Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Home > Rule Changes > amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality)amendment 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 Paragraph 13-25 regarding reinstatement proceedingsamendments to Paragraph 13-4E regarding service on district committees by certainamendments 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 interestnew Rule 5.8Addition to VSB and Council Bylawsnew Paragraph 13.4 regarding malpractice insurance requirements in Va. Code Section 54.1-3935(D)amendments to Paragraph 13-12 & 13-30 regarding disclosure of exculpatory evidencechanges 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 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 | amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality) (Comments due by January 5, 2015)

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed amendments to Rules 1.1 (Competence) and 1.6 (Confidentiality) of the Virginia Rules of Professional Conduct.

view proposed amendments revised 11/20/14 (PDF file)

At its meeting on November 20, 2014, the Ethics Committee made additional changes to the proposed amendments and voted to publish them again for public comment.

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 23219-3565, 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.

Not later than January 5, 2015, 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 25, 2014

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, effective immediately.)

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: October 31, 2014

Proposed | amendments to Paragraph 13-25 regarding reinstatement proceedings (comments due by October 30, 2014)

On September 3, 2014, the Committee on Lawyer Discipline (COLD) approved amendments to Part Six, Section IV, Paragraph 13-25 of the Rules of the Supreme Court of Virginia.  Currently, petitions for reinstatement after revocation are filed with the Clerk of the Supreme Court of Virginia.  The revised rule would require the petitions be filed with the Clerk of the Disciplinary System at the Virginia State Bar.  Other parts of Paragraph 13-25 not dealing with reinstatement after a revocation have been moved to the first part of the rule. See, for instance, "Investigation of Impairment in Reinstatement Matters," proposed 13-25.B (current 13-25.1); "Readmission After Resignation," proposed 13-25.C. (current 13-25.B.); "Reinstatement After Disciplinary Suspension for more than One Year," proposed 13-25.D (current 13-25.H). The substance of these rules was not changed.

The threshold requirements before a petition for reinstatement after revocation can be pursued would be consolidated in proposed Subparagraph 13-25.F, instead of being listed in three locations, i.e., current Subparagraphs 13-25.C, 13-25.E.1-4., and 13-25.E.  One of the current threshold determinations before the petition can be processed is that the Petitioner be of good and honest demeanor and good moral character and possess the requisite fitness to practice law (current 13-25.F).  Since such a determination cannot be made without hearing evidence and making a judgment, that analysis is more properly contained in the hearing section (see proposed 13-25.G.5.d).

The revised rule reorganizes and restates the reinstatement process to reflect the way the process actually operates.  Compare the process set forth in proposed 13-25.G with the procedures set forth in current 13-25.J.  Changes in technology are also reflected in the rule, for instance, instead of requiring that notices to the membership be mailed (current 13-25.J.5), proposed 13-25.G.4 would permit those notices to be distributed by mail or electronic means, i.e., email. Instead of referring to the factors spelled out In the Matter of Alfred Lee Hiss, citation omitted, the Hiss factors are set forth in the proposed revision. (Compare current 13-25.J.8 with proposed 13-25.G.5.b).  A change was made in the investigation paragraph (proposed 13-25.G.1) regarding the written request for permission to conduct an inquiry into Petitioner's background, clarifying that the petition will not proceed without such forms and permissions being signed by the Petitioner and returned to Bar Counsel (under the current system, sometimes the Petitioner fails to return these forms to Bar Counsel, which are essential to an adequate investigation). The same would apply to the Bill of Particulars being filed with the Clerk of the Disciplinary System (proposed 13-25.G.2).

The section identified as "Determination by the Board," contained in proposed 13-25.G.5.e, is a compilation of current 13-25.J.10, 13-25.F and 13-25.G, which all relate to what happens once the Board issues its recommendation. Subparagraph 13-25.G.5.e.ii was revised to show the payment or refund of the bond required by Subparagraph 13-25.F.8 (current 13-25.E).

The quorum language contained in current 13-25.J.1 was eliminated as being unnecessary because Paragraph 13-6.D establishes that a quorum of the Disciplinary Board is five members.

13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

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13-25   BOARD PROCEEDINGS FOR REINSTATEMENT

view proposed changes (PDF file)

Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 1111 E. Main Street, Suite 700, Richmond, VA 23219-3565 or publiccomment@vsb.org, no later than the end of the business day on October 30, 2014.

Updated: September 26, 2014

Proposed | amendments to Paragraph 13-4E regarding service on district committees by certain ex-officio members of Council (comments due by October 30, 2014)

On September 3, 2014, the Committee on Lawyer Discipline (COLD) approved amendments to Part Six, Section IV, Paragraph 13-4.E of the Rules of the Supreme Court of Virginia.  Chairs and presidents of conferences of the Virginia State Bar serve one year as ex-officio members of Council.  Paragraph 13-4.E as currently written requires such Council members to resign their positions on district committees to avoid conflicts in selection of new district committee members.  The proposed amendment clarifies the issue and exempts the ex-officio members from having to resign from district committees.

13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

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13-4     ESTABLISHMENT OF DISTRICT COMMITTEES

view proposed changes (PDF file)

Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 1111 E. Main Street, Suite 700, Richmond, VA 23219-3565 or publiccomment@vsb.org, no later than the end of the business day on October 30, 2014.

