Professional Guidelines

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The Virginia State Bar

Professional Guidelines

Home > Rule Changes > Proposed | amendments to Clients’ Protection Fund Rulesamendments to Rules 7.1-7.5 governing lawyer advertisingamendments to Rules 1.6 (Confidentiality) and 3.3 (Candor)amendments to Paragraph 13.1 regarding suspension for failure to complete professionalism courserevision to Section 54.1-3935 of the Code of VirginiaParagraph 13-24 regarding disbarment, revocation, or suspension in another jurisdictionSupreme Court of Virginia amends rule regarding unauthorized practice of lawamendments 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 Barnew rule: provision of legal services following determination of major disasternew 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 CommitteeSupreme Court of Virginia Amends Military Spouse Provisional Admission Rulenew Rule 5.8amendment to Rule 1A:1 Reciprocity: Admission on Motionamendment to bylaws regarding Council election proceduresamendments to the Clients’ Protection Fund Rules regarding claim limits on payments from the fundamendments to Rules 1.1 (Competence) and 1.6 (Confidentiality)Paragraph 13-4 C regarding district committee member’s address of recordamendments to Rules 1.1 (Competence) and 1.6 (Confidentiality)amendment to Rule 1.10 regarding conflict of interestAddition to VSB and Council Bylawschanges to Paragraph 17 Mandatory Continuing Legal Education Rulechanges to Paragraph 3 add e-mail and phone number to address of recordamendments to UPR 1-101 concerning representation before general district courtsamendments to Rule 5.5 regarding temporary practice by foreign lawyersamendments to Paragraph 13-13 regarding Participation and Disqualification of Counselamendment to Paragraph 13 regarding the definition of “Bar Counsel”amendments to Paragraph 13-26 regarding appeals from Disciplinary Board determinationsamendments to Rule 1.11, Rule 1.15, and Rule 5.4 of the Rules of Professional ConductAmendment to VSB Bylaws regarding composition of Executive Committeeamendments to Rules 7.1-7.5 of regarding lawyer advertisingRevisions to Clients’ Protection Fund Rules of ProcedureCorrection to Paragraph 13-16 DDAmendments to Rules 7.1-7.5 of regarding lawyer advertisingBylaws revisions to election procedures for president-elect and councilAmendment to Bylaws to give Diversity Conference chair a seat on the Executive Committeeamendment to Paragraph 13 regarding VSB Disciplinary BoardAmendments to Rule 1.15 of Rules of Professional Conduct and Paragraph 20 of Part 6, § IVnew Rule 1.18 defining a prospective clientAmendments to Virginia Supreme Court Rule 1A:5 regarding corporate counselamendments to bylaws for VSB standing committeesAmendments to Virginia Supreme Court Rule 1A:5 regarding corporate counsel pro bono workAmendments to Paragraph 11, regarding VSB annual duesAmendments to Paragraph 13 regarding multijurisdictional practiceAmendments to Paragraph 17 regarding MCLE RuleRule 4.2 amendment addressing defendant waiving rightsAmendments to Parts 5 and 5A, Rules of Virginia Supreme Court, regarding appellate proceduresAmendment to Paragraph 13-22, Board Proceedings Upon a Guilty Plea or an Adjudication of a CrimeAmendment to Paragraph 13-10, Processing of Complaints by Bar CounselAmendments to Paragraph 13, dealing with the use of the phrase “Charge of Misconduct”Amendments to Paragraph 10 governing legal ethics and unauthorized practice of lawAmendments to the MCLE Regulations include a limitation on pre-recorded CLE programsRule 7.4(d) certification as a specialistParagraph 17 mailing the annual certification formRule 8.4 allowing undisclosed recording under certain circumstances

Proposed | Proposed | amendments to Clients’ Protection Fund Rules (Comments due by January 17, 2017)

The Virginia State Bar Clients' Protection Fund Board seeks comments on proposed amendments to the Clients' Protection Fund Rules. The amendments will be presented to Council February 25, 2017.

EXECUTIVE SUMMARY FOR PROPOSED CPF RULE REVISIONS

The Clients’ Protection Fund Board (CPF Board) has approved amendments to the CPF rules to be forwarded to Council for its consideration. The current rules include the 1976 Resolution of Council that established the CPF. The Resolution predates the subsequently enacted Rule of Court regulating the CPF as well as statutory law that permits an assessment of up to $25.00 per member for the CPF until July 1, 2020. The amendments replace the Resolution with ten (10) labelled paragraphs outlining the purpose, funding, authority, and administration of the CPF, consistent with the subsequently enacted law. 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.
 
