Standing Committee on Legal Ethics

Kathleen A. Dooley, chair

Ethics opinions

The Standing Committee on Legal Ethics received six new opinion requests in the fiscal year ended 2009. Since July 1, 2008, the committee issued six opinions, put two opinion requests on hold, and carried two requests over to fiscal 2010.

Topics of opinions issued by the committee included:

  • Obligations of a lawyer who receives confidential information via law firm website or telephone voicemail.
  • Whether a member of the Virginia State Bar who practices patent law can be a partner with a nonlawyer registered patent agent.
  • Ethical duty of a guardian ad litem to investigate and report allegations of child abuse and neglect.
  • Use of covert tactics by the Virginia State Bar in unauthorized practice of law investigations.
  • Is it ethical for a lawyer to become a member of a lead-sharing organization?
  • Use of credit card for legal services.
Rule revisions

On February 26, 2009, the Supreme Court of Virginia rejected the committee’s proposed comments to Rules of Professional Conduct 8.4 regarding when a lawyer or an agent under the lawyer’s direction or control may ethically engage in lawful, undisclosed, or nonconsensual recording of communications in which the lawyer or agent is a participant. In the alternative, the committee is reconsidering the possibility of issuing a former opinion request – Legal Ethics Opinion 1802, “Ethical Obligations of Domestic and Criminal Law Practitioner in Conducting Surveillance or Advising Their Clients to Do So.”

On December 30, 2008, the Supreme Court of Virginia approved a proposed amendment to Comment [9] to Rule 2.11, effective immediately. The committee discovered that Comment [9] to Rule 2.11 includes references to Rule 2.2, which no longer exists. Rule 2.2 was deleted by Court order dated September 24, 2003; the purpose of the deletion was to remove ambiguity between Rule 1.7’s application to joint representations and Rule 2.2’s application to the lawyer’s role as intermediary. As the two contexts are indistinguishable, all such situations are now being handled in Rule 1.7. Further, the terms “intermediary” and “intermediation” no longer exist. Therefore, the proposed amendment to Rule 2.11, Comment [9] deletes the reference to Rule 2.2 and clarifies the reference to Rule 1.7 and “common representation.”  The amendment also removes all references to the lawyer’s role as intermediary.

Upon the recommendation of VSB ethics counsel and with the approval of the Standing Committee on Lawyer Advertising and Solicitation and the Legal Ethics Committee, the VSB Council approved at its 2009 annual meeting a proposal to discontinue, or “sunset,” SCOLAS permanently. This proposal includes amendments to the VSB Bylaws and requires approval by the Supreme Court of Virginia to amend Part Six, Section IV, Paragraph 10 of the Rules of the Supreme Court of Virginia and amend Part Six, Section II, Rule 7.2(b) of the Rules of Professional Conduct. These amendments are pending consideration by the Court.

On November 20, 2008, the Ethics Committee approved a proposed amendment to Rule 1.17(a) to prohibit the selling lawyer from engaging in the private practice of law in the geographic area only with respect to the particular practice area that has been sold. Additionally, the proposed rule amendment will require a lawyer selling a practice to sell the entire practice or area of practice, to prevent the buyer from retaining the most attractive or lucrative cases at the expense of clients whose cases are not as lucrative, thereby protecting clients who may find it difficult to secure substitute counsel. At its annual meeting, the VSB Council approved the proposed amendment, which is now pending consideration by the Supreme Court.

On March 3, 2009, the committee approved a proposed new Rule 1.18 that will give guidance to Virginia lawyers as to their duties to prospective clients. Rule 1.18 defines a prospective client and clarifies the distinction between the duty of confidentiality owed to someone who unilaterally gives information to a lawyer as opposed to one who communicates with a lawyer with a reasonable expectation of forming an attorney-client relationship. The council will consider the proposed new rule at is meeting in October 2009.

Ethics telephone calls

In addition to the written requests for ethics opinions outlined above, the average number of ethics telephone calls to VSB staff attorneys from July to June was 411 per month, or an average of 10 calls per month more than FY 2008.

Updated: Aug 27, 2009