from any engagement to prepare tax returns or practice before the Internal Revenue Service.
UPC 5-4. In general, tax planning is not considered to be the unauthorized practice of law. Attempting to resolve uncertainties as to the interpretation or application of tax or general law to a particular transaction, however, involves the practice of law unless it is incidental to a tax return preparer's engagement or the regular course of conducting a licensed business, for example, an investment business, or is limited to an analysis of merely the facts and assets of an estate.
UPC 5-5. Only a lawyer may prepare legal instruments for others or take the necessary steps to create, amend or dissolve a partnership, corporation or other business entity. Suggesting that any such legal work should be reviewed by the taxpayer's lawyer will not cure any unauthorized practice. In general, a lawyer working for a corporation not engaged in the practice of law as a registered law corporation is not entitled in the course of his employment to provide such services for customers or patrons of his employer.
UPC 5-6. Non-lawyers authorized by statute or Treasury Department regulations to represent taxpayers may do so in accordance with the existing law, rules and regulations governing such practice.
UPC 5-7. When a taxpayer is being investigated for a possible criminal violation of the tax laws, he should be promptly advised to seek advice from a lawyer. The lawyer-client privilege is a unique relationship to which the taxpayer is entitled at the earliest stage of the investigation.
UPC 5-8. Nothing herein is intended to modify or limit the right of a certified public accountant to certify, attest or express an opinion that financial data comply with conditions established by law or contract. Certified public accountants are members of a profession regulated by law who must meet certain minimal education requirements and observe certain rules of professional conduct. As such, certified public accountants engaged in the practice of their profession are entitled to a greater degree of latitude in the resolution of issues involving overlapping legal and accounting principles.
UPR 6-101. Giving Legal Advice.
UPR 6-102. Holding Out With Regard to Real Estate Services.
UPR 6-103. Preparation of Legal Instruments.
UPR 6-104. Real Estate Closings.
UPR 6-105. Lawyer-Client Relationship.
UPR 6-106. Referral of Business.
UPC 6-1. A non-lawyer may not express to any person, an opinion as to the validity or legal status of title to real estate or as to the legal effect of anything found in the chain of title such as, for example, a suit, will, judgment, release deed or extension agreement or as to the effect on title of matters not necessarily appearing of record such as, for example, adverse possession, the statute of limitations, or the disabilities of parties. A lawyer employed by a lay agency to render services for others is restricted to the doing of acts in the course of his employment that a non-lawyer can lawfully do. Nothing herein shall be construed to impair the right to practice of duly licensed house counsel, see Unauthorized Practice Rule 1, Practice Before Tribunals; or to impair rights guaranteed by the Constitution; or to impair the rights of a subscriber under a legal services plan licensed under Chapter 23 of Title 38.2 of the Code of Virginia.
UPC 6-2. A non-lawyer may not hold out to the public, directly or indirectly, his willingness to give legal advice or perform legal services, nor solicit such services and then hire a lawyer to perform them. Such practices are not validated by an acknowledgment that the non-lawyer is not authorized to give legal advice, or by any disclaimer or suggestion that such advice should be reviewed by the customer's own lawyer. A settlement agent registered under and in compliance with CRESPA or RESARA, may hold himself or herself out as providing escrow, closing or settlement services in the purchase or financing of real estate in the Commonwealth of Virginia.
UPC 6-3. A non-lawyer may compile and report factual information as disclosed by the public records, sometimes referred to as making an abstract of title; but he may not express an opinion or issue a certificate as to the legal consequences of what his investigation of the public records may show. Incident to his investigation of the facts, an abstracter may give to his regular employer or, upon request, to a lawyer his opinion as to the status of legal title as disclosed by his investigation; but neither he nor his employer, unless a lawyer or registered law corporation, may give a certificate of title or opinion to a third party, or otherwise hold themselves out as possessing legal knowledge or skill.
UPC 6-4. The drawing or preparation of deeds, deeds of trust, mortgages, deeds of release, and other instruments affecting title to real estate requires the possession and use of legal knowledge and skill. Such instruments are extraordinary contracts and muniments of title to real estate. This is nonetheless true where a form of deed or deed of trust prepared by a lawyer may be followed or filled in, and whether the instrument is deemed simple or complex. Legal knowledge and skill are required, in any event, in the selection and completion of the proper form to fit the facts of the particular case. Notwithstanding the foregoing, a settlement agent registered under and in compliance with CRESPA may complete form documents and instruments selected by and in accordance with the instructions of the parties to the transaction. However, a non-lawyer settlement agent may not draft the deed or deed of trust or select the form of the deed or deed of trust to be used for a particular transaction.
