Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Home > Actions on Rule Changes and Legal Ethics Opinions > comment to Rule 3.8, Additional Responsibilities of a Prosecutor.revisions to Rule 4.4, Respect for Rights of Third Persons.changes to Judicial Candidate Evaluation Committee and statutory amendmentsSupreme Court of Virginia Amends Rules 1A:1.twelve Legal Advertising Opinions issuedaddition to the Rules of the Supreme Court of Virginia Part 6, § IV concerning the VLRS.LEO 1889: Regarding Court-Appointed Lawyers and Parental Rights.revisions to Part 6, §I of the Rules of the Supreme Court of VA on the unauthorized practice of law.revisions to Rule 1.10, imputed disqualification: general rule.revisions to Rule 1.8 regarding conflict of interest: prohibited transactions.amendments to MCLE Opinion 19 regarding lawyer well-being.four Legal Ethics Opinions withdrawn by Standing Committee on Legal Ethics on April 3, 2018LEO 1750 regarding advertising issues.amendments to Paragraph 13 that conform to Chapter 27.2 of title 55 of the Code of Virginia.revisions to Paragraph 3 and 13-23 regarding change of membership for impaired attorneys.revisions to Paragraph 13-1 and 13-30 regarding a Lawyer Assistance Program.new Paragraph 22 voluntary pro bono publico legal services reporting.revisions to Paragraph 13-1 and 13-9 concerning assessment of Guardian Ad Litem’s fees and costs.revisions to Rule 1.1, Competence.LEO 1888: prosecutor’s duty to disclose evidence that tends to negate the guilt of the accused.LEO 1885: Ethical Considerations for a Lawyer’s Participation in Online Attorney-Client Matching.amendments to Paragraph 13 to definitions of burden of proof and Disciplinary Record.three-year extension of the Clients’ Protection Fund sunset provision.Supreme Court of Virginia amends Part Six, § IV, ¶ 16 RE: Clients’ Protection FundLEO 1887: Duties when a lawyer over whom no one has supervisory authority is impaired.LEO 776: Threatening prosecution in a civil matter.changes to paragraph 3 modifying status of Emeritus Members allowed to provide pro bono services.amendments to Rules 7.1-7.5 governing lawyer advertising.amendments to Clients’ Protection Fund Rules.LEO 1886: Duty of partners & supervisory lawyers in law firm when another lawyer suffers impairment.Paragraph 13-24 regarding disbarment, revocation, or suspension in another jurisdiction.amendments to Paragraph 13.1 regarding suspension for failure to complete professionalism course.LEOs 1329, 1438, 1584, 1606, 1742, 1792, 1856 and 1869LEO 1884 Conflicts arising from a lawyer-legislator’s employment with a consulting firm.amendments to Rules 1.6 (Confidentiality) and 3.3 (Candor).the Virginia State Bar’s Standing Committee on Legal Ethics withdrew thirteen Legal Ethics Opinions.State Code Regarding Procedure for Revocation of License Revised. Effective July 1, 2017.Supreme Court of Virginia amends rule regarding unauthorized practice of law.amendments to Paragraph 13-11 (Limited Right to Discovery), 13-25 (Reinstatement),amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).amendments to Rule 5.5 Comment [1a] and Rule 8.3(e).amendments to Paragraph 10 Section IV of the Rules for Integration of the Virginia State Bar.new rule: provision of legal services following determination of major disaster.new Paragraph 13.4 regarding malpractice insurance requirements in Va. Code Section 54.1-3935(D).amendments to Paragraph 13-4E regarding service on district committees by certainamendment to Bylaws regarding Better Annual Meeting Committee.Supreme Court of Virginia Amends Military Spouse Provisional Admission Rule.new Rule 5.8.amendment to Rule 1A:1 Reciprocity: Admission on Motion.amendment to bylaws regarding Council election procedures.amendments to the Clients’ Protection Fund Rules regarding claim limits on payments from the fund.amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).Paragraph 13-4 C regarding district committee member’s address of record.amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).amendment to Rule 1.10 regarding conflict of interest.addition to VSB and Council Bylaws.changes to Paragraph 17 Mandatory Continuing Legal Education Rule.changes to Paragraph 3 add e-mail and phone number to address of record.amendments to UPR 1-101 concerning representation before general district courts.amendments to Rule 5.5 regarding temporary practice by foreign lawyers.amendments to Paragraph 13-13 regarding Participation and Disqualification of Counsel.amendment to Paragraph 13 regarding the definition of “Bar Counsel”.amendments to Paragraph 13-26 regarding appeals from Disciplinary Board determinations.amendments to Rule 1.11, Rule 1.15, and Rule 5.4 of the Rules of Professional Conduct.amendment to VSB Bylaws regarding composition of Executive Committee.amendments to Rules 7.1-7.5 of regarding lawyer advertising.revisions to Clients’ Protection Fund Rules of Procedure.correction to Paragraph 13-16 DD.amendments to Rules 7.1-7.5 regarding lawyer advertising.bylaws revisions to election procedures for president-elect and council.amendment to Bylaws to give Diversity Conference chair a seat on the Executive Committee.amendment to Paragraph 13 regarding VSB Disciplinary Board.amendments to Rule 1.15 of Rules of Professional Conduct and Paragraph 20 of Part 6, § IV.new Rule 1.18 defining a prospective client.amendments to Virginia Supreme Court Rule 1A:5 regarding corporate counsel.amendments to bylaws for VSB standing committees.amendments to Virginia Supreme Court Rule 1A:5 regarding corporate counsel pro bono work.amendments to Paragraph 11, regarding VSB annual dues.amendments to Paragraph 13 regarding multijurisdictional practice.amendments to Paragraph 17 regarding MCLE Rule.Rule 4.2 amendment addressing defendant waiving rights.amendments to Parts 5 and 5A, Rules of the Supreme Court of Virginia regarding appellate procedures.amendment to Paragraph 13-22, Board Proceedings Upon a Guilty Plea or an Adjudication of a Crime.amendment to Paragraph 13-10, Processing of Complaints by Bar Counsel.amendments to Paragraph 13, dealing with the use of the phrase “Charge of Misconduct.”amendments to Paragraph 10 governing legal ethics and unauthorized practice of law.amendments to the MCLE Regulations include a limitation on pre-recorded CLE programs.Rule 7.4(d) certification as a specialistParagraph 17 mailing the annual certification formRule 8.4 allowing undisclosed recording under certain circumstances

Proposed | comment to Rule 3.8, Additional Responsibilities of a Prosecutor. Comments due November 30, 2018.

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed Comment [5] to Rule of Professional Conduct 3.8 “Additional Responsibilities of a Prosecutor.”

Comments to the Rules of Professional Conduct interpret and explain how the Rules are to be applied. Proposed Comment [5] explains what “disclosure” means as used in Rule 3.8(d), regarding a prosecutor’s duty to make known to the defense the existence of exculpatory evidence. The proposed Comment makes clear that the prosecutor’s obligation is triggered only once the existence of exculpatory evidence becomes known to the prosecutor, and that under certain circumstances, the prosecutor may need to do more than merely provide a copy of or access to the exculpatory evidence in order to fulfill the prosecutor’s duties under this Rule. The proposed Comment [5] provides:

[5] Paragraph (d) requires disclosure of the existence of exculpatory evidence known to the prosecutor. As referred to in Comment 4, the duty is dependent on actual knowledge. Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely disclose the evidence. What constitutes sufficient disclosure is dependent on the circumstances. In many cases, providing a copy of or access to the evidence or information is sufficient. In some circumstances, additional steps may be necessary to fulfill the disclosure obligation.

The proposed comment was developed with the input of a working group, composed of prosecutors, defense counsel, and members of the Committee; the resulting comment represents the consensus of that working group and was approved by the Committee on that basis.

Inspection and Comment

The proposed Comment may also be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed Comment can also be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed Comment with Karen A. Gould, Executive Director of the Virginia State Bar, not later than November 30, 2018. Comments may be submitted via email to publiccomment@vsb.org.

Proposed comment below.

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Proposed Comment [5] to Rule 3.8, Additional Responsibilities of a Prosecutor

[5] Paragraph (d) requires disclosure of the existence of exculpatory evidence known to the prosecutor. As referred to in Comment 4, the duty is dependent on actual knowledge. Once the prosecutor knows particular evidence is exculpatory, the prosecutor must timely disclose the evidence. What constitutes sufficient disclosure is dependent on the circumstances. In many cases, providing a copy of or access to the evidence or information is sufficient. In some circumstances, additional steps may be necessary to fulfill the disclosure obligation.

Updated: October 16, 2018

Proposed | revisions to Rule 4.4, Respect for Rights of Third Persons. Comments due by November 30, 2018.

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed amendments to Rule 4.4, Respect for Rights of Third Persons.

The proposed changes to the Rule add paragraph (b), which codifies the guidance currently found in LEO 1702 regarding a lawyer who receives privileged information that was inadvertently sent. Specifically, paragraph (b) requires that a lawyer who receives information relating to the representation of the lawyer’s client and who knows that the information is privileged and was inadvertently sent must immediately terminate review or use of the information, promptly notify the sender, and abide by the sender’s instructions, if applicable, to return or destroy the information.

Proposed Comment 2 further explains the scope of the rule by defining when a document is inadvertently sent and when the lawyer knows or reasonably should know that that is the case. Proposed Comment 2 also clarifies that the rule does not apply to information that was wrongfully obtained rather than inadvertently obtained, and that it only applies to metadata if the metadata is privileged and inadvertently disclosed. Finally, proposed Comment 3 explains that the rule, and LEO 1702, are justified by the extreme importance of preserving lawyer-client confidences, and that the duties established by the proposed rule override the lawyer’s duty of communication under Rule 1.4. Proposed Comment 3 concludes by distinguishing situations involving pre-trial discovery and other situations where rules of court or other law permit the receiving lawyer to contest a sender’s claim of privilege following an inadvertent disclosure; the proposed rule does not prohibit such actions and the recipient is permitted to sequester the inadvertently sent document pending use of such a process. 

Inspection and Comment

The proposed rule amendment may also be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed rule amendment can also be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed amendment with Karen A. Gould, Executive Director of the Virginia State Bar, not later than November 30, 2018. Comments may be submitted via email to publiccomment@vsb.org.

Full proposal below.

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Proposed Amendments to Rule 4.4

Rule 4.4 Respect For Rights Of Third Persons

(a)  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information.

Comments

[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 and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers.  A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently and is privileged, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures and to abide by any instructions to return or destroy the document or information that was inadvertently sent. Regardless of whether it is obvious that the document or electronically stored information was inadvertently sent, the receiving lawyer knows or reasonably should know that the document or information was inadvertently sent if the sender promptly notifies the receiving lawyer of the mistake. If the receiving lawyer lacks actual or constructive knowledge that the document or electronically stored information was inadvertently sent, then paragraph (b) does not apply. Similarly, the lawyer may know that the document or electronically stored information was inadvertently sent but not that it is privileged; in that case, the receiving lawyer has no duty under this rule.

This Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form.  Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer and that it contains privileged information.

[3] Preservation of lawyer-client confidences is such a vital aspect of the legal system that it is appropriate to require that lawyers not take advantage of a mistake or inadvertent disclosure by opposing counsel to gain an undue advantage. See LEO 1702. This means that the lawyer is prohibited from informing the lawyer’s client of relevant, though inadvertently disclosed, information, and that the lawyer is prevented from using information that is of great significance to the client’s case. In such cases, paragraph (b) overrides the lawyer’s communication duty under Rule 1.4. As stated in Comment 1, diligent representation of the client’s interests does not authorize or warrant intrusions into privileged communications. 

Where applicable discovery rules, agreements, or other law permit the recipient to contest the sender’s claim of privilege, use of such a process does not constitute “use” as prohibited by this rule, and the recipient may sequester the document or information pending resolution of that process. When there is no such applicable law, such as in a matter that does not involve litigation, the recipient lawyer must abide by the sender’s instructions to return or destroy the document. See also LEO 1871.

Updated: October 16, 2018

Proposed | changes to Judicial Candidate Evaluation Committee and statutory amendments

update: At its meeting on October 26, 2018, the VSB Council unanimously approved proposed amendments to the Virginia Code creating narrow exemptions that preserve the confidentiality envisioned by the current and proposed JCEC Procedures and Policies. Such confidentiality is necessary for the JCEC to conduct full, frank, and fair investigations, interviews, and deliberative assessments of each candidate for judicial office. The JCEC’s executive summaries remain subject to disclosure. The proposal is subject to approval by the Supreme Court of Virginia before forwarding to the Virginia legislature for consideration.

 


 

posted September 25, 2018:

The Virginia State Bar seeks comments on the following proposals made by its Judicial Candidate Evaluation Committee (JCEC):

  1. proposed changes to the Virginia State Bar Judicial Candidate Evaluation Committee Procedures and Policies (JCEC Procedures and Policies) and 
  2. proposed amendments to the Virginia Code to exempt from the Virginia Freedom of Information Act (FOIA) the records and meetings relating to the JCEC’s consideration of prospective judicial candidates.  

The revisions to the JCEC Procedures and Policies improve and clarify the evaluation process of candidates for judicial office in the Supreme Court of Virginia, the Virginia Court of Appeals, the United States District Courts for the Eastern and Western Districts of Virginia, and the United States Court of Appeals for the Fourth Circuit. See proposed changes here.

