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Virginia Suprme Court to Review a Proposed Amendment to Part Six, § IV, ¶ 10

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view Para 10 SC Petitions filed 10-28-09 (PDF file)

The Virginia Supreme Court is expected to consider for approval, disapproval, or modification, a proposed amendment to Part Six, § IV, Paragraph 10 of Rules of Supreme Court of Virginia approved by the Council of the Virginia State Bar on October 16, 2009.

Part Six, § IV, Paragraph 10

The Virginia State Bar is proposing the following amendments to Part Six, § IV, Paragraph 10, a rule of the Supreme Court of Virginia that governs the promulgation of Legal Ethics and Unauthorized Practice of Law Opinions and Rules of Court:

  1. The proposed amendments to the rule update terminology and eliminate the redundancy in the rule’s procedures that provide for notice and public comment. Paragraph 10 continues to provide sufficient notice and comment periods in the Virginia Lawyer Register and on the Virginia State Bar’s website as related to draft advisory opinions and proposed rule amendments. Additionally, the rule has been reformatted into new sub-paragraphs to conform to the recent reformatting of Paragraph 13 of the Rules of the Virginia Supreme Court.

  2. Currently Paragraph 10(e)(ii) requires that the Attorney General of Virginia submit a comment analyzing all advisory opinions and rule amendments for any restraint on competition. The impetus for this requirement was Judge Robert R. Merhige, Jr.'s decision in the Surety Title1 case, which held that the Virginia State Bar's procedure for promulgating Unauthorized Practice of Law (UPL) opinions that restrained non-lawyers from engaging in competitive activity failed to meet sufficient due process requirements such that the Virginia State Bar could not successfully invoke the “state action immunity” defense under the Sherman Act. The proposed amendments will require that the Bar seek comment from the Attorney General’s office analyzing any restraint on competition only for proposed Unauthorized Practice of Law opinions that declare activity conducted by a non-lawyer to be UPL. The proposed amendments eliminate this requirement for all other UPL and Ethics Opinions and for all rule amendments.

  3. The proposed amendments to new Paragraph 10-5 broaden the definition of “member” to include foreign lawyers as defined under new Rule 5.5 of the Virginia Rules of Professional Conduct, effective March 1, 2009, which regulates the multijurisdictional practice of law in Virginia.

  4. The proposed amendments to new Paragraph 10-5 (C) add additional language regarding the confidentiality of informal advice rendered by Ethics Counsel to members of the bar. The paragraph is expanded to prohibit the subpoenaing of Ethics Counsel’s records or documents for use in proceedings other than a disciplinary proceeding in which Ethics Counsel’s advice has been placed in issue. In addition, language was added to provide that a respondent claiming to have relied on Ethics Counsel’s advice in connection with the conduct questioned or alleged may not withhold their consent to disclose that advice to Bar Counsel in that disciplinary proceeding.

 

Inspection and Comment

The proposed amendment 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 amendment 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 amendment by filing nine copies with the Clerk of the Court and three copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than December 14, 2009.

 


1 Surety Title Ins. Agency, Inc. v. Virginia State Bar, 431 F. Supp. 298 (E.D. Va. 1977), judgment vacated, 571 F.2d 205 (4th Cir.), cert. denied, 436 U.S. 941 (1978).


Updated: October 28, 2009