VIRGINIA STATE BAR SPECIAL COMMITTEE TO STUDY
THE VIRGINIA CODE OF PROFESSIONAL RESPONSIBILITY
DETAILED
COMPARISON CHART
SUBSTANTIVE DIFFERENCES BETWEEN THE
VIRGINIA
RULES OF PROFESSIONAL CONDUCT
AND
CODE OF PROFESSIONAL RESPONSIBILITY
Prepared by Thomas E. Spahn
McGuire, Woods, Battle & Boothe LLP
January 25, 1999
| SUBSTANTIVE
DIFFERENCES BETWEEN THE
VIRGINIA RULES OF PROFESSIONAL CONDUCT AND CODE OF PROFESSIONAL RESPONSIBILITY |
|||
| RULES
PROVISION |
RULES |
CODE
PROVISION |
CODE |
| Preamble | The Preamble sets the context for the Rules and describes the lawyer's responsibilities as a representative of clients, a third party neutral, an officer of the legal system and a public citizen having special responsibility for the quality of justice. The text of each Rule and the Terminology section which follows the Preamble are authoritative and the Comments accompanying each Rule are interpretative. | Preamble | The Code consists of three separate parts: Canons, Disciplinary Rules and Ethical Considerations. They express the standards of professional conduct expected of lawyers in their relationship with the public, with the legal system and with the legal profession. The Canons are norms, the Disciplinary Rules are mandatory and the Ethical Considerations are "aspirational." |
| Preamble | Rule violations "should not give rise to a cause of action" and the Rules "are not designed to be a basis for civil liability." The Rules should not be invoked "as procedural weapons" and an "antagonist in a collateral proceeding or transaction" may lack standing to seek enforcement of the Rules. | The Code contains no similar provision. | |
| 1.2 (a) | This Rule requires lawyers to
defer to their clients' decisions about their objectives, and to consult
with their clients about the means of pursuing those objectives. |
DR 6-101 | The Code requires lawyers to promptly and fully advise clients of material facts, but there is no specific requirement to abide by the client's decision about objectives and to consult with the client about the means to be used. |
| 1.2
Comment |
Comment: Lawyers shall advise
their clients "about the advantages, disadvantages, and availability of
dispute resolution processes that might be appropriate. . .."
This requirement to advise clients about ADR processes "that might be appropriate" recognizes lawyers' inherent obligation to consult about the means to accomplish the clients' goals, and reflects the increasing availability and popularity of ADR options. |
DR 6-101 | The Code requires lawyers to promptly and fully advise clients of material facts, but there is no specific requirement to mention ADR options when appropriate. |
| 1.3(a) | "A lawyer shall act with reasonable
diligence and promptness in representing a client."
This "diligence" requirement represents a broader concept than the "zealous representation" standard of the current Code, and includes use of collaborative strategies when appropriate. |
DR 7-101 | The Code requires lawyers to "zealously" represent their clients. |
| 1.4(b) | "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." | DR 6-101(C)
DR 7-101(B)(1) |
These and other provisions of the Code address a lawyer's duty to keep a client informed and follow the client's direction, but the Code has no explicit "informed decision" provision. |
| 1.5(d)(1) | "A lawyer shall not enter into
an arrangement for, charge, or collect a contingent fee . . . in a domestic
relations matter, except in rare instances." [which are described in some
detail in the Comment section].
The Comment section summarizes the Legal Ethics Opinions issued by the Bar that identify the "rare instances" where it would be appropriate to charge a contingent fee in a domestic relations matter. |
EC 2-22 | "Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified." |
| 1.5(e) | Fee-splitting is permissible
if the total fee is reasonable and if the client consents (preferably in
writing) after being fully informed of the fee, the proposed split and the
lawyers' participation.
As long as the client consents after full disclosure, a lawyer may enter into a fee-splitting arrangement without assuming full responsibility for co-counsel's conduct. This essentially allows referral arrangements provided the client consents after full disclosure. |
DR 2-105(D) | The Code requires each participating lawyer to "expressly assume responsibility to the client," which the Bar has interpreted to require more than "the mere recommendation or referral of the case to another lawyer" or "ministerial or mechanical tasks." (LEO 1488) |
| 1.6(a) | A lawyer shall not reveal confidential
information except (among other reasons) "for disclosures that are impliedly
authorized in order to carry out the representation."
