Virginia Lawyer Register — May 2013
In this issue:
- The Supreme Court of Virginia to Review Proposed Amendments to Rules 1A:1 and 1A:3
- Rules of Professional Conduct Amendments to Rule 7.1-7.5
- Legal Ethics Opinion 1872 Virtual Law Office and Use of Executive Office Suites
View May 2013 Virginia Lawyer Register (PDF of mailed version with hyperlinks to additional materials)
|Respondent’s Name||Address of Record||Action||Effective Date|
|Clive Allen O’Leary||Fredericksburg, VA||Suspension—2 years||November 16, 2012|
|Kathleene Anne Cipriano||Virginia Beach, VA||Revocation||January 25, 2013|
|Randall Bertron Campbell||Roanoke, VA||Revocation||February 5, 2013|
|Barry Maurice Johnson||Washington, DC||Revocation||February 15, 2013|
|Charles Frederick Daum||Washington, DC||Revocation||February 15, 2013|
|John Patrick Bond||Fairfax, VA||Public Reprimand||February 4, 2013|
|Robert P. Dwoskin||Stanardsville, VA||Public Reprimand w/Terms||February 25, 2013|
|Stephen Meredith Farmer||Occoquan, VA||Public Reprimand||February 11, 2013|
|Jad Najate Sarsour||Fairfax, VA||Public Reprimand w/Terms||March 5, 2013|
|Michael Alan Ward||Fairfax, VA||Public Reprimand w/Terms||January 28, 2013|
|Suspension – Failure to Pay Disciplinary Costs||Effective Date||Lifted|
|Kathleene Anne Cipriano||Virginia Beach, VA||February 26, 2013|
|Bambi F. Walters||Williamsburg, VA||February 5, 2013|
|Suspension – Failure to Comply with Subpoena||Effective Date||Lifted|
|Randall Bertron Campbell||Roanoke, VA||February 7, 2012||February 11, 2013|
The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules.
Copies of disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s Office at (804) 775-0539 or firstname.lastname@example.org. VSB docket numbers are provided.
Clive Allen O’Leary
On November 16, 2012, the Virginia State Bar Disciplinary Board suspended Clive Allen O’Leary’s license to practice law for two years based on his noncompliance with terms from a March 2012 memorandum order from the Circuit Court of Stafford County.
Part 6, § IV, ¶ 13-18O
Kathleene Anne Cipriano
Virginia Beach, Virginia
On January 25, 2013, the Virginia State Bar Disciplinary Board revoked Kathleene Anne Cipriano’s license to practice law for violating professional rules that govern diligence, communication, safekeeping property, bar admission and disciplinary matters, and misconduct. RPC 1.3(a), 1.4(a), 1.15(b)(3-5), 8.1(c), 8.4(a-c)
Randall Bertron Campbell
12-080-089284, 12-080-089752, 12-080-089785, 12-080-090367, 12-080-091191, 12-080-091644 and 12-080-092250
On February 5, 2013, the Virginia State Bar Disciplinary Board revoked Randall Bertron Campbell’s license to practice law for violating professional rules that govern diligence, communication, fees, safekeeping property, declining or terminating representation, bar admission and disciplinary matters, and misconduct. In consenting to the revocation, Mr. Campbell admitted that the charges against him are true and he could not successfully defend against them. RPC 1.3(a), 1.4(a), 1.5(a)(1-8), 1.15(a)(1,2), 1.16(d)(e), 8.1(c), 8.4(b); Part 6, § IV, ¶ 13-28
Barry Maurice Johnson
On February 15, 2013, the Virginia State Bar Disciplinary Board revoked Barry Maurice Johnson’s license to practice law based on his disbarment by consent by the Court of Appeals of Maryland. Rules Part 6, §IV, ¶ 13-24
Charles Frederick Daum
VSB Docket No. 13-000-093224
On February 15, 2013, the Virginia State Bar revoked Charles Frederick Daum’s license to practice law based on his conviction for a crime in the United State District Court for the District of Columbia. The board had summarily suspended Mr. Daum’s license on January 28, 2013. Rules Part 6, §IV, ¶13-22 A
John Patrick Bond
On February 4, 2013, the Virginia State Bar Fifth District Subcommittee issued a public reprimand to John Patrick Bond for violating rules of professional conduct that govern competence, diligence, communication, and fairness to opposing party and counsel. This was an agreed disposition of misconduct charges. RPC 1.1, 1.3(a-c), 1.4(a), 3.4(e)(g)(j)
Robert P. Dwoskin
VSB Docket No. 11-070-086055
On February 25, 2013, the Virginia State Bar Seventh District Subcommittee issued a public reprimand with terms to Robert P. Dwoskin for violating professional rules that govern diligence, communication, fees, and fairness to opposing party and counsel. This was an agreed disposition of misconduct charges. RPC 1.1, 1.3(a), 1.4(a), 1.5(b), 3.4(d)
