March 03, 2008
Comments Sought On Emergency Legal Services Rule
Virginia State Bar Council To Review Proposed Supreme Court Rule Regarding The Provision Of Legal Services Following Determination Of Major Disaster
On June 19, 2008, the Virginia State Bar Council (“Bar Council”) will meet in Virginia Beach to consider a proposed Supreme Court Rule regarding the Provision of Legal Services Following Determination of Major Disaster.
This proposed rule was developed as a result of the ABA’s actions to help address the problem of the provision of legal services following a disaster or emergency, such as existed following Katrina and Rita. Beyond the physical damage and devastation caused by those hurricanes, there was also a crippling effect on the legal systems in the affected states. In response, the ABA formed a task force that advocated for the suspension of unauthorized practice of law rules in the various states impacted by these hurricanes because, while lawyers from other jurisdictions would have liked to help staff disaster assistance centers or otherwise advise hurricane victims, they were deterred from doing so because of a lack of clarity about whether they would be violating any unauthorized practice of law rules.
The task force recognized the need for a model rule that would allow out-of-state lawyers to provide pro bono legal services in an affected jurisdiction and that would allow lawyers in the affected jurisdiction whose legal practices had been disrupted by a major disaster to practice law on a temporary basis in an unaffected jurisdiction. Since both the highest court of a jurisdiction affected by the major disaster and the highest courts of jurisdictions not affected by the disaster could implement the rule on an emergency basis, the ABA determined that this rule should be a Model Court Rule.
The ABA then asked that each state consider the adoption of this or an equivalent rule. In response, the Virginia State Bar formed an Emergency Legal Services Task Force (“ELS Task Force”) to study this model court rule. After deliberations the ELS Task Force agreed that a similar court rule should be adopted in Virginia with minor amendments.
The rule provides that the Virginia Supreme Court shall determine when, as a result of a disaster, an emergency affecting the justice system has occurred in Virginia that would trigger the provisions of this rule. Additionally, if that emergency extends to another jurisdiction the determination of the existence of a major disaster will be made in conjunction with the highest court of that jurisdiction. Under this rule, the Court may allow:
1. Out-of-state lawyers to provide pro bono legal services to the citizens of Virginia within certain constraints described in the model rule, and;
2. Displaced lawyers from an affected state can provide legal services in Virginia on a temporary basis if these services are reasonably related to the lawyer’s practice in the affected jurisdiction.
Specifically, the ELS Task Force reviewed the ABA rule and agreed to the following revisions. The last sentence in paragraph (b), Temporary practice in this jurisdiction following a major disaster, should read as follows:
Such legal services shall be assigned and supervised through an established bar association pro bono program, not-for-profit bar association,
or an approved legal services program assistance organization, a public defender’s office, or through such organization(s) specifically designated by this Court.
In paragraph (d), regarding the duration of authority for temporary practice, the ELS Task Force agreed the model rule language needed to be revised to clarify that a lawyer shall not accept new unrelated matters for an existing client when practicing under the authority granted in this rule. This revision is reflected in the second to last sentence of paragraph (d).
In Comment , second to last sentence, the ELS Task Force clarified that lawyers from unaffected jurisdictions may offer to provide these legal services either by traveling to the affected jurisdiction or from their own offices or both, provided the legal services are provided on a pro bono basis through “entities authorized by this Rule.”
In Comment , the ELS Task Force verified that the reference to the emeritus rule complies with Virginia’s definition of an emeritus lawyer.
In Comment , the reference to Rule 5.5 Comment  was deleted because the ABA’s Rule 5.5 Comment  has not been adopted in Virginia.
In Comment , the ELS Task Force agreed to delete the last sentence regarding the time period limitation on the authority created in paragraph (c), as it is addressed in paragraph (d) of the rule.
Inspection and Comment
The proposed rule may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed rule can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at (804) 775-0557, or can be found at the Virginia State Bar’s Web site at http://www.vsb.org.
Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed rule by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than April 14, 2008.
Updated: Mar 03, 2008