The proposed amendments to the Virginia Code create narrow exemptions that preserve the confidentiality envisioned by the current and proposed JCEC Procedures and Policies. Such confidentiality is necessary for the JCEC to conduct full, frank, and fair investigations, interviews, and deliberative assessments of each candidate for judicial office. The JCEC’s executive summaries remain subject to disclosure. Substance of proposed amendments:

The following information and proceedings are excluded from the mandatory disclosure provisions of The Virginia Freedom of Information Act:

Working papers, investigatory files, notes, and correspondence of the members and assigned staff of the Judicial Candidate Evaluation Committee of the Virginia State Bar in association with or relating to its investigation, interview, discussion, and consideration of, and voting upon, candidates for judicial office in the Virginia Supreme Court, the Virginia Court of Appeals, the United States District Courts for the Eastern and Western Districts of Virginia, and the United States Court of Appeals for the Fourth Circuit.  The Judicial Candidate Evaluation Committee of the Virginia State Bar’s investigation, interview, discussion, consideration of, and voting upon, candidates for judicial office are confidential, and these proceedings are not open to the public. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by candidates for judicial office, the official recommendations of the Committee, or the final reports of the Virginia State Bar relating to the recommendations and activities of the Committee.

At its August 29, 2018, meeting, the JCEC unanimously approved the revised JCEC Procedures and Policies and proposed statutory amendments.  

The proposed revisions to the JCEC Procedures and Policies and proposed statutory amendments may also be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  

Comments are due by October 20, 2018, to comments@vsb.org.

Updated: November 2, 2018

Adopted | Supreme Court of Virginia Amends Rules 1A:1. Effective December 1, 2018.

On September 14, 2018, the Supreme Court of Virginia amended Rules 1A:1 to become effective on December 1, 2018.

The Rule pertains to Rule 1A:1. Admission to Practice in This Commonwealth Without Examination.

The complete order may be found here.

Updated: September 14, 2018

Withdrawn | twelve Legal Advertising Opinions issued by the former Standing Committee on Lawyer Advertising and Solicitation

At its meeting on August 1, 2018, the Standing Committee on Legal Ethics withdrew 12 Legal Advertising Opinions (LAOs) issued by the former Standing Committee on Lawyer Advertising and Solicitation. The reason for this decision is that some of the LAOs have become obsolete, superseded by amendments to the Rules of Professional Conduct, or have been restated in whole or in part in LEO 1750. The 12 LAOs were:

1)    A-101  Electronic Media Advertising: Actor Portraying Attorney

2)    A-102 Fee Information: “No Recovery, No Fee”

3)    A-103 Law Firm Name:  Use of Corporate, Trade, or Fictitious Name

4)    A-104 Print Ad Stating that Attorney Must be Consulted in Certain Circumstances

5)    A-105 Advertising of Participation in Lawyer Referral Services

6)    A-107 Law Firm Letterhead: Designating Non-Virginia Lawyers

7)    A-110 Lawyer Advertising on the Internet

8)    A-111 Use of the Title “Tax Specialist”

9)    A-113 Statements by Third Parties

10) A-115 May a Lawyer Advertise For a Specific Type of Case That the Lawyer or the Lawyer’s Firm Does Not Intend to Handle?

11) A-116 Communications that Claim “Se Habla Espanol”

12) A-117 Online Attorney Directory Listing

Updated: August 30, 2018

Proposed | addition to the Rules of the Supreme Court of Virginia Part 6, § IV concerning the VLRS. Pending approval by the Supreme Court of Virginia.

Update 10/31/18: By a vote of 54-2, the council approved an amended proposal to codify and revise the existing rules of the Virginia Lawyer Referral Service (VLRS) at Part 6, §IV of the Rules of the Supreme Court of Virginia. The proposal of the Special Committee on Lawyer Referral recommended changing the VLRS fee structure to a “percentage fee” program. Council amended the proposal to waive the percentage fee on fees of $499 or less collected by panel members from clients. The proposed changes will be presented to the Supreme Court of Virginia for approval.

view the petition to the Supreme Court of Virginia (PDF)

view the petition appendix (PDF)

 


Posted August 24, 2018:

The Virginia State Bar’s Special Committee on Lawyer Referral (“Committee”) seeks a proposed addition to Part 6, §IV of the Rules of the Supreme Court of Virginia. The changes would add a Paragraph 23 concerning the Virginia Lawyer Referral Service (VLRS). At its August 9, 2018 meeting, the Committee considered the comments received and voted to release this rule to Council for consideration at its meeting on October 26, 2018.

In 2017, the Committee requested an American Bar Association (ABA) review and audit of the VLRS and its operating model, with a goal of improving the service and making it sustainable. The proposed rule seeks to implement recommendations from the ABA report. 

The rule proposes to codify existing VLRS rules of service, add to them, and change the fee structure of the VLRS to a “percentage fee” program.

Updated: November 7, 2018

Adopted | LEO 1889: Regarding Court-Appointed Lawyers and Parental Rights. Approved by the Supreme Court of Virginia November 8, 2018. Effective immediately.

On April 3, 2018, the VSB Standing Committee on Legal Ethics voted to send this proposed LEO to VSB Council. The proposed LEO was approved by a unanimous council vote on June 14, 2018.

The proposed LEO was presented to the Supreme Court of Virginia for approval on June 21, 2018. It was approved by the Supreme Court of Virginia on November 8, 2018. Effective immediately.

View the Supreme Court of Virginia order (pdf)

Updated: November 9, 2018

Proposed | revisions to Part 6, §I of the Rules of the Supreme Court of VA on the unauthorized practice of law. Pending consideration by Bar Council at its February 23, 2019 meeting.

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) seeks public comment on proposed revisions to Part 6, §I of the Rules of the Supreme Court of Virginia, The Practice of Law in the Commonwealth of Virginia and the Unauthorized Practice of Law.

Following a year-long review by a Virginia State Bar Study Committee to Revise the Unauthorized Practice of Law Rules (“the Study Committee”), the Study Committee recommended revisions to the definition of the practice of law and the deletion of Unauthorized Practice of Law Rules 1-9 with replacement by an entirely different format. The Study Committee reviewed the existing definition of the practice of law and the nine existing individual UPL rules. It reviewed other jurisdictions’ UPL definitions and rules and reviewed state and federal law that create exceptions to the UPL Rules for certain activities performed by non-lawyers. The Study Committee determined that a better format was necessary, including a general definition of the practice of law followed by sections describing exceptions to and exclusions from that definition and finally comments and annotations explaining and providing examples of these exceptions and exclusions. Some content from the existing rules was included in the proposed revisions. All of the revisions include conduct or activity that has been and continues to be the subject of UPL complaints and the current rules and UPL Opinions.       

The proposed definition more succinctly and clearly sets out the general prohibition against the unauthorized practice of law, a definition of the practice of law, exceptions (i.e., activity that is the practice of law but which nonlawyers and foreign lawyers may perform), exclusions (i.e., activity that is not considered the practice of law), commentary, and annotations.

At its May 16, 2018 meeting, the Standing Committee on Legal Ethics unanimously approved the Study Committee’s proposal anddetermined that it addresses regulation of unauthorized practice of law in Virginia more comprehensively, clearly and concisely than the existing definition and rules.    

At its meeting on August 1, 2018, the Standing Committee on Legal Ethics considered the comments received and approved the proposed rule, as amended in light of certain comments, for consideration by Council at the February 23, 2019 meeting.

See the proposed rule here (pdf)

The proposed rule may also be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed rule revisions can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557.

Updated: October 18, 2018

Proposed | revisions to Rule 1.10, imputed disqualification: general rule. Pending approval by the Supreme Court of Virginia.

The Virginia State Bar’s Standing Committee on Legal Ethics is seeking proposed revisions to Rule 1.10, Imputed Disqualification: General Rule. At its August 1, 2018 meeting, the Committee voted to release this rule to Council for consideration. At its meeting on October 26, 2018, Council unanimously approved the amendments. The proposed changes were presented to the Supreme Court of Virginia for approval on October 29, 2018. 

This proposed revision provides that a conflict is not imputed to other lawyers in a firm when the conflict arises from a personal interest of the affected lawyer and does not present a significant risk of materially limiting the representation by other lawyers in the firm. The proposed revision also adds Comment 3, an ABA Model Comment that gives examples of the types of personal interest conflicts that might or might not affect other lawyers’ ability to represent a client. Under the proposed rule, a lawyer’s personal relationship with a witness involved in a case, for example, would not create a conflict for other lawyers in that firm unless those lawyers’ relationship with the conflicted lawyer would materially limit their own representation of the client. 

The proposed amendments also add Comment 4, an ABA Model Comment that is unrelated to the proposed change to Rule 1.10(a). This comment explains the imputation rules for nonlawyers in a firm, and provides helpful guidance that is consistent with existing LEO 1800.  

View the Council petition to the Supreme Court (pdf)

Updated: October 31, 2018

Proposed | revisions to Rule 1.8 regarding conflict of interest: prohibited transactions. Pending approval by the Supreme Court of Virginia.

The Virginia State Bar’s Standing Committee on Legal Ethics is seeking proposed revisions to Rule 1.8, Conflict of Interest: Prohibited Transactions. At its August 1, 2018 meeting, the Committee voted to release this rule to Council for consideration. At its meeting on October 26, 2018, Council unanimously approved the amendments. The proposed changes were presented to the Supreme Court of Virginia for approval on October 29, 2018. 

View the Council petition to the Supreme Court (pdf)

Updated: October 31, 2018

Adopted | amendments to MCLE Opinion 19 regarding lawyer well-being. Effective September 24, 2018.

In response to the National Task Force on Lawyer Well-Being report issued in August of 2017, the Mandatory Continuing Legal Education (MCLE) Board has reviewed and amended Opinion 19 on substance abuse, mental health disorders, stress and work/life balance topics to be renamed “Opinion 19 Lawyer Well-being.” The revised Opinion 19 makes clear that lawyer well-being topics will be considered for CLE credit, so long as other MCLE requirements are satisfied. The opinion provides examples of topics and programs that may receive regular CLE and ethics/professionalism credit.

Following a comment period that ended August 1, 2018. The MCLE Board reviewed comments at their September 24th meeting. The amendments were adopted by the Board, effective September 24, 2018.

 

MCLE Opinion #19 – Programs Promoting Lawyer Well-Being.

In 2009, the MCLE Board issued the first edition of this Opinion, which was entitled “Substance Abuse, Mental Health Disorders, Stress, and Work/Life Balance Topics.”  In that edition of this Opinion the MCLE Board noted the following:

The MCLE Board is concerned about the effects of substance abuse, mental health disorders, stress and work/life balance on legal practitioners in the Commonwealth of Virginia and on the quality of legal services provided to the public. Because the MCLE Board believes that education on these topics will be beneficial in addressing these issues, it will consider topics pertaining to substance abuse, mental health disorders, stress management and work/life balance for CLE credit under certain circumstances.

In August 2017 the ABA National Task Force on Lawyer Well-Being (the “Task Force”) issued a report entitled “The Path to Lawyer Well-Being:  Practical Recommendations for Positive Change” (the “Lawyer Well-Being Report”).  In the Report, the Task Force correctly found the following:

To be a good lawyer, one has to be a healthy lawyer.  Sadly, our profession is falling short when it comes to well-being. . . [T]he current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.

While the MCLE Board has in the past granted credit for lawyer well-being programs, the MCLE Board hereby emphasizes that programs promoting lawyer well-being may be approvable for CLE credit, so long as other requirements applicable to all CLE programs are met.  In addition, programs must be clearly and primarily designed, directed to, and intended for attorneys, not a general audience.

By way of example, and not limitation, topics that may be approvable for CLE credit include the following:

  • Substance abuse
  • Mental health disorders
  • Stress, sources of stress, recognizing stress, the effects of stress, minimizing stress, and stress avoidance
  • Work/life balance
  • Navigating the practice of law in a healthy manner
  • Cognitive impairment
  • Process addictions
  • Burnout
  • Depression
  • Suicide awareness and prevention
  • Promotion of civility in the profession[1]
  • Promotion of mentoring
  • Promotion of lawyer autonomy and control over lawyers’ schedules and lives
  • Enhancement of optimism
  • Promotion of resilience
  • Promotion of diversity in the profession

As in the general population, the legal profession is aging and lawyers are practicing longer, which raises unique lawyer well-being issues.  In order to promote the profession and provide quality legal services, the following programs are examples of topics that may be approvable for CLE credit when dealing with aging attorneys:

  • Programming for detecting and addressing cognitive decline in oneself and colleagues
  • Development of succession plans
  • Options available to guide and support transitioning lawyers

Training for the legal profession in identifying, addressing, and supporting fellow professionals with mental health and substance abuse disorders is vital.  Acknowledging this, the following topics are examples that may be approvable for CLE credit:

  • The warning signs of substance abuse or mental health disorders, including suicidal thinking
  • How, why, and where to seek help at the first signs of difficulty
  • The relationship between substance abuse, depression, anxiety, and suicide
  • How to approach a colleague who may be experiencing problems with mental health, depression, or substance abuse
  • How to thrive in practice and manage stress without reliance on alcohol or drugs
  • Self-assessment or assessment of others of mental health or substance abuse risk
  • Lawyer assistance programs

The Task Force has further found the following:

[G]enuine efforts to enhance lawyer well-being must extend beyond disorder detection and treatment.  Efforts aimed at remodeling institutional and organizational features that breed stress are as crucial, as are those designed to cultivate lawyers’ personal resources to boost resilience.  All stakeholders should participate in the development and delivery of educational materials and programming that go beyond detection to include causes and consequences of distress.