Inspection and Comment
The proposed amendments may be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0025, 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 Joy Harvey at (804) 775-9426.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed amendments with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than January 17, 2017. Comments may be submitted via e-mail to publiccomment@vsb.org.
 

Please see detailed discussion of the revisions and differences between the current CPF rules and proposed amendments. (PDF file)

 

PROPOSED CLIENTS’ PROTECTION FUND RULES

PURPOSE, FUNDING, AUTHORITY AND ADMINISTRATION

PARAGRAPH 1  PURPOSE AND FUNDING

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

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

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

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

E.         AUTHORIZED INVESTMENTS

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

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

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

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

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

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

PARAGRAPH 2       THE CLIENTS’ PROTECTION FUND BOARD

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

PARAGRAPH 3       POWERS OF BOARD

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

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

PARAGRAPH 4       ELIGIBLE CLAIMS            

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

B.        The member must have:

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

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

3.         died;

4.         been adjudicated incompetent;

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

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

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

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

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

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

PARAGRAPH 5       DUTIES AND RESPONSIBILITIES OF BOARD

The Board shall have the following duties and responsibilities:

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

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

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

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

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

6.         To manage the monies in the Fund.
 

PARAGRAPH 6       BOARD MEETINGS

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

PARAGRAPH 7       NOTICE OF MEETINGS

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

PARAGRAPH 8       QUORUM

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

PARAGRAPH 9       OFFICERS AND TERMS

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

PARAGRAPH 10     CONFLICT OF INTEREST

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

 

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

I.         DEFINITIONS

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

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

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

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

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

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

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

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

F.         The following shall be excluded fromReimbursable Losses”:

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

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

3.         Losses of any governmental entity or agency;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

III.      PETITION FOR REIMBURSEMENT

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

B.        The petition shall contain the following statement:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17.       The notarized signature of the Petitioner.

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

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

 

IV.      PROCESSING PETITIONS

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

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

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

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

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

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

1.         Any conduct of the Petitioner which contributed to the loss.

2.         The loss to be paid to any one Petitioner shall not exceed $75,000 for losses incurred on or after July 1, 2015, or $50,000 for losses incurred on or after July 1, 2000, and prior to July 1, 2015, or $25,000 for losses incurred prior to July 1, 2000. For purposes of this provision, the Board may regard two or more persons, firms or entities as one Petitioner with respect to a Lawyer’s dishonest conduct in handling a given matter where the facts and entities are found to justify such a conclusion in the sole discretion of the Board.

3.         The total amount of losses reimbursable hereunder on account of the misconduct of any one lawyer or association of lawyers (including, without limitation, a law firm, professional corporation, or an office-sharing arrangement among lawyers) shall be limited to fifteen percent (15%) of the net worth of the Fund at the time the first claim is made. In the event of multiple claims on account of the misconduct of any one lawyer or association of lawyers, claims may be considered in any order or grouping which the Board, in its discretion, finds appropriate, taking into account the equities and timeliness of each claim, and no further payment shall be made in respect to misconduct of any one lawyer or association of lawyers once the fifteen percent (15%) limit has been reached.

4.         The total amount of Reimbursable Losses in previous years for which payment has not been made and the total assets of the Fund.

5.         The Board may, in its sole discretion, allow further payment in any year on account of a Reimbursable Loss allowed by it in prior years which has not been fully paid; provided such further payment would not be inconsistent or in conflict with any previous determination with respect to such loss.

6.         No payment shall be made upon any petition, a summary of which has not been submitted to the Board members in accordance with these Rules of Procedure. No payment shall be made to any Petitioner unless said payment is duly approved by the Board as set forth above.

7.         No claim shall be considered by the Board unless the same shall have been filed within seven (7) years from the time the Petitioner knew or should have known of the Lawyer’s Dishonest Conduct, or within one (1) year after the first occurrence of one of the following events, whichever date is later:

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

b.         the Lawyer has voluntarily resigned from the practice of law in Virginia;

c.         the Lawyer has died;

d.         the Lawyer has been adjudicated incompetent;

e.         the Lawyer has been the subject of a bankruptcy that would stay, reduce or discharge the claims; or

f.          the whereabouts of the Lawyer is unknown to the Virginia State Bar.