Updated: September 26, 2014

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

Proposed | Paragraph 13-4 C regarding district committee member’s address of record (Comments due by October 30, 2014)

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

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13-4     ESTABLISHMENT OF DISTRICT COMMITTEES

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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.

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Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 1111 E. Main Street, Suite 700, Richmond, VA 23219-3565 or publiccomment@vsb.org, no later than the end of the business day on October 30, 2014.

Updated: September 26, 2014

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

Proposed | amendment to Rule 1.10 regarding conflict of interest (pending review by the Supreme Court of Virginia)

view the petition to the Court (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: June 19, 2014

Proposed | new Rule 5.8 (pending review by the Supreme Court of Virginia)

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

view the petition to the Court (PDF file)

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

Updated: June 19, 2014

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

Proposed | new Paragraph 13.4 regarding malpractice insurance requirements in Va. Code Section 54.1-3935(D) (pending review by Virginia State Bar Council)

On May 7, 2014, the Committee on Lawyer Discipline (COLD) voted unanimously to approve the proposed Paragraph 13.4 to be included in Part Six, Section IV of the Rules of the Supreme Court of Virginia.  This Paragraph is in response to changes to Virginia Code Section 54.1-3935(D) which charge the bar with setting standards for minimum malpractice coverage when disciplinary charges heard by a three-judge panel result in a finding of criminal conduct involving loss of client property.

view the proposed Paragraph 13.4 (PDF file)

 

PART SIX, SECTION IV, RULES OF THE SUPREME COURT OF VIRGINIA

 

13.4  Insurance coverage requirement for respondents under Va. Code § 54.1-3935(D)

 

Pursuant to Va. Code § 54.1-3935(D), when an attorney who has been found guilty of engaging in criminal activity that violates the Rules of Professional Conduct and results in the loss of property of one or more of the attorney's clients and has been required by a three-judge court to maintain professional malpractice insurance during the time he or she is licensed to practice law in the Commonwealth of Virginia, that attorney shall carry such coverage in the minimum amount of $500,000 per claim and $1 million in the aggregate with a maximum $10,000 deductible, with a Virginia licensed insurer, eligible surplus line insurer or registered risk retention group.  The coverage provider must have an A.M. Best minimum rating of A-.

 

The attorney shall require the insurer to include language in the policy specifying that the VSB be given notice of cancellation or nonrenewal. The attorney shall certify such coverage and the notice requirement to the VSB on a yearly basis with a certificate of insurance provided to the VSB by an agent or broker licensed in Virginia.  This certificate must be received initially within 10 days after inception or reinstatement of the policy.

 

Comments or questions should be submitted in writing to Executive Director, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3575, no later than August 15, 2014. The Virginia State Bar Council will consider the proposed amendments when it meets on October 24, 2014.

Updated: August 18, 2014

Proposed | amendments to Paragraph 13-12 & 13-30 regarding disclosure of exculpatory evidence (pending review by Virginia State Bar Council)

Amendments to Paragraph 13-12 and 13-30 regarding disclosure of exculpatory evidence considered confidential under Paragraph 13

On May 7, 2014, the Committee on Lawyer Discipline (COLD) approved amendments to Part Six, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia.  The proposed Paragraph 13-30.M clarifies bar counsel’s obligation to disclose certain information notwithstanding rules that proscribe such disclosure on the basis that the information is confidential. Paragraph 13-12.H addresses the notice required when information is disclosed as anticipated in proposed Paragraph 13-30.M.

view the proposed Paragraph 13-12 and 13-30 changes (PDF file)

 

13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

 

13-12 SUBSTANTIAL COMPLIANCE, NOTICE AND EVIDENTIARY RULINGS, AND ADDRESS NOTIFICATION

 

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            H.        Notice.

 

1.         Whenever any notice or other writing to be directed to an Attorney is required or permitted under this Rule, such notice or other writing shall be deemed effective when mailed by first class mail to the Attorney at the Attorney’s last address on record for membership purposes with the Bar or, if the Attorney is a Foreign Lawyer, a lawyer engaged pro hac vice in the practice of law in Virginia, or a lawyer not admitted in Virginia, when mailed by first class mail to the last known address on record with the Bar  or, if no such address is on record, then to the Clerk of the Supreme Court of Virginia.

 

2.         Whenever any notice or other writing is to be directed to a Complainant is required or permitted under this Rule, such notice or other writing shall be deemed effective when mailed by first class mail to the Complainant at the Complainant’s last known address with the Bar.

 

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13-30   CONFIDENTIALITY OF DISCIPLINARY RECORDS AND PROCEEDINGS

 

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M.          Disclosure of Exculpatory Evidence.  Bar Counsel shall comply with the duty to disclose exculpatory evidence under these rules regardless of whether the information is considered confidential under Paragraph 13-30.  The Attorney or Complainant who is the subject of the disclosure shall be notified whenever this information is transmitted pursuant to this subparagraph unless Bar Counsel decides that giving this notice will prejudice a disciplinary investigation.

 

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Comments or questions should be submitted in writing to Executive Director, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, no later than August 15, 2014. The Virginia State Bar Council will consider the proposed amendments when it meets on October 24, 2014.

Updated: August 18, 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

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