Such topics may be appropriate for CLE credit, among others.

Programs on lawyer well-being that focus the presentation and written instruction materials on ethics or professionalism may receive ethics credit.  By way of example, and not limitation, ethics credit may be provided for the following topics:

  • Well-being presentations that focus on ethical considerations addressed in the Rules of Professional Conduct
  • Lawyer well-being programs that address issues that may trigger the reporting requirements of the Rules of Professional Conduct
  • Programs designed to help lawyers reconnect with, strengthen, and apply their values, strengths of character, and sense of purpose toward achieving outstanding professionalism
  • Programs designed to support the development of organizational cultures within firms, law departments, and legal agencies that recognize, support, and encourage outstanding professionalism

Credit will only be provided for programs clearly and primarily designed, directed to, and intended for attorneys, not a general audience.

 

[1] The ABA National Task Force on Lawyer Well-Being has correctly concluded that [c]hronic incivility is corrosive.  Report at Page 15.

Updated: October 31, 2018

Withdrawn | four Legal Ethics Opinions withdrawn by Standing Committee on Legal Ethics on April 3, 2018

The Virginia State Bar’s Standing Committee on Legal Ethics has withdrawn four Legal Ethics Opinions related to advertising and solicitation.

1029: legal corporation – advertisement

1119: advertising – use of actors/nonclients in television commercial

1297: Advertising and solicitation – propriety of using self-laudatory statements in radio advertisement

1321: Advertising and solicitation – improper use of language in advertisement

Updated: August 23, 2018

Adopted | LEO 1750 regarding advertising issues. Approved by the Supreme Court of Virginia on April 20, 2018. Effective immediately.

Legal Ethics Opinion 1750 regarding advertising issues was approved by VSB Council at its February 24, 2018, meeting. Approved by the Supreme Court of Virginia on April 20, 2018. Effective immediately. 

view the Supreme Court of Virginia order (PDF)

Updated: August 23, 2018

Adopted | amendments to Paragraph 13 that conform to Chapter 27.2 of title 55 of the Code of Virginia. Approved by the Supreme Court of Virginia. Effective June 15, 2018

Effective June 15, 2018, the Supreme Court of Virginia has adopted amendments to Part 6, Section IV, Paragraph 13 that conform Paragraph 13 to Chapter 27.2 of title 55 of the Code of Virginia, renaming CRESPA (Consumer Real Estate Settlement Protection Act) to RESA (Real Estate Settlement Agents). The amendments were approved by the Supreme Court of Virginia on April 16, 2018.

view the Supreme Court of Virginina order (PDF file)


Notes

At its meeting on February 24, 2018, the VSB Council unanimously approved amendments to Part 6, Section IV, Paragraph 13 that conform Paragraph 13 to Chapter 27.2 of title 55 of the Code of Virginia, renaming CRESPA (Consumer Real Estate Settlement Protection Act) to RESA (Real Estate Settlement Agents). The proposed changes will be sent to the Supreme Court of Virginia for its consideration. View the Virginia State Bar's petition to the Supreme Court of Virginia.

---

On November 8, 2017, the Committee on Lawyer Discipline (COLD) approved the proposed amendments to Part 6, Section IV, Paragraph 13 that conform Paragraph 13 to Chapter 27.2 of title 55 of the Code of Virginia, renaming CRESPA (Consumer Real Estate Settlement Protection Act) to RESA (Real Estate Settlement Agents).

 

Additions are underlined.  Strikethroughs indicate deletions.

 

13-1 DEFINITIONS

***

“CRESPA” - See “RESA”  means the Virginia Consumer Real Estate Settlement Protection Act, Va. Code, Title 6.1, Chapter 1.3, and any regulations promulgated thereunder.

***

“Disciplinary Record” means any tangible or electronic record of:

            ***    

3.         Any proceeding in which the Respondent has been found guilty of a violation of RESACRESPA; and

            ***

“Misconduct” means any:

5.         Violation of RESACRESPA or any regulations adopted pursuant thereto.

            ***

“RESA” means Chapter 27.2 of Title 55 of the Code of Virginia entitled “Real Estate Settlement Agents” (formerly Consumer Real Estate Settlement Protection Act or “CRESPA”).

“Respondent” means any Attorney:

            ***

2.         Who is the subject of any proceeding under this Paragraph, Va. Code §§ 54.1-3900.01, 54.1-3935, 54.1-3936, or RESACRESPA; or

***

13-6     DISCIPLINARY BOARD

            F.         Jurisdiction.  The Board shall have jurisdiction to consider:  ...  (8) Violations of RESACRESPA or any regulations adopted pursuant thereto;

***

13-9     CLERK OF THE DISCIPLINARY SYSTEM

A.        Current Dockets.  The Clerk of the Disciplinary System shall maintain a docket of current Attorney discipline and RESACRESPA matters pending before the District Committees, the Board or courts of this Commonwealth.

***

C.        File Destruction.  Whenever a File is destroyed, the following information shall be preserved:

***

Such summary information shall be retained for at least five years whenever the Complaint or allegation of Misconduct is dismissed with no Disciplinary Record having been created, and for at least ten years whenever a Disciplinary Record has been created, an Impairment determined, a Reinstatement Proceeding held or a finding of Misconduct involving a RESACRESPA violation is made.

D.        Preservation of Determinations and Orders.  The Clerk of the Disciplinary System shall preserve a copy of all District Committee Determinations and Board or court orders in which an Attorney has been found to have engaged in Misconduct, to be impaired, to have committed a violation of RESACRESPA or requested Reinstatement.

E.         Costs.  The Clerk of the Disciplinary System shall assess Costs against the Respondent in the following cases:

***

6.         All cases before the Board in which sanctions were imposed for violations of RESACRESPA and/or the Bar’s RESACRESPA regulations.

 

*   *   *

Updated: April 16, 2018

Adopted | revisions to Paragraph 3 and 13-23 regarding change of membership for impaired attorneys. Approved by the Supreme Court of Virginia on October 31, 2018. Effective January 1, 2019.

At its meeting on June 14, 2018, the council unanimously approved amendments to Part 6, Section IV, Paragraph 3 and Paragraph 13-23. The amendments are motivated by the report of the National Task Force on Lawyer Well-Being and will facilitate retirement for a lawyer suffering from a permanent impairment, such as an irreversible cognitive decline, by allowing retirement with dignity instead of having the lawyer’s license suspended on impairment grounds. With these amendments, the impaired lawyer could transfer to the Disabled and Retired class of membership as described in proposed Paragraph 13-23.K. The proposed language in Paragraph 3(d) conforms to the requirements of amended Paragraph 13-23.

View the Supreme Court order (pdf)

Updated: October 31, 2018

Adopted | revisions to Paragraph 13-1 and 13-30 regarding a Lawyer Assistance Program. Approved by the Supreme Court of Virginia on October 31, 2018. Effective January 1, 2019.

At its June 14, 2018, meeting, the council unanimously approved amendments to Part 6, Section IV, Paragraph 13-1 and Paragraph 13-30. The amendment to Paragraph 13-1 defines a Lawyer Assistance Program. The amendment to Paragraph 13-30 addresses the provision of confidential information by Bar Counsel to a Lawyer Assistance Program. These amendments are responsive to the report of the National Task Force on Lawyer Well-Being, which recommends that when information of mental health or substance abuse issues is discovered during investigation or prosecution of lawyer regulation matters, confidentiality rules will allow sharing of such information with lawyer assistance programs.

View the Supreme Court order (pdf)

Updated: October 31, 2018

Adopted | new Paragraph 22 voluntary pro bono publico legal services reporting. Approved by the Supreme Court of Virginia February 27, 2018. Effective December 1, 2018.

Effective December 1, 2018, the Rules of the Supreme Court of Virginia, Part 6, Section IV, will include a new provision, Paragraph 22, that requests each active VSB member report their pro bono hours and/or financial contribution in support of pro bono legal services on their annual dues statement.  The requirement complements the aspirational goal of Virginia Rule of Professional Conduct 6.1 that each lawyer should render at least two percent of professional time annually to pro bono legal services.   

In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Tuesday the 27th day of February, 2018.

view Supreme Court of Virginia order (PDF file)

 

It is ordered that the Rules for Integration of the Virginia State Bar, Part Six of the Rules of Court, be and the same hereby are amended, effective December 1, 2018.

Addition of Section IV, Paragraph 22 of the Rules for Integration of the Virginia State Bar, Part Six of the Rules of Court to read as follows:

 

22. Voluntary Pro Bono Publico Legal Services Reporting.

Rule 6.1 of the Virginia Rules of Professional Conduct establishes an aspirational goal that every lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Providing an opportunity for lawyers to voluntarily report their pro bono service on an annual basis will: (1) heighten awareness of this ethical responsibility among the bar membership by serving as an annual reminder; (2) provide a comprehensive mechanism for the bar to report and measure its collective performance vis-à-vis the aspirational goal set by Rule 6.1; (3) provide comprehensive data for the judiciary to support its efforts to promote and recognize pro bono work on a local, regional and statewide basis; (4) provide crucial benchmark data to the Virginia Access to Justice Commission to support its work promoting equal access to justice for Virginia residents; and (5) enable the bar to educate the public regarding the amount of pro bono publico legal services provided by its membership to the community, thereby improving the image and standing of the profession and its membership.

Accordingly, the Supreme Court of Virginia requests that each active member of the Virginia State Bar voluntarily supply certain information regarding pro bono publico legal services as part of the annual license renewal application process by making one or more of the following optional responses: 

1. ___ Pro Bono Hours.  I have personally provided approximately ____ hours of pro bono publico legal services as defined in subsection (a) of Rule 6.1 of the Virginia Rules of Professional Conduct during the previous 12 months beginning July 1 of the preceding year and ending June 30 of the current year.

2. ___ Financial Contribution.  I have personally contributed $_______ to support programs that provide the direct delivery of legal services to meet the needs described in Rule 6.1 (a) of the Virginia Rules of Professional Conduct, as an alternative method for fulfilling my responsibility to render pro bono legal services.

3. ___ Not applicable.  The two percent goal is not applicable because:

____ (i) I am currently serving as a member of the judiciary, or

____ (ii) I am a government lawyer prohibited by statute, rule, regulation, or agency policy from providing legal services outside my employment, or

____ (iii) I maintain retired, disabled, or associate status with the Virginia State Bar. 

4.  ___ No report.  I do not wish to report the hours of pro bono publico legal services I have performed this year, nor do I wish to report any financial contributions made in lieu of performing such services. 

 

A Copy,

Teste:

Clerk

Updated: February 28, 2018

Adopted | revisions to Paragraph 13-1 and 13-9 concerning assessment of Guardian Ad Litem’s fees and costs. Approved by the Supreme Court of Virginia on October 31, 2018. Effective January 1, 2019.

At its June 14, 2018, meeting, the council unanimously approved amendments to Part 6, Section IV, Paragraph 13-1 and Paragraph 13-9. These amendments allow the Disciplinary Board to assess fees and costs of a Guardian Ad Litem to be paid by the Respondent when the Guardian Ad Litem was appointed by the Disciplinary Board.

View the Supreme Court order (pdf)

Updated: October 31, 2018

Adopted | revisions to Rule 1.1, Competence. Approved by the Supreme Court of Virginia on October 31, 2018. Effective immediately.

The proposed rule amendment was approved by a vote of 52 to 8 by the council on June 14, 2018, and approved by the Supreme Court of Virginia on October 31, 2018. Effective immediately.

view the Supreme Court of Virginia order (PDF file posted 10/31/18)

Updated: October 31, 2018

Withdrawn | LEO 1888: prosecutor’s duty to disclose evidence that tends to negate the guilt of the accused. Standing Committee on Legal Ethics voted not to send to Council.

The Virginia State Bar’s Standing Committee on Legal Ethics has voted not to send proposed Legal Ethics Opinion 1888 to Council. After receiving many comments in support of and in opposition to the proposed LEO, the committee will consider other means of addressing the issues. The proposed LEO concerns a prosecutor’s duty to disclose evidence that tends to negate the guilt of the accused.

Updated: August 23, 2018

Adopted | LEO 1885: Ethical Considerations for a Lawyer’s Participation in Online Attorney-Client Matching. Approved by the Supreme Court of Virginia November 8, 2018. Effective immediately.

The VSB Council voted 59 to 6 in favor of LEO 1885, which concludes that a lawyer may not participate in an attorney-client matching service under the facts presented in the opinion because participation violates the Rules of Professional Conduct governing fee sharing with nonlawyers, paying for referrals, and safeguarding client funds. It was approved by the Supreme Court of Virginia on November 8, 2018. Effective immediately. 

view the Supreme Court of Virginia order (PDF)

Updated: November 9, 2018

Adopted | amendments to Paragraph 13 to definitions of burden of proof and Disciplinary Record. Approved by the Supreme Court of Virginia. Effective June 15, 2018.

