Home > Professional Regulation > VSB’s Standing Committee on Legal Ethics Seeking Public Comment on Legal Ethics Opinion LEO 1849
Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1849, The Ethical Issues of Lawyers Swearing Under Oath in Court to Debts Owed by the Client.
This proposed opinion addresses a hypothetical situation of a lawyer appearing on a general return docket for civil cases in general district court without his client/plaintiff present in court on a warrant in debt or unlawful detainer action. The defendant fails to appear and the lawyer’s knowledge of the case is based solely on the pre-filing investigation of the case. The question presented is whether the lawyer can raise his hand to be sworn in and subsequently testify under oath as to the amount of the debt and the debt still owed and obtain a judgment in favor of his client. In the alternative, can the lawyer ask for judgment based on an affidavit pursuant to Code of Va. §8.01-28 that is signed by lawyer attesting to the debt owed by the defendant? In the hypothetical, the judge cannot determine whether the debt is uncontested based solely on the fact that the defendant has failed to appear.
The Committee determines that the underlying analysis of the questions in the proposed opinion revolves around the legal analysis of admissible evidence, testimonial evidence, and hearsay, which are legal issues beyond the purview of the Committee. Given that the ethical issues are inextricably linked to a legal issue, the Committee relies on an Attorney General’s opinion that a plaintiff’s lawyer in a debt collection case is an “agent,” as that term is used in §8.01-28, and may sign an affidavit stating the plaintiff’s claim. However, if the judge cannot determine these matters to be uncontested simply because the defendant does not appear, then Rule 3.7(a)(1) would not allow the lawyer to become a witness either by affidavit or testimony because he or she would be testifying as to an essential element of the case, that a debt exists and the amount of the debt. While the lawyer can act as agent and advocate the client’s case, the lawyer cannot become a witness to a material fact, unless the court finds the matter to be uncontested simply by defendant’s failure to appear.
Inspection and Comment
The proposed advisory opinion may be inspected at the offices 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 advisory opinion 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 webpage at http://www.vsb.org/docs/LEO_1849.pdf.
Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed advisory opinion by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than March 1, 2010.
Updated: January 5, 2010