The Code has no "impliedly authorized" exception to a lawyer's duty of confidentiality. The Comment describes circumstances under which lawyers may consult with colleagues or other attorneys to competently represent their clients' interests. |
DR 4-101(B)(1) | "[A] lawyer shall not knowingly . . . reveal a confidence or secret of his client", unless certain exceptions apply. |
| 1.6(c)(3) | A lawyer shall "promptly reveal"
information about another lawyer's misconduct if the client consents. A
lawyer "is required to request the consent of a client to disclose
information necessary to report the misconduct of another attorney" (emphasis
added).
This Rule increases clients' power to prevent or insist upon their lawyers' reporting of another lawyer's misconduct. |
DR 1-103(A) | A lawyer is obligated to report
another lawyer's misconduct unless the information is protected by the duty
of confidentiality. There is no explicit requirement to seek the
client's consent to disclosure (the general principles of communication
and advocacy may currently require lawyers to seek their clients' views
about reporting another lawyer's misconduct, but there is no specific requirement
that they do so)
|
| 1.7(a) | "A lawyer shall not represent
a client if the representation of that client will be directly adverse to
another existing client, unless: (1) the lawyer reasonably believes the
representation will not adversely affect the relationship with the other
client; and (2) each client consents after consultation."
This Rule states the bedrock conflict of interest principle that a lawyer may never be adverse to a current client unless it will not hurt the client and the client consents after full disclosure. |
DR 5-105(A)(C) | The Code does not explicitly state this most basic conflict rule -- it is necessary to "read between the lines" to find it. |
| 1.8(c)
1.10(a) |
A lawyer may not prepare an
instrument giving the lawyer or an immediate relative any "substantial gift"
from a client unless the client is related to the donee.
This disqualification is imputed to the lawyer's entire firm under Rule 1.10(a). |
DR 5-104(B)
DR 5-105(E) |
Under the Code, the prohibition on a lawyer preparing an instrument giving the lawyer or a member of the lawyer's family a gift from a client who is not a relative (DR 5-104(B)) does not disqualify the lawyer's entire firm. |
| 1.8(e)(2) | "[A] lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client." | DR 5-103(B) | A lawyer may "advance or guarantee
the expenses of litigation" provided "the client remains ultimately liable
for such expenses."
The Bar has held that a lawyer may advance an expert fee for a death row inmate even if there is "no probability" that the client could ultimately reimburse the lawyer (LEO 997), but has not recognized a broad exception for indigent clients. |
| 1.8(h) | A lawyer may enter into an agreement prospectively limiting malpractice liability to a client of which the lawyer is an employee if the client is independently represented in negotiating the agreement. | DR 6-102(A) | In-house lawyers may not prospectively limit their malpractice liability (LEO 1364). |
| 1.8(i) | Related lawyers may represent clients adverse to each other if the clients consent. | As interpreted by the Bar, the Code absolutely prohibits adversity between related lawyers. (LEO 190) | |
| 1.9(b) | "A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by [the confidentiality rules] that is material to the matter." | DR 5-105(D) | The general conflicts rule governing adversity to former clients does not specifically address lawyers moving to other firms, and does not specifically include the disqualifying factor of lawyers having material confidential information. |
| 1.11(b)(e) | A former government lawyer may
not represent a private client in which the lawyer "participated personally
and substantially as a public officer or employee" unless the client and
the government agency consent. The lawyer's firm may undertake such a representation
if the disqualified lawyer is "screened from any participation in the matter
and is apportioned no part of the fee" and if the government agency receives
written notice.
The term "matter" is defined to include any "judicial or other proceeding, application, request for a ruling, or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties." |
DR 9-101(B) | "A lawyer shall not accept private
employment in a matter in which he had substantial responsibility while
he was a public employee unless the public entity by which he was employed
consents after full disclosure."
The Code does not define the term "matter." |
| 1.11(c)(f) | A former government lawyer having
"confidential government information" about a person may not undertake a
representation adverse to that person "in a matter in which the information
could be used to the material disadvantage of that person." The lawyer's
firm may undertake the representation if the lawyer is screened and does
not share in any of the fees.