Effective June 15, 2018, the Supreme Court of Virginia has adopted amendments to Part 6, Section IV, Paragraph 13-1 of the Rules of the Supreme Court of Virginia and the addition of Part 6, Section IV, Paragraph 13-1.1 to the Rules of the Supreme Court of Virginia. These amendments add clarity to the definition of Disciplinary Record and define burden of proof in disciplinary proceedings as clear and convincing evidence. The amendments were approved by the Supreme Court of Virginia on April 16, 2018.

view the Supreme Court of Virginina order (PDF file)


Notes

At its meeting on February 24, 2018, the VSB Council unanimously approved amendments to Part 6, Section IV, Paragraph 13-1 of the Rules of the Supreme Court of Virginia and the addition of Part 6, Section IV, Paragraph 13-1.1 to the Rules of the Supreme Court of Virginia. These amendments add clarity to the definition of Disciplinary Record and define burden of proof in disciplinary proceedings as clear and convincing evidence. The proposed changes will be sent to the Supreme Court of Virginia for its consideration. View the Virginia State Bar's petition to the Supreme Court of Virginia.

---

On November 8, 2017, the Committee on Lawyer Discipline (COLD) approved the proposed amendments to Part 6, Section IV, Paragraph 13-1 of the Rules of the Supreme Court of Virginia and the addition of Part 6, Section IV, Paragraph 13-1.1 to the Rules of the Supreme Court of Virginia.  These amendments add clarity to the definition of Disciplinary Record and define burden of proof in disciplinary proceedings as clear and convincing evidence.

 

Additions are underlined.  Strikethroughs indicate deletions.

 

13.       PROCEDURE FOR DISCIPLINING, SUSPENDING AND DISBARRING ATTORNEYS

13-1     DEFINITIONS

*   *   *

“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 Record does not include administrative or Impairment Suspensions.

13-1.1  BURDEN OF PROOF

The burden of proof in all Disciplinary Proceedings is clear and convincing evidence.

 

*   *   *

Updated: May 2, 2018

Adopted | three-year extension of the Clients’ Protection Fund sunset provision. Effective July 1, 2018.

Governor Ralph Northam has signed revisions to the Code of Virginia § 54.1-3913.1, Clients’ Protection Fund, extending the sunset provision from July 1, 2020 to July 1, 2023.  The revisions, effective July 1, 2018, were previously unanimously approved in both houses of the General Assembly.

view PDF file of the red-lined version from the General Assembly

 

On October 27, 2017, Council unanimously approved allowing the VSB, in the 2018 legislative session, to seek an extension of the sunset provision of Va. Code Section 54.1-3931 from July 1, 2020, to July 1, 2023. The Supreme Court of Virginia must also authorize the VSB to seek extension of the sunset provision. The proposed statutory changes are as follows:
 
§ 54.1-3913.1. (Effective until July 1, 20203) Clients' Protection Fund.
 
The Clients' Protection Fund is continued as a special fund of the Virginia State Bar. The Fund shall consist of moneys transferred to it from the State Bar Fund and the Virginia State Bar's Administration and Finance Account. Disbursements to the Clients' Protection Fund from the State Bar Fund shall be made only upon approval of the disbursements through the annual budgetary process of the Virginia State Bar. Notwithstanding the provisions of § 54.1-3912, the Supreme Court may adopt rules assessing members of the Virginia State Bar an annual fee of up to $25 to be deposited in the State Bar Fund and transferred to the Clients' Protection Fund.
 
§ 54.1-3913.1. (Effective July 1, 20203) Clients' Protection Fund.
 
The Clients' Protection Fund is continued as a special fund of the Virginia State Bar. The Fund shall consist of moneys transferred to it from the State Bar Fund and the Virginia State Bar's Administration and Finance Account. Disbursements to the Clients' Protection Fund from the State Bar Fund shall be made only upon approval of the disbursements through the annual budgetary process of the Virginia State Bar.
 

 

Posted: October 31, 2017

Updated: June 27, 2018

Adopted | Supreme Court of Virginia amends Part Six, § IV, ¶ 16 RE: Clients’ Protection Fund Approved by the Supreme Court of Virginia September 28, 2017. Effective July 1, 2018.

On September 28, 2017, the Supreme Court of Virginia amended Part Six, § IV, ¶ 16 of the rules regarding the Clients’ Protection Fund, effective July 1, 2018. The rule reduces the required yearly assessment members pay for the Clients’ Protection Fund to $10.

view the Supreme Court of Virginia order (PDF file)

Updated: June 29, 2018

Adopted | LEO 1887: Duties when a lawyer over whom no one has supervisory authority is impaired. Approved by the Supreme Court of Virginia on August 30, 2017. Effective immediately.

Legal Ethics Opinion 1887, Duties when a lawyer over whom no one has supervisory authority is impaired was approved by VSB Council at its June 2017, meeting. Approved by the Supreme Court of Virginia on August 30, 2017. Effective immediately.

view the Supreme Court of Virginia order (PDF)

Updated: August 23, 2018

Withdrawn | LEO 776: Threatening prosecution in a civil matter.

The Virginia State Bar’s Standing Committee on Legal Ethics withdrew Legal Ethics Opinion 776 (pdf): Threatening prosecution in a civil matter.

Updated: August 23, 2018

Adopted | changes to paragraph 3 modifying status of Emeritus Members allowed to provide pro bono services. Approved by the Supreme Court of Virginia. Effective March 1, 2018.

Effective March 1, 2018, the Supreme Court of Virginia approved changes to the rules governing emeritus status in the Virginia State Bar.

Among other things, the amendments to Paragraph 3(e) of Part 6, Section IV of the Rules of the Supreme Court of Virginia alter the number of years an attorney must have been engaged in active practice before becoming an emeritus member, and they abolish the requirement to practice under the direct supervision of legal aid attorneys.

 
View the Supreme Court of Virginia order (PDF)

Updated: January 3, 2018

Adopted | amendments to Rules 7.1-7.5 governing lawyer advertising. Approved by the Supreme Court of Virginia. Effective July 1, 2017.

Effective July 1, 2017, the Supreme Court of Virginia amended rules 7.1 through 7.5, which govern lawyer advertising. The amendments simplify and modernize the lawyer advertising rules in light of changes caused by the rise of Internet marketing and communications. 

View the Supreme Court of Virginia order (PDF file)

Updated: April 19, 2017

Adopted | amendments to Clients’ Protection Fund Rules. Approved by VSB Council February 25, 2017. Effective immediately.

On February 25, 2017, VSB Council approved amendments to the Clients' Protection Fund Rules. The amendments outline the purpose, funding, authority, and administration of the CPF.  The amendments also improve the structure and organization of the rules of procedure that outline the administration of the CPF, including the procedure for processing claims. The purpose of the amendments is to clarify the authority for the CPF as well as to facilitate understanding of the CPF for both VSB members and the public. 

Updated: February 27, 2017

Adopted | LEO 1886: Duty of partners & supervisory lawyers in law firm when another lawyer suffers impairment. Approved by the Supreme Court of Virginia on December 15, 2016. Effective immediately.

Legal Ethics Opinion 1886, Duty of partners and supervisory lawyers in a law firm when another lawyer in the firm suffers from significant impairment was approved by VSB Council at its October 7, 2016, meeting. Approved by the Supreme Court of Virginia on December 15, 2016. Effective immediately.

view the Supreme Court of Virginia order (PDF)

Updated: August 23, 2018

Adopted | Paragraph 13-24 regarding disbarment, revocation, or suspension in another jurisdiction. Approved by the Supreme Court of Virginia. Effective March 1, 2017.

The VSB Council unanimously approved proposed amendments to Part 6 § IV, ¶ 13-24 regarding reciprocal discipline. The amendments would 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 proposed amendments approved by the Supreme Court of Virginia on December 15, 2016, are effective March 1, 2017.

view the Supreme Court of Virgina order (PDF file)

 

 

 

 

Updated: January 21, 2015

Updated: March 2, 2015

Updated: June 7, 2016

Updated: December 15, 2016

Adopted | amendments to Paragraph 13.1 regarding suspension for failure to complete professionalism course. Approved by the Supreme Court of Virginia. Effective March 1, 2017.

VSB Council unanimously approved amendments to Paragraph 13.1 regarding suspension for failure to complete the Professionalism Course. The amendments 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. The proposed amendments approved by the Supreme Court of Virginia on December 15, 2016 are effective March 1, 2017.

view the Supreme Court of Virgina order (PDF file)

 

Updated: June 21, 2016

Updated: December 15, 2016

Adopted | LEOs 1329, 1438, 1584, 1606, 1742, 1792, 1856 and 1869 Approved by the Supreme Court of Virginia on November 2, 2016. Effective immediately.

In November 2015, the Supreme Court of Virginia required that all legal ethics advisory opinions (LEOs) be forwarded to the Court for review after Council, the VSB’s governing body, approves or modifies an LEO. Paragraph 10-3.A. The Court then has an opportunity to approve, modify, or disapprove the LEO. Paragraph 10-4.

Beginning with Legal Ethics Opinion 1884, which was approved by the Court on September 30, 2016, all future LEOs will be promulgated under this review process.

In addition, in July 2016 the Virginia State Bar asked the court to review and approve Legal Ethics Opinions 1329, 1438, 1584, 1606, 1742, 1792, 1856, and 1869. By order entered November 2, 2016, those eight LEOs were approved and are effective immediately. View the Supreme Court of Virginia order (pdf).

  • LEO 1329: Aiding A Non-Lawyer in the Unauthorized Practice of Law – Real Estate/Title Services: Attorney Retained by Client/Title Agency to Assist it in Preparation of Documents Incident to Conducting a Real Estate Closing.
  • LEO 1438: Splitting Fees with a Nonlawyer: Attorney Compensating an Advertising Agency Based on a Profitsharing Plan.
  • LEO 1584: Partnership with a Nonlawyer. Multijurisdictional Law Firm with Nonlawyer Partner Practicing in Virginia Through Licensed Virginia Bar Member.
  • LEO 1606: Fees (Compendium Opinion).
  • LEO 1742: Activities of Closing Attorney in Connection with Real Estate Transaction when Title Company Is Representing Seller.
  • LEO 1792: Is It Considered Assisting in the Unauthorized Practice of Law for an Attorney to Instruct a Social Worker to Assist Pro-Se Litigants to Fill-Out Small Claims Forms?
  • LEO 1856: Scope of Practice for Foreign Lawyer in Virginia
  • LEO 1869: Assisting Pro Se Litigants—Courthouse Assistance Program.

Prior LEOs issued by the Standing Committee on Legal Ethics remain in effect unless and until they have been withdrawn. Recently withdrawn LEOs are 821, 835, 856, 862, 926, 1003, 1290, 1348, 1380, 1543, 1600, 1689, 1743.

Updated: August 23, 2018

Adopted | LEO 1884 Conflicts arising from a lawyer-legislator’s employment with a consulting firm. Approved by the Supreme Court of Virginia on September 30, 2016. Effective immediately.

Legal Ethics Opinion 1884, Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm was approved by VSB Council at its meeting on June 16, 2016. Approved by the Supreme Court of Virginia on September 30, 2016. Effective immediately.

view the Supreme Court of Virginia order (PDF)

Updated: August 23, 2018

Adopted | amendments to Rules 1.6 (Confidentiality) and 3.3 (Candor). Approved by the Supreme Court of Virginia September 30, 2016. Effective December 1, 2016.

Proposed amendments to Rules 1.6 and 3.3 were approved by VSB Council at its meeting on June 16, 2016, and approved by the Supreme Court of Virginia on September 30, 2016. Effective December 1, 2016.

view the Supreme Court of Virginia petition (PDF file posted 9/30/16))

Updated: December 15, 2016

Withdrawn | the Virginia State Bar’s Standing Committee on Legal Ethics withdrew thirteen Legal Ethics Opinions.

The Virginia State Bar’s Standing Committee on Legal Ethics has withdrawn thirteen Legal Ethics Opinions.

821: Advertisements

835: Fees—Collections

856: Solicitation of employment—Free estate planning seminars

862: Solicitation letter

926: Lawyer referral services

1003: Attorney—Relationship with financial advisor

1290: Nonlawyer employee: Use of for soliciting prospective clients

1348: Advertising and solicitation—Lawyer referral service: Propriety of nonlawyer screening calls and referring potential claims for attorney members

1380: Fees—Law firms—Aiding unauthorized practice of law—Splitting fees with nonlawyer: Arrangement between multi-jurisdictional offices of law firm

1543: Advertising—Recommendation of professional employment: Attorney paying “referral” service for “exclusive rights” to all prospective clients in four counties

1600: Aiding unauthorized practice of law—Nonlawyer personnel—Misconduct: Level of direct supervision of nonlawyer personnel required

1689: Attorney participation in referral service (legal-friend) that offers legal referrals to members at discount

1743: Virginia law firm forming partnership with a foreign legal consultant (FLC) when the FLC is a nonlawyer under the unauthorized practice rules and is not licensed in the U.S.

Updated: August 23, 2018

Adopted | State Code Regarding Procedure for Revocation of License Revised. Effective July 1, 2017.

