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Proposed | changes to paragraph 3 modifying status of Emeritus Members allowed to provide pro bono services. Comments due by June 30, 2017.

The Virginia State Bar Special Committee on Access to Legal Services is seeking comments on proposed changes to the Rules of the Supreme Court of Virginia Part 6, § IV, ¶ 3(e), Organization and Government: modifying the status of Emeritus Members who will be allowed to provide pro bono legal services. The changes to the rule allow emeritus members, as defined by the rule, to provide pro bono services without direct supervision of a supervising attorney after certifying annually their affiliation with a Qualified Legal Services Provider. They will pay no dues, may not practice law except in the limited manner specified in this subparagraph, and may not vote or hold office in the Virginia State Bar. However, emeritus members must comply with the petition and approval requirement for reinstatement as an active member and satisfy outstanding MCLE deficiencies.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed amendment with Karen A. Gould, Executive Director of the Virginia State Bar, not later than June 30, 2017. Comments may be submitted via e-mail to publiccomment@vsb.org.

 

Proposed Amendment to Rules of the Supreme Court of Virginia, Pt. 6, Section IV, Para. 3(e)  

Proposed changes:

SECTION IV.  ORGANIZATION AND GOVERNMENT.

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3. Classes of Membership.

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(e) Emeritus Members. Those attorneys who are admitted to practice law in the Commonwealth of Virginia may, upon request to the Virginia State Bar with the supporting materials specified in this subparagraph, become emeritus members and provide pro bono legal services subject to the terms and conditions stated in this subparagraph. They shall pay no dues, may not practice law except in the limited manner specified in this subparagraph, and may not vote or hold office in the Virginia State Bar.

(1) Definitions.

(A) Active practice of law, for the purposes of this subparagraph, means that an attorney has been engaged in the practice of law, which includes private practice, house counsel, corporate practice as authorized by Part 1, Rule 1A:5, Part I, public employment as a lawyer, or full-time teaching at an American Bar Association approved law school.

(B) Emeritus member is any person who is admitted to practice law in the Commonwealth of Virginia, who is retiring or has retired from the active practice of law, and who intends to provide pro bono services under this subparagraph; and

(i) Has been engaged in the active practice of law for a minimum of ten out of the fifteen years immediately preceding the application to become an emeritus member; and

(ii) Is, at the time of requesting emeritus member status, an active member in good standing of the Virginia State Bar and has not been disciplined for professional misconduct by the bar or courts of any jurisdiction within the past fifteen years; and

(iii) Signs a statement that he or she has read and will comply with the Virginia Rules of Professional Conduct and as an emeritus member submits to the continuing jurisdiction of the Virginia Supreme Court and the Virginia State Bar for disciplinary purposes; and

(iv) Agrees to neither ask for nor receive any compensation of any kind, except for out-of-pocket expenses, for the legal service to be rendered under this subparagraph.

(i) Intends to provide pro bono legal services as defined by Rule 6.1(a) of the Virginia Rules of Professional Conduct and its comments, subject to the terms and conditions of this subparagraph; and

(ii) Is, at the time of requesting emeritus member status, an active, associate, or retired member in good standing of the Virginia State Bar who has practiced law for 20 years or more; and

(iii) Is, at the time of requesting emeritus status, an active, associate, or retired member who has not been disciplined for professional misconduct by the bar or courts of any jurisdiction within the past fifteen years; and  ;

(iv) Has been engaged in the active practice of law for a minimum of five out of the seven years immediately preceding the application to become an emeritus member; and   

(v) Agrees to neither ask for nor receive any compensation of any kind from the client, except for out-of-pocket expenses, for the legal service to be rendered under this subparagraph.

(C)  Approved legal assistance organization, for the purposes of this subparagraph, is a Virginia licensed legal aid society or other not for profit entity organized in whole or in part, to provide legal services to the poor and/or working poor in Virginia and receiving funds for that purpose from an agency or entity of the federal government or the Commonwealth of Virginia, or from the Virginia Law Foundation.  Qualified legal services provider, for the purposes of this subparagraph, is a Virginia licensed legal aid society or other not-for-profit entity organized in whole or in part, to provide legal services to the poor and/or working poor in Virginia.

(D) Supervising attorney, for purposes of this subparagraph, is an attorney who directs and supervises an emeritus member engaged in activities permitted by this subparagraph. The supervising attorney must:

(i) Be an active member of the Virginia State Bar in good standing employed by or participating as a volunteer for an approved legal assistance organization; and

(ii) Assume personal professional responsibility for supervising the conduct of the litigation, administrative proceeding, or other legal service in which the emeritus member engages; and

(iii) Direct and assist the emeritus member in his or her preparation to the extent the supervising attorney considers it necessary.

(2) Activities.

(A) An emeritus member, in association with an approved legal assistance organization and only under the supervision of a supervising attorney with a qualified legal services provider, may perform only the following activities:

(i) The emeritus member may appear in any court or before an administrative tribunal or arbitrator in the Commonwealth of Virginia on behalf of a client of an approved legal assistance organization if the person on whose behalf the emeritus member is appearing has consented in writing to that appearance and a supervising attorney has given written approval for that appearance. The written consent and approval shall be filed in the record of each case and shall be brought to the attention of the presiding judge or presiding officer in any administrative or arbitration proceeding.  of a qualified legal services provider.