G.        The Board may make a finding of Dishonest Conduct for purposes of adjudicating a claim. Such a determination is not a finding of Dishonest Conduct for purposes of professional discipline.

 

V.        REQUEST FOR RECONSIDERATION

The Petitioner or Lawyer may request reconsideration in writing within thirty (30) days of the decision. If the Petitioner or Lawyer fails to make a request or the request is denied, the decision of the Board is final. There shall be no appeal from a decision of the Board.

 

VI.      RESTITUTION TO FUND

A Lawyer whose Dishonest Conduct has resulted in reimbursement to a Petitioner shall make restitution to the Fund including interest and the expense incurred by the Fund in processing the claim.
 

VII.     ASSIGNMENT AND SUBROGATION

Payment shall be made from the Fund only upon condition that the Petitioner execute an assignment of Petitioner’s assignable rights against the Lawyer or his/her successors in interest including, but not limited to the Lawyer’s personal representative, heirs, devisees and assigns, on such terms as the Board may deem proper under the circumstances, including reimbursement of costs incurred in prosecuting a claim against the Lawyer or his or her successors in interest.  The Virginia State Bar may bring an action pursuant to the assignment on behalf of the Fund and/or the Petitioner.  The net proceeds collected by reason of such assignment shall be for the sole benefit of the Fund and deposited therein, and enforcement of this right shall be within the sole discretion of the Board. Prior to the commencement of an action by the Board, it shall advise the Petitioner thereof at his or her last known address. The Petitioner may then join in such action to press a claim for his or her loss in excess of the amount of the payment made by the Fund or for any other claims. The Board may impose such other conditions and requirements as it may deem appropriate in connection with payment to any Petitioner.

 

VIII.   PAYMENT OF RECEIVERSHIP COSTS

Costs of any Virginia State Bar receivership occasioned by the need for the receiver to administer, pursue or defend assets, the recovery or preservation of which would inure to the benefit of one or more clients or other members of the public who have suffered losses as a result of the dishonest conduct of the Virginia State Bar member who is the subject of the receivership, acting as either a lawyer or as a fiduciary in the matter or matters in which the loss or losses occurred, shall be documented and certified to the Board by the Virginia State Bar staff for consideration of payment from the Fund by the Board as an agenda item at a meeting of the Board. The Board may approve payment with a majority vote.

 

IX.      CONFIDENTIALITY

The dissemination of information shall comply with Virginia law.

 

X.        GENERAL PURPOSES

These Rules of Procedure shall be liberally interpreted and, in any given case, the Board may waive technical adherence to these Rules of Procedure in order to achieve the objectives of the Fund. 
 

XI.      AMENDMENTS

These Rules may be changed at any time by a majority vote of the Board at a duly held meeting at which a quorum is present, and subject to the approval of the Council of the Virginia State Bar.    

Updated: December 2, 2016

Proposed | amendments to Rules 7.1-7.5 governing lawyer advertising (Pending approval by VSB Council)

The Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) approved proposed amendments to Rules 7.1-7.5 of the Rules of Professional Conduct. The proposed amendments will be presented to VSB Council for its consideration at its February 25, 2017 meeting.

PROPOSED AMENDMENTS

The Committee has proposed significant revisions to Rules 7.1-7.5, governing lawyer advertising, including the deletion of Rules 7.4 and 7.5 and the streamlining of Rule 7.1 to a single statement that communications about a lawyer’s services may not be false or misleading. Claims of specialization and the content of firm names, previously addressed by Rules 7.4 and 7.5 respectively, are now addressed by comments to Rule 7.1, since they are just specific examples of the general obligation not to make false or misleading statements. The required disclaimer for statements of case results has been removed from Rule 7.1, again shifting to a general false or misleading standard rather than a mandatory technical requirement. Only minor changes have been made to Rule 7.3, on solicitation of clients, to more clearly define the term “solicitation” and to expand the comments to more clearly explain how the Rules apply to paying for marketing services, including paying for lead generation.