Governor Terry McAuliffe has signed revisions to the Code of Virginia § 54.1-3935 regarding the procedure for revocation of an attorney’s license. The revisions, effective July 1, 2017, were previously approved unanimously in both houses of the General Assembly.

view PDF file of the red-lined version from the General Assembly

 

Executive Summary for Proposed Changes to Va. Code Sec. 54.1-3935

The Standing Committee on Lawyer Discipline (COLD) has approved a revision to Section 54.1-3935 of the Code of Virginia for presentation to the 2017 General Assembly.  The revision was prompted by concerns that the statute’s provisions are antiquated, predate the current Rules of Court that govern disciplinary proceedings, and do not reflect the actual practice of the courts or the Virginia State Bar (VSB) in attorney disciplinary matters.  

The Virginia State Bar is the agency of the Supreme Court authorized to handle attorney disciplinary matters. The Supreme Court of Virginia has promulgated rules and procedures to govern lawyer discipline, which may be found in Part Six, Section IV, Paragraph 13 of the Rules of Court.  The statute as written allows any person to initiate a formal attorney disciplinary proceeding in the circuit court.  Some complainants have filed complaints in circuit court after the VSB had investigated and dismissed the same matter. 

The revision approved by COLD strikes former subparagraph A in its entirety.  Former subparagraph A provided that courts may report attorney crimes or misconduct to the VSB for investigation and upon receipt of a report, issue a rule against the attorney.  This section was removed for several reasons.  First, the provision that courts may report a matter to the VSB is superfluous given Canon 3.D.(2) of the Canons for Judicial Conduct for the State of Virginia, which instructs when judges must report attorney misconduct to the VSB.  Second, bar investigations are confidential, and the VSB’s filing of an investigative report with a court would make an otherwise confidential investigation public unless the report was filed under seal, which the statute, as written, does not contemplate.  Third, the procedure described in the former subparagraph A allows a single judge to make a complaint, cause the VSB to investigate the complaint, review the investigative report, and issue a rule to show cause against a lawyer for misconduct. This process bypasses the volunteer-based system of self-regulation set forth Paragraph 13, which provides that disciplinary rule charges be approved by a three-member subcommittee of a district committee, which is comprised of two lawyers and a lay member. The VSB does not have institutional memory of a court exercising this vast authority over a lawyer’s license in the last twenty years.  Lastly, to the extent that a goal of the process set forth in former subparagraph A is to provide for a speedy resolution to attorney disciplinary matters, the VSB already has a mechanism to obtain an expedited hearing in Paragraph 13-18.D. of the Rules of Court.  In expedited proceedings, a respondent attorney may be tried by the VSB Disciplinary Board or may demand to be tried by a three-judge circuit court.  In all cases in which a three-judge circuit court is empaneled, the Chief Justice of the Supreme Court appoints to the panel three judges from outside the judicial district that issued the rule against the attorney.  See, former and new subparagraph B. of Va. Code Section 54.1-3935.

New subparagraph A is intended to reflect the procedure by which an attorney subject to disciplinary charges can demand to be tried by a three-judge circuit court.   Presently, three-judge circuit courts are initiated when either the VSB or a respondent attorney makes a demand, which prompts bar counsel to file a complaint in the circuit court where venue is proper.  The circuit court then issues a rule to show cause and the Chief Justice appoints three circuit court judges to hear the case.  Neither the Supreme Court nor the Court of Appeals has issued a rule to show cause in an attorney disciplinary matter in recent memory.  COLD submits that the new language is consistent with what the actual practice has been for many years.

New subparagraph B was renumbered only.

New subparagraph C’s revisions are intended to clarify the language and do not change the substance. 

New subparagraph D’s revisions reflect the amendments to Rule 5:21(b)(5) of the Rules of Court, which now provides that the Supreme Court may stay an order of revocation.

Former subparagraph F was deleted, as COLD is concerned that it implies a right to appointed counsel in attorney disciplinary proceedings.  The VSB does not have any procedure to appoint counsel in misconduct proceedings, nor does it have the funds to train and compensate appointed counsel.  Moreover, Paragraph 13 clearly provides that a respondent attorney may be represented by counsel in disciplinary proceedings.

New subparagraph E’s revisions are intended to clarify the language and do not change the substance. 

 

§ 54.1-3935. Procedure for Disciplining, Suspending, and Disbarring Attorneys by Three-Judge Circuit Court revocation of license.

A. If the Supreme Court, the Court of Appeals, or any circuit court of this Commonwealth observes, or if a complaint, verified by affidavit is made by any person to such court, that any attorney has been convicted of a misdemeanor involving moral turpitude or a felony or has violated the Virginia Code of Professional Responsibility, the court may assign the matter to the Virginia State Bar for investigation. Upon receipt of the report of the Virginia State Bar, the court may issue a rule against such attorney to show cause why his license to practice law shall not be revoked. If the complaint, verified by affidavit, is made by a district committee of the Virginia State Bar, the court shall issue a rule against the attorney to show cause why his license to practice law shall not be revoked.

A. B. Any attorney who is the subject of an attorney disciplinary proceeding or the Virginia State Bar may elect to terminate the proceedings before a District Committee or the Disciplinary Board and demand that further proceedings be conducted before a three-judge circuit court.   Such election must be in accordance with the rules and procedures set forth in Part 6, Section IV, Paragraph 13 of the Rules of Court.  Upon receipt of a proper demand for a three-judge circuit court, the Virginia State Bar shall file a complaint with the circuit court where venue is proper and the chief judge of the circuit court shall issue a rule against the attorney to show cause why the attorney should not be sanctioned. If the rule is issued by the Supreme Court or the Court of Appeals, the rule shall be returnable to the Circuit Court of the City of Richmond. At the time the rule is issued by the Supreme Court, the Chief Justice shall designate three circuit court judges to hear and decide the case. If the rule is issued by the Court of Appeals or a circuit court, the issuing court shall certify the fact of such issuance and the time and place of the hearing thereon, to the Chief Justice of the Supreme Court, who shall designate three circuit court judges of circuits other than the circuit in which the case is pending to hear and decide the case. The rules and procedures set forth in Part 6, Section IV, Paragraph 13 of the Rules of Court shall govern all attorney disciplinary proceedings before three-judge circuit courts. In proceedings under this section, the court shall adopt the Rules and Procedures described in Part Six, Section IV, Paragraph 13 of the Rules of Court.

B. C. Bar Counsel of the Virginia State Bar shall prosecute the case. Special counsel may be appointed to prosecute the case pursuant to § 2.2-510.

C. D. Upon the hearing, if the attorney is found guilty by the court, his license to practice law in this Commonwealth shall be revoked or suspended for such time as the court may prescribe. In lieu of revocation or suspension, the three-judge circuit court may dismiss the case or impose any other sanction authorized by Part 6Six, Section IV, Paragraph 13 of the Rules of Court. In any case in which the attorney is found guilty of engaging to have engaged in any criminal activity that violates the Virginia Rules of Professional Conduct and results in the loss of property of one or more of the attorney's clients, the three-judge circuit court shall also require, in instances where the attorney is allowed to retain his license, or is permitted to have his license reinstated or restored, that such attorney maintain professional malpractice insurance during the time for which he is licensed to practice law in the Commonwealth. The Virginia State Bar shall establish standards setting forth the minimum amount of coverage that the attorney shall maintain in order to meet the requirements of this subsection. Before resuming the practice of law in the Commonwealth, tThe attorney shall certify to the Virginia State Bar that he has the required insurance and shall provide the name of the insurance carrier and the policy number.

D. E. The attorney, may, as of right, appeal from the judgment of the three-judge circuit court to the Supreme Court pursuant to the procedure for filing an appeal from a trial court, as set forth in Part 5 of the Rules of Court. In any such appeal, the Supreme Court may, upon petition of the attorney, stay the effect of an order of suspension or revocation during the pendency of the appeal. Any other sanction imposed by a three-judge circuit court order of reprimand shall be automatically stayed prior to or during the pendency of an appeal therefrom. No stay shall be granted in cases where the attorney's license to practice law has been revoked.

F. In any proceeding to revoke the license of an attorney, the attorney shall be entitled to representation by counsel.

E. G. Nothing in this section shall affect the right of a court to require from an attorney security for his good behavior, or to fine the attorney him for contempt of court.

Code 1950, §§ 54-74, 54-75; 1956, Ex. Sess., c. 33; 1964, c. 201; 1970, c. 430; 1972, c. 103; 1980, c. 289; 1984, cc. 289, 703; 1988, c. 765; 1997, c. 238; 1998, cc. 339637; 2009, c. 287.

 

Updated: July 7, 2016
Updated: December 15, 2016

Updated: February 21, 2017

Adopted | Supreme Court of Virginia amends rule regarding unauthorized practice of law. Approved by the Supreme Court of Virginia March 1, 2016. Effective May 1, 2016.

Effective May 1, 2016, the Supreme Court of Virginia amended Section IV, Paragraph 10:

Promulgation of Legal Ethics, Unauthorized Practice of Law Opinions, and Rules of Court; Informal Staff Opinions of Ethics Counsel; and Complaints of Unauthorized Practice of Law

The revisions to Part 6, §IV, paragraph 10 of the Rules of the Supreme Court of Virginia, provide a more efficient and independent review and investigation of unauthorized practice of law complaints. The amendments to Paragraph 10 clarify the mechanism for the VSB ethics counsel to review and dispose of a complaint of Unauthorized Practice of Law. The amendments also provide for supervision and an independent review and disposition of the complaint by the clerk of the disciplinary system.

View PDF of the Supreme Court of Virginia order (259 KB) 


VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court Building in the

City of Richmond on Tuesday the 1st day of March, 2016. 

 

            It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective May 1, 2016.

Amend Section IV, Paragraph 10 of the Rules for Integration of the Virginia State Bar, Part Six of the Rules of Court to read as follows:

 

10. Promulgation of Legal Ethics, Unauthorized Practice of Law Opinions, and Rules of Court; Informal Staff Opinions of Ethics Counsel; and Complaints of Unauthorized Practice of 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 the Standing Committee on Legal Ethics.

 

 

10-2. ADVISORY OPINIONS OR RULES.

A.        Request for Advisory Opinion.  Any Member may request a legal ethics opinion or unauthorized practice of law opinion. The request shall be submitted as a hypothetical on a form approved by the Committee.  A request for an Advisory Opinion will be reviewed by Ethics Counsel and forwarded to the Committee for consideration.  In its discretion, the Committee may decline to render an Advisory Opinion regarding a previously resolved issue, or any matter that is currently the subject of any disciplinary proceeding or litigation. 

B.        Rules. The Committee may propose a new Rule or propose amendments, modifications, or repeal of existing Rules at its discretion.  For rule changes that declare conduct as the unauthorized practice of law, the Bar shall seek comment from the Attorney General’s office analyzing any restraint on competition that might result from the adoption of the proposed change.

C.        Notice and Comments. The Committee shall provide Notice and opportunity for public comment on proposed Advisory Opinions or proposed Rules.   Public comments shall be directed to the Executive Director of the Virginia State Bar.  For proposed Advisory Opinions, the Committee will consider any comments received and either adopt, modify or withdraw the opinion as an Advisory Opinion. If the Advisory Opinion is adopted or modified, the Committee shall ask for Council review in accordance with section 10-3.  Advisory Opinions express the judgment of the Committee and are not binding on any judicial or administrative tribunal.  In the case of a Rule, the Committee will consider any comments received and then submit the Rule to Council for consideration in accordance with section 10-3.

D.        Unauthorized Practice of Law Advisory Opinions.  An unauthorized practice of law Advisory Opinion in which the Committee concludes that the conduct in question constitutes or would constitute the unauthorized practice of law shall be sent to Council in accordance with section 10-3.  For these Advisory Opinions, the Bar shall seek comment from the Attorney General’s office analyzing any restraint on competition that might result from the promulgation and implementation of the opinion.

E.         Confidentiality.  All Committee deliberations, memoranda, correspondence, and work product shall be confidential and privileged from discovery or subpoena and will not be provided to anyone absent a court order. 
 

10-3.   ADVISORY OPINION OR RULE CONSIDERATION BY COUNCIL.

A.        Review.  After considering all materials and written comments, Council may approve, modify, or disapprove any Advisory Opinion or Rule by a majority vote of those present and voting.  If Council approves or modifies an Advisory Opinion or Rule, it shall be sent to the Court for review along with copies of all public comments.

B.        Unauthorized Practice of Law Advisory Opinions.  If Council concurs by a majority vote of those present and voting that the proposed conduct in any unauthorized practice of law Advisory Opinion constitutes the unauthorized practice of law, the Advisory Opinion shall be sent to the Court for review along with copies of all public comments.

 

10-4. ADVISORY OPINION OR RULE REVIEW BY THE SUPREME COURT OF VIRGINIA.

A.        Review. After considering all materials submitted to it, the Court shall approve, modify, or disapprove any Advisory Opinion or Rule.

 

10-5. INFORMAL STAFF OPINIONS OF ETHICS COUNSEL.

A.        Informal Advice.  At the request of a Member, Ethics Counsel shall provide informal advice or opinion based on the facts provided.