(ii) The emeritus member may prepare and sign pleadings and other documents to be filed in any court or with any administrative tribunal or arbitrator in this state in any matter in which the emeritus member is involved.

(iii) The emeritus attorney may render legal advice and perform other appropriate legal services, but only with the express approval of the supervising attorney.

(iv) The emeritus attorney may engage in such other preparatory activities as are necessary for any matter in which he or she is properly involved.

(B) The presiding judge, hearing officer, or arbitrator may, in his or her discretion, determine the extent of the emeritus member's participation in any proceeding.

(3) Supervision and Limitations

 (A) An emeritus member must perform all activities authorized by this subparagraph under the direct supervision of a supervising attorney.

(B) Emeritus members permitted to perform services under this subparagraph are not, and shall not represent themselves to be, active members of the Virginia State Bar licensed to practice law generally in the Commonwealth of Virginia.

(CA) The prohibition against compensation for the emeritus member contained in Section (1)(B)(iv) of this subparagraph shall not prevent the approved legal assistance organization qualified legal services provider from reimbursing the emeritus member for actual expenses incurred while rendering service under this subparagraph, nor shall it prevent the approved legal assistance organization the qualified legal services provider from charging for its services as it may otherwise properly charge. The approved legal assistance organization  qualified legal services provider shall be entitled to receive all court awarded attorney’s fees for any representation rendered by an emeritus member.

(4) Certification. Permission for an emeritus member to perform services under this subparagraph shall become effective upon filing with and approval by the Virginia State Bar of:

(A) A determination by the Virginia State Bar that the emeritus member has fulfilled the requirements of such membership and has a clear disciplinary record as required by Section (1)(B) of this subparagraph; and

(B) A certification by an approved legal assistance organization stating that the emeritus member is currently associated with that approved legal assistance organization and that an attorney employed by or participating as a volunteer with that organization will assume the duties of the supervising attorney required under this subparagraph. The filing with the Virginia State Bar each year of an affidavit of affiliation with a qualified legal services provider by the emeritus member.  The emeritus member shall also certify in this affidavit whether they are currently covered by professional liability insurance.

(5) Withdrawal of Certification.

(A) Permission to perform services under this subparagraph shall cease immediately upon the filing with the Virginia State Bar of a notice either:

(i) By the approved legal assistance organization stating that:

(a) The emeritus member has ceased to be associated with the organization, which notice must be filed within five days after such association has ceased, or

(b) That the certification of such attorney is withdrawn. An approved legal assistance organization may withdraw certification at any time and it is not necessary that the notice state the cause for such withdrawal. A copy of the notice filed with the Virginia State Bar shall be mailed by the organization to the emeritus member concerned.

(ii) By the Virginia State Bar, or the Virginia Supreme Court, at any time, stating that permission to perform service under this subparagraph is revoked. A copy of such notice shall be mailed to the emeritus member involved and to the approved legal assistance organization by which he or she has been certified. The emeritus member may apply to the Virginia State Bar or the Virginia Supreme Court for review of such revocation.

(6) Discipline. In addition to any appropriate investigation or proceeding instituted, or any discipline that may be imposed by the Virginia Supreme Court or the Virginia State Bar, the emeritus member shall be subject to the following disciplinary measures:

(A) The presiding judge or hearing officer for any matter in which the emeritus member has participated may hold the emeritus member in civil contempt for any failure to abide by such tribunal’s orders; and

(B) The Virginia Supreme Court, the Virginia State Bar, or the approved legal assistance organization may, at any time, with or without cause, withdraw certification under this subparagraph.

 (65) Membership Requirements. In order to practice law under this rule a retired member must comply with the petition and approval requirements for reinstatement as an active member prescribed in Paragraph 3(d) of Part 6, Section IV of the Rules of the Supreme Court of Virginia.  Also, associate members must satisfy any outstanding MCLE deficiencies before assuming emeritus status.  Additionally, emeritus members must comply with all rules and requirements set forth in Part 6, Section IV of the Rules of the Supreme Court of Virginia with the exception that they are not required to pay dues and the client protection fund fee as set forth in Paragraphs 11 and 16, nor comply with the professional liability certification requirements in Paragraph 18

(7) Mandatory Continuing Legal Education. Emeritus members must satisfy the Mandatory Continuing Legal Education (MCLE) obligations required of active members under Part 6, § IV, Paragraph 17 of the Rules of the Supreme Court of Virginia. Failure to satisfy the MCLE requirements shall subject the emeritus members to the fees and sanctions specified in Part 6, Section IV, Paragraph 19 of the Rules the Virginia Supreme Court.

(86) Change of Membership Status. An emeritus member may petition for reinstatement to active or associate membership under the procedure prescribed in subparagraph (d) of this rule for disabled and retired members.

Updated: May 23, 2017