The term "confidential government information" is defined as information "obtained under governmental authority", the disclosure of which is prohibited by law and which is "not otherwise available to the public." |
The Code contains no similar provision, although general conflicts of interest and confidentiality rules might prohibit such conduct. | |
| 1.11(d) | A government lawyer may not participate in a matter "in which the lawyer participated personally and substantially while in private practice or non-governmental employment" or "negotiate for private employment" with a party or a lawyer involved in such a matter (except for law clerks and other specified government lawyers). | The Code contains no similar provision. | |
| 1.12 | Former judges, adjudicative
officers, arbitrators and law clerks may not represent anyone "in connection
with a matter in which [they] participated personally and substantially,"
unless all parties consent. This disqualification extends to any law firm
they join unless they are "screened from any participation in the matter,"
are "apportioned no part of the fee therefrom," and provide written notice
to the tribunal. Arbitrators picked as partisans by one party may later
represent that party.
Judges, adjudicative officers and arbitrators may not negotiate for employment with any party or lawyer involved in a matter in which they are "participating personally and substantially." Law clerks may engage in such negotiations if they notify their judge. |
DR 9-101(A)
EC 5-20 |
The Code prohibits a judge from accepting private employment "in a matter upon the merits of which he has acted in a judicial capacity" and advises that a lawyer "should not thereafter represent in the dispute any of the parties involved" if the lawyer had "undertaken to act as an impartial arbitrator or mediator." |
| 1.13 | This Rule governs lawyers representing organizations, and includes a section offering guidance to lawyers who discover that an officer or employee of the organization is acting in a manner prejudicial to the organization. | EC5-18 | The Code contains no similar provision, except for the statement in EC 5-18 that a "lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity" and "should not be influenced by the personal desires" of any of the entity's constituents.. |
| 1.13(d) | "In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing." | The Code contains no similar provision, although lawyers wishing to avoid misunderstanding would be wise to make this disclosure under general ethical principles | |
| 1.14 | This Rule provides guidelines for a lawyer whose client's ability to make decisions becomes impaired. The lawyer shall try to maintain a normal client-lawyer relationship but may seek the appointment of a guardian or take "other protective action" if the lawyer "reasonably believes that the client cannot adequately act in the client's own interest." | The Code contains no similar provision. | |
| 1.15 | This Rule governs lawyers' handling of others' funds. The Rule differs in a number of ways from the Code. For example, Rule 1.15(b) requires a lawyer to segregate and maintain property which is the subject of a dispute. Rules 1.15(d) and (e)(2) provide specific guidelines for a lawyer or law firm acting as a fiduciary (such as a trustee, receiver or similar role). The term "escrow account" is defined as an account maintained by a lawyer representing a client rather than acting as a fiduciary such as a trustee, receiver or similar role, etc. | DR 9-102
DR 9-103 |
These Code provisions govern Virginia lawyers' duties to separately maintain client funds and maintain certain records. |
| 1.16(e) | Whether the client has fully
paid them or not, lawyers must provide the following documents to their
former client upon request: (1) "original client-furnished documents and
any originals of legal instruments or official documents" (lawyers must
pay for any copies they wish to retain); (2) "lawyer/client and lawyer/third-party
communications; the lawyer's copies of client-furnished documents; pleadings
and discovery responses; working and final drafts of legal instruments,
official documents, investigative reports, legal memoranda, and other attorney-work
product . . . research material; and bills previously submitted to the client"
(lawyers may charge the client for a copy of these documents, but may not
withhold the documents until the client pays for the copies).
Lawyers are not required to give a former client "copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship." |
DR 2-108(D) | "Upon termination of representation,
a lawyer shall . . . deliver [ ] all papers and property to which the client
is entitled . . . the lawyer may retain papers relating to the
client to the extent permitted by applicable law."
In a series of Legal Ethics Opinions (culminating in LEO 1690), the Bar has indicated that lawyers may not retain a former client's files pending payment of their bills if the client would be "prejudiced." |
| 1.17 | Lawyers intending to cease practicing law in the "geographic area" in which they practice may sell all or part of their practice (including "good will") if they provide actual written notice to the clients and the clients affirmatively consent to the sale; lawyers must make their entire practice available for purchase, but may sell only part of it; clients' fees may not be increased "by reason of the sale." | The Code contains no similar provision. | |
| 2.1
2.2 2.3 2.10 2.11 |
These Rules govern a lawyer's
activities as an advisor (Rule 2.1), intermediary (Rule 2.2), evaluator
(Rule 2.3), third party neutral (Rule 2.10) and mediator (Rule 2.11).