B.        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.

C.        Confidentiality.  All communications between Ethics Counsel and any Member requesting advice or opinion shall be confidential.  Ethics Counsel shall not disclose the content of any such discussion without the express written consent of the Member to whom Ethics Counsel provided such advice or opinion.  No Member shall withhold consent if the Member is claiming, in the course of a disciplinary investigation or hearing, that the Member relied on the advice of Ethics Counsel.

D.        Use of Informal Advice in Collateral Litigation.  Informal advice of Ethics Counsel is advisory only and expresses the judgment of the Ethics Counsel and is not binding on the Court, Council, Committee or any judicial or administrative tribunal.  Except as provided herein in connection with attorney disciplinary proceedings, informal advice of Ethics Counsel shall not be used, admitted, introduced, argued or cited in any litigation or before any judicial or administrative tribunal for the purpose of seeking disqualification of a lawyer or law firm.

 

10-6.   COMPLAINTS OF UNAUTHORIZED PRACTICE OF LAW.

A.        Review of Complaints.  Ethics Counsel shall review all written complaints alleging unauthorized practice of law and either dismiss the complaint, if no violation is identified in the complaint, or open it for investigation. If the complaint is opened, Ethics Counsel shall send notice of the complaint to the Respondent, requesting a written response. After review of any response from Respondent, or if Respondent submits no response, Ethics Counsel may dismiss the complaint, recommend a disposition subject to review by the Clerk of the Disciplinary System in accordance with paragraph (E), or refer the complaint for full investigation.

B.        Summons or Subpoena.  If a summons or subpoena is necessary for investigation of a matter outlined in section 10-6.A., Ethics Counsel may issue such a summons or subpoena in the name of the Commonwealth.  Ethics Counsel or a Virginia State Bar investigator may use a summons to examine a witness or to obtain statements from persons having knowledge about the subject of the complaint.

C.        Enforcement of Summons or Subpoena.  Every Circuit Court shall have power to enforce a summons or subpoena issued by Ethics Counsel pursuant to this paragraph and to adjudge disobedience thereof as contempt.

D.       Review of Investigative Report and Disposition.  After review of an investigative report, Ethics Counsel may dismiss the complaint or, if Ethics Counsel believes the investigation establishes probable cause that the Respondent engaged in UPL, Ethics Counsel may, after an independent review by the Clerk of the Disciplinary System: (a) dismiss the complaint with a letter of caution; (b) issue a letter agreement in which the Respondent agrees to cease the activity challenged as UPL; or (c) refer the investigation to the Attorney General, a Commonwealth’s Attorney, or other appropriate agency for action. 

E.        Review by the Clerk of the Disciplinary System.  Other than decisions to dismiss a complaint for insufficient evidence or other good cause, the Clerk of the Disciplinary System, a non-lawyer, shall actively supervise and independently review all recommendations of Ethics Counsel regarding disposition of a complaint.  The Clerk may veto or modify the recommendations, after undertaking an independent analysis of the recommendation.  The Clerk’s decisions shall be final, and not subject to review by Ethics Counsel.

 

                                                                       A Copy,

                                                                           Teste:

                                                                                             

                                                                                                              Clerk

Updated: January 5, 2017

Adopted | amendments to Paragraph 13-11 (Limited Right to Discovery), 13-25 (Reinstatement), and 13-30 (Confidentiality). Approved by the Supreme Court of Virginia December 17, 2015. Effective March 1, 2016.

Effective March 1, 2016, the Supreme Court of Virginia has adopted amendments to Paragraph 13 regarding Procedure for Disciplining, Suspending, and Disbarring Attorneys.

The amendments were approved by the Supreme Court of Virginia on December 17, 2015. View the Supreme Court order here.

Updated: January 5, 2017

Adopted | amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality). Amended and approved by the Supreme Court of Virginia December 17, 2015. Effective March 1, 2016.

Effective March 1, 2016, the Supreme Court of Virginia has approved amendments to two rules:

Rule 1.1: Competence.

Rule 1.6: Confidentiality of Information.

View the Supreme Court of Virginia order (PDF file)

Updated: January 5, 2017

Adopted | amendments to Rule 5.5 Comment [1a] and Rule 8.3(e). Approved by the Supreme Court of Virginia November 17, 2015. Effective February 1, 2016.

The Supreme Court of Virginia has approved amendments to two rules:

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law.

Rule 8.3: Reporting Misconduct.

view the Supreme Court of Virginia order (PDF file)

Updated: January 5, 2017

Adopted | amendments to Paragraph 10 Section IV of the Rules for Integration of the Virginia State Bar. Approved by the Supreme Court of Virginia October 30, 2015. Effective immediately.

Effective immediately, the Supreme Court of Virginia amended Paragraph 10, Section IV of the Rules for Integration of the Virginia State Bar, Part Six of the Rules of the Court, Promulgation of Legal Ethics, Unauthorized Practice of Law Opinions, and Rules of Court; Informal Staff Opinions of Ethics Counsel; and Complaints of Unauthorized Practice of Law; (see revisions with changes marked

view the Supreme Court of Virginia order (PDF file)

Updated: January 5, 2017

Adopted | new rule: provision of legal services following determination of major disaster. Approved by the Supreme Court of Virginia October 30, 2015. Effective January 1, 2016.

Effective January 1, 2016, the Court added Part Ten, Provision of Legal Services Following Determination of Major Disaster.

view the Supreme Court of Virginia order (PDF file)

The Supreme Court of Virginia amended the registration statement form regarding the provision of legal services following the determination of a major disaster January 21, 2016.

Form 1. Registration Statement For Lawyer Engaging In Temporary Practice Following Determination Of Major Disaster. Word doc (updated 1/21/16)

Updated: January 5, 2017

Adopted | new Paragraph 13.4 regarding malpractice insurance requirements in Va. Code Section 54.1-3935(D). Approved by the Supreme Court of Virginia August 21, 2015. Effective immediately.

Effective immediately, the Supreme Court of Virginia has adopted Paragraph 13.4: Insurance Coverage Requirement for Respondents Under Va. Code § 54.1-3935(D).

view the Supreme Court of Virginia order (PDF file)

Updated: January 5, 2017

Adopted | amendments to Paragraph 13-4E regarding service on district committees by certain ex-officio members of Council. Approved by the Supreme Court of Virginia August 21, 2015. Effective immediately.

Effective immediately, the Supreme Court of Virginia has approved an amendment to Paragraph 13-4E: Establishment of District Committees. 

view the Supreme Court of Virginia order (PDF file)

Updated: January 5, 2017

Withdrawn | amendment to Bylaws regarding Better Annual Meeting Committee.

This proposal was withdrawn by unanimous vote of the Executive Committee on October 22, 2015.

 

The Special Committee on the Better Annual Committee proposes amending the term of its committee members from three years to five years because of the need for institutional memory.  The proposed bylaw amendment is set forth below. Comments should be submitted to Karen A. Gould, Executive Director, Virginia State Bar, 1111 E. Main St., Suite 700, Richmond, VA 23219-0026, no later than the end of the business day on October 15, 2015. Comments may be submitted via e-mail to publiccomment@vsb.org.

PART 1 – BYLAWS OF THE VIRGINIA STATE BAR

ARTICLE V

Committees

Sec. 4. Members of special committees shall be appointed to three-year terms, with the exception of the Special Committee on the Better Annual Meeting and 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.

 

originally posted August 7, 2015

Updated: January 5, 2017

Adopted | Supreme Court of Virginia Amends Military Spouse Provisional Admission Rule. Approved by the Supreme Court of Virginia February 27, 2015. Effective immediately.

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

view the Supreme Court of Virginia order (PDF file)

Updated: January 5, 2017

Adopted | new Rule 5.8. Approved by the Supreme Court of Virginia February 27, 2015. Effective May 1, 2015.

Rule 5.8 Procedures For Notification to Clients When a Lawyer Leaves a Law Firm or When a Law Firm Dissolves

view the Supreme Court of Virginia order (PDF file)

The proposed rule codifies a number of the suggestions from LEOs on departing lawyers’ obligations into more concrete steps to follow.

Updated: January 5, 2017

Adopted | amendment to Rule 1A:1 Reciprocity: Admission on Motion. Approved by the Supreme Court of Virginia October 31, 2014. Effective immediately.

view Supreme Court order (PDF file)

Updated: January 5, 2017

Adopted | amendment to bylaws regarding Council election procedures. Approved by VSB Council 10/24/14. Effective immediately.

On October 24, 2014, the VSB Council approved amending the bylaws in Council elections to change the instructions so that members can vote for fewer candidates than the number of vacancies to be filled.

Updated: January 5, 2017

Adopted | amendments to the Clients’ Protection Fund Rules regarding claim limits on payments from the fund. Approved by VSB Council 10/24/14.

On October 24, 2014, the VSB Council approved amending the Clients' Protection Fund Rules to increase the maximum payment to any one petitioner to $75,000 for losses incurred on or after July 1, 2015. Maximum payments for losses incurred before that date will remain $50,000. The total amount of losses reimbursable for any one lawyer or association of lawyers will increase from 10 percent of the net worth of the fund to 15 percent.

Updated: January 5, 2017

Withdrawn | amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).


VIRGINIA STATE BAR’S STANDING COMMITTEE ON LEGAL ETHICS EXTENDS ITS DEADLINE FOR COMMENTS ON PROPOSED AMENDMENTS TO RULES 1.1 (COMPETENCE) AND 1.6 (CONFIDENTIALITY) OF THE RULES OF PROFESSIONAL CONDUCT

 

The Standing Committee on Legal Ethics (“Committee”) met on September 10, 2014, and reviewed comments submitted by bar members in support of and opposition to the proposed amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality) of the Virginia Rules of Professional Conduct. Because only six comments were received when the proposed changes were published for comment on August 2014, the Committee wishes to extend the comment period. 

view proposed amendments revised 9/18/14 (PDF file)

Technology and the Practice of Law

For quite some time now, lawyers and their staff have been compelled to adapt to changes in technology including electronic filing, discovery of electronically stored information, social media and security of electronic communications and storage of client information.  Protecting the privacy of medical, financial and personal identification information is required by state and federal law.  Federal and Virginia Rules of Procedure impose requirements that require a lawyer to become knowledgeable about technology in order to conduct proper discovery.

The proposed rule changes do not necessarily require that a lawyer become “tech-savvy” or acquire training, skill or experience with information technology.  At the same time, lawyers cannot ignore the fact that technology has and will continue to change the practice of law.  A lawyer may discharge his or her duty of competence by employing or associating others who have developed the requisite skill and expertise.  However, a lawyer may not simply ignore relevant technologies that have become widely accepted by the bar and have become reasonably necessary to represent clients competently and diligently.  For some time, courts have found a lawyer deficient in representing a client by failing to discover information that can readily be found by a simple search on the internet.  An interesting case is Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005).  In Munster, a lawyer was chastised for not using Google to locate a non-resident defendant after filing a Long Arm affidavit stating that the defendant's address could not be found.  See also Johnson v. McCullough, 306 S.W.3d 551, 559 (Mo. 2010) (imposed an affirmative duty on attorneys to make online investigation of potential juror’s prior litigation history a key part of their jury selection process “in light of advances in technology allowing greater access to information.”).  Trial lawyers should be well aware that their clients’ Facebook pages and other social media accounts contain relevant and discoverable evidence that must be preserved and produced pursuant to a lawful discovery request.  Allied Concrete Co. v. Lester, 285 Va. 295, 302, 736 S.E.2d 699 (2013)(spoliation of evidence charge against plaintiff and plaintiff’s counsel; the trial court sanctioned Murray in the amount of $542,000 and Lester in the amount of $180,000 to cover Allied Concrete's attorney's fees and costs in addressing and defending against the misconduct.)

See also N. H. Bar Ass’n, Op. 2012-13/05 (lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation”); Ass’n of the Bar of the City of N. Y. Comm. on Prof’l Ethics, Formal Op. 2012-2 (“Indeed, the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.”).  Also consider that an American Academy of Matrimonial Lawyers survey pinpoints Facebook as the "unrivaled leader for online divorce evidence" with 66 percent citing it as a primary source.

Twenty years ago, Judge Robert Payne found that a lawyer’s performance in representing a client was deficient because the lawyer failed to use appropriate methods to discover that the Supreme Court had granted certiorari from two federal appellate courts on the precise issue critical to his client’s defense on charges of “structuring” payments to avoid the reporting requirement of cash payments made to him by his client.  Judge Payne observed:

In the modern environment of law practice, the law changes rapidly and develops in significant ways as a matter of course. One consequence of this modern environment, and of dramatic advancements in technology, is the advent of extensive resources for staying abreast of developments in the law. Numerous legal newspapers, periodicals such as United States Law Week, and on-line services serve this important purpose.

McNamara v. United States, 867 F. Supp. 369, 374 (E.D. Va. 1994). (emphasis added). The research tools McNamara’s defense counsel relied on were out of date.  As a result of his lawyer’s failure to use newer research methods, McNamara was denied the effective assistance of counsel.  The Court observed:

On the facts of this case, the failure to discover the pendency of Ratzlaf was deficient conduct under Strickland. It was not sufficient to rely solely on the annotations to the United States Code in interpreting the elements of the offense charged. This insufficiency is illustrated by the fact that now, even after the Supreme Court has decided Ratzlaf in direct contradiction of Rogers, the annotations relied on by Donnelly still reflect Rogers as the law in the Fourth Circuit.