Stephen Meredith Farmer
On February 11, 2013, the Virginia State Bar Fifth District -- Section II Subcommittee issued a public reprimand to Stephen Meredith Farmer for violating professional rules that govern conflict of interest: prohibited transactions. RPC 1.8(a)(1-3), (c), (j)(1,2)
Jad Najate Sarsour
12-051-088751, 11-051-086983, 12-051-089396
On March 5, 2013, the Virginia State Bar Fifth District – Section I Subcommittee issued a public reprimand with terms to Jad Najate Sarsour for violating professional rules that govern diligence and safekeeping property. This was an agreed disposition of misconduct charges. RPC 1.3(a), 1.15(a),(b)(3),(c)(1)(2)(i)(ii)(3)(4),(d)(1)(2)(3)(i-iv)(4)
Michael Alan Ward
12-051-089815, 12-051-089988, 12-051-090541, 12-051-090137
On January 28, 2013, the Virginia State Bar Fifth District – Section I Subcommittee issued a public reprimand with terms to Michael Alan Ward for violating rules of professional conduct that govern communication, declining or terminating representation, and bar admission and disciplinary matters. RPC 1.4(a), 1.16(d)(e), 8.1(c)
The Supreme Court of Virginia is considering proposed amendments to Rules 1A:1 and 1A:3 related to the admission of foreign attorneys to practice in the Commonwealth of Virginia without examination and the procedure for revocation of certificates issued to foreign attorneys. A previous version of these rules was issued for public comment in 2012.
Rule 1A:1. Admission to Practice in This Commonwealth Without Examination
(a) Reciprocity - Any person who has been admitted to practice law before the court of last resort of any state or territory of the United States or of the District of Columbia may file an application to be admitted to practice law in this Commonwealth without examination, if counsel licensed to practice in this Commonwealth may be admitted in that jurisdiction without examination.
(b) Application - An applicant for admission to practice law without examination in this Commonwealth shall:
(1) File with the secretary of the Virginia Board of Bar Examiners (the Board) an application under oath on a form furnished by the Board;
(2) Furnish a certificate, signed by the presiding judge of the court of last resort or other proper official for every jurisdiction in which the applicant is or has been licensed to practice law, stating:
i. that the applicant is in good standing, and if not the reasons why;
ii. the length of time the applicant has been or was licensed in that jurisdiction; and
iii. any restriction or condition placed on the applicant’s license to practice law in that jurisdiction.
(3) Certify in writing under oath that the applicant has completed 12 hours of instruction approved by the Virginia Continuing Legal Education Board on Virginia substantive and/or procedural law within the preceding six-month period;
(4) Complete the Applicant’s Character and Fitness Questionnaire and furnish a report of the National Conference of Bar Examiners, or such other report as the Board may require, concerning the applicant’s past practice and record, and pay the fee for such report; and
(5) Pay the filing fee as fixed from time to time by the Board.
(c) Board Review—Upon receipt of a completed application the Board will determine in accordance with the regulations issued by the Supreme Court whether the applicant has established by satisfactory evidence that he or she:
(1) Is a proper person to practice law; and
(2) Has practiced law for at least three of the immediately preceding five years and has made such progress in the practice of law that it would be unreasonable to require the applicant to take an examination.
The Board may require the applicant to appear personally before the Board, the character and Fitness Committee (the Committee) of the Board or a member of either the Board or the Committee and furnish any such additional information as may be required. If the applicant/s license to practice law in any other jurisdiction is subject to any restriction or condition, the Board shall determine whether the nature of such restriction or condition is inconsistent with the general practice of law and if so, shall deny the application. If the Board determines that the applicant is qualified to be admitted to the practice of law in this Commonwealth without examination, the Board shall approve the application and shall notify the applicant of its decision.
