News and Information
October 29, 2018

Highlights of the October 26, 2018, Virginia State Bar Council Meeting

At its meeting on October 26, 2018, in Newport News, the Virginia State Bar Council heard the following significant reports and took the following actions.

Rule 1.10, Imputed Disqualification: General Rule
The council unanimously approved proposed amendments to Rule 1.10 which provides that a conflict is not imputed to other lawyers in a firm when the conflict arises from a personal interest of the affected lawyer and does not present a significant risk of materially limiting the representation by other lawyers in the firm. The proposed revision also adds Comment 3, an ABA Model Comment that gives examples of the types of personal interest conflicts that might or might not affect other lawyers’ ability to represent a client. Under the proposed rule, a lawyer’s personal relationship with a witness involved in a case, for example, would not create a conflict for other lawyers in that firm unless those lawyers’ relationship with the conflicted lawyer would materially limit their own representation of the client. The proposed amendments also add Comment 4, an ABA Model Comment that is unrelated to the proposed change to Rule 1.10(a). This comment explains the imputation rules for nonlawyers in a firm and provides helpful guidance that is consistent with existing LEO 1800. The proposed changes will be presented to the Supreme Court of Virginia for approval.

Rule 1.8, Conflict of Interest: Prohibited Transactions
The council unanimously approved proposed amendments to Rule 1.8 to say that: (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. The proposed amendment, allowing the advancement of costs and expenses to be contingent on the outcome of the matter, would bring Virginia’s rule in line with at least 47 other states that have adopted the ABA Model Rule on this topic. The proposal also adds Comment 10, an ABA Model Comment that explains the rationale for the prohibition on providing financial assistance as well as the permissible exceptions. The proposed changes will be presented to the Supreme Court of Virginia for approval.

Statutory Amendments Regarding the Judicial Candidate Evaluation Committee
The council unanimously approved proposed amendments to the Virginia Code creating narrow exemptions that preserve the confidentiality envisioned by the current and proposed JCEC Procedures and Policies. Such confidentiality is necessary for the JCEC to conduct full, frank, and fair investigations, interviews, and deliberative assessments of each candidate for judicial office. The JCEC’s executive summaries remain subject to disclosure. The proposal is subject to approval by the Supreme Court of Virginia before forwarding to the Virginia legislature for consideration.

Rules of the Supreme Court of Virginia Part 6, § IV concerning the VLRS
By a vote of 54-2, the council approved an amended proposal to codify and revise the existing rules of the Virginia Lawyer Referral Service (VLRS) at Part 6, §IV of the Rules of the Supreme Court of Virginia. The proposal of the Special Committee on Lawyer Referral recommended changing the VLRS fee structure to a “percentage fee” program. Council amended the proposal to waive the percentage fee on fees of $499 or less collected by panel members from clients. The proposed changes will be presented to the Supreme Court of Virginia for approval.

Updated: Nov 01, 2018