These and other examples amply demonstrate how technology has changed the practice of law over time.  Accordingly, the rules of conduct that explain the duties lawyers owe to clients should also be amended to keep up with emerging standards.  Again, the proposals do not require that a lawyer be personally proficient with technology but the lawyer should implement appropriate technologies essential to represent clients diligently and competently in a digital age.  Lawyers can meet this standard in the same manner as other companies and professional service providers do by employing persons that have the requisite skills and expertise in information technology.

Thirteen US jurisdictions have adopted the August 2012 amendments to the ABA Model Rules which include the proposed amendments to Rules 1.1 and 1.6.  The jurisdictions are:  Arizona, Connecticut, Delaware, Idaho, Kansas, Nevada, New Mexico, Oregon, Pennsylvania, Wyoming, American Samoa, N. Mariana Islands, and US Virgin Islands.   See http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/state_implementation_selected_e20_20_rules.authcheckdam.pdf

 

Inspection and Comment

The proposed amendments may be inspected at the offices of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed amendments can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org/site/regulation/proposed-rule-changes/.

Not later than November 3, 2014, any individual, business, or other entity may file or submit to Karen A. Gould, at publiccomment@vsb.org, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed rule amendments.

Updated: January 5, 2017

Withdrawn | Paragraph 13-4 C regarding district committee member’s address of record.

updated 3/2/15:

After the February 28, 2015, meeting of VSB Council, the proposal has been withdrawn.

 

On September 3, 2014, the Committee on Lawyer Discipline (COLD) approved amendments to Part Six, Section IV, Paragraph 13-4.C of the Rules of the Supreme Court of Virginia.  Under the current rule, if a Virginia attorney who is a member of a district committee works or resides outside of the State of Virginia, it is possible that their address of record with the bar could be the non-Virginia address.  That address would appear on the district committee roster, making it appear that a non-Virginia lawyer is considering disciplinary complaints against Virginia lawyers. 

Determination of whether a member qualifies as a district committee member should be ascertainable from the member's address of record, and the proposed amendment would clarify this issue by requiring district committee members to provide an address of record that is physically located in the district served.

 

13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

*    *    *

13-4     ESTABLISHMENT OF DISTRICT COMMITTEES

*   *   *

C.        Geographic Criteria.  The address of record of eEach member of a District Committee shall be either his or her residence or office a resident of or have his or her office  in the District Committee area for which such member is appointed.  Members shall, to the extent practicable, be appointed from different geographical sections of their districts.

*   *   *

 

Updated: December 8, 2014

Updated: January 5, 2017

Withdrawn | amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality).

Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality) of the Virginia Rules of Professional Conduct.

view the proposed amendment to Rules 1.1 and 1.6 (PDF file)

 

Technology and the Practice of Law

Almost two years ago, the American Bar Association’s House of Delegates adopted amendments to the Model Rules of Professional Conduct.  The amendments to the Model Rules followed a three-year study and public hearings conducted by the Commission on the Impact of Technology and Globalization and the Practice of Law (“Ethics 20/20”).  In its May 2012 Report to the ABA House of Delegates, the Ethics 20/20 Commission observed:

Lawyers must understand and be competent with law office technology in order to deliver legal services to clients in a cost-effective and efficient manner.  Increasingly, new processes and applications have developed for providing legal services and communication with clients.  Lawyers have an obligation under Rule 1.1 to keep abreast of relevant changes in the way law is practiced, including keeping abreast of relevant law office technology for the delivery of legal services to and communicating with their clients.  With these developments come also concerns for the security of client information kept or maintained by lawyers and confidentiality of client-lawyer communications.

As the ABA Commission on Ethics 20/20 noted in its Report to the House of Delegates in May 2012:

Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research, and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how those services are delivered (e.g., in an office, over the Internet or through virtual law offices), and it is having a related impact on the cost of, and the public’s access to, these services.

First, the Commission noted that technology has changed the way lawyers maintain client files and information and also the way lawyers communicate with clients:

Today, lawyers regularly communicate with clients electronically, and confidential information is stored on mobile devices, such as laptops, tablets, smartphones, and flash drives, as well as on law firm and third-party servers (i.e., in the “cloud”) that are accessible from anywhere.

The increased efficiency, reduced cost and convenience of these technologies are understood, but with them are new concerns about client data security and confidentiality under Rule 1.6.  Whether mobile or sitting in their offices, lawyers have an ethical duty under Rule 1.6 to protect the security and confidentiality of their clients’ information.

Second, the Commission noted that:

Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery.  These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. For example, lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations.  Legal research is now regularly and often more efficiently conducted online. These developments highlight the importance of keeping abreast of changes in relevant technology in order to ensure that clients receive competent and efficient legal services.

Because these technologies not only provide lawyers with tools to better represent their clients but also raise new challenges to lawyers in protecting confidential client information, the Virginia State Bar’s Standing Committee on Legal Ethics is proposing that Comment 6 to Rule 1.1 (Competency) be amended to state:

 

[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the benefits and risks associated with technology relevant to the lawyer’s practice. . . .

           

The Committee also proposes that Rule 1.6 (Confidentiality) be amended by adding a new paragraph (d):

 

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.

 

To help clarify and explain a lawyer’s duties under this proposed rule amendment, the Committee also recommends adding new Comment 19:

 

Acting Reasonably to Preserve Confidentiality

 

[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 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). A client may require the lawyer to implement special security measures  or may give informed consent to forego security measures that would otherwise be appropriate under this Rule.  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 these Rules. 

Inspection and Comment

The proposed rule amendments may be inspected at the office of the Virginia State Bar, 1111 E. Main Street, Suite 700, Richmond, Virginia 23219-3565, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed rule amendments can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org/pro-guidelines/index.php/rule_changes

Not later than September 2, 2014, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed rule amendments.

 

 

 

Updated: January 5, 2017

Adopted | amendment to Rule 1.10 regarding conflict of interest. Approved by the Supreme Court of Virginia 07/31/2015. Effective immediately.

view order from the Supreme Court of Virginia, issued 07/31/2015 (PDF file)

RULE 1.10

This Rule amendment is intended to avoid a situation in which a lawyer avoids the imputation of a conflict of interest by avoiding the knowledge that another lawyer in the firm has a conflict as to the representation. Under the current standard of “knowing” that another lawyer in the firm is prohibited from undertaking the representation, a lawyer can avoid the application of Rule 1.10(a), which would impute a conflict to him, by willfully failing to learn the information that establishes the existence of the conflict. The Rule amendment imputes a conflict if the lawyer “knows or reasonably should know” that another lawyer in the firm is prohibited from representing the client. The amendment adds a new Comment [2a] to explain that the failure to maintain or use a system for identifying conflicts may be deemed a violation of Rule 1.10(a), if proper use of the system would have identified the conflict.

Updated: January 5, 2017

Adopted | addition to VSB and Council Bylaws. Approved by VSB Council 6/12/14. Effective immediately.

At its meeting on June 12, 2014, in Virginia Beach, the Virginia State Bar Council unanimously approved an addition to VSB and Council Bylaws, adding a new Part III regarding amendments: 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 thirty 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. 

 

The proposed amendment adds a new Part III to the bylaws providing for how the bylaws are to be amended as shown below:

Part III — Miscellaneous

Amending Bylaws

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

Updated: January 5, 2017

Adopted | changes to Paragraph 17 Mandatory Continuing Legal Education Rule. Approved by the Supreme Court of Virginia May 1, 2014. Effective immediately.

view Supreme Court of Virginia order (PDF)

view Paragraph 17 Mandatory Continuing Legal Education Rule

Updated: January 5, 2017

Withdrawn | changes to Paragraph 3 add e-mail and phone number to address of record.

Executive Committee Seeks Comments on Proposal to Add E-mail and Phone Number to Address of Record

The Virginia State Bar is seeking public comment on proposed changes to the Rules of the Supreme Court of Virginia Part 6, § IV, Organization & Government of the Virginia State Bar, Paragraph 3.

3. Classes of Membership—

Members of the Virginia State Bar shall be divided into five classes, namely:  (a) Active Members, (b) Associate Members, (c) Judicial Members, (d) Disabled and Retired Members; and (e) Emeritus Members.  Each member shall submit in writing to the membership department of the Virginia State Bar an address of record which will be used for all membership and regulatory purposes, including official mailings and notices of disciplinary proceedings.  The address of record shall include a current street address, e-mail address (if any), telephone number, and any post office address the member may use. If a member’s address of record is not a physical address where process can be served, the member must submit in writing to the membership department an alternate address where process can be served. The alternate address is personal information and shall not be disclosed pursuant to Section 2.2-3704, Code of Virginia. Members have a duty promptly to notify the membership department in writing of any changes in either the address of record or any alternate address. Any change in either the address of record or any alternate address information shall be promptly reported in writing to the membership department or changed online at the Virginia State Bar website within thirty days of its effective date.  Members, by request, may have their names and addresses removed from the Virginia State Bar's membership list when it is distributed for other than official purposes.

Comments should be submitted to Karen A. Gould,  Executive Director, Virginia State Bar, 1111 E. Main St., Suite 700, Richmond, VA 23219-3565, no later than the end of the business day on the day on August 15, 2014. Comments may be submitted via e-mail to publiccomment@vsb.org.

view the current Paragraph 3

Updated: January 5, 2017

Vacated | amendments to UPR 1-101 concerning representation before general district courts. Proposal withdrawn April 8, 2014.

Updated April 8, 2014:

The Standing Committee on the Unauthorized Practice of Law has withdrawn proposed amendments to UPR 1-101 regarding non-lawyer representation under a power of attorney.

 


 

UPR 1-101 REPRESENTATION BEFORE TRIBUNALS

(D)  A non-lawyer, who is a friend or relative and holds a power of attorney for a principal who grants general authority with respect to claims and litigation pursuant to the Uniform Power of Attorney Act, may represent that principal in any civil action at law before a general district court when the amount in controversy does not exceed the sum of $5,000, exclusive of interest, attorneys’ fees and costs. In carrying out this representation, the non-lawyer holding the power of attorney may appear, prepare and file pleadings and briefs, examine witnesses and present legal arguments on behalf of the principal. The non-lawyer agent shall not be compensated directly or indirectly for providing this representation before a court or take any assignment of the principal’s claim or cause of action.

UPC 1-6.  Paragraph (D) of this rule allows, but does not require, a friend or relative who is not a lawyer, holding an individual power of attorney for a principal that grants general authority with respect to claims and litigation to represent that principal, before a general district court within the limits set out in Paragraph (D). This rule was added to address circumstances where the principal does not understand or cannot participate on his own behalf; or it is not practical or cost-effective for the principal to appear in court or hire a lawyer. In its discretion, a court may decline to allow a non-lawyer to proceed with such representation.

Originally posted: December 2013

Updated: January 5, 2017

Adopted | amendments to Rule 5.5 regarding temporary practice by foreign lawyers. Approved by the Supreme Court of Virginia December 13, 2013. Effective immediately.

The Supreme Court of Virginia and VSB Council have approved proposed amendments to Rule 5.5 regarding temporary practice by foreign lawyers.

view Supreme Court of Virginia order (PDF)

Updated: January 5, 2017

Adopted | amendments to Paragraph 13-13 regarding Participation and Disqualification of Counsel. Approved by the Supreme Court of Virginia January 31, 2014. Effective immediately.

The Supreme Court of Virginia and VSB Council have approved proposed amendments to Paragraph 13-13 regarding Participation and Disqualification of Counsel.

view Supreme Court of Virginia order (PDF)

Updated: January 5, 2017

Adopted | amendment to Paragraph 13 regarding the definition of “Bar Counsel”. Approved by the Supreme Court of Virginia January 31, 2014. Effective immediately.

The Supreme Court of Virginia and VSB Council have approved proposed amendments to Paragraph 13-1.

view Supreme Court of Virginia order (PDF)

Updated: January 5, 2017

Adopted | amendments to Paragraph 13-26 regarding appeals from Disciplinary Board determinations. Approved by the Supreme Court of Virginia January 31, 2014. Effective immediately.

The Supreme Court of Virginia and VSB Council have approved proposed amendments to Paragraph 13-26.

view Supreme Court of Virginia order (PDF)

Updated: January 5, 2017

Adopted | amendments to Rule 1.11, Rule 1.15, and Rule 5.4 of the Rules of Professional Conduct. Approved by the Supreme Court of Virginia November 1, 2013. Effective immediately.

The Supreme Court of Virginia and VSB Council have approved proposed amendments by the VSB Standing Committee on Legal Ethics to Rules 1.11, 1.15, and 5.4 of the Rules of Professional Conduct.

view Supreme Court of Virginia order (PDF file)

amendments to Rule 1.11 of the Rules of Professional Conduct regarding special conflicts of interest
amendment to Rule 1.15 of the Rules of Professional Conduct regarding safekeeping property
amendment to Rule 5.4 of the Rules of Professional Conduct regarding professional entities

Updated: January 5, 2017

Rejected | amendment to VSB Bylaws regarding composition of Executive Committee.

The VSB Council rejected a proposal to increase the size of the Executive Committee from 13 to 16 members.

Updated: January 5, 2017

Adopted | amendments to Rules 7.1-7.5 of regarding lawyer advertising. Approved by the Supreme Court of Virginia April 15, 2013. Effective July 1, 2013.