(d) Admission—Upon notification by the Board that the applicant’s application has been approved, the applicant may be issued a certificate, pursuant to Code § 54.1-3931, to practice law in this Commonwealth if:
(1) A member of the Virginia State Bar who is qualified to practice before the Supreme Court moves the applicant’s admission to practice law in this Commonwealth in open court;
(2) The motion is granted; and
(3) The applicant takes and subscribes to the oath required of attorneys at law.
The applicant, upon payment of applicable dues I shall become an active member of the Virginia State Bar.
Rule 1A:3. Revocation of Certificates Issued to Attorneys Admitted Pursuant to Rule 1A:2.
Following receipt of evidence that a person who was admitted to practice pursuant to Rule lA:2 prior to July 1, 2000, has been disbarred pursuant to Part Six of the Rules, the Supreme Court will revoke the certificate issued to that person.
Comments on the proposed amendments to the Rules should be sent by May 31, 2013 to:
Patricia L. Harrington, Clerk
Supreme Court of Virginia
100 North Ninth Street
Richmond, VA 23219
or via email with the subject line “comment on Rules” to email@example.com.
Rules of Professional Conduct
Effective July 1, 2013, the Supreme Court of Virginia has approved amendments to Rules 7.1–7.5 of the Rules of Professional Conduct. The amendments move specific examples of lawyer advertising statements or claims from the body of rules to the comment sections. They also remove unnecessary and redundant language.
Here is how the approved amendments change the current rules.
• The terms “fraudulent” and “deceptive” are removed from Rule 7.1. A communication that is “false or misleading” violates the rule.
• The disclaimer required for advertising specific or cumulative case results has been removed from Rule 7.2—which has been eliminated in its entirety—and is now Rule 7.1(b). The disclaimer shall:
° (i) put the case results in a context that is not misleading; (ii) state that case results depend upon a variety of factors unique to each case; and (iii) further state that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.
° The disclaimer shall precede the communication of the case results.
° When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.
• Other than specific or cumulative case results, examples of statements or claims considered to be “false or misleading” have been taken out of Rule 7.1 and placed in the comments. Former subparagraphs (1)–(4) were deleted.
• Comment  to Rule 7.1 was substantially rewritten to describe the types of communications subject to regulation under Rule 7.1 and to exclude other forms of non-commercial speech.
• Rule 7.2 was eliminated in its entirety, although the specific and cumulative case results disclaimer requirement is now Rule 7.1(b) and provisions in Rule 7.2 regulating written solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.
• Rule 7.3 addresses in-person and written solicitation of potential clients. The amendments to Rule 7.3 remove the current per se prohibition of in-person solicitation in personal injury and wrongful death cases. Effective July 1, 2013, in-person and written solicitation will be improper only if:
° the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or
° the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.
• Rule 7.3 also regulates payment or rewards to persons for recommending employment, prohibiting a lawyer from giving anything of value to a referral source except that the lawyer may:
° pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1;
° pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service (note that the lawyer referral service must be a non-profit entity);
° pay for a law practice in accordance with Rule 1.17; and
° give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.
• Rule 7.3’s regulation of written solicitations has been simplified with regard to the “ADVERTISING MATERIAL” labeling requirement.
• Rule 7.4 regulates claims of specialization and expertise and the current rule is substantially unchanged by the amendments.
• Rule 7.5 is substantially unchanged with the exception of a new Comment  that states that lawyers should practice using the official name under which they are licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia. The lawyer’s use of a name other than the lawyer’s name on record with the Virginia State Bar may be a misleading communication about the lawyer’s services to the public in violation of Rule 7.1.
Legal Ethics Opinion
Legal Ethics Opinion 1872
Virtual Law Office and Use of Executive Office Suites.
This opinion is an examination of the ethical issues involved in a lawyer or firm’s use of a virtual law office, including cloud computing, and/or executive office suites. These issues include marketing, supervision of lawyers and nonlawyers in the firm, and competence and confidentiality when using technology to interact with or serve clients.
A virtual law practice involves a lawyer/firm interacting with clients partly or exclusively via secure Internet portals, emails, or other electronic messaging.1 This practice may be combined with an executive office rental, where a lawyer rents access to a shared office suite or conference room. This space is generally either unstaffed or staffed by an employee of the rental company who provides basic support services to all users of the space, rather than by an employee of the lawyer. The space is also not exclusive to the lawyer—even if she has exclusive access to a particular office or conference room, the suite is open to all other “tenants.” Lawyers who maintain a virtual practice, who work from home, or who wish to expand their geographic profile without the higher costs of exclusive office space and staff all use these spaces as client meeting locations. In other words, virtual law offices and executive office suites do not always go together, but they frequently do.
