Professional Guidelines

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Proposed | amendments to Rules 1.6 (Confidentiality) and 3.3 (Candor) (Comments due by March 4, 2016)

VSB Standing Committee On Legal Ethics Seeking Public Comment On Proposed Amendments to Rules 1.6 and 3.3

The proposed amendments are intended to clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, when the lawyer can withdraw from the representation before the client’s intended perjury occurs.

 

Explanation of the proposed amendments to Rules 1.6 and 3.3:

These proposed rule changes address a lawyer’s ethical obligations when, in advance of the client’s trial or hearing, the client has informed the lawyer that he intends to commit perjury, but the lawyer has withdrawn before the client has an opportunity to testify.  This could occur before the lawyer has made an appearance or afterward.  The current rule, Rule 1.6(c)(1) includes the client’s stated intent to commit perjury with all other intended crimes that the lawyer must report unless the client abandons his stated intent.  Thus, a lawyer faced with a client who intends to commit perjury must proactively report the client’s stated intent in an effort to prevent the crime even after that lawyer is no longer representing that person.  Further, the current rule would require the lawyer to report the client’s intended perjury before the client testifies but offers no guidance regarding when such a report must be made, once the client’s intention has been stated, possibly long before the client testifies.  This application of the rule, however, is inconsistent with the comments to Rule 3.3 that specifically address the issue of client perjury, and indicate that withdrawal before trial is generally a sufficient remedial measure. The proposed change removes the client’s intent to commit perjury from Rule 1.6(c)(1) as an intended crime that the lawyer must report and resolves the lawyer’s professional obligations concerning client perjury exclusively under Rule 3.3.  If the court does not permit withdrawal, and the client gives false testimony, the lawyer must disclose the client’s perjury to the court.  The proposed rule changes do not affect the current requirement that, if feasible, the lawyer must remonstrate with the client regarding his intended perjury and its consequences, attempt to persuade the client to abandon his intent, and warn the client that the lawyer will inform the court if the client commits perjury and move to withdraw.

The Ethics Committee proposes that 1.6(c)(2) be deleted in its entirety, since the lawyer’s obligation when a client commits fraud on a tribunal is already addressed by Rule 3.3.

The committee also proposes that Rule 1.6(c)(1) limit its application only to crimes that are “reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another,” rather than requiring disclosure of a client’s intent to commit any crime, no matter how minor. Taken literally, current Rule 1.6(c)(1) would require the lawyer to report the client’s intent to go fishing without a license or other misdemeanor offense. The committee believes that the revised language better balances the lawyer’s duty of loyalty to his or her client with the lawyer’s duty to society. Similarly, the committee added a seventh provision to paragraph (b), permitting disclosure when reasonably necessary to “prevent reasonably certain death or substantial bodily harm.” This provision mirrors ABA Model Rule 1.6(b)(1), and permits the lawyer to disclose information about actions by the client or third parties that are reasonably certain to lead to death or substantial bodily harm, even if the harm is not the result of a crime. The committee revised various comments to the Rule to reflect these changes.

Finally, the committee proposes that a practical time limit on the lawyer’s duty to report the client’s perjury is the conclusion of the proceeding, i.e., when a final order in the proceeding has been entered and the time for appealing the order has run.

Questions about the proposed amendments should be directed to the Office of Ethics Counsel at (804) 775-0565 or mccauley@vsb.org

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 March 4, 2016.  Comments may be submitted via e-mail to publiccomment@vsb.org.

 

PROPOSED RULE CHANGES

ADDITIONS NOTED BY UNDERLINING

DELETIONS NOTED BY STRIKETHROUGHS

 

RULE 1.6       Confidentiality of Information

(a) A lawyer shall not reveal information  protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:

(1) such information to comply with law or a court order;

(2) such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(3) such information which clearly establishes that  the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation;

(4) such information reasonably necessary to protect a client’s interests in the event of the representing lawyer’s death, disability, incapacity or incompetence;

(5) such information sufficient to participate in a law office management assistance program approved by the Virginia State Bar or other similar private program;

(6) information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential.;

(7) such information to prevent reasonably certain death or substantial bodily harm.

