Standing Committee on Legal Ethics

Marni E. Byrum, chair

Ethics Opinions
The Standing Committee on Legal Ethics received four new opinion requests in fiscal 2010. Since July 1, 2009, the committee issued two opinions; put two opinion requests on hold; and is carrying over eight requests from prior fiscal years.

Opinions issued by the committee address topics including:

• Employment Limitations for Suspended/Revoked Lawyers
• Sexual Relationship with a Client

Opinions issued for public comment and put on hold for further consideration address topics including:

    • The Ethical Issues of Lawyers Testifying under Oath in Court to Debts Owed by the Client
    • Participation in a Third Party Internet Website

Rule Revisions
On November 2, 2009, the Supreme Court of Virginia approved effective January 4, 2010, the committee’s proposed amendments to Rules 1.9, 1.11 and 1.17.  Rule 1.11 deals with special conflicts of interest for former and current government officers and employees. The amendments to this rule moved former Comment [10] to subsection (e), which clarifies that when one lawyer in an agency is disqualified under paragraph (d) of the rule, it does not disqualify other lawyers in the disqualified lawyer’s agency.   Rule 1.9, Comment [5] now includes additional commentary that provides direction regarding law firm disqualifications when a lawyer moves from private practice to public employment.  Rule 1.17 now allows a lawyer who has sold part of his/her practice to continue to engage in the practice of law in the same geographic region, so long as he/she does not practice law with respect to the particular area of the practice that was sold.  

On January 22, 2010, the Supreme Court of Virginia rejected the committee’s proposed amendment to Rule 7.4(d), which would have allowed lawyers to communicate certification as a specialist in a field of law by a named organization without the currently required disclaimer indicating there is no procedure in the Commonwealth of Virginia for approving certifying organizations.  

On March 19, 2010, the Supreme Court of Virginia approved, effective immediately, the proposed amendments to Part Six, § IV, Paragraph 10, a rule of the Supreme Court of Virginia that governs the promulgation of Legal Ethics and Unauthorized Practice of Law Opinions and Rules of Court.  The approved amendments to the rule include: a new format, updated terminology, streamlined procedures for notice and public comment, including a requirement that the Bar seek comment from the Attorney General’s office analyzing any restraint on competition only for proposed Unauthorized Practice of Law opinions that declare activity conducted by a non-lawyer to be UPL, and a broader definition of “member” to include Foreign lawyers as defined under new Rule 5.5, which regulates the multijurisdictional practice of law in Virginia.

Proposals currently pending with the Supreme Court of Virginia include:  

• A new Rule 1.18 that will give guidance to Virginia lawyers as to their duties to prospective clients.
• An amendment to Rule 4.2 to address the situation in which a defendant who is in custody, formally charged and represented by counsel, waives his rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present.
• Amendments to Rule 1.15, Safekeeping Property, that eliminate redundancy in the rule and clarify the rule’s record-keeping requirements for Virginia lawyers and modifications to Paragraph 20 that include elimination of the regulations for the approval of financial institutions that serve as depositories for attorney trust accounts in Virginia.

A proposal pending consideration by Council at is meeting in October 2010:

• Amendments to Rules 7.1 – 7.5 of the Rules of Professional Conduct that regulate lawyer advertising and solicitation.  

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 averaged 460 per month, which constitutes an increase in an average of 49 calls per month over FY 2009.

Updated: Jun 23, 2011