Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Home > Rule Changes > changes to Paragraph 3 add e-mail and phone number to address of recordamendment to Rule 1.10 regarding conflict of interestnew Rule 5.8Addition to VSB and Council Bylawsamendments 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 determinationschanges to the Clients’ Protection Fund Rules regarding claim limits on payments from the fundamendments 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 programsnew rule: provision of legal services following determination of major disasterRule 7.4(d) certification as a specialistParagraph 17 mailing the annual certification formRule 8.4 allowing undisclosed recording under certain circumstances

Proposed | changes to Paragraph 3 add e-mail and phone number to address of record (Comments due by August 15, 2014)

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: April 10, 2014

Proposed | amendment to Rule 1.10 regarding conflict of interest (to be presented to Council for action on June 12, 2014)

view the proposed Rule 1.10 (PDF file)

RULE 1.10

This proposed 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 proposed 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 proposed 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: March 26, 2014

Proposed | new Rule 5.8 (to be presented to Council for action on June 12, 2014)

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

(a) Absent a specific agreement otherwise:

            (1) Neither a lawyer who is leaving a law firm nor other lawyers in the firm shall unilaterally contact clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer and an authorized representative of the law firm have in good faith conferred or attempted to confer and have been unable to agree on a joint communication to the clients concerning the lawyer leaving the law firm; and

            (2) A lawyer in a dissolving law firm shall not unilaterally contact clients of the law firm unless authorized members of the law firm have in good faith conferred or attempted to confer and have been unable to agree on a method to provide notice to clients.

(b) When no procedure for contacting clients has been agreed upon:

            (1) Unilateral contact by a lawyer who is leaving a law firm or the law firm shall not contain false or misleading statements, and shall give notice to the clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms; and

            (2) Unilateral contact by members of a dissolving law firm shall not contain false or misleading statements, and shall give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.

(c) Timely notice to the clients shall be given promptly once the departure or dissolution has been decided, and shall provide information concerning potential liability for fees for legal services previously rendered, costs expended, and how any deposits for fees or costs will be handled.

(d) In the event that a client of a departing lawyer fails to advise the lawyer and law firm of the client’s intention with regard to who is to provide future legal services, the client shall be deemed a client of the lawyer who is primarily responsible for the legal services to the client until the client advises otherwise.

(e) In the event that a client of a dissolving law firm fails to advise the lawyers of the client’s intention with regard to who is to provide future legal services, the client shall be deemed to remain a client of the lawyer who is primarily responsible for the legal services to the client on behalf of the firm until the client advises otherwise.

 

Comment

[1] Although there may also be significant business and legal issues involved when a lawyer leaves a law firm or a law firm dissolves, this rule addresses the rights of the clients to be fully informed and able to make decisions about their representation. Accordingly, the rule emphasizes both the timing and the content of the required notice to clients. Upon the departure of a lawyer or the dissolution of the law firm, the client is entitled to notice that clearly provides the contact information for the departing lawyer, the status of the client’s file and any other property, including advanced legal fees, in the possession of the lawyer or law firm, and information about the ability and willingness of the lawyer and/or firm to continue the representation, subject to Rule 1.16.  Nothing in this rule or in the contract for representation may alter the ethical obligations that individual lawyers have to a client as provided elsewhere in these rules. Any client notification agreement, whether pursuant to this rule or otherwise, must also comport with Rule 5.6(a).   Lawyers may also have fiduciary, contract, or other obligations to their firms that are outside the scope of these rules.

[2] While this rule requires the departing lawyer and the law firm to confer in good faith in order  to make a joint communication to the departing lawyer’s clients, the duty to communicate with clients and to avoid prejudicing the clients during the course of representation requires prompt communication when the lawyer primarily responsible for those clients is leaving the firm. See, e.g., Rules 1.3(c), 1.16(d) and 1.16(e).  If continued representation by the departing lawyer and/or by the law firm is not possible, the communication shall clearly state that fact and advise the client of the remaining options for continued representation, including the client’s right to choose other lawyers or law firms.

[3] For purposes of the notification required by this rule, “client” refers to clients for whose active matters the departing lawyer has primary responsibility.

[4] While clients have the right to choose counsel, such choice may implicate obligations. Those obligations may include a requirement to pay for legal services previously rendered and costs expended in connection with the representation as well as a reasonable fee for copying the client’s file.  See Rule 1.16(e).  Some clients may be limited in their ability to choose counsel. For example, when the lawyer is appointed by a court to represent a client, the appointed lawyer is responsible for the representation until relieved or replaced by the court.

[5] Lawyers involved in either a change in law firm composition or a law firm dissolution may have duties to notify the court if they represent clients in litigation.  In either case, a lawyer who is counsel of record before a court must file a motion to withdraw or a motion for substitution of counsel if he no longer represents the client.  See Rule 1.16(c). 

Updated: March 26, 2014

Proposed | Addition to VSB and Council Bylaws (Comments due by May 2, 2014)

The Virginia State Bar is seeking public comment to a proposed addition to the Bylaws of the Virginia State Bar and Council. Comments are due by May 2, 2014, to the VSB offices or publiccomment@vsb.org. Note that the proposed addition was amended by the Bylaw Committee after considering comments that were made after the original posting.  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.