The proposed changes to Rules 7.1, 7.4, and 7.5 largely derive from a report and recommendation issued by a committee of the Association of Professional Responsibility Lawyers (APRL) describing the need to simplify and modernize lawyer advertising rules in light of changes caused by the rise of internet marketing and communications, and in light of increasing concern about the viability of constitutional or antitrust challenges to advertising regulations. Many advertising rules were developed in a time when print advertising was primary, and as a result are unwieldy or impractical when applied to now-common internet communications. For example, the requirement that a disclaimer must precede each statement of case results makes it impossible to ever mention a case outcome on Twitter, because the disclaimer alone would exceed the character limit of a Twitter post. The cross-border nature of internet communications also raises difficult issues, as advertising rules vary greatly from state to state and lawyers often find it impossible to comply with all the rules that could possibly apply to their communications.

Surveys conducted by APRL as part of its study of states’ approaches to the advertising rules show that the majority of complaints about lawyer advertising come from competing lawyers and involve technical rule violations; consumer complaints about lawyer advertising are rare, and when they are made, generally involve communications or conduct that are clearly false and misleading. These findings suggest that technical requirements, like the specifically required text and placement of the case results disclaimer currently present in Rule 7.1(b), may not be justified by the need to protect clients or the public.

The Committee also considered the APRL committee’s analysis of a number of case decisions in the last decade that have struck down lawyer advertising rules, and the fact that restrictions on speech are particularly vulnerable when there is a lack of empirical support for the necessity of the restriction. The recent United States Supreme Court decision in North Carolina State Board of Dental Examiners v. F.T.C., 547 U.S. ­­­___, 135 S. Ct. 1101 (2015), has also raised concerns for regulators about the possibility of increased antitrust scrutiny of regulatory actions, particularly if it appears that the regulation is being carried out by lawyers with a competitive interest in the market.

The Committee determined, based on all of these factors, that the best option is to adopt the APRL committee’s recommendation to streamline the rules to focus on the core issue of preventing false or misleading speech, as well as the specific issues raised by solicitation of clients, and to otherwise remove or relax technical regulations that have no demonstrated connection to public protection.

 

View the proposed changes without text markup (PDF file)

 

Proposed changes:

INFORMATION ABOUT LEGAL SERVICES

RULE 7.1       Communications Concerning A Lawyer's Services

(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. when omission of such fact makes the statement materially false or misleading as a whole.

(b) A communication violates this rule if it advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states 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.

(c) Any advertising pursuant to this Rule shall include the name and office address of at least one lawyer responsible for its content; or, in the alternative, a law firm may file with the Virginia State Bar a current written statement identifying the lawyer responsible for the law firm’s advertising and its office address. The law firm shall promptly update the written statement if there is any change in status.

(d) A lawyer shall timely respond to and fully cooperate with any requests for information by Ethics Counsel regarding the lawyer’s advertising.

 

Comment

[1] This Rule governs all communications about a lawyer’s services, including advertising.  The purpose of lawyer advertising is to promote or propose the hiring of the lawyer. Communications about a lawyer’s services are statements or claims made about the lawyer or lawyer’s services that are intended, in whole or in part, to inform others about the availability of the lawyer’s services. Communications through public media as well as communications targeted to one or more persons are subject to this Rule.  This Rule is not intended to regulate forms of non-commercial speech by lawyers such as political or religious commentary.  Whatever means are used to communicate regarding a lawyer’s services, statements about them must be truthful and not misleading. A statement or claim is misleading if it is likely to mislead the public or a prospective client. For example, a statement that “you pay nothing unless we win” is false and misleading if the client is held responsible for payment or reimbursement of costs or expenses related to the client’s case, as required by Rule 1.8(e). Similarly, a statement or claim that a lawyer handles a particular type of case, i.e., products liability, is false and misleading if the lawyer does not practice in that area of law and the lawyer’s only involvement is to intake the client and then refer the client to another lawyer outside the firm.

[2] Advertisements and other communications about a lawyer or a lawyer’s services that are not false or misleading will make it apparent that the necessity and advisability of legal action depends on variant factors that must be evaluated individually. Due to fee information that may frequently be incomplete and misleading to a layperson, a lawyer should exercise great care that fee information is complete and accurate. Due to the individuality of each legal problem, statements regarding average, minimum, or estimated fees may be misleading, as will commercial publicity conveying information as to results previously achieved, general or average solutions, or expected outcomes. It would be misleading to advertise a set fee for a specific type of case without adhering to the stated fee in charging clients. Advertisements or other claims that convey an impression that the ingenuity of the lawyer, rather than the justice of the claim is determinative are similarly likely to be misleading.  Advertising and other communications stating specific or aggregate case results should disclose the impossibility of assuring any particular result. Not only must a communication be truthful, but its meaning must be capable of being understood by the reasonably prudent layperson.