Applicable Rules and Opinions
The applicable Rules of Professional Conduct are Rules 1.12, 1.6(a)3, 5.1(a) and (b)4, 5.3(a) and (b)5, and 7.16. The relevant legal ethics opinions are LEOs 1600, 1791, 1818, and 1850. Finally, Regulation 7 Governing Applications for Admission to the Virginia Bar Pursuant to Rule 1A:1 of the Supreme Court of Virginia applies to lawyers who are admitted or seeking admission by motion to the Bar of Virginia7.
Virtual law offices involve issues that are present in all types of law offices – confidentiality, communication with clients, and supervision of employees – but that manifest themselves in a new way in this context. See also LEO 1850 (exploring similar concerns in context of outsourcing legal support services).
A lawyer must always act competently to protect the confidentiality of clients’ information, regardless of how that information is stored/transmitted, but this task may be more difficult when the information is being transmitted and/or stored electronically through third-party software and storage providers. The lawyer is not required, of course, to absolutely guarantee that a breach of confidentiality cannot occur when using an outside service provider. Rule 1.6 only requires the lawyer to act with reasonable care to protect information relating to the representation of a client. When a lawyer is using cloud computing or any other technology that involves the use of a third party for the storage or transmission of data, the lawyer must follow Rule 1.6(b)(6) and exercise care in the selection of the vendor, have a reasonable expectation that the vendor will keep the data confidential and inaccessible by others, and instruct the vendor to preserve the confidentiality of the information. The lawyer will have to examine the third party provider’s use of technology and terms of service in order to know whether it adequately safeguards client information, and if the lawyer is not able to make this assessment on her own, she will have to consult with someone qualified to make that determination.8
Similarly, although the method of communication does not affect the lawyer’s duty to communicate with the client, if the communication will be conducted primarily or entirely electronically, the lawyer may need to take extra precautions to ensure that communication is adequate and that it is received and understood by the client. The Committee previously concluded in LEO 1791 that a lawyer could permissibly represent clients with whom he had no in-person contact, because Rule 1.4 “in no way dictates whether the lawyer should provide that information in a meeting, in writing, in a phone call, or in any particular form of communication. In determining whether a particular attorney has met this obligation with respect to a particular client, what is critical is what information was transmitted, not how.” On the other hand, one of the aspects of communication required by Rule 1.4 is that a lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Use of the word “explain” necessarily implies that the lawyer must take some steps beyond merely providing information to make sure that the client actually is in a position to make informed decisions. A lawyer may not simply upload information to an Internet portal and assume that her duty of communication is fulfilled without some confirmation from the client that he has received and understands the information provided.
Finally, the technology that enables a lawyer to practice “virtually” without any face-to-face contact with clients can also allow lawyers and their staff to work in separate locations rather than together in centralized offices. As with other issues discussed in this opinion, a partner or other managing lawyer in a firm always has the same responsibility to take reasonable steps to supervise subordinate lawyers and nonlawyer assistants, but the meaning of “reasonable” steps may vary depending upon the structure of the law firm and its practice. Additional measures may be necessary to supervise staff who are not physically present where the lawyer works.
The use of an executive office/suite rental or any other kind of shared, non-exclusive space, either in conjunction with a virtual law practice or as an addition to a “traditional” office-based practice, raises a separate issue. A non-exclusive office space or virtual law office that is advertised as a location of the firm must be an office where the lawyer provides legal services. Depending on the facts and circumstances, it may be improper under Rule 7.1 for a lawyer to list or hold out a rented office space as her “law office” on letterhead or other public communications. Factors to be considered in making this determination include the frequency with which the lawyer uses the space, whether nonlawyers also use the space, and whether signage indicates that the space is used as a law office. In addition, a lawyer may not list alternative or rented office spaces in public communications for the purpose of misleading prospective clients into believing that the lawyer has a more geographically diverse practice and/or more firm resources than is actually the case. As discussed above in the context of Internet-based service providers, a lawyer must also pay careful attention to protecting confidentiality if any client information is stored or received in a shared space staffed by nonlawyers who are not employees of the law firm and may not be aware of the nature or extent of the duty of confidentiality.