(c) A lawyer shall promptly reveal:

(1) the intention of a  client, as stated by the  client, to commit a crime reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the  client of the possible legal consequences of the  action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client's criminal intention unless thereupon abandoned., and However, if the crime involves perjury by the client, that the attorney shall take appropriate remedial measures as required by Rule 3.3seek to withdraw as counsel; or

(2) information which clearly establishes that the client has, in the course of the representation, perpetrated a fraud related to the subject matter of the representation upon a tribunal. Before revealing such information, however, the lawyer shall request that the client advise the tribunal of the fraud.  For the purposes of this paragraph and paragraph (b)(3), information is clearly established when the client acknowledges to the attorney that the client  has perpetrated a fraud; or

(32) information concerning the misconduct of another attorney to the appropriate professional authority under Rule 8.3.  When the information necessary to report the misconduct is protected under this Rule, the attorney, after consultation, must obtain client consent. Consultation should include full disclosure of all reasonably foreseeable consequences of both disclosure and non-disclosure to the client. 

 

Comment

[1]  The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.

[2]  The common law recognizes that the client's confidences must be protected from disclosure. The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.

[2a]  Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct.  Based upon experience, lawyers know that clients usually follow the advice given, and the law is upheld.

[2b]  A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.

[3]  The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

[3a]  The rules governing confidentiality of information apply to a lawyer who represents an organization of which the lawyer is an employee.

[4]  The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.

 

Authorized Disclosure

[5]  A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.

[5a]  Lawyers frequently need to consult with colleagues or other attorneys in order to competently represent their clients’ interests.  An overly strict reading of the duty to protect client information  would render it difficult for lawyers to consult with each other, which is an important means of continuing professional education and development.  A lawyer should exercise great care in discussing a client’s case with another attorney from whom advice is sought.  Among other things, the lawyer should consider whether the communication risks a waiver of the attorney-client privilege or other applicable protections.  The lawyer should endeavor when possible to discuss a case in strictly hypothetical or abstract terms.  In addition, prior to seeking advice from another attorney, the attorney should take reasonable steps to determine whether the attorney from whom advice is sought has a conflict.  The attorney from whom advice is sought must be careful to protect the confidentiality of the information given by the attorney seeking advice and must not use such information for the advantage of the lawyer  or a third party.

[5b] Compliance with Rule 1.6(a) might include fulfilling duties under Rule 1.14, regarding a client with an impairment.

[5c]  Compliance with Rule 1.6(b)(5) might require a written confidentiality agreement with the outside agency to which the lawyer discloses information.

[6]  Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

[6a] Lawyers involved in insurance defense work that includes submission of detailed information  regarding the client’s case to an auditing firm must be extremely careful to gain consent from the client after full and adequate disclosure.  Client consent to provision of information to the insurance carrier does not equate with consent to provide the information to an outside auditor.   The lawyer must obtain specific consent to disclose the information to that  auditor.  Pursuant to the lawyer’s duty of loyalty to the client, the lawyer should not recommend that the client provide such consent if the disclosure to the auditor would in some way prejudice the client. Legal Ethics Opinion #1723, approved by the Supreme Court of Virginia, September 29, 1999.

 

Disclosure Adverse to Client

[6b]  The confidentiality rule is subject to limited exceptions. However, to the extent a lawyer is required or permitted to disclose a client's confidences, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited.

[7]  Several situations must be distinguished.

[7a]  First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(c) to avoid assisting a client in criminal or fraudulent conduct.

[7b]  Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(c), because to "counsel or assist" criminal or fraudulent conduct requires knowing that the conduct is of that character.

[7c]  Third, the lawyer may learn that a client intends prospective criminal conduct. As stated in paragraph (c)(1), the lawyer is obligated to reveal such information if the crime is reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another. Some discretion Caution is involvedwarranted as it is very difficult for a lawyer to "know" when proposed criminal conduct will actually be carried out, for the client may have a change of mind. If the client’s intended crime is perjury, the lawyer must look to Rule 3.3(a)(4) rather than paragraph (c)(1).

[8]  The lawyer's exercise of discretion requires consideration ofWhen considering disclosure under paragraph (b), the lawyer should weigh such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the nature of the client's intended conduct, the lawyer's own involvement in the transaction, and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take appropriate action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose.

[8a]  Paragraph (b)(7) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

 

Withdrawal

[9]  If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).

 

[9a]  After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in Rule 1.6. Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.

[9b]  Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).

 

Dispute Concerning a Lawyer's Conduct

[10]  Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(2) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

[10a]  If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary proceeding, and can be based on a wrong allegedly committed by the lawyer against the client, or on a wrong alleged by a third person; for example, a person claiming to have been defrauded by the lawyer and client acting together. A lawyer entitled to a fee is permitted by paragraph (b)(2) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.