[31] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. A good example of a truthful statement that is misleading by omission of a material fact is the statement “We won a $2 million verdict in this case” when in fact the verdict had been overturned by the court. The omission of that key fact makes the statement itself misleading.

[42] A statement or claim that an outcome was not or will not be related to the facts or merits of the particular matter is false or misleading and, therefore, improper.  An advertisement communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.Further, any statement or claim that is likely to create an unjustified expectation about the results the lawyer can achieve is misleading. The inclusion of the disclaimer required by paragraph (b)of this Rule is necessary to avoid creating unjustified expectations or misleading a potential client.  The required disclaimer must precede each and every statement of specific or cumulative case results.

[53] Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. In communications about a lawyer’s services, as in all other contexts, it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law. Rule 8.4(c). See also Rule 8.4(d) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

[6] Statements or claims made by others about the lawyer’s services are governed by this rule if the lawyer adopts them in his or her communications. See also Rule 8.4(a) regarding violations of the Rules of Professional Conduct through the agency of another.

[7] This Rule permits public dissemination of information concerning, for example, a lawyer’s name or firm name, address, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

 

Areas of Expertise/Specialization

[4] A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer who is a specialist in a particular field of law by experience, specialized training, or education, or is certified by a named professional entity, may communicate such specialty or certification so long as the statement is not false or misleading.

 

Firm Names

[5] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm’s identity or by a trade name such as the “ABC Legal Clinic.” A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name such as “clinic” that also includes a geographical name such as “Springfield Legal Clinic,” an express disclaimer that it is not a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.

[6] Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. Lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing law together in a firm.

 

Committee Commentary

The Committee has revised Rules 7.1-7.5 in their entirety.  Rule 7.2 has been eliminated and relevant parts of Rule 7.2 regarding lawyer advertising are incorporated within Rule 7.1 as that Rule covers all communications including lawyer advertising; relevant parts of Rule 7.2 regarding solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.

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The amendments effective July 1, 2013, rewrote the Rule and commentary thereto.

 

RULE 7.2       Advertising [DELETED]

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The amendments effective July 1, 2013, deleted this Rule.

RULE 7.3       Solicitation of ClientsDirect Contact With Potential Clients

(a) A solicitation is a communication initiated by or on behalf of a lawyer that is directed to a specific person known to be in need of legal services in a particular matter and that offers to provide, or can reasonably be understood as offering to provide, legal services for that matter.

(ab) A lawyer shall not solicit employment from a potential client if:

(1) the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.

(c) Every written, recorded or electronic solicitationcommunication from a lawyer shall conspicuously include the words “ADVERTISING MATERIAL” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic solicitationcommunication, unless the recipient of the solicitationcommunication:

(1) is a lawyer; or

(2) has a familial, personal, or prior professional relationship with the lawyer; or

(3) is one who has had prior contact with the lawyer; or

(4) is contacted pursuant to a court-ordered class action notification.

(bd) A lawyer shall not compensate, give, or promise anything of value to a person who is not an employee or lawyer in the same law firm for recommending the lawyer’s services except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1, including online group advertising;

(2) pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

 

Comment

Direct Contact between Lawyers and Laypersons

[1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific potential client and that offers to provide, or can reasonably be understood as offering to provide, legal services.  In contrast, aA lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

[2] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has a close personal or family relationship; nor is there a serious potential for abuse when the person contacted is a lawyer or when the person has already initiated contact with the lawyer. Consequently, the requirements of Rule 7.3(c) are not applicable in those situations.

[2a] The requirement in Rule 7.3(c) that certain communications include “ADVERTISING MATERIAL” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors; however, prior contact from the lawyer in the form of advertising material does not circumvent the need to include the words “ADVERTISING MATERIAL” in future contacts. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a potential client known to be in need of legal services within the meaning of this Rule.

[3] Even permitted forms of solicitation can be abused; thus, any solicitation that contains information that is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(ab), or which involves contact with a potential client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(ab), is prohibited. Moreover, if after sending a letter or other communication to a potential client the lawyer receives no response, continued repeated efforts to communicate with the potential client may constitute harassment and therefore violate the provisions of Rule 7.3(ab).  Regardless of the form of the communication, its propriety will be judged by the totality of the circumstances under which it is made, including the potential client’s sophistication and physical, emotional, and mental state, the nature and characterization of the legal matter, the parties’ previous relationship, the lawyer’s conduct, and the words spoken.