For lawyers who are licensed to practice in Virginia by motion rather than by bar exam, Regulation 7 of the Regulations Governing Applications for Admission to the Virginia Bar Pursuant to Rule 1A:1 of the Supreme Court of Virginia creates an additional difficulty in using an executive office rental or virtual office. This Regulation requires that a lawyer who is seeking admission, or who is already admitted, by motion maintain an office in Virginia where clients can be seen on the premises, and specifically provides that virtual office or shared occupancy arrangements are not acceptable for purposes of satisfying the office requirement.9 Accordingly, a lawyer who is admitted by motion should first ensure that any office space arrangement complies with Regulation 7 before there is any need to consider the ethics issues raised.
This opinion is advisory only and is not binding on any court or tribunal.
March 29, 2013
1 Stephanie Kimbro, a practitioner and scholar of virtual law offices, defines a virtual law practice as one where “[t]he use of an online client portal allows for the initiation of the attorney/client relationship through to completion and payment for legal services. Attorneys operate an online backend law office as a completely web-based practice or in conjunction with a traditional law office.” http://virtuallawpractice.org/about/, accessed Jan. 22, 2013
2 Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
3 Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
(b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:
(6) information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential.
4 Rule 5.1 Responsibilities of Partners and Supervisory Lawyers
(a) A partner in a law firm, or a lawyer who individually or together with other lawyers possesses managerial authority, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
5 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner or a lawyer who individually or together with other lawyers possesses managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and...
6 Rule 7.1 Communications Concerning a Lawyer’s Services
(a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim.
7 Intent to Practice Full Time in Virginia. An applicant must intend, promptly after being admitted to practice in Virginia without examination, to establish his or her office in Virginia and to practice full time from such Virginia office. Full time is defined as being engaged in the active practice of law (as defined above) as one’s primary occupation for at least thirty-five (35) hours weekly and having an office where clients can be seen on the premises. The Board shall not approve an application unless the applicant has verifiable plans to practice in Virginia (i.e., a job offer from a Virginia firm, a relocation to the Virginia office of the applicant’s firm, an executed lease for office space in Virginia, etc.). Practice from one’s residence shall not constitute satisfactory evidence of intent to practice law full time unless the applicant’s residence is in a zoning classification which permits seeing clients on the premises and displaying an exterior sign identifying the law office. Virtual offices or shared occupancy arrangements shall not be acceptable. In addition, an applicant shall not divide his or her time between an office within Virginia and one in another jurisdiction. An applicant who is a member of or associated with a firm which has offices outside Virginia must be resident at such firm’s Virginia office, shall not maintain an office at a location outside Virginia, and may work at one of his or her firm’s other offices only on an occasional and not on a regular basis. The Court will monitor to determine whether an applicant maintains his or her Virginia office.
8 See LEO 1818, where the Committee concluded that a lawyer could permissibly store files electronically and destroy all paper documents as long as the client was not prejudiced by this practice, but noted that the lawyer may need to consult outside technical assistance and support for assistance in using such a system.
9 But see Proposed Amendments to Rules 1A:1 and 1A:3, proposed October 22, 2012, available at http://courts.state.va.us/news/draft_revisions_rules/2012_rules_1_3_draft.pdf (proposing change to requirements for admission by waiver from “full-time” practice requirement to “predominant” practice requirement).
Volunteers are needed to serve the Virginia State Bar’s boards and committees. The Nominating Committee will refer nominees to the VSB Council for consideration at its October meeting.
Vacancies in 2014 are listed below. All appointments or elections will be for the terms specified, beginning on July 1, 2014.
Council Members at Large: 3 lawyer vacancies (of which 1 incumbent is eligible for reappointment to a second term and 2 incumbents are not eligible for reappointment). May serve 2 consecutive 3-year terms.
Disciplinary Board: 5 lawyer vacancies and 2 lay member vacancies (of which 3 lawyer members are eligible for reappointment to a second 3-year term, 2 lawyer members are not eligible for reappointment, and 2 lay members are not eligible for reappointment). District committee service is required. May serve 2 consecutive 3-year terms.
Mandatory Continuing Legal Education Board: 5 lawyer vacancies (of which 3 current members are eligible for reappointment to a second term and 2 members are not eligible for reappointment). May serve 2 consecutive 3-year terms.
Nominations, along with a brief résumé, should be sent by September 6, 2013, to
W. David Harless
Chair, VSB Nominating Committee,
Virginia State Bar
707 E. Main St., Suite 1500
Richmond, VA 23219
or e-mailed to firstname.lastname@example.org.