 

Disclosures Otherwise Required or Authorized

[11]  If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the attorney-client privilege when it is applicable. Except as permitted by Rule 3.4(d), the lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

[12]  The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such a supersession.

 

Attorney Misconduct

[13]  Self-regulation of the legal profession occasionally places attorneys in awkward positions with respect to their obligations to clients and to the profession. Paragraph (c)(32) requires an attorney who has information indicating that another attorney has violated the Rules of Professional Conduct, learned during the course of representing a client  and  protected as a confidence or secret under Rule 1.6, to request the permission of the client to disclose the information necessary to report the misconduct to disciplinary authorities. In requesting consent, the attorney must inform the client of all reasonably foreseeable consequences of both disclosure and non-disclosure.

[14]  Although paragraph (c)(32) requires that authorized disclosure be made promptly, a lawyer does not violate this Rule by delaying in reporting attorney misconduct for the minimum period of time necessary to protect a client's interests.  For example, a lawyer might choose to postpone reporting attorney misconduct until the end of litigation when reporting during litigation might harm the client's interests.

[15 - 17] ABA Model Rule Comments not adopted.

 

Former Client

[18]  The duty of confidentiality continues after the client-lawyer relationship has terminated.

 

 

RULE 3.3       Candor Toward The Tribunal

(a)       A lawyer shall not knowingly:

(1)  make a false statement of fact or law to a tribunal;

(2)  fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6;

(3)  fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or

(4)  offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b)  A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(c)  In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

(d)  A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon athe tribunal in a proceeding in which the lawyer is representing a client shall promptly reveal the fraud to the tribunal.

(e)  The duties stated in paragraphs (a) and (d) continue until the conclusion of the proceeding, and apply even if compliance requires disclosure of information protected by Rule 1.6.

 

Comment

[1]  The advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal. However, an advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.

[2] ABA Model Rule Comment not adopted.

 

Representations by a Lawyer

[3]  An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, Section 8.01-271.1 of the Code of Virginia states that a lawyer's signature on a pleading constitutes a certification that the lawyer believes, after reasonable inquiry, that there is a factual and legal basis for the pleading.  Additionally, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(c) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(c), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

 

Misleading Legal Argument

[4]  Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Furthermore, the complexity of law often makes it difficult for a tribunal to be fully informed unless pertinent law is presented by the lawyers in the cause.  A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it.  The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.  A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose controlling adverse authority in the  subject jurisdiction which has not been disclosed by the opposing party.

 

False Evidence

[5] When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes.

[6] When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is falseIf a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce evidence that is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.

[7 -9] ABA Model Rule Comments not adopted.

[7]  ABA Model Rule Comment not adopted.

[8]  The prohibition against offering false evidence only applies if the lawyer knows the evidence is false. A lawyer’s reasonable belief or suspicion that evidence is false does not preclude its presentation to the trier of fact. A lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, but the lawyer cannot ignore an obvious falsehood.

[9]  Although paragraph (a)(4) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.

 

Remedial Measures       

[10] ABA Model Rule Comments not adopted Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situation or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done.

[11] Except in the defense of a criminal accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperates in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(c). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

 

Perjury by a Criminal Defendant

[12]  Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available.

[13]  The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.

[13a]  Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.

[13b] The ultimate resolution of the dilemma, however, is that the lawyer must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. See Rule 1.2(c).

 

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.  For purposes of this Rule, ex parte proceedings do not include grand jury proceedings or proceedings which are non-adversarial, including various administrative proceedings in which a party chooses not to appear.  However, a particular tribunal (including an administrative tribunal) may have an explicit rule or other controlling precedent which requires disclosure even in a non-adversarial proceeding.  If so, the lawyer must comply with a disclosure demand by the tribunal or challenge the action by available legal means.  The failure to disclose information as part of a legal challenge to a demand for disclosure will not constitute a violation of this Rule.

 

Duration of Obligation

            [15]  The obligation to rectify false evidence or false statements of law and fact should have a practical time limit. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Updated: January 29, 2016

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

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

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

Updated: January 7, 2016

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

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

Rule 1.1: Competence.

Rule 1.6: Confidentiality of Information.