Effective July 1, 2013, the Supreme Court of Virginia has approved amendments to Rules 7.1-7.5 of the Rules of Professional Conduct. The amendments move specific examples of lawyer advertising statements or claims from the body of rules to the comment sections. They also remove unnecessary and redundant language.

view amended Rules 7.1-7.5 (PDF file)

 

Here is how the approved amendments change the current rules.

  • The terms “fraudulent” and “deceptive” are removed from Rule 7.1.  A communication that is “false or misleading” violates the rule.
  • The disclaimer required for advertising specific or cumulative case results has been removed from Rule 7.2—which has been eliminated in its entirety—and  is now Rule 7.1(b). The disclaimer shall:
    • (i) put the case results in a context that is not misleading; (ii) state that case results depend upon a variety of factors unique to each case; and (iii) further state that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.
    • The disclaimer shall precede the communication of the case results.
    • When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.
  • Other than specific or cumulative case results, examples of statements or claims considered to be “false or misleading” have been taken out of Rule 7.1 and placed in the comments.  Former subparagraphs (1)-(4) were deleted.
  • Comment [1] to Rule 7.1 was substantially rewritten to describe the types of communications subject to regulation under Rule 7.1and to exclude other forms of non-commercial speech.
  • Rule 7.2 was eliminated in its entirety, although the specific and cumulative case results disclaimer requirement is now Rule 7.1(b) and provisions in Rule 7.2 regulating written solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.
  • Rule 7.3 addresses in-person and written solicitation of potential clients.  The amendments to Rule 7.3 remove the current per se prohibition of in-person solicitation in personal injury and wrongful death cases.  Effective July 1, 2013, in-person and written solicitation will be improper only if:
    • the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or
    • the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.
  • Rule 7.3 also regulates payment or rewards to persons for recommending employment, prohibiting a lawyer from giving anything of value to a referral source except that the lawyer may:
    • pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1;
    • pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service (note that the lawyer referral service must be a non-profit entity);
    • pay for a law practice in accordance with Rule 1.17; and
    • give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer's services.
  • Rule 7.3’s regulation of written solicitations has been simplified with regard to the “ADVERTISING MATERIAL” labeling requirement.  
  • Rule 7.4 regulates claims of specialization and expertise and the current rule is substantially unchanged by the amendments.
  • Rule 7.5 is substantially unchanged with the exception of a new Comment [3] that states that lawyers should practice using the official name under which they are licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia. The lawyer’s use of a name other than the lawyer's name on record with the Virginia State Bar may be a misleading communication about the lawyer's services to the public in violation of Rule 7.1.

Updated: January 5, 2017

Adopted | revisions to Clients’ Protection Fund Rules of Procedure. Approved by VSB Council February 23, 2013. Effective immediately.

At its meeting on February 23, 2013, the Virginia State Bar Council approved the Clients’ Protection Fund Board's proposal that the Rules of Procedure of the Clients’ Protection Fund be amended to clarify how the Board processes claims for reimbursement.

Updated: January 5, 2017

Adopted | correction to Paragraph 13-16 DD. Approved by Supreme Court of Virginia December 14, 2012. Effective immediately.

Friday 14th December, 2012.

For reasons appearing to the Court, it is ordered that the following version of Section DD of Paragraph 13-16, Part Six, Section IV, of the Rules of Court, be substituted for the version included in this Court’s order dated February 27, 2009; effective immediately.

view Supreme Court of Virginia Order regarding Paragraph 13-16 DD (PDF file)

Updated: January 5, 2017

Vacated | amendments to Rules 7.1-7.5 regarding lawyer advertising. By order of the Supreme Court of Virginia November 29, 2012.


view Supreme Court of Virginia Order (PDF file)

 

On November 29, 2012, the Supreme Court of Virginia vacated amendments to Rules 7.1-7.5 of the Rules of Professional Conduct that would have gone into effect December 1, 2012.
 

Updated: January 5, 2017

Adopted | bylaws revisions to election procedures for president-elect and council. Adopted by Council October 19, 2012. Effective immediately.

At its meeting on October 19, 2012, the Virginia State Bar Council approved the Membership Task Force’s proposal that the VSB bylaws be amended to permit the use of means, other than U.S. mail, for election notification and balloting.

Amendments to Bylaws of the Virginia State Bar and Council
Part I, Article III
Election of President-Elect

and

Part II, Article II
Election of Council

Updated: January 5, 2017

Adopted | amendment to Bylaws to give Diversity Conference chair a seat on the Executive Committee. Approved by VSB Council June 13, 2013. Effective immediately.

At its meeting on June 13, 2013, the Virginia State Bar Council approved the VSB Diversity Conference's proposal to amend the bylaws to place its chair on the Executive Committee.

Updated: January 5, 2017

Adopted | amendment to Paragraph 13 regarding VSB Disciplinary Board. Approved by the Supreme Court of Virginia April 13, 2012. Effective immediately.

view amended Paragraph 13-6 (PDF file)

 

Updated: January 5, 2017

Adopted | amendments to Rule 1.15 of Rules of Professional Conduct and Paragraph 20 of Part 6, § IV. Approved by Supreme Court of Virginia June 21, 2011. Effective immediately.

view amended Rule 1.15 and Paragraph 20 order (PDF file)

view Rule 1.15

view Paragraph 20

Updated: January 5, 2017

Adopted | new Rule 1.18 defining a prospective client. Approved by the Supreme Court of Virginia June 21, 2011. Effective immediately.

view adopted Rule 1.18 (PDF file)

Updated: January 5, 2017

Adopted | amendments to Virginia Supreme Court Rule 1A:5 regarding corporate counsel. Adopted by Supreme Court of Virginia June 10, 2011. Effective immediately.

view amended rule 1:A5 (PDF file)

Updated: January 5, 2017

Adopted | amendments to bylaws for VSB standing committees. Adopted by Council June 16, 2011. Effective immediately.


Amendments to Bylaws of the Virginia State Bar and Council
Part II, Article VIII
Standing Committees

view amended bylaws (PDF file)
 

Updated: January 5, 2017

Adopted | amendments to Virginia Supreme Court Rule 1A:5 regarding corporate counsel pro bono work. Approved by Supreme Court of Virginia April 15, 2011. Effective immediately.

The Virginia Supreme Court Approved Proposal By The Joint Virginia State Bar And Virginia Bar Association Corporate Counsel Pro Bono Task Force To Amend Virginia Supreme Court Rule 1A:5

view amended rule 1:A5 (PDF file)

The Supreme Court of Virginia approved April 15, 2011, effectively immediately, a proposed amendment to Supreme Court Rule 1A:5, Corporate Counsel & Corporate Counsel Registrants, which allows Virginia corporate counsel admitted in States other than Virginia to do pro bono work. This proposal came at the recommendation of the Joint Virginia State Bar and Virginia Bar Association Corporate Counsel Pro Bono Task Force (Task Force), with the hope of increasing the number of lawyers eligible to provide pro bono public services while ensuring that such lawyers are subject to adequate professional guidelines regarding competence in the handling of such matters. 

The approved changes to Supreme Court Rule 1A:5 revise paragraph (h) of the rule to state: “All legal services provided in Virginia by a lawyer certified pursuant to Part I shall be deemed the practice of law in Virginia…”  Any lawyer doing any legal work in Virginia, whether he/she is covered under Part I of the rule or whether he/she works for an employer or for a pro bono client, is now subject to all rules governing the practice of law in Virginia. The approved changes also revise paragraph (g) of the rule in three respects: (1) removes the requirement for Part I corporate counsel registrants to participate only in pro bono programs operated and controlled by any Virginia licensed Legal Aid Society; (2) removes the requirement that the Part I corporate counsel work under the “direct supervision” of a legal aid lawyer or a pro bono volunteer who is a regular active member of the Virginia State Bar; and (3) removes limitations on the specific services that can be performed by the corporate counsel volunteer. These changes broaden the scope of appropriate pro bono legal services for specific clients over other legal aid services, thereby creating additional opportunities for pro bono services for Part I corporate counsel. Even though the approved changes eliminate the provisions in the Rule pertaining to supervision, Part I corporate counsel are required by Rule 1.1, like all lawyers who practice law in Virginia, to serve their clients competently and have an ethical duty to make sure they received proper and sufficient training to handle a pro bono matter. 

Copies of the rule change can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at (804) 775-0557, or can be found at the Virginia State Bar’s website.

Updated: January 5, 2017

Adopted | amendments to Paragraph 11, regarding VSB annual dues. Approved by the Supreme Court of Virginia March 9, 2011. Effective immediately.


view amended Paragraph 11 (PDF file)

Updated: January 5, 2017

Adopted | amendments to Paragraph 13 regarding multijurisdictional practice. Approved by the Supreme Court of Virginia February 17, 2011. Effective immediately.


view amended Paragraph 13 (PDF file)


 

Updated: January 6, 2017

Adopted | amendments to Paragraph 17 regarding MCLE Rule. Approved by the Supreme Court of Virginia January 7, 2011. Effective immediately.

Report of the Task Force on Paragraph 17

 

view amended Paragraph 17 (PDF file)

Updated: January 6, 2017

Adopted | Rule 4.2 amendment addressing defendant waiving rights. Approved by the Supreme Court of Virginia November 1, 2010. Effective immediately.

Supreme Court of Virginia approved amendment to Rule 4.2

view adopted amendment to Rule 4.2 (PDF file)

The Supreme Court of Virginia approved the Virginia State Bar’s Rule 4.2 Task Force’s proposed amendment to Comment [5] of Rule 4.2 of the Rules of Professional Conduct to address the situation in which a defendant who is in custody, formally charged, and represented by counsel waives his/her rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his/her counsel present.

The question addressed by the task force was: “If the law enforcement officer seeks legal advice from a commonwealth’s attorney regarding whether the officer may obtain a statement from the defendant under these circumstances, may the commonwealth’s attorney advise the police officer without violating Rule 4.2?”

Rule 4.2 had previously prohibited a lawyer from communicating with a person the lawyer knew to be represented by counsel unless the counsel for the represented person consented or the communication was authorized by law.

Rule 8.4 (a) states that a lawyer cannot violate a professional rule through the agency or actions of another. A reading of the rule led to the conclusion that the commonwealth’s attorney could not ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer.

The task force determined that the defendant’s waiver of his/her right to have his/her lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the commonwealth’s attorney should be permitted to give advice without fear of violating the cited rules. The amendment to Rule 4.2, Comment [5] clarifies that the commonwealth’s attorney can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The amendment to Comment [5] does not, however, authorize the commonwealth’s attorney to script or mastermind the police’s interrogation of the defendant.
 

Updated: January 6, 2017

Adopted | amendments to Parts 5 and 5A, Rules of the Supreme Court of Virginia regarding appellate procedures. Approved by the Supreme Court of Virginia April 30, 2010. Effective July 1, 2010.

On April 30, 2010, the Supreme Court of Virginia entered amendments to Parts 5 and 5A of its rules governing appellate procedure.

Memo by University of Virginia Law Professor Kent Sinclair outlining some of the important changes.

Updated: January 6, 2017

Adopted | amendment to Paragraph 13-22, Board Proceedings Upon a Guilty Plea or an Adjudication of a Crime. Approved by the Supreme Court of Virginia March 19, 2010. Effective immediately.

view amended Paragraph 13-10  (PDF)

Updated: January 6, 2017

Adopted | amendment to Paragraph 13-10, Processing of Complaints by Bar Counsel. Approved by the Supreme Court of Virginia March 19, 2010. Effective immediately.

view amended Paragraph 13-10  (PDF)

Updated: January 6, 2017

Adopted | amendments to Paragraph 13, dealing with the use of the phrase “Charge of Misconduct.” Approved by the Supreme Court of Virginia March 19, 2010. Effective immediately.

view amended Paragraph 13  (PDF file)

Updated: January 6, 2017

Adopted | amendments to Paragraph 10 governing legal ethics and unauthorized practice of law. Approved by the Supreme Court of Virginia March 19, 2010. Effective immediately.

view amended Paragraph 10 (PDF file) 

Updated: January 6, 2017

Adopted | amendments to the MCLE Regulations include a limitation on pre-recorded CLE programs. Effective November 1, 2011.


view MCLE Regulations effective through October 31, 2011 (PDF file)

view amended MCLE Regulations effective November 1, 2011 (PDF file)

MCLE Board Postpones Effective Date of Amended Regulations

Updated: January 6, 2017

Rejected | Rule 7.4(d) certification as a specialist


Supreme Court of Virginia rejects proposed amendment to Rule 7.4(d) that would have allowed lawyers to communicate the fact the lawyer has been certified as a specialist in a field of law by a named organization without the rule’s required disclaimer. (view order PDF file).

Updated: March 15, 2010

Rejected | Paragraph 17 mailing the annual certification form


Supreme Court of Virginia rejects proposed amendment to Paragraph 17 that would have removed the requirement to mail the annual certification form (view order PDF file)

Updated: March 15, 2010

Rejected | Rule 8.4 allowing undisclosed recording under certain circumstances


Supreme Court of Virginia rejects proposed amendment to Rule 8.4 that would have allowed undisclosed recording under certain circumstances. (view order PDF file)

Updated: March 15, 2010