UPC 6-5. An individual, if he chooses to do so, may draw or attempt to draw legal instruments for himself or affecting his property. A corporation acting through its employees may do the same with respect to its own property.
UPC 6-6. A non-lawyer licensed real estate agent may, pursuant to Virginia Code § 54.1-2101.1, prepare for another contracts incident to the regular course of conducting a licensed real estate business. Whether in a particular case the preparation of a contract by a non-lawyer is incident to the regular course of conducting such licensed business must, of necessity, be determined on the facts of that particular case. Preparation, in this context, includes not only the drafting of a form but also the filling in of a previously prepared form. In making such a determination, the following facts, not necessarily listed in the order of their importance, are among those which should be considered:
UPC 6-7. In connection with a real estate closing, a non-lawyer settlement agent may not give legal advice to another, or prepare for or advise another in the preparation of legal instruments, for compensation, direct or indirect. A non-lawyer may, however:
The foregoing list of examples would not be considered to be the unauthorized practice of law; it is intended only to provide guidance and is thus non-exclusive.
UPC 6-8. While a lay agency may recommend to its customers the employment of a lawyer, the lawyer so employed should in all matters be employed, controlled and paid by his client, the customer. The lay agency may refer its customer to a lawyer and may consult with that lawyer or any other lawyer engaged by its customer. The lawyer, however, owes his undivided loyalty to his client, the customer, and not to the lay agency, and should be especially sensitive in real estate transactions to the ethical constraints governing conflicts of interest. To the extent the lawyer considers the lay agency to be his client and, in the preparation of legal instruments for the lay agency, he knows, or should know, that the lay agency intends to use such legal instruments in the closing of a real estate transaction for another, such lawyer is aiding such lay agency in the unauthorized practice of law. A lawyer may, however, in representing his or her lay agency client, advise the lay agency as to compliance with applicable law including the legal sufficiency and accuracy of legal documents or instruments. A direct and personal lawyer-client relationship must be established and preserved at all times; otherwise, through its own lawyer, such lay agency becomes engaged in the business of providing legal services to others.
UPC 6-9. If legal advice is requested by a party, the non-lawyer settlement agent should take care to refer the party to a lawyer. Defining what is legal advice is difficult; however, a non-lawyer acting as a settlement agent is engaged in the unauthorized practice of law if he or she:
The foregoing list of examples considered to be the unauthorized practice of law is intended only to provide guidance and is thus non-exclusive.
UPR 7-101. Title Insurance Practice.
UPC 7-1. Title insurance is insurance indemnifying the insured from loss if the status of title on a certain date is other than as stated in the policy, subject to the exclusions and exceptions from coverage set out in the policy.
UPC 7-2. The abstracting of title to real property located in Virginia by a non-lawyer from public records does not, standing alone, constitute the practice of law; but the interpretation of the meaning of documents comprising and affecting the chain of title, and the concepts attendant thereto, require a knowledge of statutes, general law in the field, and judicial decisions not generally possessed by non-lawyers. It is not improper, however, for an employee of a title insurance company to search the title records and report his findings to his employer, and express his conclusions to his employer or, upon request, to a lawyer as to which liens, encumbrances and the like relate to or affect the status of a particular title.
UPC 7-3. Although legal knowledge and skill may be utilized in the preparation and issuance of a title insurance policy, this does not make such policy a legal opinion. The policy is one of indemnity against loss issued in the regular course of its business by a title insurance company subject to inspection, supervision and regulation by the State Corporation Commission of Virginia.
UPC 7-4. If an employee, agent or other representative of a title insurance company attempts to advise another, other than such company or, upon request, a lawyer, on the legal effect of matters affecting the chain of title to real estate located in Virginia and the concepts attendant thereto, he then engages in the unauthorized practice of law since he would be furnishing to another advice or service under circumstances which imply his possession and use of legal knowledge and skill.
UPR 8-101. Giving Legal Advice.
UPR 8-102. Holding Out With Regard to Legal Services.
UPR 8-103. Attorney-Client Relationship.
UPR 8-104. Referral of Business.
Unauthorized Practice Considerations.
UPC 8-1. The term "trade association" as used herein means a nonprofit organization formed for the principal purpose of furthering the common business or professional interest of its members. Any organization that qualifies as a business league or chamber of commerce under Section 501(c)(6) of the Internal Revenue Code shall be presumed to be a trade association for purposes of this Rule. The conduct of a prepaid legal services plan is not to be considered governed by this Rule.
UPC 8-2. A trade association may recommend to its members the services of a lawyer. A trade association should not interfere with the personal lawyer client relationship that should exist between a member and such member's own lawyer.