In addition to describing these different roles, the Rules emphasize the lawyer's responsibility to fully disclose and explain to the client the lawyer's role in a given setting. |
EC 5-20 | The Code contains no similar provisions, except for the acknowledgment in EC 5-20 that a "lawyer is often asked to serve as an impartial arbitrator or mediator" in matters involving present or former clients, and that the lawyer "may serve in either capacity if he first discloses such present or former relationships" to the parties. |
| 3.1 | Lawyers shall not "bring or
defend a proceeding" or "or assert or controvert an issue" unless "there
is a basis for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law. Criminal
defense lawyers may "nevertheless" insist that the prosecution prove every
element of the offense.
Unlike the Code, this Rule includes an objective requirement that a lawyer's position not be frivolous (with a limited exception for criminal lawyers). |
DR 7-102(A)(1) | "In his representation of a client, a lawyer shall not . . . file a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." |
| 3.3(a)(3) | A lawyer must advise the court of "controlling legal authority in the subject jurisdiction." | EC 7-20 | Disclosure of adverse authority is only "aspirational." |
| 3.3(b) | "A lawyer may refuse
to offer evidence that the lawyer reasonably believes is false" (emphasis
added). This Rule protects lawyers from a client's complaint for refusing to offer suspicious evidence. |
The Code prohibits a lawyer from offering evidence that the lawyer "knows" to be false (DR 7-105(C)(6)), but does not offer any guidance for lawyers who suspect the falsity of evidence the client wants presented. | |
| 3.3(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." | The Code contains no similar provision. | |
| 3.4(e) | "A lawyer shall not . . . make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party." | DR 7-102(A)(1)
DR 7-102(A)(2) |
There is no similar provision in the Code (except for the provisions in DR 7-102(A)(1) and (2) prohibiting activities that are undertaken "merely to harass or maliciously injure another" or that are "unwarranted under existing law"). |
| 3.4(g) | A lawyer may request a non-client to refrain from voluntarily giving relevant information in a pending civil matter to another party as long as the person is a "relative or a current or former employee or other agent of a client" and will not be "adversely affected." | DR 7-103(A)(2) | A lawyer shall not "give advice to a person who is not represented by a lawyer, other than the advice to secure counsel" if the person has conflicting interests. This provision presumably prohibits a lawyer from asking an unrepresented non-client to refrain from providing information to another party. |
| 3.4(h) | "A lawyer shall not . . . present
or threaten to present criminal or disciplinary charges solely to obtain
an advantage in a civil matter."
Because lawyers are not prohibited from "participating" in presenting criminal charges under this Rule, they may offer advice about the client's rights under the criminal law. |
DR 7-104(A) | "A lawyer shall not present, participate in presenting, or threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter." (emphasis added) |
| 3.5(d) | "A lawyer shall not engage in conduct intended to disrupt a tribunal." | DR 7-105(C)(5) | "A lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence where such conduct is disruptive of the proceedings." |
| 3.6(a) | A lawyer may not issue pretrial communications in a criminal matter that "will have a substantial likelihood of interfering with the fairness of the trial by a jury", using the language approved by the United States Supreme Court in Gentile v. State Bar, 501 US 1030 (1991). | DR 7-106(A) | The Code prohibits pre-trial publicity in a criminal matter based on a "clear and present danger" standard. |
| 3.7(c) | A law firm may continue to act as trial counsel even if one of its lawyers must be a witness on behalf of its client, unless a conflict of interest exists. | DR 5-101(B);
DR 5-102 |
The entire firm is disqualified if one of its lawyer is disqualified under the witness-advocate rule. |
| 3.8(c) | A lawyer-prosecutor "shall not instruct or encourage a person to withhold information from the defense after a party has been charged with an offense." | DR 8-102(A)(3) | A public prosecutor or a government lawyer . . . shall "not discourage a person from giving relevant information to the defendants." |
| 3.8(e) | A lawyer-prosecutor "shall not direct or encourage . . . persons . . . associated with the prosecutor . . . to make an extrajudicial statement [in violation of Rule 3.6]." | The Code contains no similar provision. | |
| 4.1(b) | "In the course of representing a client a lawyer shall not knowingly: (b) fail to disclose a fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client." | DR 1-102(A)(4)
DR 7-102(A)(3) DR 7-102(A)(5) |
These provisions prohibit lawyers from engaging in affirmative misrepresentations and concealing "that which he is required by law to reveal," but the Code contains no explicit duty of disclosure to avoid assisting a client's wrongful acts. |
| 4.2 | "In representing a client, a
lawyer shall not communicate about the subject of the representation with
a person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so." (emphasis added).