View the Supreme Court of Virginia order (PDF file)

Updated: December 18, 2015

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

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

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

Rule 8.3: Reporting Misconduct.

view the Supreme Court of Virginia order (PDF file)

Updated: November 17, 2015

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

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

view the Supreme Court of Virginia order (PDF file)

Updated: November 3, 2015

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

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

view the Supreme Court of Virginia order (PDF file)

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

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

Updated: January 21, 2016

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

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

view the Supreme Court of Virginia order (PDF file)

Updated: August 21, 2015

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

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

view the Supreme Court of Virginia order (PDF file)

Updated: August 21, 2015

Withdrawn | amendment to Bylaws regarding Better Annual Meeting Committee

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

 

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

PART 1 – BYLAWS OF THE VIRGINIA STATE BAR

ARTICLE V

Committees

Sec. 4. Members of special committees shall be appointed to three-year terms, with the exception of the Special Committee on the Better Annual Meeting and the Special Committee on Lawyer Malpractice Insurance whose members shall be appointed to five-year terms. No member shall serve more than two consecutive terms on such a committee. A member appointed to fill an unexpired term shall be eligible to serve two additional full terms. An eligible member wishing to be reappointed to a special committee shall be required to reapply in writing prior to the end of his or her current term under procedures established by Council and administered by the executive director. If any member of a committee fails to attend either three meetings during any bar year or two successive meetings of the committee without providing an explanation satisfactory to the committee chair, or in the case of a lawyer member, is declared not in good standing with the Virginia State Bar, such person’s position shall automatically be considered vacated and filled as in the case of other vacancies.

 

originally posted August 7, 2015

Updated: November 4, 2015

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

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

view the Supreme Court of Virginia order (PDF file)

Updated: March 3, 2015

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

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

view the Supreme Court of Virginia order (PDF file)

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

Updated: March 2, 2015

Proposed | Paragraph 13-24 regarding Disbarment, Revocation, or Suspension in another jurisdiction (pending reconsideration by COLD)

updated 3/2/15:

After the February 28, 2015, meeting of VSB Council, the proposal is pending reconsideration by the Committee on Lawyer Discipline.

 

On December 3, 2014, the Committee on Lawyer Discipline (COLD) approved the proposed amendments to Part 6, Section IV, Paragraph 13-24 of the Rules of the Supreme Court of Virginia. The purpose of the amendments is to clarify what qualifies as another jurisdiction for reciprocal disciplinary purposes, and to clarify the Disciplinary Board’s authority to impose the same or less discipline as another jurisdiction and allow for leniency as appropriate. The amendments remove the strict default provisions of the existing rule that mandate imposition of the same discipline as another jurisdiction when a Respondent fails to timely file a written response to a reciprocal disciplinary action.

13.       PROCEDURE FOR DISCIPLING, SUSPENDING AND DISBARRING ATTORNEYS

*   *   *

13-24   Board Proceedings Upon Disbarment, Revocation Or Suspension In Another Jurisdiction

view proposed changes (PDF file)

 

Updated: January 21, 2015

Updated: March 2, 2015

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

view Supreme Court order (PDF file)

Updated: November 7, 2014

Adopted | amendment to bylaws regarding Council election procedures (Approved by VSB Council 10/24/14, effective immediately.)

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

Updated: October 31, 2014

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

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

Updated: March 17, 2015

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


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

 

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

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

Technology and the Practice of Law

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

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

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

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

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

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

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

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

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

 

Inspection and Comment

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

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

Updated: November 24, 2014

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

updated 3/2/15:

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

 

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

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

 

13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

*    *    *

13-4     ESTABLISHMENT OF DISTRICT COMMITTEES

*   *   *

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

*   *   *

 

Updated: December 8, 2014

Updated: March 2, 2015

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

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

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

 

Technology and the Practice of Law

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

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

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

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

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

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

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

Second, the Commission noted that:

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

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

 

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

           

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

 

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

 

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

 

Acting Reasonably to Preserve Confidentiality

 

[19]  Paragraph (d) requires a lawyer to act  reasonably to safeguard information protected under this Rule against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.  The unauthorized access to, or the inadvertent or unauthorized disclosure of confidential information does not constitute a violation of  this Rule if the lawyer has made reasonable efforts to prevent the access or disclosure.  Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures  or may give informed consent to forego security measures that would otherwise be appropriate under this Rule.  Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. 