 

Paying Others to Recommend a Lawyer

[4] Lawyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.1 and this Rule. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.  However, Paragraph (bd)(1) allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and group advertising. A lawyer may compensate employees, agents, and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff, and website designers, as long as the employees, agents, and vendors do not direct or control the lawyer’s professional judgment in violation of Rule 5.4(c).  See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them. Moreover, a lawyer may pay others for generating client leads, such as internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 5.4, and the lead generator’s communications are consistent with Rule 7.1. To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.

[5] Selection of a lawyer by a layperson should be made on an informed basis. Advice and recommendation of third parties—relatives, friends, acquaintances, business associates, or other lawyers—and publicity and personal communications from lawyers may help to make this possible.  A lawyer should not compensate another person for recommending him or her, for influencing a potential client to employ him or her, or to encourage future recommendations.

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists potential clients to secure legal representation. Not-for-profit lawyer referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule permits a lawyer to pay only the usual charges of a not-for-profit lawyer referral service.

[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a not-for-profit lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See Rule 5.3. Legal service plans and not-for-profit lawyer referral services may communicate with potential clients, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead potential clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

[8] The requirement in Rule 7.3(c) that certain communications be marked “ADVERTISING MATERIAL” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors; however, prior contact from the lawyer in the form of advertising material does not circumvent the need to include the words “ADVERTISING MATERIAL” in future contacts. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a potential client known to be in need of legal services within the meaning of this Rule.

 

Committee Commentary

The Committee changed the rule to refer to the “potential” client as a result of the recent adoption of Rule 1.18 which narrowly defines the “prospective” client.

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The amendments effective July 1, 2013, rewrote the Rule and commentary.

 

RULE 7.4       Communication Of Fields Of Practice And Certification [DELETED]

 Lawyers may state, announce or hold themselves out as limiting their practice in a particular area or field of law so long as the communication of such limitation of practice is in accordance with the standards of this Rule, Rule 7.1 and Rule 7.3, as appropriate. A lawyer shall not state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as follows:

(a) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation;

(b) A lawyer engaged in Admiralty practice may use as a designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation;

(c) A lawyer who has been certified by the Supreme Court of Virginia as a specialist in some capacity may use the designation of being so certified, e.g., "certified mediator" or a substantially similar designation;

(d) A lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in the Commonwealth of Virginia for approving certifying organizations.

 

Comment

[1] This Rule permits a lawyer to indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters in a specified field or fields, the lawyer is permitted to so indicate. A lawyer is generally permitted to state that the lawyer is a "specialist," practices a "specialty," or "specializes in" particular fields, but such communications are subject to the "false and misleading" standard applied in Rule 7.1 to public communications concerning a lawyer's services.

[2] However, a lawyer may not communicate that the lawyer has been recognized or certified as a specialist in a particular field of law, except as provided by this Rule. Recognition of specialization in patent matters is a matter of long‑established policy of the Patent and Trademark Office as reflected in paragraph (a).  Paragraph (b) recognizes that designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.

[3] Because Virginia has no procedure for approving organizations granting certifications of other specialties, lawyers communicating the fact that they have been certified as specialists in a field of law by a named organization (other than the Supreme Court of Virginia as provided in paragraph (c)) must clearly disclose that there is no procedure in Virginia for approving certifying organizations (paragraph (d)).

 

Virginia Code Comparison

Rule 7.4(a) and (b) are substantially the same as DR 2-104(A).  Paragraph (c) is new, and paragraph (d) follows one of the two options in ABA Model Rule 7.4(c).

 

Committee Commentary

The Committee maintained the current DR 2-104(A) approach in the first two paragraphs of this Rule.

Because national organizations are increasingly certifying specialists in different areas of the law, the Committee determined to permit Virginia lawyers to describe such certifications.  However, Virginia has no procedure for state approval of such certifications.  For this reason, the Committee adopted the alternative ABA Model Rule 7.4(c) that requires lawyers communicating certified specializations to make the additional clear disclosure that Virginia has no procedure for approving certifying organizations.  This additional disclosure balances Virginia clients' interest in receiving additional information about lawyers and the need to avoid misleading clients by implying some government-approved certification.  At the same time, it was deemed that any certification process implemented by the Supreme Court of Virginia (under (d)) would obviously be reliable, so as to eliminate the necessity for any disclaimer.