Using the word "person" rather than "party" makes it clear that the prohibition in this Rule applies to pre-litigation and non-litigation settings (although the Comment indicates that certain investigative contacts in a pre-indictment, non-custodial circumstance are authorized). |
DR 7-103(A)(1) | The Code has essentially the same provision, but uses the term "party" rather than "person." |
| 5.1 | This Rule governs relationships within law firms, and provides that supervisory lawyers are responsible for another lawyer's misconduct if they order or ratify the conduct or fail to take reasonable remedial actions despite knowing of the misconduct. | The Code contains no similar provision. | |
| 5.3(c) | Lawyers are responsible for
conduct by a non-lawyer employed or retained by the lawyer that would be
a violation of the Rules if the lawyer orders or knowingly ratifies the
conduct, or if the lawyer is a partner in the law firm employing the person
(or has direct supervisory authority" over the person) and knows or should
have known of the conduct when "its consequences can be avoided or mitigated"
but "fails to take reasonable remedial action."
Non-lawyers may engage in such traditionally acceptable misrepresentations as those involved in criminal "sting" operations and housing discrimination "tests." |
DR 3-104(C) | This Code provision requires that lawyers exercise a "high standard of care" to assure compliance by non-lawyer personnel with applicable Code provisions, but does not specifically address a lawyer's responsibility for any violations. |
| 5.6 | "A lawyer shall not participate in offering or making: (b) an agreement in which a broad restriction on the lawyer's right to practice is part of the settlement of a controversy, except where such a restriction is approved by a tribunal or a governmental entity." | DR 2-106(B) | "In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that broadly restricts his right to practice law." |
| 6.1 | Lawyers should devote two percent of their time each year to pro bono legal services or provide "direct financial support" to pro bono activities. Lawyers in a firm may satisfy this aspirational responsibility collectively. | EC 2-28
EC 2-29 EC 2-30 EC 2-31 EC 2-32 |
The Code discusses pro bono work in Ethical Considerations. |
| 6.3 | This Rule governs a lawyer's membership in a legal services organization; it permits lawyers to serve in such an organization even if it represents clients adverse to the lawyers' clients (although lawyers may not participate in discussions or activities incompatible with their obligations to their clients). | The Code contains no similar provision. | |
| 7.1(e) | "Any communication made pursuant
to this [advertising] rule shall include the full name and office address
of an attorney licensed to practice in Virginia who is responsible for its
content."
This is the only difference in the advertising provisions between the Rules and the Code. |
The Code provision governing advertising (DR 2-101) contains no similar provision. | |
| 7.4 | Lawyers may describe themselves as "patent" or "admiralty" lawyers (as under the Code), and may also describe themselves as "certified" specialists in other areas of the law as long as either: (1) the lawyers have been certified as specialists by the Virginia Supreme Court; or (2) the lawyers name the certifying organization and "clearly state" that Virginia has no procedure for approving certifying organizations | DR 2-104(a)(1) | The Code allows lawyers to describe themselves as patent, trademark or admiralty lawyers , but does not allow lawyers to describe themselves as certified specialists in other areas of the law. |
| 8.1(c)(d) | Lawyers may not obstruct an admissions or disciplinary authority investigation and may not fail to respond to a lawful demand for information from such an authority (although they need not disclose information protected by the confidentiality or self-incrimination rules). | The Code contains no similar provision. | |
| 8.2 | Lawyers shall not make comments knowing them to be false or with "reckless disregard" about "the qualifications or integrity of a judge or other judicial official." | EC 8-6 | "While a lawyer as a citizen has the right to criticize [judges and other judicial officers], he should be certain of the merit of his complaint, use appropriate language and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system." |
| 8.3(b) | Lawyers having "reliable information" that a judge has committed a violation of judicial conduct rules that "raises a substantial question as to the judge's fitness for office" must inform the appropriate authorities. | The Code contains no similar provision. | |
| 8.4(e) | "It is professional misconduct for a lawyer to: (e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law." | The current Code contains no similar provision. | |
| 8.5 | This Rule provides choice of laws guidance: conduct in a court proceeding is governed by the ethics rules designated by the court; a Virginia lawyer is subject to the Virginia Rules even if practicing elsewhere; but another state's rules might apply if the lawyer is licensed in that jurisdiction and the conduct has its "predominant effect" there. | DR 1-102(B) | Virginia lawyers are subject to discipline by the Virginia Bar wherever they practice, unless that jurisdiction's ethics rules permit the activity. |
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