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 May 2, 2014. Comments may be submitted via email to publiccomment@vsb.org.

 

amended February 28, 2014
amended November 6, 2013

originally posted Oct 17, 2013

Updated: April 9, 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.

 


The Standing Committee on the Unauthorized Practice of Law is seeking comments on a proposal concerning representation before general district courts. Comments are due by January 24, 2014, to Karen A. Gould, Executive Director, Virginia State Bar, 707 E. Main St., Suite 1500, Richmond, VA 23219-2800 or to publiccomment@vsb.org.

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 8, 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

Proposed | changes to the Clients’ Protection Fund Rules regarding claim limits on payments from the fund (Comments due by September 6, 2013)

The Clients’ Protection Fund Board is seeking public comment on proposed changes to the per attorney and per claim limits on payments from the fund.  Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 707 E. Main Street, Suite 1500, Richmond, VA 23219 or publiccomment@vsb.org, no later than the end of the business day on the day of the deadline.

Deadline for comments: September 6, 2013

The Clients’ Protection Fund Board will meet September 13, 2013, to consider proposals to increase the per attorney limit from 10 percent to 15 percent of the net worth of the fund and increase the per claim limit from $50,000 to $100,000.

The board also will consider recommending that  the Virginia State Bar seek legislation authorizing the Supreme Court to continue the current $25 CPF assessment beyond  June 30, 2015.

During the 2011-2012 fiscal year, the Clients’ Protection Fund Board voted to conduct an actuarial study. A draft report was received on July 8, 2013.  

The balance in the fund as of June 30, 2013, was $6.4 million. 

 A previous actuarial study of the fund was completed in February 2005, which concluded that the fund should have a balance of $9 million in order to pay claims from interest earned. The findings from that study were used to obtain authority for the $25 assessment currently paid by all active attorneys licensed in Virginia.  Legislation authorizing the $25 CPF assessment (Code of Virginia section 54.1-3913.1), effective July 1, 2007, is to sunset on June 30, 2015. 

The current per claim limit of $50,000 has been in place since July 1, 2000.

The current limit per attorney of 10 percent of the net worth of the fund has been in place since October 1986.

The CPF board’s recommendations will be considered by the VSB Council at its October 4, 2013, meeting.

Details:           

view proposed rule changes (PDF file)

 

Updated: July 30, 2013

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

Proposed | new rule: provision of legal services following determination of major disaster (Pending with the Supreme Court of Virginia as of July 11, 2008)

 

Supreme Court of Virginia to review proposed Supreme Court Rule regarding the Provision of Legal Services Following Determination of Major Disaster

view proposed rule (PDF file)

view SC Petition – July 11, 2008 (PDF file)

 

The Supreme Court of Virginia is expected to consider for approval, disapproval, or modification, a new Supreme Court Rule regarding the Provision of Legal Services Following Determination of Major Disaster that was proposed by the Virginia State Bar’s Task Force on Emergency Legal Services (“ELS Task Force”) and unanimously adopted by the Council of the Virginia State Bar on June 19, 2008.This proposed rule was developed as a result of the American Bar Association’s (“ABA”) actions to help address the problem of the provision of legal services following a disaster or emergency, such as existed following Katrina and Rita.  Beyond the physical damage and devastation caused by those hurricanes, there was also a crippling effect on the legal systems in the affected states.  In response, the ABA formed a task force that advocated for the suspension of unauthorized practice of law rules in the various states impacted by these hurricanes because, while lawyers from other jurisdictions would have liked to help staff disaster assistance centers or otherwise advise hurricane victims, they were deterred from doing so because of a lack of clarity about whether they would be violating any unauthorized practice of law rules.The ABA task force recognized the need for a model rule that would allow out-of-state lawyers to provide pro bono legal services in an affected jurisdiction and that would allow lawyers in the affected jurisdiction whose legal practices had been disrupted by a major disaster to practice law on a temporary basis in an unaffected jurisdiction.  Since both the highest court of a jurisdiction affected by the major disaster and the highest courts of jurisdictions not affected by the disaster could implement the rule on an emergency basis, the ABA determined that this rule should be a Model Court Rule.

The ABA then asked that each state consider the adoption of this or an equivalent rule.   In response, the Virginia State Bar formed the ELS Task Force to study the ABA’s Model Court Rule.  After deliberations the ELS Task Force agreed that a similar court rule should be adopted in Virginia with minor amendments.

The proposed rule provides that the Virginia Supreme Court shall determine when, as a result of a disaster, an emergency affecting the justice system has occurred in Virginia that would trigger the provisions of this rule.  Additionally, if that emergency extends to another jurisdiction the determination of the existence of a major disaster will be made in conjunction with the highest court of that jurisdiction.  Under this rule, the Court may allow:  

1.    Out-of-state lawyers to provide pro bono legal services to the citizens of Virginia within certain constraints described in the model rule, and;
2.    Displaced lawyers from an affected state can provide legal services in Virginia on a temporary basis if these services are reasonably related to the lawyer’s practice in the affected jurisdiction.

Inspection and Comment
The proposed rule may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed rule 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 Web Page at http://www.vsb.org.

Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed rule by filing nine copies with the Clerk of the Court and three copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than August 21, 2008.

Updated: March 16, 2010

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