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The amendments effective November 1, 2002, removed reference to “Rule 7.2” following “Rule 7.1” once in the first paragraph and once in Comment [1].

 

RULE 7.5       Lawyer and Firm Names And Letterheads [DELETED]

(a) A lawyer shall not use a name, firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictions in which they are licensed to practice if they are not licensed to practice in the jurisdiction where the office is located.

(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

 

Comment

[1] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm’s identity or by a trade name such as the “ABC Legal Clinic.”  A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation.  Although the Supreme Court of the United States has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading.  If a private firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express disclaimer that it is not a public legal aid agency may be required to avoid a misleading implication.  It may be observed that any firm name including the name of a retired or deceased partner is, strictly speaking, a trade name.  The use of such names to designate law firms has proven a useful means of identification.  However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer.

[2] With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact partners associated with each other in a law firm, may not denominate themselves as, for example, "Smith and Jones," for that title suggests that they are practicing law together in a firm.

[3] 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.

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The amendments effective July 1, 2013, rewrote the Rule and commentary.

Updated: November 29, 2016

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: September 30, 2016

Proposed | amendments to Paragraph 13.1 regarding suspension for failure to complete professionalism course (Approved by VSB Council. Pending approval by the Supreme Court of Virginia)

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 will be presented to the Supreme Court of Virginia for its consideration.

view the petition to the Supreme Court of Virgina (PDF file)

 

Updated: June 21, 2016

Updated: October 21, 2016

Proposed | revision to Section 54.1-3935 of the Code of Virginia (Approved by VSB Council. Pending enactment by the General Assembly.)

The council unanimously approved a revision to Section 54.1-3935 of the Code of Virginia, which provides the procedure for an attorney or the VSB to demand that an attorney disciplinary matter proceed before a three-judge circuit court in lieu of a district committee or the disciplinary board of the VSB. 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 VSB in attorney disciplinary matters. The proposal will be forwarded to the Virginia legislature for consideration.

 

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. 339, 637; 2009, c. 287.

 

Updated: July 7, 2016

Updated: November 1, 2016

Proposed | Paragraph 13-24 regarding disbarment, revocation, or suspension in another jurisdiction (Approved by VSB Council. Pending consideration by the Supreme Court of Virginia.)

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 will be presented to the Supreme Court of Virginia for its consideration.

view the petition to the Supreme Court of Virgina (PDF file)

 

 

 

Updated: January 21, 2015

Updated: March 2, 2015

Updated: June 7, 2016

Updated: October 28, 2016

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: August 22, 2016

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 7, 2016

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: December 18, 2015

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: November 17, 2015

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: November 3, 2015

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 21, 2016

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: August 21, 2015

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: August 21, 2015

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: November 4, 2015

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: March 3, 2015

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: March 2, 2015

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: November 7, 2014

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: October 31, 2014

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: March 17, 2015

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: November 24, 2014

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: March 2, 2015

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: September 18, 2014

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: August 7, 2015

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: June 16, 2014

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: May 1, 2014

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: September 19, 2014

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: April 29, 2014

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: December 16, 2013

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: February 3, 2014

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: February 3, 2014

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: February 3, 2014

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: November 4, 2013

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: October 17, 2013

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: June 26, 2013

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: March 4, 2013

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: December 18, 2012

Vacated | Amendments to Rules 7.1-7.5 of 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: November 30, 2012

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: October 24, 2012

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: June 24, 2013

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: April 16, 2012

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: June 24, 2011

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: June 24, 2011

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: June 24, 2011

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: June 22, 2011

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: April 15, 2011

Adopted | Amendments to Paragraph 11, regarding VSB annual dues (Supreme Court of Virginia March 9, 2011. Effective immediately.)


view amended Paragraph 11 (PDF file)

Updated: March 17, 2011

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: February 24, 2011

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 10, 2011

Adopted | Rule 4.2 amendment addressing defendant waiving rights (Effective November 1, 2010)

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: November 30, 2010

Adopted | Amendments to Parts 5 and 5A, Rules of Virginia Supreme Court, regarding appellate procedures (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: May 5, 2010

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: March 23, 2010

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: March 23, 2010

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: March 23, 2010

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: March 23, 2010

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: November 10, 2011

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