UPC 8-3. If a trade association offers to provide or provides its members with the services of a lawyer subject to the trade association's direction and control, it is engaged in the unauthorized practice of law unless such services seek to further the political or ideological goals of their associational activity. For example, a trade association may provide its members with its views, including the legal opinions of its employed or retained lawyer, on legislative, administrative and judicial developments or other matters of general interest to some or all of its members, but may not advise, or hold itself out as permitted to advise, an individual member as to the application of a statute, regulation or decision to such member's particular set of facts, unless such advice is incident to or part of the association's collective activity undertaken to obtain meaningful access to the courts or other fundamental rights within the protection of Article I, Section 12 of the Virginia Constitution or the First Amendment to the United States Constitution.
UPC 8-4. Incident to his normal duties as a lobbyist or otherwise, a non-lawyer representative of a trade association may discuss with a member of the trade association the possible application of a proposed or enacted statute, regulation or decision to a particular set of facts; provided that such discussion does not constitute the giving of legal advice.
UPR 9-101. Holding Out as an Expert.
UPR 9-102. Agency Practice.
UPR 9-103. Immigration Practice.
Unauthorized Practice Considerations.
UPC 9-1. Representing another before an administrative agency normally constitutes the practice of law.
UPC 9-2. Regulation of the practice of law before federal administrative agencies is the responsibility of Congress. When Congress grants authority to an agency to prescribe regulations governing the recognition and conduct of a person representing the interest 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. As to rules of practice before Virginia administrative agencies, see Unauthorized Practice Rule 1, Practice Before Tribunals.
UPC 9-3. Normally, a person authorized to practice before an administrative agency may give advice to others informing them of their rights and obligations as to matters pending before, to be presented to or otherwise within the jurisdiction of such agency; prepare applications, exhibits and other documents as required by such agency in the submission of matters to it and in the performance of its regulatory functions; appear before such agency at any hearing, formal or informal, within Virginia and, as otherwise permitted by such agency, represent the interests of others before such agency, including filing motions and briefs, cross examining witnesses, and making oral arguments as to matters of law; and hold himself out as qualified to perform such services before such agency within the scope of his agency license.
UPC 9-4. A person authorized to practice before an administrative agency may not prepare for another, not his regular employer, legal instruments not reasonably within the scope of his agency practice. For example, the preparation of a lease or contract to be approved by an administrative agency may facially appear to be incident to the regular course of conducting an approved agency practice; but such a document normally creates substantive rights and obligations for the parties under state law, and to prepare such documents and give advice concerning their significance beyond their compliance with federal law or regulations may constitute the unauthorized practice of law.
UPC 9-5. The privilege of practicing before most federal administrative agencies is not restricted to lawyers. The federal Administrative Procedure Act grants to an individual who is a member in good standing of the bar of the highest court of any state an initial right to represent others before any federal agency; but if such person is not duly licensed or authorized to practice law in Virginia or has not obtained the requisite revenue license required by Section 58.1-3700 of the Code of Virginia, he is subject to the same rules as a non-lawyer when his activities in Virginia extend beyond the scope of the practice authorized by the federal agency.
UPC 9-6. A person who is authorized to practice before an administrative agency and who is duly licensed or authorized to practice law in another state presumably has met certain minimal educational requirements and is subject to discipline for violations of a code of professional responsibility similar to that governing the conduct of lawyers licensed to practice in Virginia. As such, a person licensed or authorized to practice law in another state is entitled to a greater degree of latitude in the resolution of issues involving whether his activity is within the scope of the practice authorized by such agency and whether any legal instruments prepared by him are properly incident thereto.
UPC 9-7. Aliens are especially vulnerable to the unauthorized practice of law. Such unauthorized practice, which may include incompetent or fraudulent legal services, can cause serious economic harm, may result in the separation of families, and may even result in the death of an individual forcibly repatriated to another country if asylum is denied to him in the United States.
The Virginia State Bar recognizes that certain non-lawyers may be authorized to practice before a federal immigration agency. However, non-lawyers who are not so authorized are limited to providing assistance to an alien resident for such limited services as translation of documents, and assistance in the transcription of documents or answers provided by the alien, for a fee commensurate with such limited services. However, the selection of appropriate immigration forms, the assistance to the alien in the information to be provided on such forms, and other related services by an unauthorized non-lawyer may constitute the unauthorized practice of law.
Furthermore, in addition to engaging in the unauthorized practice of law, an individual who holds himself or herself out as qualified to render such legal services and performs such services, may also be subject to criminal prosecution, to civil remedies such as quo warranto actions, and to such discipline and sanctions as may be imposed under federal statutes and regulations.
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.
As used in these regulations, the following definitions shall apply:
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