VSB Standing Committee on Legal Ethics Seeking Public Comment on Legal Ethics Opinion 1852

Additional Info view Legal Ethics Opinion 1852 (PDF file)

Employment Limitations for Suspended/Revoked Lawyers

RICHMOND - 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 1852, Employment Limitations for Suspended/Revoked Lawyers.

This proposed opinion addresses a hypothetical situation of a lawyer convicted of a felony for alleged actions taken on behalf of a client while employed with his former firm.  The lawyer assumes his license will be suspended or revoked in the future and seeks advice from the Committee as to the permissible extent of his involvement with both former firms and other law firms. The opinion first opines that the lawyer may not be employed in any capacity by the law firm he had previously been associated with at any time on or after the date of the acts which resulted in a suspension or revocation.  The opinion clarifies the trigger date for the employment prohibition in Rule 5.5(a): “the date of the acts which resulted in suspension or revocation” is the date of the alleged misconduct resulting in suspension or revocation of the lawyer’s license and not the date of the felony conviction nor the date that the Disciplinary Board suspends or revokes the lawyer’s license.  However, the actual trigger date is both a factual and legal determination beyond the Committee’s purview.  The Committee then addresses the employment constraints outlined in Rule 5.5(b) and opines that the lawyer may be employed in a new firm in the capacities specifically listed in Rule 5.5(b) as well as in any position or title, regardless of name, if the work is typically performed by a “consultant, law clerk or legal assistant”; however, the employing firm then may not represent any former client of lawyer or his former law firm.  Conversely, it would be permissible under Rule 5.5(b) for the new firm to employ the lawyer in any other capacity except as a “consultant, law clerk or legal assistant” and continue to represent former clients of the lawyer or his former law firm. Further, the Committee finds nothing in the rules that prohibit the suspended or disbarred lawyer from owning or being employed by a business providing non-legal services as long as that business did not provide services to one of the lawyer’s former law firms.

Inspection and Comment
The proposed advisory opinion 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 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 website 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 advisory opinion by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than November 30, 2009.

Updated: Oct 21, 2009