Inspection and Comment

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

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

 

 

 

Updated: September 18, 2014

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

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

RULE 1.10

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

Updated: August 7, 2015

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

At its meeting on June 12, 2014, in Virginia Beach, the Virginia State Bar Council unanimously approved an addition to VSB and Council Bylaws, adding a new Part III regarding amendments: Upon motion of a council member, the bylaws contained in either Part I or Part II may be amended at any regular meeting of the bar council provided there has been at least thirty days' notice of the proposed amendment to all Virginia State Bar members. Amendment of the bylaws must be by a two-thirds vote of the council members present and voting at that regular meeting. 

 

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

Part III — Miscellaneous

Amending Bylaws

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

Updated: June 16, 2014

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

view Supreme Court of Virginia order (PDF)

view Paragraph 17 Mandatory Continuing Legal Education Rule

Updated: May 1, 2014

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

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

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

3. Classes of Membership—

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

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

view the current Paragraph 3

Updated: September 19, 2014

Vacated | amendments to UPR 1-101 concerning representation before general district courts (proposal withdrawn April 8, 2014)

Updated April 8, 2014:

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

 


 

UPR 1-101 REPRESENTATION BEFORE TRIBUNALS

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

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

Originally posted: December 2013

Updated: April 29, 2014

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

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

view Supreme Court of Virginia order (PDF)

 

Updated: December 16, 2013

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

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

view Supreme Court of Virginia order (PDF)

Updated: February 3, 2014

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

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

view Supreme Court of Virginia order (PDF)

 

Updated: February 3, 2014

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

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

view Supreme Court of Virginia order (PDF)

 

Updated: February 3, 2014

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

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

view Supreme Court of Virginia order (PDF file)

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

Updated: November 4, 2013

Rejected | Amendment to VSB Bylaws regarding composition of Executive Committee

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

 

Updated: October 17, 2013

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

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

view amended Rules 7.1-7.5 (PDF file)

 

Here is how the approved amendments change the current rules.

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

Updated: June 26, 2013

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

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

 

Updated: March 4, 2013

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

Friday 14th December, 2012.

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

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

 

Updated: December 18, 2012

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


view Supreme Court of Virginia Order (PDF file)

 

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

Updated: November 30, 2012

Adopted | Bylaws revisions to election procedures for president-elect and council (Adopted by Council October 19, 2012, effective immediately.)

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

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

and

Part II, Article II
Election of Council

 

Updated: October 24, 2012

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

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

Updated: June 24, 2013

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

view amended Paragraph 13-6 (PDF file)

 

 

Updated: April 16, 2012

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

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

view Rule 1.15

view Paragraph 20

Updated: June 24, 2011

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

 

view adopted Rule 1.18 (PDF file)

 

Updated: June 24, 2011

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

 

view amended rule 1:A5 (PDF file)

 

Updated: June 24, 2011

Adopted | amendments to bylaws for VSB standing committees (Adopted by Council June 16, 2011, effective immediately)


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

Standing Committees

view amended bylaws (PDF file)

Updated: June 22, 2011

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

 

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

view amended rule 1:A5 (PDF file)

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

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

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

 

Updated: April 15, 2011

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


view amended Paragraph 11 (PDF file)

Updated: March 17, 2011

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


view amended Paragraph 13 (PDF file)


 

Updated: February 24, 2011

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


Report of the Task Force on Paragraph 17

view amended Paragraph 17 (PDF file)


Updated: January 10, 2011

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

Supreme Court of Virginia approved amendment to Rule 4.2

view adopted amendment to Rule 4.2 (PDF file)

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

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

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

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

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

 

Updated: November 30, 2010

Adopted | Amendments to Parts 5 and 5A, Rules of Virginia Supreme Court, regarding appellate procedures (Effective July 1, 2010)

 

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

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

Updated: May 5, 2010

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


view amended Paragraph 13-10  (PDF)


Updated: March 23, 2010

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

 

view amended Paragraph 13-10  (PDF)

 

Updated: March 23, 2010

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

 

view amended Paragraph 13  (PDF file)

 

Updated: March 23, 2010

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

 

view amended Paragraph 10 (PDF file) 

Updated: March 23, 2010

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


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

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

MCLE Board Postpones Effective Date of Amended Regulations

Updated: November 10, 2011

Rejected | Rule 7.4(d) certification as a specialist


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

Updated: March 15, 2010

Rejected | Paragraph 17 mailing the annual certification form


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

Updated: March 15, 2010

Rejected | Rule 8.4 allowing undisclosed recording under certain circumstances


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

Updated: March 15, 2010